Campbell v Tarong Energy Corporation Limited [2001] QIRC 189 (2001) 168 QGIG 263

16 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 263 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Kevin William Campbell AND Tarong Energy Corporation Limited (No. B1121 of 2001) COMMISSIONER BROWN 5 November 2001 DECISION This is an application for reinstatement pursuant to s. 74(1) of the Industrial Relations Act 1999 (the Act). It is some six and one-half months out of time. The applicant now seeks the favourable exercise of discretion vested at s. 74(2)(b) to retrospectively cure the failure to lodge it in time. The applicant was employed by Tarong Energy Corporation Limited (the respondent) from 19 June 1990 to 8 November 2000. This application was filed on 22 June 2001. Section 74(2) states:- “(2) The application must be made within – (a) 21 days after the dismissal takes effect; or (b) a further period the commission allows on an application at any time.”. Mr Linklater-Steele, Counsel for the applicant, presented affidavits from the applicant, Mrs Jillian Campbell, Mr Peter Kuskie and Dr Mark Philip Kluver. At the time of the dismissal that applicant was under police investigation and had been charged in connection with the unauthorised possession of property belonging to the respondent without authorisation. The applicant was dismissed following his failure to participate in an interview with the respondent regarding the allegations. The applicant's evidence, unchallenged by the respondent, indicated that from a time just prior to the dismissal on 8 November 2000 until June of 2001, the applicant was in a mental state that rendered him incapable of instructing his legal representative regarding his dismissal. Evidence from the applicant was that during this time he was unable to attend callover hearings relating to the police charges because of his mental state. When the police charges were withdrawn and despite abating but continuing psychological problems, the applicant instructed his legal representative to file an application for reinstatement. This was filed on 22 June 2001. Dr Kluver of the Toowoomba District Health Service in a letter dated 16 October 2001 to Roberts & Kuskie, Solicitors for the applicant stated (inter alia)– “The issue of whether Mr Campbell was capable of lodging proceedings in the Industrial Relations Commission needs to be addressed. There is clear documentation in his file from a range of staff members identifying Mr Campbell was severely depressed at least between October 2000 and July 2001.”. and “It is my opinion that it would be quite understandable that Mr Campbell would have a limited ability to cope with stress and to organise his life and I would not be surprised with his inability to commence proceedings in the Industrial Relations Commission.”. Mr Kuskie in his affidavit comments at points 18 and 19 as follows:– “18. Following the dismissal of the charges in the Nanango Magistrates Court and the intention to withdraw having been communicated to us by the Police on the 19 th of June 2001, I sought instructions from the applicant. Although my observations were that the applicant was still in an extremely depressed state and has a great deal of difficulty coming to grips with the issues surrounding his dismissal and had considerable difficulty in providing instructions, the finalisation of the Police investigation had a significant positive impact on him. I subsequently obtained instructions from Mr Campbell to file an application seeking redress for the circumstances of his dismissal in this Honourable Commission and the application was filed forthwith. 19. It is submitted to this Honourable Commission that instructions were obtained from Mr Campbell at the very first date that he was in a physical and mental condition to provide such instructions.”. This evidence was unchallenged. The evidence of the respondent given by Jeff Wells, Human Resource Manager, also unchallenged, was that on 20 September 2000, police from Nanango had informed the respondent that property (apparently the property of the respondent) had been discovered at the premises of the applicant at Nanango. Thereafter the applicant was sent home on Thursday 21 September 2000, on full pay pending investigation of the situation by the respondent. On Thursday, 21 September 2000, Wells met with the applicant in company with Mr Gary Campbell, Operations Manager and Luke Gill, Union delegate. This meeting resulted in the applicant being given a final warning and allowed to resume work. Wells stated that further Police advice was received by the respondent regarding property discovered at the applicant’s Agnes Waters property again apparently belonging to the respondent. The applicant offered a range of possible explanations via the telephone to Wells. Attempts to arrange a further interview on Thursday, 28 September 2000 with the applicant failed because of advice given to the applicant by Mr Kuskie, his legal representative. Wells advised Kuskie (for the applicant), that the applicant could not resume work until an investigation had been conducted. -- 1 of 4 -- 264 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 November, 2001 On 29 September 2000, Kuskie advised Wells that the applicant was not of “sufficiently sound mind to participate in an interview”. Police advised Wells that the property at the Agnes Waters premised had been inspected and that “a number” of items were identified as having originated from the respondent. Further attempts to arrange an interview with the applicant failed and Wells was left with the task of making a decision on the applicant’s employment based on the information available to him at the time. This situation was conveyed to Kuskie. Wells stated at paragraph 24 of his affidavit the following:– “24. On 8 November, 2000, on the basis of the information before us, we dismissed Mr Campbell. I did not believe that a warning was appropriate on this occasion. Mr Campbell had possession of a large quantity of TEC property without authority, Mr Campbell had provided me with no explanation for having the property in his possession and Mr Campbell had previously been issued with a final warning in relation to the unauthorised possession of the TEC property seized by Policefrom Mr Campbell’s Nanango property.”. Mr Linklater-Steele submitted that relevant considerations for the Commission are – • the length of the delay; • the explanation of delay; • the prejudice to the applicant if the extension of time is not granted; • the prejudice to the respondent if the extension is not granted; and • the relevant conduct of the respondent. Mr Linklater-Steele referred to Savage v. Woolworths Queensland Pty Ltd (1999) 162 QGIG 353 and also the decision in Rich v. Chubb Protective Services (2001) 167 QGIG 159. Mr Linklater-Steele contended that the unchallenged medical evidence comprehensively explained the delay. In essence, the applicant was incapacitated by his condition such that he was unable to provide instructions in order to bring an application. Mr Linklater-Steele stated that the applicant would be prejudiced by loss of the right to seek to return to a position he has held for over 10 years. The applicant is 47 years of age, in a precarious financial position and resident in a small community. Mr Linklater-Steele believed there would be no prejudice to the respondent. Regarding the conduct of the respondent, Mr Linklater-Steele made the following points – • the respondent was fully appraised of the applicant’s medical condition; • it would be unjust if the respondent was able to rely on a state of affairs to which it contributed, to prevent further hearing the matter; • the respondent knew the applicant would challenge an unfair dismissal and could not presume the matters were finalised; and • the respondent formed an erroneous and unreasonable view of the applicant’s medical condition thereby punishing the applicant for not attending an interview. With respect to the merits of the applicant’s case for reinstatement, Mr Linklater-Steele stated:– • the Commission should have the ability to hear and determined the application on the evidence lead and the arguments adduced and ought not consider a defacto application under s. 331; and • the issue of consideration of merit is that outlined in Savage v. Woolworths Queensland Pty Ltd and there is nothing fundamentally wrong with the case that would predetermine the issues and thereby depriving a full hearing. Mr Linklater-Steele submitted that the respondent failed to properly investigate the matter and cited Cullen v. Gold Coast Nursing Home (1998) 159 QGIG 128 and Christie v. Austotel Management Pty Ltd (1998) 159 QGIG 108 in support of the application for extension of time. Mr Herbert, Counsel for the respondent, did not take issue with the medical evidence offered as the reason for the delay. Mr Herbert accepted that “throughout the whole of the period from about late September 2000 until July 2001, the applicant was suffering from a psychiatric illness and a depressive illness such that he was incapable of doing anything much and particularly incapable of giving instructions to solicitors”. Mr Herbert argued that was not an acceptable reason for the delay and that the length of the delay was extraordinary and in the absence of information from the applicant to the respondent for six months, the respondent was entitled to presume that the matter had been concluded. The respondent had not calculated on or provided for a re-entry to the workforce by the applicant and therefore if it were ordered, the applicant would be surplus to requirements and as such the respondent would be prejudiced if the applicant succeeded. Mr Herbert submitted that if the case for reinstatement was hopelessly without merit then the Commission should exercise its discretion against granting the extension. Mr Herbert contended that at least part of the reason for dismissal was the applicant’s failure to attend a show cause meeting. Mr Herbert stated that the respondent was in possession of a doctor’s certificate dated 3 October 2000, indicating a 3 to 6 month incapacity of the applicant because of depression and further that the applicant had refused to be involved in an interview regarding the allegations of unauthorised possession of property. He submitted that the applicant’s condition was present for some time prior to the dismissal as mentioned in paragraphs 2 and 3 of Mrs Campbell’s affidavit where she indicated 19 September as the date when evidence of the applicant’s deterioration commenced. Mr Herbert contended the respondent was not involved in notifying Police and, contrary to a claim by the applicant in his application, did not cause his health problems by dismissing him. -- 2 of 4 -- 16 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 265 Mr Herbert stated that if the applicant had brought his application within time it would have availed him of nothing because he could not come back to work because of his health and he could not be compensated for a job that he could not do. With respect to s. 73(2)(a) (a temporary absence from work because of illness or injury), Mr Herbert claimed that with the benefit of hindsight this provision could not have protected the applicant in that even if the respondent had waited 3 months, the applicant would still not have been able to perform his tasks and the respondent would have been perfectly entitled to dismiss him. Mr Herbert claimed that the matter would have eventually failed had it been commenced within time. Mr Herbert claimed that because of the applicant’s inability to return to work would have prevented reinstatement, and compensation could not have been awarded because for the six months following the dismissal, the applciant could not work in any event. Mr Herbert cited Falla v Runaway Bay Accounting B1199 of 1996 in which Bloomfield C dismissed an applicant’s case on the basis that reinstatement wasn’t sought and that the applicant could not be compensated because she had actually earned more than she would have earned had she been working for her previous employer. Mr Herbert submitted that the applicant could not be awarded compensation in that he was unable to work for the entire six months following his dismissal. Mr Herbert indicated that no challenge was made to the contention that the applicant was unable or incapable of decision making or giving instructions to legal representatives. Mr Herbert cited Chief Commissioner Hall (as he then was) in Teresa Gamellaro v. Catholic Education Office, Townsville (1997) 154 QGIG 86 as being “on all fours” with the circumstances in this application. The relevant parts of that decision are produced hereunder:– “The Commission has of course always been prepared to dismiss an application for an extension of time in cases where it is clear that a substantive application cannot succeed. An example is Marston v Ocean Sky. The justification for the approach is that it cannot be appropriate to exercise the statutory discretion to revive a statute barred action in order that it may fail.”. And further – “Ordinarily of course the state of evidence on an application for extension of time will not permit formation of a view so adverse to the applicant as to justify dismissal of an application on this ground. This, however, is the rare case in which it seems to me it is possible to form such a view.”. And further – “The applicant’s behaviour immediately prior to dismissal was extraordinary . . . .”. And further – “Events subsequent to the dismissal confirm the opinion by Dr Cahill. Some short time after the dismissal the applicant was admitted as a voluntary patient under the Mental Health Act, remained a patient for the best part of a month. Further medical evidence, the applicant with the benefit of hindsight seems to be suffering from manic episodes derived from a bipolar disorder was unfit to work even in September 1996 which was at the point of dismissal. In those circumstances, I’m satisfied the respondent did have a valid reason relating to the operational requirements of the school which they conducted to justify termination of the applicant’s employment. This is not a case in which its legitimate to argue that one of the reasons to which the respondent had regard as an attribute for which discrimination is prohibited.” . Conclusions Possible prejudice to the respondent by a decision allowing the out of time application is limited to the respondent having to defend their decision to dismiss the applicant. That, of course, could lead to other impositions. However, in terms of prejudice, I believe the respondent to be in no better or worse position to defend themselves than they would have been had the application been lodged within the prescribed 21 days. All the relevant material, it appears, is still available and the two matters which have only become clear with the passage of time do not, in my view, prejudice the respondent. Those matters related to the state of the applicant's health and the fact that the police charges were ultimately withdrawn. There is agreement between the parties regarding the applicant’s mental health at all material times. There is further agreement that because of the applicant’s health, he would have been unable to give instructions to his legal representatives during this time to lodge an application for reinstatement. It is my view that if the applicant was unable to instruct somebody in relation to his dismissal, he would have been incapable of pursuing it himself. On the evidence I accept that the reason for the delay is that the applicant was prevented by reasons of health from lodging within the 21 day time frame. Further, on the evidence, factors contributing to the applicant’s health problems to some extent abated from June 2001 when he was advised police charges against him were withdrawn and his application for reinstatement was lodged soon after. I find that there is a reasonable explanation for the delay and for the length of the delay. The respondent relies on a further 2 grounds, namely, that the application if heard, stands no chance of success and that there is no remedy available to the applicant in any event via either reinstatement or compensation. In Christie v. Austotel Management Pty Ltd (1998) 159 QGIG 108 Chief Commissioner Hall (as he then was) said – “The applicant will plainly be prejudiced if the application for extension of time is rejected. He will lose his action. Just how seriously the loss of his action will prejudice him depends on one’s view of the strength of his case. And the strength of an applicant’s case, if reasonably assessable, is in itself always a relevant matter. There is a world of difference between exercising the statutory discretion in order that the applicant may not be deprived of a strong case and exercising it to enable the expenditure of time and money in circumstances where it is likely to be fruitless. -- 3 of 4 -- 266 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 November, 2001 In this case I have been able to form a view of the applicant’s prospects of success. In Sangwin v Imogen Pty Ltd (unreported) case no. SA 95/1161R, Industrial Relations Court of Australia, 8 March 1996, Von Doussa J said:– ‘Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.’ ”. From the evidence I have concluded that the dismissal related to the conduct of the applicant and that his health problems, whilst within the broad knowledge of the respondent, was not a reason for the termination. As mentioned, Mr Herbert took the Commission to the decision in Gemellaro. I do not agree that this decision is on all fours with this matter as strongly suggested by Mr Herbert. In particular, Chief Commissioner Hall stated that “the applicant’s behaviour immediately prior to her dismissal was extraordinary”. The behaviour of the applicant in this matter could not be so described. His refusal to attend for an interview was based on medical advice and there is no evidence to suggest that prior to the laying of charges by the police there was any “extraordinary behaviour”, in fact, things were quite normal. The applicant willingly attended the first meeting, accepted his warning and then proceeded on annual leave on his own request. Chief Commission Hall (as he then was) in that case stated:– “The Commission has of course always been prepared to dismiss an application for an extension of time in cases where it is clear that a substantive application cannot succeed. An example is Marston v Ocean Sky. The justification for the approach is that it cannot be appropriate to exercise the statutory discretion to revive a statute barred action in order that it may fail.”. And further – “Ordinarily of course the state of evidence on an application for extension of time will not permit formation of a view so adverse to the applicant as to justify dismissal of an application on this ground. This, however, is the rare case in which it seems to me it is possible to form such a view.”. I do not agree, to use Chief Commissioner Hall’s words, that in this case there exists “a view so adverse to the applicant as to justify the dismissal of an (this) application on this ground”. That is not to suggest for a moment that the applicant will or won’t win – it is simply a reflection of the doubt in the mind of the Commission. Issues not canvassed or not canvassed sufficiently to allow the Commission to make a judgment with some certainty include – • the description and value of the goods that brought about the charges; • the level of proof required for a prosecution in the Magistrates Court as opposed to the level of proof required in the Commission; • the reasons given or possibly able to be given by the applicant for being in possession of the goods; • the lack of notice period afforded the applicant; • the manner in which the applicant was advised of his summary dismissal; • the action of the respondent in denying sick leave to the applicant and forcing the applicant onto long service leave; and • the absence of an interview between the respondent and the applicant prior to his dismissal. In dealing with Mr Herbert’s contentions that, in the event of the applicant succeeding, no remedy would be available to the applicant for reasons cited earlier. I am of the view that a remedy pursuant to s. 78 (reinstatement or re-employment) would be open to the Commission in the event of the application’s success although had the application been lodged in time the applicant’s health could have rendered reinstatement impracticable. I am further of the view that, despite the inability of the applicant to be gainfully employed at all material times, it is still open to the Commission to consider compensation if reinstatement were to be considered impracticable. Section 79(2)(a) limits the maximum amount that may be awarded. This amount is tempered by s. 79(3), any amounts paid to the applicant by the respondent on dismissal ( in this case nil or very little). I believe that, in the least, an argument exists that compensation under this Act may not be governed by a straight line accounting approach linking compensation payable to the amount of monetary loss (See Blades C in Serratori v. Doyles Construction Lawers B1666 of 2001 (currently subject to appeal). I do not believe that I can make an informed decision that the application is totally without merit on the information before me. I do accept that the state of the applicant’s health justified both the failure to lodge the application in time and the length of the delay. Having considered all of the evidence and submissions I am prepared to exercise the discretion of the Commission pursuant to s. 74(2)(b) and extend the time for lodgement of the application. Order accordingly. D. K. BROWN, Commissioner. Appearances:– Mr Linklater-Steele (instructed by Roberts Kuskie Solicitors for the applicant. Mr A. Herbert (instructed by Livingstones Australia) on behalf of Tarong Energy Corporation Limited. Released: 5 November 2001 -- 4 of 4 --