Brown v Total Building Maintenance [2000] QIRC 121 (2000) 165 QGIG 277

24 November, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 277 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Industrial Relations Act 1999 – s. 74(2)(b) – application for extension of time Garry Phillip Brown AND Total Building Maintenance (No. B246 of 2000) COMMISSIONER BLOOMFIELD 10 November 2000 Reinstatement – extension of time – cleaner – workplace injury – 396 days out of time – 1 month of employment – applicant dismissed while on workers’ compensation – arbitrated matter – insufficient explanation for 13 months delay – applicant suffered no loss – employer no longer in existence – applicant still unfit for work – extension of time refused – application dismissed. DECISION Mr Garry Phillip Brown commenced employment in the capacity of a cleaner with Total Building Maintenance, Rockhampton, on 1 December 1998. His duties involved cleaning certain areas at Woolworths in Allenstown. One of his particular tasks was to clean the barbecue chicken ovens. On the evening of Friday 11 December 1998 while walking from the chicken oven area to wash a tray he slipped on grease on the floor and badly injured his wrist. On the next day he visited his doctor and was placed on workers’ compensation. -- 1 of 2 -- 278 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 November, 2000 On 31 December 1998 he received a letter from his employer which stated that his services were terminated, apparently from the following day. On 19 July 1999 an orthopaedic surgeon performed surgery on Mr Brown’s wrist. Mr Brown did not return to work after his injury in December 1998 and settled his claim by receiving a lump sum payment of compensation from WorkCover on 17 December 1999. An application seeking the payment of compensation in respect of his alleged unfair dismissal was subsequently received in the Commission on 21 February 2000. The application is 396 days out of time. Mr Brown has asked the Commission to act pursuant to s. 74(2)(b) of the Act to extend time within which to lodge the application. An Outline of Contentions in support of the application was filed in accordance with a Directions Order issued by the Commission. In the outline the applicant indicated that it was only after he received a lump sum payment from WorkCover that he was able to turn his mind to a possible claim for unlawful termination. He said that whilst he was receiving treatment for his injury, including hospitalisation and surgery, he was in a great deal of pain and unable to concentrate on his affairs. After he received his WorkCover payout he made some enquiries of the local Industrial Inspector. He was informed that he might be entitled to claim compensation in respect of his dismissal because it occurred whilst he was receiving WorkCover. It was on that basis that he approached the firm of John Murphy and Co in February 2000 and gave instructions for a claim to be lodged with the Queensland Industrial Relations Commission. John Murphy and Co acted as requested and lodged the application expeditiously. The applicant also indicated that, following his injury, he was actively seeking work despite his injuries and pain. He was unsuccessful. He says that his lack of success was depressing and worrying. Other than the reasons advanced above no other grounds were forthcoming as to why the Commission should exercise its discretion and extend time to the applicant within which to lodge his application. During the course of the extension of time hearing – heard ex parte because the whereabouts of the respondent were unknown – the applicant made it clear that he was still incapacitated, had not worked since 11 December 1998 and was still incapable of performing normal duties. The whereabouts of the principals of the entity previously trading as “Total Building Maintenance” are unknown save and except that the applicant’s solicitor has been advised that the principals of the business have moved to Victoria. The respondent employer apparently ceased to trade on or about 1 May 2000. Conclusion Although feeling great sympathy for Mr Brown’s predicament, and the circumstances in which he now finds himself, I have nonetheless decided not to exercise my discretion to extend time to him within which to lodge the application. Although the Commission is required to consider the traditional tests set out in such decisions as Breust v Qantas Airways Ltd ([1995] 149 QGIG 777) this is a matter where the tests enunciated therein have limited relevance. This is because the facts of the case dictate that the Commission consider a range of other matters as well. The applicant has not provided a satisfactory explanation for the delay. It is all very well to say that he was preoccupied with his injury and its treatment, as well as his entitlement to WorkCover, but there is nothing else which would satisfactorily explain why it took the applicant over 13 months to lodge his application. Further, and most importantly, the applicant has not sought reinstatement but, rather, has sought compensation. In that regard the decision of de Jersey J in Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Kovacs ([1997] 155 QGIG 320) and my own decision in Opalicki v Queensland Pine Company ([1996] 153 QGIG 624) are relevant given that the applicant is not seeking the primary remedy made available under the legislation viz. reinstatement. In addition, even if his application be viewed as a valid claim for relief under the Act, he has suffered no actual loss because of his (alleged) unfair termination in that he has been unfit for duty for the whole of the time since his dismissal. In that regard he is not entitled to receive any compensation which would recognise any loss of earnings occasioned by his dismissal (see my decision in McCombe v Carter and Scott Civil Engineering Contractors (1998) 157 QGIG 81, Norton Tool Co. Ltd v Tewson (1973) 1 All ER 183 and dicta of Bougoure C in Cowan v BBC Hardware Limited, Hervey Bay (1997) 155 QGIG 429 at 431). In the end result it seems to me that it would be a futile exercise to grant the applicant an extension of time within which to lodge his application. Even if he was able to establish that he had been unfairly dismissed reinstatement could not be ordered for the dual reasons that the employer is no longer in existence and because the applicant, on his own admissions, is still unfit for work. Further, he could not be awarded compensation because he has suffered no loss – because he has not been fit for work – as a result of his termination. For all of these reasons I have decided to decline to exercise my discretion to extend time to Mr Brown within which to lodge his application. Accordingly, I dismiss application number B246 of 2000. In doing so I repeat that whilst I have profound sympathy for Mr Brown, and the predicament in which he now finds himself, no purpose would be served by extending time. All that would happen would be that Mr Brown would incur additional costs which he can ill afford. The Commission so determines and orders. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr J. Murphy, of John Murphy and Co. Lawyers, with Mr G. Brown the Applicant. Released: 10 November 2000 No appearance for the Respondent. -- 2 of 2 --