Evans v Byrne Ford Pty Ltd [2002] QIRC 62 (2002) 170 QGIG 13

10 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for extension of time Rodney Evans AND Byrne Ford Pty Ltd (No. B2100 of 2001) COMMISSIONER THOMPSON 30 April 2002 Application for extension of time – Witness evidence – Factors to be considered – Length of delay – Prospects of success limited – Extension of time refused – Application dismissed. DECISION Mr Rodney Evans (applicant) had been employed by Byrne Ford Pty Ltd (respondent) for a period of time in excess of thirty (30) years and, at the time of his termination on 12 October 2001, held the position of General Service Manager. An application for reinstatement was filed with the Industrial Registrar on 27 November 2001, some twenty-five (25) days outside the statutory twenty- one (21) days as provided for in s. 74(2)(a) of the Industrial Relations Act 1999 (the Act). The Act, at s. 74(2)(b) provides for the Commission to exercise discretion in allowing for an extension of time to be granted thus giving the application continued life. Matters of this nature regularly come before the Commission and it is a well accepted practice that, in exercising discretion, there is an adherence to the factors emanating from the decision in Breust v Qantas Airways Ltd (1995) 149 QGIG 777, which are:– (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. (v) Any relevant conduct of the respondent. In the decision of Bloomfield C in Simms v Rainforest Tree Nursery – Bundaleer Holdings Pty Ltd (2002) 169 QGIG 269 that the applicant’s prospects of success at the substantive hearing was also subject to consideration:– “It is also well settled that s. 74(2) of the Act vests an unlimited statutory discretion in the Commission and that the applicant’s prospects of success at the substantive hearing is always a relevant matter i.e. that where it appears that an applicant has no, or very limited, prospects of success the Commission should not grant an extension of time (Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709, Gemellaro v Catholic Education Office, Townsville (1996) 154 QGIG 86, Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543, Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108. Compare Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353).”. Length of the delay Whilst the length of the delay in filing the application was twenty-five (25) days, it appears that the applicant signed the appropriate form on 21 November 2001 with the delayed processing of the application by his representative adding further to the “out of time” period. The explanation for the delay In evidence before the Commission, Mr Evans, at paragraph 14 of his sworn affidavit, stated:– -- 1 of 3 -- 14 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 May, 2002 “14. The impact of this entirely unheralded event, with all it’s bleak implications, was so devastating and distressing that I found myself in need of counselling to counteract its effect on my state of mind; and it was not until I had recovered somewhat, and sought professional advice some five weeks later, that I learnt of the statutory time constraint upon action over dismissal from employment.”. Further, in his evidence-in-chief, the applicant, in addressing the counselling issue, at page 48, line 4, of transcript:– “Steinitz: You then speak of the impact that the announcement of your redundancy had upon you, and you say that you were in need of counselling. Did you in fact receive some counselling? Evans: I was – I believe it was about the Tuesday the 9th after I’d been made redundant – had been advised by some people that they felt Mr Byrne hadn’t carried out the redundancy procedure in the correct manner inasmuch that he didn’t have a witness and that he hadn’t offered assistance with outplacement services and counselling. I mentioned to Mr Byrne that I felt I was absolutely shattered and I felt like I needed some assistance, and he said to leave it with him. On the following day when I was with Mr McIlwraith discussing the redundancy figures, I walked past Mr Byrne’s office and he called me in and handed me a card with the name of a company called Interlock on it, and he said, ‘If you contact those people they will assist you.’ I subsequently made an appointment with those people, and I had two meetings with a counsellor in that area. It was on the second meeting with those people that I realised that they were only stress counsellors. They didn’t or intend to or didn’t have the capacity to assist with outplacement retraining or any assistance in that area. So I felt about that time that I could probably – I would have to get on with looking after that sort of stuff myself. So – and the counsellor there said he – he didn’t think that any further visits were necessary right then, but if I felt I needed him again, just to ring and make an appointment.”. Mr Evans confirmed the date of the second and final counselling session as being 31 October 2001. Mr Robert Steinitz, on behalf of the applicant, put to the Commission that there was ample authority to the effect that if a relatively minor delay was attributable to the applicant’s professional representative, then “that sin, if you like, will not be visited upon the applicant.”. Prejudice to the applicant As in all applications of this nature, the prejudice to the applicant is simply that the opportunity to proceed further ceases if the extension of time is not granted by the Commission. Prejudice to the respondent Ms Karen Prior, the advocate for the respondent, put forward argument that the termination of Mr Evans had eventuated following a lengthy process of genuine restructure within the company and, at page 113, line 1, of transcript, said:– “The evidence of the restructuring is compelling. It is the evidence of Mr Byrne that there are less staff and that seems to be accepted. We argue that the prejudice to the respondent would be significant if an extension of time were allowed. This business has gone through a genuine restructure part of which could be negated by allowing consideration of a reinstatement application. We argue that as the entire management structure has now changed, there are employees of the business who may stand to be prejudiced should an extension of time be allowed. All of that would be the basis – would be on the basis of no good and established reason. Even if you find that there would be no prejudice to the respondent contrary to the argument we’ve just offered, we will remind the Commission of the view of Mr Justice Wilcox, that even should you find no prejudice to the respondent directly or caused by the delay. Absence of prejudice does not indicate an extension of time should be allowed.”. Any relevant conduct of the respondent There was neither evidence nor submissions provided during the course of the proceedings that would indicate that the respondent in any way had hindered or assisted in delaying the lodgement of the application. Prospects of success In dealing with the prospects of success, should the application for the extension of time be granted, both parties paid particular attention to the dismissal occurring due to the company restructure and operational requirements, albeit from differing perspectives. For the applicant, Mr Steinitz suggested that it was well settled in law that even if it is established that the operational requirements led to the removal of a particular position and that a valid reason for such a decision existed it was still necessary to consider the circumstances surrounding the dismissal including consultation and the amount of severance payment. According to Mr Steinitz on the issue of the redundancy payment the respondent unilaterally decided that sixteen (16) weeks wages would be paid which was inclusive of five (5) weeks notice. On what remedy would be applicable if the applicant was successful in the substantive proceedings, Mr Steinitz stated that reinstatement would be unrealistic and the maximum compensation available under the Act would be sought. Ms Prior’s submissions were that Mr Evans was employed in a managerial position with the terms and conditions of employment not covered by either an award or certified agreement, therefore there could be no application for the Termination, Change and Redundancy provision. His contract of employment did not contain a provision for the payment of redundancy, with his only financial entitlement on termination being five (5) weeks notice in accordance with s. 84(1) of the Act. In terms of the final payment, the applicant was paid sixteen (16) weeks wages plus a further one (1) week being for the last week of employment and this, coupled with the position that Mr Evans was not enthusiastically seeking employment would limit the amount of any compensation that may be awarded if the applicant was successful in the substantive matter. The option of reinstatement was impracticable due to the restructure of the Service Department that has taken place. -- 2 of 3 -- 10 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 Conclusion In consideration of this matter, it is my view that the length of the delay is of a more significant factor than Mr Steinitz would have the Commission believe for the reason that Mr Evans was a person who, for all intents and purposes, could be considered to have had an awareness of the statutory provisions contained within the Act. Attached to the affidavit of evidence of Mr Evans was a letter of appointment, dated 27 September 2000, which set out the details of his position and included specific references to:– • Responsibilities. • Salary package. • Company vehicle. • Expenses. • Annual leave, sick leave and termination. • Confidentiality. On page two of that letter, under the heading of “Responsibilities”, at the seventh dot point, it stated:– “You will be responsible for the recruitment, monitoring and termination of services staff as required in accordance with company policy and legislative requirements.”. The evidence of Mr Evans that he found himself devastated and distressed at being terminated after thirty (30) years continuous employment is understandable, however, in terms of his need for counselling, as referred to in evidence, there emerges some question in that after his second visit to the counsellor (on 31 October 2001) in his evidence, he said:– “It was on the second meeting with these people that I realised that they were only stress counsellors. They didn’t or intend to or didn’t have the capacity to assist with outplacement retraining or any assistance in that area. So I felt about that time that I could probably – I would have to get on with looking after that sort of stuff myself. So – and the counsellor there said he – he didn’t think that any further visits were necessary right then.”. At the time Mr Evans ceased counselling, the 21 day statutory limit was still “live”. On the prospects of success of the substantive application, it is necessary to consider s. 77(b)(1) of the Act “the operational requirements of the employer’s undertaking, establishment or service.”. Extensive evidence was given by Mr Peter Byrne of meetings and discussions with the applicant on the intentions of the company to restructure the Service Department. That evidence included performance comparisons with Ford dealerships of similar size which was the driving force behind the need for operational change. The impact of that change upon Mr Evans was that the position of General Service Manager was abolished altogether and, as a consequence, he was made redundant. A position of Services Manager was created and it was anticipated that a reduced service team would work under the leadership of the person appointed to that position. Mr Byrne’s evidence was that Mr Evans did not, in his view, possess the skills to perform the newly created role. It is my view that the evidence of Mr Byrne should be accepted and that the termination of Mr Evans was, in fact, a genuine redundancy. A letter to the respondent, dated 12 October 2001, signed by Mr Evans, acknowledged that his termination payment included sixteen (16) weeks redundancy and he waived his right to payment in lieu of notice. Whilst the purpose of the correspondence was specifically to lessen the amount of taxation paid by Mr Evans, it also, in my opinion, acted as an acceptance by the applicant that the redundancy was bona fide. Therefore, the prospects of success in the substantive matter would appear to be severely limited, as would the ability of the Commission to award any substantial amount of compensation after taking into account the sixteen (16) weeks redundancy payment already received by the applicant. Having considered all of the evidence, submissions, authorities, and materials placed before these proceedings, the application for an extension of time is rejected and, accordingly, application No. B2100 of 2001 is dismissed. I order accordingly. J.M. THOMPSON, Commissioner. Released: 30 April 2002 Appearances:– Mr R. Steinitz, of R.H. Steinitz and Associates, for the Applicant. Ms K. Prior, of Prior and Associates, for the Respondent. -- 3 of 3 --