Bosch v Project Constructions (Aust) Pty Ltd [2001] QIRC 202 (2001) 168 QGIG 338

338 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 November, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 87(4) – application for severance allowance Industrial Relations Act 1999 – s. 90 – application for extension of time Raymond Walter Bosch AND Project Constructions (Aust) Pty Ltd (No. B1619 of 2001) COMMISSIONER BLADES 21 November 2001 Severance allowance – Application under s. 87 Industrial Relations Act 1999 – Extension of time under s. 90 – Principles applicable – Extension of time granted. DECISION On 13 September 2001, the applicant Mr Bosch applied for an order under s. 87 of the Industrial Relations Act 1999 (the Act) for the payment of severance allowance. Upon a preliminary hearing before the Commission on 25 October 2001, he was informed that his application may be out of time as prescribed by s. 90 of the Act. Subsequent to that hearing, Mr Bosch made an application for an extension of time under that section which reads as follows:– “Time within which application under this part must be made 90. An application for an order under this part must be made – (a) before, or within 21 days after, the dismissal takes effect; or (b) within a further period the commission allows on an application made at any time.”. The dismissal took effect on 10 January 2001. In the original application, it was alleged that between Friday 22 December 2000 and 10 January 2001 some 30 personnel were dismissed. There would appear to be no cases dealing directly with the principles relevant to the grant of an extension of time under s. 90. However, principles similar to those that apply to the grant of extensions of time under s. 74 are probably generally relevant to all situations where there is a discretion for an extension of time from a statutory limitation in the absence of statutory guidance. It is appropriate for principles to be extracted from decided cases under s. 74 to be applied to the provisions of s. 90. The discretion to extend the limitation period is unfettered. What is to be considered include the length of the delay, the explanation for the delay, the hardship to the applicant if the action is dismissed, the prejudice to the respondent if the action is allowed to proceed and the conduct of the respondent. There may be other matters of relevance, including that the statutory provision be respected and that an applicant clearly without any prospects of success should not be let in. These principles are conveniently summarised in Fisher v Q Electrical Services Pty Ltd 162 QGIG 175. The onus remains on the applicant – Rich v Chubb Protective Services 167 QGIG 159. The applicant claims that on 3 January 2001 he was advised by the Company Accountant that the approximate amount of the redundancy/severance/annual leave payment would be about $7,950.00 (with $6,055 being redundancy). It was not until 12 June 2001 that he was informed by the Liquidators that he would receive no redundancy/severance payment. The Company Accountant of course did not act on behalf of the Liquidator. He alleges that he then commenced negotiations with the Liquidators to find out why the payments were different. In reply to a letter he wrote on 17 June, the Liquidator advised on 25 July that because he was a non-award employee, he was not entitled to redundancy payments. The last correspondence was dated 6 August 2001 and it was then that he made enquiries with the Commission prior to lodging his application on 13 September 2001. The delay in this matter is substantial being some 7½ months out of time. However, up until 12 June 2001, Mr Bosch had reason to believe that he was entitled to redundancy payments because of the information supplied to him by the company accountant. There was no reason to lodge any application in the Commission prior to then as he was simply waiting receipt of his cheque. From 12 June, he explains the delay that he was negotiating with the Liquidator. He did not advance ignorance as a reason for the failure to lodge his claim but that would appear to be the likely explanation as it was the Commission which pointed out to the parties, the need for an extension of time application. Even so, ignorance does not mean that an automatic extension should be granted – Christie v Austotel Management Pty Ltd 159 QGIG 108. In Rich v Chubb Protective Services (supra) President Hall said:– “It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s.74(2)(a).”. -- 1 of 2 -- 30 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 339 There are two main relevant issues in this case that bear some attention. The success of the application under s. 87, provided an extension of time be granted, depends upon the exercise of the Commission’s discretion which in my view, is unpredictable. That fact might well place the Liquidator in an unenviable position, a considerable time after the dismissal has taken effect. A Liquidator is appointed to wind up a company. Winding up is the process whereby a company is prepared for deregistration at which time, the company’s name is struck off the register and the company goes out of existence. The winding up is sometimes a complicated and prolonged affair, “confused sometimes by protracted litigation” – see generally in this regard Australian Business Law 20 th Edition para 9-600. An absence of delay is obviously important in the process. The second issue is the reason for the delay and the explanation that goes with that. The conduct of the Liquidator cannot be disregarded. The delay from the date of the dismissal to 12 June when he finally told the applicant there was no entitlement was entirely of the respondent’s own doing. There was then an unexplained lack of efficiency in the reply to applicant’s letter of 17 June. To delay a reply to that letter until 25 July indicates to me that the Liquidator himself was not too concerned about time and to now hold that delay against the applicant would be an exercise in hypocrisy. It was not as though the applicant’s pursuit of his claim was revived after the happening of some event long after the claim arose. He actively pursued the matter as soon as he became aware there was a problem and the Liquidator, who stands in the shoes of the Directors, was well aware of that. It would also seem to me that there would be little precedent value in an extension being granted. The applicant alleges that there were 30 or so employees terminated at the time. While there was no evidence called by the respondent, the applicant did not disagree with a suggestion that there were others awaiting the outcome of this application. There is however, no evidence that other applications have been filed or might be filed and there is nothing to suggest that if they were, an extension would be granted. The 21 day limitation period must be respected. That time limit reflects the policy of the Legislature. The applicant must persuade that the discretion to extend the time should be exercised in his favour. Absence of delay is important to the winding up process but the delay in this case was substantially contributed to by the Liquidator. I am of the view that in all the circumstances of the case, justice requires that an extension of time be granted. I order that the time to file the application be extended to 13 September 2001. I order accordingly. B.J BLADES, Commissioner. Released: 21 November 2001 Appearances:– Mr R.W. Bosch, on his own behalf. Mr S. Bennett, Solicitor, Deacons Lawyers, for the respondent. -- 2 of 2 --