Adams v Jarvis Fielding Carrol Pty Ltd [2000] QIRC 50 (2000) 164 QGIG 200

200 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 June, 2000 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – extension of time Carey Adams AND Jarvis Fielding Carrol Pty Ltd (No. B 331 of 2000) COMMISSIONER BECHLY 7 June 2000 Application for reinstatement – application for extension of time in which to make application – advertising industry – loss of position consequent upon diminution of trade – failure to file application within time notwithstanding legal advice to do so – application rejected. DECISION Extension of time within which to file an application has been sought by Mr Carey Michael Adams who seeks re-employment as Production Manager with Jarvis Fielding Carroll Pty Ltd. Mr Adams’ employment was terminated on 23rd September 1999 by the giving of five week’s payment of wages in lieu of the option offered of five weeks notice. He was also paid an amount said to be one month’s salary as a redundancy payment. On 27 September he consulted a solicitor and instructed that a letter be sent to the respondent seeking a greater redundancy payment (eight weeks) and further proposing that the termination had been unlawful in that the redundancy was not genuine. Compensation of the order of six months salary was sought. The respondent was put on notice by letter of 30 September 1999 that if a reply was not received within seven days that an application would be made in the Industrial Relations Commission for relief and the hope was expressed that “such a step would not be necessary”. By reply of 5 October 1999 the respondent’s solicitors rejected the claim that the redundancy was not genuine and made some challenges as to the nature of payments made to Mr Adams on termination. It seems that the view held by the respondents was that the one month’s salary earlier referred to was an ex gratia payment and that, as the applicant was not covered by an award, no redundancy payments were applicable. This comment appears to be in conflict with the respondent’s statement of final payment to the applicant which refers to a “notice redundancy payment” of $5,288.46. Mr Adams was informed of this response and instructed that a further letter be sent to the respondent. His solicitor then wrote to the respondent’s solicitor on 11 October 1999 noting the respondents intention to strenuously oppose any application to the Commission and proposing that the matter be resolved without the commencement of formal proceedings. Approximately two weeks after 11 October Mr Adams rang his solicitor to see if there had been a response to this correspondence. On being advised that there had not been and that his solicitor did not expect to receive one he made a decision not to proceed further with the matter. His evidence is that he made this decision based on the understanding that he could anticipate achieving only a further one month’s salary with respect to a redundancy payment. He balanced that against the cost of legal fees and the unwanted stress that would be associated with further proceedings. Mr Adams’ evidence is that he was made aware of the fact that an application had to be made to the Commission within 21 days of termination. His evidence is that his solicitor “did tell me that, yeah, and I – when I decided not to pursue the matter I thought, well, that’s the end of that. . .”. (transcript page 11, L53). In January Mr Adams was prompted by a friend to reconsider his decision when he was advised that he could take the matter further if an application had been lodged with the Commission. He contacted his solicitor to ascertain whether an application had been lodged and was reminded that he had instructed that the correspondence earlier referred to, be sent. Mr Adams’ evidence is that he assumed that if an application had to be lodged within twenty-one days then his solicitor would have taken the necessary steps to do so. There appears to be some conflict between this assumption and the evidence that it was decided that a letter be sent to the respondent in the terms outlined above. It appears from Mr Adams’ evidence that he was provided with a full explanation of the procedures required under the Industrial Relations Act 1999 (the Act) when he initially consulted his solicitor. Given that there was a full understanding of the requirements of the legislation the appearance is that there was no desire to proceed formally with the matter at that stage. No further action was taken by Mr Adams until March 2000 when he was told by a friend that he thought he had seen his job advertised. This later proved to be incorrect but it prompted him at the time to make further enquiries of the Registrar as to steps which might be taken. He was advised to seek further advice and contacted Mr Steinitz who immediately filed the application now before the Commission. It is Mr Adams’ claim that his solicitor failed in his professional duties by not lodging an application for reinstatement and that he was wrong in his advice as to the amount that might be achievable as a redundancy payment. Mr Adams said in his evidence that he decided to have a long holiday after his termination. His wife had died some nine months previously and he wanted some time to himself before seeking further employment. This formed part of his decision not to progress his claim in the Commission. It appears from the limited evidence that the formalities as to the making of an application and what could follow therefrom were explained to Mr Adams by his solicitor, that is the need to make an application within twenty-one days, the fact that a conference is held before a hearing, the stresses of a hearing, the cost of litigating, the maximum compensation the Commission is empowered to order if it finds that the termination contravened the Act but that reinstatement was not appropriate, etc. The advice given to Mr Adams as to redundancy payments appears to relate to the standard contained in the Termination of Employment, Introduction to Changes, Redundancy Policy adopted by the Commission. Correspondence tendered during the hearing from the Respondents’ solicitors rejects the application of that standard and terms the payment of one month’s salary as an ex gratia payment. The policy came into effect in 1987 and, while it remains as the current policy document it does not necessarily reflect practice adopted with respect to non-award employees. In any event, the payment of one month’s salary, even if taken as a redundancy payment, is half of an entitlement that would accrue under that policy to award employees within the respondents’ employment. It falls well below the long service leave accrual which any prudent employer would have provided for. Mr Adams had nine years service at the time of termination. It also falls well below standards that have been adopted by employers who are responsive to realistic trends accepted by the community. -- 1 of 2 -- 23 June, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 201 However this aspect of his claim was only one part of the claim made on the respondent. The other aspect of the claim was a payment for six months compensation on the basis that the termination was harsh, unjust or unlawful. It is Mr Adams’ evidence that he decided not to pursue the claims made on the respondent. That decision related both to the six months compensation sought and an additional payment which, on the face of the six months compensation sought, was beyond the limits available to the Commission to award. On the evidence before me it is not available to draw the conclusion that Mr Adams was badly advised by his solicitor. Taken by itself, the eight weeks redundancy pay sought was meagre but the claim taken as a whole was not inappropriate, that is the claim made upon the respondent could not be taken as bad advice by the applicant’s solicitor. The decision not to file an application was made by Mr Adams in the knowledge that an application had to be filed within 21 days and that that time period was passing or had passed. That knowledge was given to him by his solicitor and, shortly after the time had passed, he decided to abandon his claim. Having abandoned the action in October 1999, on the advice of a friend, he made enquiries in January 2000 to see if the matter could be revived. He was reminded that the decision had been given not to file an application. The opportunity was available at that time to seek other advice but no such advice was sought. It was not until March 2000 that any further action was taken. Both parties referred me to the prejudice they believe they would suffer if an adverse decision was given. The applicant will lose the right to argue that the dismissal was unfair. That matter was abandoned in October 1999. The respondent argues that it had a reasonable belief that the claim had been abandoned and has proceeded accordingly in the management of its business. It argues that a true redundancy existed as a result of loss of a major client. The work previously performed by Mr Adams had been spread between other employees, one a working director, and became additional to other duties carried out by them. The loss of a major client of the business taken over by the respondent was acknowledged by Mr Adams as was the effect that such losses have in some advertising agencies on staff. Losses and gains of clients often result in decreases or increases in employment of various categories of labour within an advertising agency. However, Mr Adams’ employment had been continuous for nine years. The business for which Mr Adams worked for almost nine years was purchased on 1 July 1999 by Carroll Delaney Pty Ltd and now trades as Jarvis Fielding Carroll Pty Ltd. Mr Adams’ employment was transferred to the new entity and he states that he was advised that his employment was secure. The respondent does not acknowledge that any indication was given that could be taken as an absolute guarantee of continued employment. I accept this as a matter of realism. At the time that the major client was lost two other management staff left the employment, one being a media manager who was terminated and another who was the account coordinator who resigned. On the face of the material before me there is no acceptable explanation of the reason for delay. The application for extension of time is dismissed. R.E. BECHLY, Commissioner. Appearances:– • Mr R.H. Steinitz, of R.H. Steinitz and Associates, Advocacy & Industrial Advisory Services, for the Applicant. Released: 13 June 2000 • Mr R. Livingstone, of Livingstones (Australia), for the Respondent. ########################################################################################################################## # -- 2 of 2 --