Colefax v Jupiters Limited [2000] QIRC 124 (2001) 166 QGIG 4

4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Tracey Colefax AND Jupiters Limited (No. B1547 of 2000) VICE PRESIDENT LINNANE 14 December 2000 Application for extension of time – substantial delay – reasonable explanation for delay – arguable case on merits – application granted DECISION This is an application by Tracy Colefax (Applicant) under s. 74(2)(b) of the Industrial Relations Act 1999 (Act) to extend the time for filing her application for reinstatement in respect of her dismissal from employment with Jupiters Limited (Respondent). The Applicant’s employment with the Respondent was terminated on 28 June, 2000. The application alleging that the dismissal was unfair was filed with the Industrial Registrar on 18 October, 2000. The application was thus ninety-one days out of time. In ordinary circumstances the key factors to be considered in the construction and operation of provisions such as s. 74(2)(b) of the Act are to be found in the decision of the then Chief Industrial Commissioner in Breust v Qantas Airways limited (1995) 149 QGIG 777. These factors will be:– (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. The three caveats to be added to the approach in Breust v Qantas Airways Limited are:– (i) that s. 74(2)(b) of the Act vests an unlimited statutory discretion in the Commission which must always be exercised; (ii) that the time limit of twenty-one (21) days provided for in s. 74(2)(b) must be respected; (iii) 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. Here there is a rather lengthy delay in filing the application for reinstatement i.e. ninety-one (91) days. On the morning of 28 June, 2000 the Applicant was told that the position of Promotions Coordinator which she had held for the previous two years was no longer to exist. She was immediately offered a redundancy package. Ms Rolanda Ayling, the Respondent’s Director of Human Resources, and Mr Val Saunders, the Respondent’s Director of Customer Services, were present at that meeting. According to the Applicant the advice that her position was to be abolished came as a complete shock to her. The Applicant’s evidence was that she was dismissed at that meeting and was not allowed to return to her office and collect her personal belongings. She was accompanied from the Respondent’s Casino immediately after the meeting concluded and her handbag and personal belongings were delivered to her at the front door of the Casino. The Applicant’s evidence was that during the course of this meeting no alternative options were explored with her other than her job had become redundant and she was being offered a severance package. The Applicant said that she was further offered the opportunity of meeting with Ms Lyn Stanley at some time in the future to talk about various matters including interview skills. According to the Applicant there was no opportunity offered to her to talk to anyone about anything prior to her termination on the morning of 28 June, 2000. The Applicant did avail herself of the opportunity to talk with Ms Stanley on 3 July, 2000 but this was as an ex-employee of the Respondent. The Respondent through the evidence of Ms Ayling was of the view that, on 28 June, 2000, the Applicant was told that “her role was being made redundant and she could be retrenched”. I have difficulty with that summation of events given by Ms Ayling. It is conceded by Ms Ayling that:– ƒ she walked the Applicant from the meeting to the front door of the Respondent’s Casino immediately after the meeting on 28 June, 2000 although she rejects the idea that the Applicant was escorted from the Respondent’s premises on that morning; ƒ the Applicant was not allowed to collect her personal belongings and that her handbag was collected for her and given to her at the front door of the Respondent’s Casino following the meeting on 28 June, 2000; ƒ the Applicant was provided with no options other than redundancy at the meeting of 28 June, 2000; -- 1 of 3 -- 5 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 ƒ the Applicant was not told that she could take annual leave and thus retain an entitlement to apply for other positions as an employee of the Respondent; ƒ the Applicant was not informed that she could apply for the new amalgamated position of “Promotions and Events Co-ordinator”. Ms Ayling’s explanation for this was that to have so informed the Applicant would have meant that she would have had to tell the Applicant that the position of Events Co-ordinator was also being made redundant. It was the Respondent’s policy that employees being advised that their position was being made redundant could not be told about any other positions or persons being made redundant at or about that time. According to Ms Ayling this policy prevailed even though the Applicant was advised of her retrenchment after the occupant of the Events Co-ordinator position had been advised of her retrenchment; ƒ an internal e-mail emanated from the Respondent’s Director of Customer Services at 1.52pm on 28 June, 2000 advising all staff that the position of Promotions Co-ordinator had been “made redundant” and that as a result the Applicant had “been retrenched today”. Clearly the Applicant’s employment had been terminated on the morning of 28 June, 2000 in circumstances where the Respondent had made a decision “a week or two weeks prior” to 28 June, 2000 to make at least three positions in the Customer Services area redundant. It appears that none of the affected employees were consulted prior to their termination on 28 June, 2000. The Applicant was certainly not consulted prior to her termination. On the evidence before me I am unable to accept Ms Ayling’s assertion that the Applicant was advised on 28 June, 2000 that “she could be retrenched”. All the evidence points to the Applicant having been terminated on the morning of 28 June, 2000 without any prior consultation and without any alternative options being explored with her. A couple of days after the termination of her employment the Applicant was contacted by an employee of the Respondent and advised that her former position was being advertised on the notice board at the Respondent’s Casino. The Applicant then noticed what appeared to be her former position advertised in the Gold Coast Bulletin on Saturday 1 July, 2000. The Applicant says that she did not apply for this position as she had been advised on 28 June, 2000 that if she accepted the redundancy payment she could not apply for a position with the Respondent for a period of twelve (12) months following the severance payment. It concerns me greatly that a Director of Human Resources in the circumstances of the meeting with the Applicant on 28 June, 2000 would advise an employee that acceptance of an entitlement (i.e. severance pay) would disentitle a person to apply for alternative positions with the Respondent. Given the evidence before me of the discussion that occurred on the morning of 28 June, 2000 an employee could easily be left with the impression that they had the following options available to them:– (i) accept the redundancy and take the severance payment with the proviso that they not be able to apply for positions with the Respondent in the following twelve months; or (ii) be terminated with no severance payment but retain an entitlement to apply for positions with the Respondent in the following twelve months as an ex-employee. The position that the Applicant held prior to 28 June, 2000 was titled Promotions Co-ordinator with the purpose of the position being to “co-ordinate all gaming machine promotions and offers. To co-ordinate functions as directed by the Customer Services Administrator. To provide efficient and effective service for all Casino patrons. To provide assistance to the Customer Services Administrator”. The new position was titled Promotions and Events Co- ordinator with the newspaper advertisement stating that “you will be in consultation with the Customer Services Administrator to coordinate all aspects of promotions, events and tournaments. You will attend all functions to ensure that they are conducted in the planned manner and you will also assist in the preparation of Profit & Loss statements, dice report and mail outs. You will provide administrative assistance to the Customer Services Administrator and attend and actively participate in relevant training programs as required”. The Applicant’s evidence was that on seeing the advertisement she didn’t do anything about her termination believing that the Respondent was looking for a person with a very different background to that which she had e.g. someone with a marketing degree or with accounting or financial qualifications (financial analysis was becoming a large part of her role as Promotions Co-ordinator). If it wasn’t different qualifications that the Respondent was seeking then the Applicant believed that it must be someone with greater experience in performing the functions of the job. On 5 October, 2000 however the Applicant was advised that a Ms Elke Meyer had been successful in obtaining the position of Customer Services Representative. The Applicant knew Ms Meyer as she had employed her as a Customer Service Representative with the Respondent i.e. she was employed in a subordinate role to that of the Applicant. According to the Applicant’s recollection of Ms Meyer’s details she was of the view that Ms Meyer had no background in marketing or any qualification that would be required in the position of Customer Services Representative. With this information the Applicant became suspicious and started to view the termination of her employment as something other than a genuine redundancy. The Applicant immediately sought legal advice about her options. The Applicant was then advised of the twenty-one (21) day time limitation period. The Applicant then telephoned the Industrial Registry and had the appropriate forms forwarded to her. The application was then filed shortly thereafter. It seems that Ms Meyer did not commence employment in the position of Promotions and Events Co-ordinator until 9 October, 2000. The application was then filed within nine (9) days of Ms Meyer commencing employment in the role of Promotions and Events Co-ordinator. The prejudice that the Applicant will suffer if the extension of time is refused is that she will lose the right to argue that her dismissal was unfair. On the material before me the Applicant appears to have some reasonable prospects of success should leave to extend time be granted. Given that the Respondent only employed a person in the position of Promotions and Events Co-ordinator on 9 October, 2000 I am unable to identify any particular prejudice to the Respondent resulting from the delay in the Applicant filing her application for reinstatement. I have formed the view that whilst the length of the delay in filing the application for reinstatement is substantial there is a reasonable explanation for the delay. The Applicant was unaware of the time limitation period until after she sought legal advice i.e. immediately upon being informed that Ms Meyer had been appointed to the position of Promotions and Events Co-ordinator. It was only at this time that the Applicant considered that her termination may not have been a genuine redundancy and that her dismissal may have been unfair. The Applicant acted with reasonable haste once this information was to hand. I have also formed the view that the Applicant has an arguable case on the merits. The evidence of Ms Ayling points to the Applicant being treated unfairly when she was dismissed. In all the circumstances of the case, I would exercise my discretion in the Applicant’s favour and grant the extension of time sought. I order that the time for making the application be extended to 18 October, 2000. Order Accordingly. -- 2 of 3 -- 6 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 D.M.LINNANE, Vice President. Appearances:– Mr N. Hatcher, of Woods Hatcher for the Applicant with him Ms T. Colefax. Ms S. Weingott of Allen, Allen and Hemsley for the Respondent, with her Ms Released: 15 December 2000 R. Ayling. ########################################################################################################################## # -- 3 of 3 --