Butler v Docklea Combined Services [2000] QIRC 86 (2000) 165 QGIG 50

50 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 September, 2000 ########################################################################################################################## # 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 Shane Victor Butler AND Docklea Combined Services (No. B873 of 2000) COMMISSIONER BLOOMFIELD 5 September 2000 Reinstatement – Extension of Time – Security Officer – Arbitrated Matter – Commission found there was no termination of employment by Respondent or constructive dismissal – Applicant had resigned – Extension of time refused – Application dismissed – Costs awarded. -- 1 of 3 -- 15 September, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 51 DECISION Mr Shane Butler has sought an extension of time within which to lodge his application for relief following an alleged unfair dismissal by Docklea Combined Services. I say “alleged dismissal” because it is common ground that Mr Butler resigned his employment on 2 May 2000 (effective 7 May 2000) by letter faxed to a senior company representative in Sydney on that date. The letter sent to Mr Testa, the company’s General Manager, was in the following terms:– “Attn. A. Testa Andy I’m writing this letter to inform you of my intention to resign from my employment with Docklea Comb. Services. This decision has not been made hastily as I felt you gave me no other choice. I thank you and Simon for giving me the opportunity of working with Docklea Comb. Services. I wish you both the best in the future. My last day of work will be 7th May 2000. If all monies owing, including all lieu days for the past year, excluding the 6 lieu days I took in January, four weeks holiday, loading etc.. Ready for collection on Monday 8th, at this time I will return all Docklea Comb. Services property to the office. Again Thank You Shane Victor Butler Dated 2 May, 2000”. Mr Butler’s evidence was that he had been forced to resign his employment following Mr Testa’s decision not to approve a written application for leave between 8 May and 24 May inclusive. Mr Butler claimed that he had been verbally advised by Mr Testa and the State Operations Manager, Mr Dutton, as early as February 2000 that the leave had been approved and on this basis had booked tickets to Western Australia. He said that the employer’s alleged late decision to formally advise him that the leave request had been cancelled left him with a choice of either cancelling his intended holiday, and losing over $5,000 expended on the holiday, or resigning his employment. Under cross-examination Mr Butler stated that he had been told by Mr Dutton a few days before 12 April that his application for leave should not be a problem but that he should put his application forms in. That discussion arose when Mr Dutton spoke to him about his own leave which was to start a few days later. Mr Butler said he had told Mr Dutton that it was good that he had mentioned his leave intention because he (Mr Butler) was looking at possibly taking leave at around the same time. He also agreed that he had raised the matter with Mr Testa on or around 15 April when Mr Testa had also said words to the effect that it shouldn’t be a problem but had also said “put the forms in and we’ll sort it out”. However, it took Mr Butler until Easter Monday 24 April before he submitted his written application. Under cross-examination it was suggested that Mr Testa had not seen the application until his return to work on 26 April i.e. the day after the Easter/Anzac Day holiday. Mr Butler then was absent on leave to attend a court hearing in Sydney over the balance of that week and returned to the office on Tuesday 2 May. On that day he was informed by Mr Dutton that there was a problem with the leave request and that he would need to take it at the end of June. Mr Butler’s evidence was that he “said nothing” to Mr Dutton and that he took the news “on the chin”. After he went home that afternoon and thought about the matter he felt that he had no choice except to resign. He then wrote the letter (above) to Mr Testa and faxed it to him. That was some six days before his leave request was due to take effect. There was no evidence to suggest that Mr Butler told either Mr Dutton or Mr Testa, during his notice period, that his decision to resign had been based on the company’s rejection of his written leave request. During his time in Western Australia between 8 and 24 May the applicant phoned the Registry of the Queensland Industrial Relations Commission to make enquiries about pursuing an unfair dismissal application. He arranged for information about unfair dismissals, and an application form, to be mailed to him at his home address so that he could read it upon his return on 24 May. He claimed that during his discussion with the Registry staff no mention was made of the twenty-one day time limit. Under cross-examination Mr Butler stated that the application form was available immediately upon his return from Western Australia. He also stated that he made a conscious decision not to pursue an unfair dismissal application at that time because he was attempting to contact the employer about payments which he believed he was still owed in respect of his period of employment. He also stated that he was not seeking reinstatement to his former position because it would be an unfavourable environment. He said that the unfair dismissal application had only been lodged after he failed to receive satisfaction in respect of his attempts to recover what he believed to be underpayments in respect of his period of employment. Importantly – having regard to the fact that his application sought an extension of time within which to lodge his application – he did not provide any further explanation for the time gap between Monday 28 May (the last day for lodgement within the twenty-one day period) and the actual lodgement date of 22 June 2000. Conclusion This application is one which falls outside the rule established by Hall President in Savage v Woolworths (Queensland) Pty Ltd ([1999] 162 QGIG 353). This is because the Commission lacks jurisdiction to consider Mr Butler’s application. The evidence clearly shows that Mr Butler was not dismissed either directly or constructively. Accordingly, the application for an extension of time cannot succeed. Mr Butler claimed that he had received verbal approval in around February 2000 that he could take his annual leave between 8 and 24 May 2000. On that basis he allegedly went ahead and purchased tickets to Western Australia on 3 April 2000. However, the evidence disclosed that any discussion about Mr Dutton’s leave intentions before 3 April was, at best, very general. Before Mr Butler purchased the tickets he should have established that the leave was approved by sending the forms to Sydney. It is also a little strange, if Mr Butler thought that leave had been approved, for him to have taken the matter up with Mr Testa on or around 15 April without mentioning that he thought the leave had already been approved and without mentioning that he had already purchased tickets. Under re-examination Mr Butler indicated that he had previously been permitted to take leave in January with verbal approval only. Even if that be so, and Mr Butler was relying on past practice, it is clear on his own evidence that he did not directly raise with the employer between 2 May (when he resigned) and 7 May (when he left) that he had booked non-refundable flights to Perth based on past practice. Nor did he seek to persuade the employer to change its decision because of those circumstances. He simply went ahead, without any discussion about the reasons, and resigned his employment. -- 2 of 3 -- 52 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 September, 2000 In my considered view he was not forced to take that position. There were a number of other options open to him, including the most obvious of all viz. taking the matter up with his employer. It was not simply a case where a gun was held to the applicant’s head and he was forced to resign. Other options were available. Mr Butler elected not to pursue them. It was also clear that the decision was not taken rashly. The applicant said during the course of his evidence that he had thought “long and hard” about the whole matter before deciding to resign. In this regard, Mr Butler’s resignation letter to Mr Testa is notably silent on the reason or reasons why he decided to resign his employment. If it had been for the sole reason suggested, one would have thought that that reason would have been mentioned. That it was not, in my view, is significant in the whole scheme of events. The applicant’s reinstatement application indicates that Mr Dutton spoke to him about his performance on 19 April 2000. On that date he was told that Mr Testa was disappointed with some operational issues and his future was discussed. He was subsequently advised that the company would cease to allow him to use the company van from 27 April 2000. Whether those matters were in the applicant’s mind or not when he wrote the resignation letter on 2 May was not put to him under cross-examination. Whether they were or not, the simple fact remains that he was not forced to resign simply because he had been informed that his relatively late formal request for leave had not been approved. Even if I be wrong about my decision that Mr Butler resigned of his own accord and, instead, was constructively terminated, I would, nonetheless, not exercise my discretion to extend time within which to lodge the application. I make that decision for two reasons. Firstly, the applicant has not satisfactorily explained – nor attempted to explain – why it took him and his industrial adviser between 28 May and 22 June 2000 to prepare and lodge the application. Apart from claiming that some of that time was spent in trying to contact the employer to talk about alleged underpaid entitlements no attempt was made to explain the balance of the time up to, and including, 22 June 2000. Secondly, the applicant has made it clear that he is not seeking reinstatement to his former position and that the application was only lodged following his failure to gain satisfaction in respect of the alleged unpaid entitlements. Having regard to the decision of de Jersey President 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) it would be inappropriate for me to exercise my discretion to extend time when the applicant is not seeking the remedy provided by the legislation. For the foregoing reasons I decline to grant Mr Butler an extension of time within which to lodge his application. I also formally dismiss the application. Costs Ms C. Doyle, of Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI), who represented the respondent employer, wrote to the Commission on 23 August 2000 applying to have the application struck out on the basis that the applicant had failed to provide a statement of grounds and reasons for which an extension of time was sought by the date set out in the Directions Order. Ms Doyle complained that the applicant, through his representative, had cancelled a conciliation conference before Vice President Linnane on 18 July 2000 at extremely short notice after she and Mr Dutton, who had travelled from the Gold Coast to appear at the conference, were in the Commission. She also complained that the applicant had failed to provide a statement of grounds and reasons as required by an initial Directions Order associated with an earlier (cancelled) extension of time hearing which had been scheduled on 9 August 2000. That hearing had been cancelled the day before because the applicant’s representative claimed not to have received notice of it. In addition to asking that the matter be struck out she also sought costs in respect of the application pursuant to s. 331(c) and s. 335 of the Industrial Relations Act 1999. For reasons spelt out in the transcript I declined to strike the matter out as requested and allowed the applicant to present his case for an extension of time. After considering this matter most carefully I have decided to award an amount of costs to the respondent. It is clear that the applicant freely chose to resign his employment on 2 May 2000. As explained above, it was not a case where Mr Butler had no other options open to him. The decision to resign, on his own admission, was one that he had thought long and hard about. The employer should never have been forced to expend money to defend the application. The applicant never had a chance of succeeding for the dual reasons that the applicant resigned and because there was never any factual base to support the application for an extension of time. Pursuit of the application in such circumstances constitutes an unreasonable act. The QCCI is to file a statement of the respondent’s costs in connection with the defence of the application within 14 days. This is to include expenses associated with travel from the Gold Coast to Brisbane by Mr Dutton on two occasions. After the material is received the Commission shall issue a further decision specifying the amount of costs which it will award. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr M. Heffernan, of Employment Advisers (Aust), for Mr S. Butler the Applicant. Released: 5 September 2000 Ms C. Doyle, with Mr M. Smith of the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, with Mr S. Dutton for Docklea Combined Services. -- 3 of 3 --