Brown v Melinda Investments Pty Ltd t/a Dalby Hourglass Jewellers [2002] QIRC 107 (2002) 170 QGIG 392

392 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 July, 2002 ########################################################################################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74(2)(b) – application for extension of time Phillip Brown AND Melinda Investments Pty Ltd t/a Dalby Hourglass Jewellers (No. B767 of 2002) COMMISSIONER THOMPSON 11 July 2002 Application for extension of time – Fifty-three (53) days outside the statutory period – Witness evidence – Key factors in considering extension of time – Application dismissed. DECISION Background In this matter, Mr Phillip Brown (applicant) sought an extension of time for the lodgement of an application for reinstatement relating to the termination of his employment by Melinda Investments Pty Ltd t/a Dalby Hourglass Jewellers (respondent). The applicant’s employment was terminated on 2 March 2002, with his application for reinstatement being lodged with the Industrial Registrar on 14 May 2002, some fifty-three (53) days outside the twenty-one (21) day statutory period provided for in accordance with s. 74(2) of the Industrial Relations Act 1999 (the Act). Applicant The applicant was represented by Mr Dominic Murphy, of Counsel, and relied upon evidence given to the Commission, supportive of his application, by Dr Timothy Smith, Ms Doris Neate, and himself. Mr Brown, in his evidence, stated that on 28 February 2002, he absented himself from work due to a stress related illness arising out of derogative comments that had been made in respect of his work activities. On 1 March 2002, he arranged to meet with Mr Glen Hay, a director of the respondent company, where further allegations were raised relating to his conduct at work. Later that day he attended an appointment with Dr Smith where he was issued with a medical certificate from 1 to 4 March 2002 (inclusive) and, at the same time, commenced a course of medication. -- 1 of 7 -- 26 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 393 On 2 March 2002, he was informed by Mr Hay of the termination of his employment, which was confirmed, by letter, on 3 March 2002. Mr Brown, upon informing his solicitors on 4 March 2002 of his dismissal, was advised that, if any application for reinstatement was to be lodged, it must be within twenty-one (21) days from the date of dismissal, that being by 22 [23] March 2002. As a result of his dismissal, his anxiety and stress levels increased, requiring a further attendance to Dr Smith, where he was issued with a further medical certificate rendering him unfit to work until 1 April 2002 due to his suffering from an adjustment disorder. On 5 March 2002, Mr Brown attended the first appointment with Ms Neate, a Mental Health Worker, employed by Dalby Community Services, which was to be the forerunner to a number of counselling sessions over the coming months. During this period of time, he had difficulty coping with what might be regarded as “normal family pressures”, and did not have the ability to deal with the issues surrounding his dismissal. He gave evidence of contacting the Industrial Relations Commission (in fact, it would have been the Office of the Industrial Registrar) on or around 19 March 2002 and being advised that if he did not have the capacity or ability to deal with his dismissal at that time and was receiving counselling, then there would be adequate reasons for the granting of an extension of time if his application was late. Mr Brown, on 9 April 2002, commenced employment as a bread delivery driver and, at the same time, ceased the taking of antidepressant tablets that had been prescribed by Dr Smith on 1 March 2002. A letter was received by Mr Brown on 22 April 2002 from solicitors acting on behalf of the respondent demanding payment of $1,721.20 for a lay-by he had with the company. Feeling compelled to seek legal advice at paragraph 20 of his affidavit of evidence, he stated: “I contacted my solicitors on 23 April 2002 to seek advice regarding the money owed for the lay-by. It was on this occasion that my solicitors advised that I should be submitting an application for reinstatement as soon as possible.”. A letter was sent by his solicitor to the respondent’s solicitors on 29 April 2002, putting them on notice that he would be pursuing an application for reinstatement. In that letter in penultimate paragraph, it stated: “Finally, as you would be aware our client is entitled to apply for an extension of time in which to lodge an unfair dismissal claim. One of the considerations that the Commission will take into account is whether the extension will in any way prejudice your clients. At this stage, given our client’s medical condition, he is not in a position to pursue his statutory right. Should our client at a later date choose to pursue a claim against your clients then this letter will be used as evidence of prior notification to your clients.”. In the cross-examination of Mr Brown, Mr James Hall, on behalf of the respondent, raised a number of issues including: • Consultations with Dr Smith. • Advice from his solicitor on 4 March 2002 Re: obligation to file application for reinstatement (page 6, line 30 of transcript): “Hall: When you saw your solicitors on the 4th you say in your affidavit that Mr Donaldson, your solicitor, stressed the urgency of filing your claim and told you that you had 21 days in which to do it? Brown: That’s correct. Hall: You understood that? Brown: I did. Hall: Was there any aspect of Mr Donaldson’s advice whatsoever in relation to that time limit, or what – what your obligations were in relation to filing an application that you didn’t understand? Brown: No. Hall: So every – all the advice you – I just want to be clear on this and I’m not trying – all the advice he gave you about those particular aspects, that is the 21 day time limit and the urgency of filing that application, you understood? Brown: I did.”. • Financial position at time of dismissal. • Seeking and commencement of new employment. • Contemplating opening own business – discussion with prospective suppliers (page 11, line 5 of transcript): “Hall: Would it be a significant undertaking two weeks after your dismissal to get to a point of operating – of thinking or planning the operation of a business to ring supplies? Like, that – that’s down the track sort of thing is it usually? Would you agree? Brown: Oh, we were just making inquiries. Being unemployed you haven’t got an income so you start looking at opportunities to hopefully remedy the situation. Hall: And would it be fair to say that that – at that time, two weeks after your dismissal, is on or about the 16th of March? Brown: Yeah, possibly.”. -- 2 of 7 -- 394 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 July, 2002 • Contact with Industrial Registry on or around 19 March 2002. • Ceasing the taking of medication on 9 April 2002. • Letter of demand from respondent’s solicitors (page 13, line 22, of transcript): “Hall: Do you remember that letter? Brown: Yes, I do. Hall: They demanded that you pay them $1,721.20? Brown: That’s right. Hall: It must have come as quite a shock? Brown: Yes, it did, actually. Hall: Did it make you angry? Brown: A little bit and I – yeah, it did. Hall: Angry enough to overnight determine that you should go and see a solicitor the next day? Brown: I wanted to see what my rights were about paying the bill, yes. Hall: Because you already knew what your rights were in relation to applying for – an application into this jurisdiction with respect to your dismissal? Brown: That’s right. Hall: Yes. Was the advice you received on that day from your solicitors in you Dalby any different to that you received on the 4th of March? Brown: No. He – no. Hall: Was it – was the issue of the time limitation discussed at that meeting in relation to the unfair dismissal? Brown: I believe it was, yes. Hall: It was. And no doubt your solicitor reiterated to you that, you know, that these things were urgent? Brown: Yes, he did.”. The evidence (given via telephone) of Dr Smith, a licensed General Practitioner in Queensland and holder of Degrees in Medicine and Surgery, related to the treatment of the applicant who had been a patient of his since April 1996. Provided to the Commission, as attachments to his affidavit, were signed medical reports dated 17 May and 4 June 2002. Quoting from the 17 May 2002 report, at points 1, 2, and 3: “1. I saw Mr Brown on 1/03/02. He present with insomnia, anxiety, stress, depressed mood following conflict at work. He was diagnosed as suffering from an adjustment disorder with depressed mood; which was of such a nature that it interfered in his daily functioning (at work, and personally). 2. He was commenced on antidepressants (Efexor) and counselling given (by myself). 3. He was seen again on 4/03/02, at which time his symptoms have rapidly worsened. He was severely depressed, and found it difficult to cope. A sickness certificate was issued. My last consultation with him was on 4/06/02, and I have not seen him since.”. In the latter report of 4 June 2002, further statements were provided: “This is to certify that I have known Phillip Brown as a patient for 5 years. I have seen Mr Brown with depressive illness and adjustment disorder on: 01/03/02 04/03/02 04/06/02 He continues to have symptoms of anxiety, depression agitation, and social withdrawal. His change in behaviour is affecting his interaction with his family. He had attended a counsellor who had confirmed this. 1) At the time in question he certainly was not capable (emotionally and psychologically) to deal with legal matters, or any other issues. 2) He still suffers from depression, and difficulties coping in daily life. Diagnosis # Adjustment disorder # Reactive depression -- 3 of 7 -- 26 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 395 3) His current psychological issues are addressed by his Mental Health counsellor.”. Under cross-examination from Mr Hall, Dr Smith was confronted with a range of issues including: • Medical certificates issued to the applicant. • Medical reports (attached to the affidavit – page 21, line 18 of transcript): “Hall: In relation to what information was before you when you prepared these two letters - ? Smith: Okay. From what I recall, first of all from my notes and from the letter from the mental health team - - Hall: Just – so it was the letter – you didn’t see any clinical notes from the mental health team? Smith: Sorry? Hall: You didn’t see – you didn’t have an opportunity to review the clinical notes made by the mental health team? Smith: No, no, no. I viewed the notes from the mental health team I think before I wrote the second statement that I’ve made on the 4th of June. But at the time that I made the second on the 17th of May I hadn’t reviewed that – those notes yet.”. • Condition of applicant between 4 March and 4 June 2002 (page 24, line 26 of transcript): “Smith: I mean what I can say is that on the consultation date the statement that I’ve made on the 4th of June really applies to my impression that I formed on those consultation dates and – I mean in all fairness to Mr Brown and everybody else involved, I probably technically can’t sort of speculate about his mental state in between those consultation dates. Although it’s more than likely that this is sort of an ongoing thing, obviously since March. But I mean, obviously, if you were – if you wanted sort of a technical answer I mean I can’t speculate what has happened in April and in May with his mental state because I haven’t seen him on those days.”. • Applicant’s contact with Industrial Registry. • Applicant seeking to commence own business. • Applicant’s capacity to make decisions (beginning at page 32, line 12 of transcript): “Hall: With respect to this issue of capacity where you say he’s not capable emotionally or psychologically to deal with legal matters, do – are you saying that he was deprived? Deprived of capacity? Smith: No, I just think that he – when you are depressed you lose motivation. You lose focus and that is one of the cornerstones of the diagnosis of the patient and you make – you may make judgment or decisions which are actually detrimental to your own well- being, financial well-being and your – your home well-being. You lose perspective of what it is that you want. People who are depressed very often shouldn’t be making sort of very important decisions and – and certainly that perspective, you could certainly say that, yes, he was to a certain state deprived. Hall: So your – your evidence is that he’s deprived of capacity to make those decisions? Smith: Yes. . . Hall: But I’m talking about going – going to the solicitor, the person on his side? Smith: Yes. No, I don’t think he would have deprived – been deprived to go to a solicitor. . . Hall: To be deprived of capacity I would have thought would be a – and I’m putting this to you. Is it – would it be a situation where someone could make telephone calls about suppliers, make telephone calls to the Industrial Relations Commission. Go and – eventually go and see his solicitor about this issue to get it sorted out. You see, what I’m putting to you, doctor, is that he’s at best impaired, not deprived? Smith: Yes. Well, I would certainly use the – impaired rather than deprived. I mean he had impaired functioning in his normal life which affected his ability to make decisions and I mean the – you know, I don’t know.”. The final witness for the applicant, Ms Neate, like Dr Smith, gave her evidence by telephone. The evidence commenced with details of her employment history having become a registered nurse in 1969, working as a case manager at Community Mental Health, and having some eight (8) years working experience in the area of mental health. In terms of her consultations with Mr Brown, her evidence was that the applicant attended sessions on: 5 March, 12 March, 19 March, 26 March, 2 April, 9 April, 24 April and 30 April. In an attachment to her affidavit dated 3 June 2002, Ms Neate made the following observations in respect of Mr Brown’s abilities to cope under stress following his dismissal: “As per our phone conversation and secondary to the report already submitted by me regarding this gentleman. In my opinion he was not mentally capable of coping with the stress caused by his dismissal from his job. When I first saw him he was acutely depressed and wept for most of the first interview. He could not concentrate well enough to answer questions or even understand what was being said to him. I was at that time quite concerned about his mental state. Graham’s mood is now very much improved but I feel he will need further counselling in the weeks to come to cope with the impending legal issues he is facing. As a normal law abiding family man he is unused to dealing with legal issues and this in itself has caused him severe anxiety.”. -- 4 of 7 -- 396 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 July, 2002 Cross-examination of Ms Neate was limited and included questions relating to: • The counselling sessions. • Applicant’s ability to seek legal advice. • Level of distress following applicant’s dismissal. • Witness experience in counselling persons who have lost employment (page 39, line 50 of transcript): “Hall: Do you counsel a lot of people who lose their job? Neate: No, not really. Hall: Not really? Neate: No. Hall: But you’d agree that it’s a stressful period? Neate: Oh, look. It’s a very stressful thing. I mean, I’m aware that Mr Brown had been a jeweller for 17 years which is a very long time and you, I know he was very distressed at losing his job.”. Respondent Evidence in this matter, on behalf of the respondent, was provided by Mr Hay and Mr Robert Menzies in affidavit form, with the applicant’s counsel waiving the right to cross-examine each of the witnesses. Mr Hay’s evidence, in the first instance, identified four (4) occasions where he had found it necessary to raise, with the applicant, allegations relating to inappropriate behaviour from various staff members. These meetings occurred in November 1999, March 2000, June 2001 and March 2002. At each meeting, the applicant was given the opportunity to provide his version of events in respect of each allegation, with Mr Hay providing notes taken at the meeting to the applicant shortly thereafter. Mr Hay, in paragraph 5 of his affidavit, stated: “During the meeting of June 2001 I made it clear to the applicant that his employment would be terminated if he was again involved in certain types of behaviour or activity.”. In May 2002, on a date Mr Hay was unable to particularise, he recalled a telephone discussion with a jewellery supplier representative in which he was advised that the applicant, in late March 2002, had sought the supply of goods (on approval) with the intention to operate a business, firstly from home, and to open a shop within the next two years. In evidence, at paragraph 8 of his affidavit, Mr Hay provided details of the applicant’s right to take action as a result of his dismissal: “I am aware that it is possible for an employee to take proceedings arising out of a dismissal. As a result of advice taken from my Solicitors I believed that any application was to be made within twenty-one (21) days of the date of dismissal. As a result of that advice I did not take any steps to replace the Applicant until the relevant time had expired. However, once the time had expired I made arrangements to fill the vacancy left by the dismissal of the Applicant. I have filled that vacancy by the internal promotion of staff.”. Finally, Mr Hay stated that he would be prejudiced if he was required to reinstate the applicant, as he would have a surplus of staff due to the new arrangements in place. Mr Menzies, a director of Rolma Industries, a company that supplies watches to retail outlets, gave evidence that the applicant, in March 2002, had contacted him by phone in which he was seeking to be supplied with watches “as he was presently considering operating a jewellery business from his home with the intention of establishing a shop within the next two years”. Submissions Each of the parties provided detailed outlines of their submissions to the Commission. Applicant Mr Murphy, for the applicant, firstly addressed what now appear to the be accepted considerations in matters of applications for extension of time: “(i) the length of the delay; (ii) the explanation for the delay; (iii) the prejudice to the Applicant if the extension of time is not granted; (iv) the prejudice to the Respondent if the extension of time is granted; and (v) any relevant conduct of the Respondent.”. per Chief Industrial Commissioner Hall (as he was then) in Breust v Qantas Airways Limited (1995) 149 QGIG 777. On the length of the delay, it was acknowledged that the application was late by fifty-three (53) days, however, by giving notice to the respondent on 29 April 2002 of the possibility of pursing such an application, it was only thirty-nine (39) days outside the time limit. Supportive of the explanation for the delay, Mr Murphy relied upon the evidence of Dr Smith and Ms Neate, in particular, as it related to the mental health of the applicant at the time. -- 5 of 7 -- 26 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 397 At paragraphs 5.5.1 and 5.5.2 of the submissions, it was stated: “5.5.1 Dr Smith considered that at the time when he first attended on Brown (the same time when he attended his solicitor) that Brown ‘certainly was not capable (emotionally and psychologically) to deal with legal matters, or any other issues’. 5.5.2 Ms Neate opined ‘In my opinion he was not mentally capable of coping with the stress caused by his dismissal from his job’ and further that ‘he could not concentrate well enough to answer questions or even understand what was being said to him’.”. On the matters of prejudice, it was submitted that for the extension not to be granted, the applicant’s rights are completely extinguished whilst the applicant is not aware of any prejudice which would be suffered by the respondent if the extension was granted. In reference to the merits of the case, Mr Murphy did not overly detail an assessment, suffice to say that in the applicant’s view it has clearly disclosed a case for reinstatement. In summary, reliance was placed heavily upon the medical condition of the applicant at the time, and it was submitted that, in the circumstances, it was proper for the Commission to exercise its discretion in granting the extension of time. Respondent The submissions put by Mr Hall, for the respondent, by and large, dealt with the same criteria as that addressed by the applicant, albeit from an obvious different perspective. In terms of the length of the delay, it was submitted that, whilst the applicant relied upon his solicitor’s letter dated 29 April 2002 as giving the respondent notice of the possibility of an application being made, it did not clearly give express notice that an application would be filed. According to the respondent, that notice would have been more effective if it were an express notice that an application was to be made and was given within the statutory period. On the reasons behind the delay in filing the application, Mr Hall stated that much had been made of Mr Brown’s medical condition, however the Commission should look closely at the presence of mind and capacity of the applicant after the termination. At paragraph 7 of the submission, in addressing the abovementioned issues, it was stated: “Much has been made of the Applicant’s medical condition. It is important to consider that whatever his medical condition was, the Applicant, after the termination of his employment had the presence of mind and capacity to be able to: (a) On the Monday following the termination, 4th March 2002 take advice from his Solicitors which included advice as to the relevant statutory time limit. (See Affidavit Brown Paragraph 10); (b) Attended upon Dr Smith on 4th March 2002 and subsequently; (c) Attended on Ms Neate on 5th March 2002 and on at least seven (7) subsequent occasions; (d) On 19th March 2002 (whish is prior to the expiration of the statutory time limit) telephoned the Industrial Relations Commission, take advice from them and seemingly have no difficulty in understanding that advice despite the suggestion that he was medically incapable of doing so. (See Affidavit Brown Paragraph 15); (e) Is seemingly so capable of understanding the advice from the Industrial Relations Commission that he is able to make a conscious choice based on that advice to ‘focus on dealing with my emotional issues and on getting another job’. (See Affidavit Brown Paragraph 16); (f) Undertake the not insignificant tasks of seeking employment which on 9th April 2002 culminates in the Applicant obtaining employment. (See Affidavit Brown Paragraph 17); (g) On 22nd April 2002 following receipt of the letter from Hede Byrne & Hall Solicitors the Applicant is able to take legal advice and, it would seem, is at least at that time, some 21 days before the Application was ultimately made, of giving proper instructions to his Solicitors. (See Affidavit Brown Paragraphs 19 – 21); (h) Considers operating a jewellery business to such an extent that the Applicant makes inquiry of suppliers. (See Affidavit Menzies and Affidavit Hay Paragraph 7).”. It would be open to the Commission to find that the applicant, despite whatever medical condition he may have been suffering, had not diligently pursued his application. The respondent, in reliance upon the expiration of the statutory period, filled the vacancy left by the applicant’s termination and would clearly be prejudiced if reinstatement was, at some time, ordered. On the merits of the case, the respondent did not concede that the applicant has a prima facie case which would warrant a hearing. On summation, it was put that it was open to the Commission to find that the applicant had made a choice not to pursue an application for reinstatement until such time as a letter of demand from the respondent’s solicitors was received which, in effect, acted as motivation for the lodgement of the application. It was not an appropriate case for the Commission to exercise its discretion to extend the time. Conclusion In the determination of this matter, I have considered the evidence before the Commission, in addition to the submissions put on behalf of both the applicant and the respondent. -- 6 of 7 -- 398 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 July, 2002 Additionally, a number of authorities were relied upon during the proceedings, with these also being closely scrutinized in the decision making process. In applying the now accepted criteria in Breust v Qantas Airways Limited (1995) 149 QGIG 777, I make the following comments: Length of the Delay The legislators, in setting a twenty-one (21) day statutory period from the effective date of termination in which an application for reinstatement must be lodged, did so, one would presume, for the benefit of both applicants and respondents, in that decisions emanating as a consequence of the termination can be made with the full awareness of any litigation that may occur as a result of the termination. In this matter, the period of fifty-three (53) days, in my view, is an excessive amount of time outside of the statutory period provided for in the Act. Explanation for the Delay The medical evidence of Dr Smith and Ms Neate, relied upon by the applicant, was in real terms not challenged by the respondent as to whether a condition existed or not, as to do so would, in my view, have required the adducement of evidence of an alternate nature from medical practitioners of the like of the applicant’s witnesses. The questions raised by the respondent, however, were pointed towards the time period for which the applicant may have been impaired in his capacity to issue instructions for the application for reinstatement to be lodged. It was uncontested that the applicant, in the time that the twenty-one (21) day statutory period was “live”, contacted his solicitors regarding his termination, contacted suppliers of merchandise for a proposed business venture, and contacted the Industrial Registrar’s Office to discuss the filing of the application. On 9 April 2002, the applicant, on commencement of new employment, ceased taking his medication and, for all intents and purposes, appeared to be in the process of getting his life back “on track”. It was only upon receipt of a letter, initiated by the respondent demanding payment of $1,721.20 from the applicant for goods purchased that it would appear that Mr Brown had reason to, once again, consider his options in respect of an application for reinstatement. I accept the argument put forward by the respondent that the correspondence, on behalf of the applicant (dated 29 April 2002) did not clearly flag an intention for an application to be filed, only the possibility of such an action. On the medical and other evidence before the Commission, I would have little difficulty, on the balance of probabilities, in accepting the applicant’s reasons for the out of time lodgement up until 9 April 2002. It is, however, not the same position for the thirty-five (35) days past that point. I can find no reason, given in the proceedings, that would suggest that the applicant could not have given the not so complex directions for the application for reinstatement to be filed after 9 April 2002, and believe that the ultimate direction was more likely in retaliation, or at least response, to the letter of demand for outstanding monies allegedly owed to the respondent. Prejudice to the applicant if the extension of time is not granted It is clear that not to grant an extension would extinguish the applicant’s right to contest his termination in the Commission. Prejudice to the respondent if the extension of time is granted The granting of an extension of time would, in my view, unfairly impact upon the respondent, who, on the evidence before the Commission, “waited out” the twenty-one (21) day statutory period before putting in place formal arrangements to fill the position held by the applicant. The prejudice to the respondent is, in my opinion, further compounded by the excessive period of fifty-three (53) days outside the statutory period. Any relevant conduct of the respondent In terms of the argument over the extension of time, I cannot find any fault in the behaviour of the respondent. Merits of the case The details of the substantive matter were not canvassed by either party to any great lengths, however I did form the impression that the respondent had been most patient in the handling of allegations levelled against the applicant over a period of some twenty-eight (28) months prior to the decision to terminate the employment arrangement. Accordingly, it is my decision that I will not exercise the discretionary power, as provided in s. 74(2)(b) of the Act to grant an extension of time. Therefore, the application is dismissed. I order accordingly. J.M. THOMPSON, Commissioner. Released: 11 July 2002 Mr D. Murphy, of Counsel, instructed by Ms T. Summerland of Shannon Donaldson Lawyers, for the applicant. Mr J. Hall, of Biggs and Biggs Solicitors, instructed by Mr B. Foley of Hede Byrne and Hall, Solicitors, for the respondent. -- 7 of 7 --