Bailey v Gold Coast Drug Council [1999] QIRC 298 (1999) 162 QGIG 287

286 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 November, 1999 ################################################11#11####################/l###########iiil#############################il######## QUEENSI .AND lt'sDCSTRIAL RELATlONS COM.\HSSJO\" 214875-28 l,1d11.<tria/ Relation, Act 1999 Jnd11s1rial Coun Rules 1997 - Rule 136 -Lapse of application after one year delay 8.rendon Joh11 Bailey AND C'.-<,lcl Coast D.rug Council (1\o. BJ J 71 of 1999) -- 1 of 2 -- 288 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 November, 1999 VICE PRESIDEKT LINNANE 28October 1999 Original unfair dismissal application filed 12 November I 996 - Last action taken in the mauer was conference on 14 January I 997 - Application for an order of the Commission enabling Applicant to list matter for h earing - Uosatisfactory explanation for d<'lay - Insufficiently strong case t o overcome delay - application dismissed DECISION This is an applicat ion by Brendon John Bailey (the "Applicam") under rule 136 of th e t,1dustrit1/ Court Rules to hav.: his original Unfair Dismissal application (B2036 of 1996) listed for he:,ring. The last action taken in respect of 82036 of 1996 was a conference on 14 January 1997. The Applicant now seek, to take furthe r accion in relation 10 B2036 of 1996 and rec1uir es an order of the Commission to enable him to do so. Whilst there is an Affidavit of Service on th e Registry file indicating that the Gold Coast Drug Council loc. (the "Respondent") was served with a copy or the Direction s Order on ' Septe mber 1999 there was no appearance for the Respondent. The failure t o appear would seem to indicate that the Respondent did not wish to avail 1 1sel f of an opportunity 10 put materia.1 before the Commission on any prejudice that ll may suffer sho\lld B2036 of I 996 proceed further. Brie fly the hiscory of the maner is as follows:- The Applicant was dismissed from employment with th e Respondenc on 15 October 1996; • Prior to his dismissal t he Applicant had suffe red from severe lower back pain due to a degenerative spinal disorder and had been prescribed medication to rehs,ve the pain; • The Applicant filed an Unfair Dismissal application in the Registry on 12 November 1996. At this time the Applicant had to apply for an extension o f time in wh ich 10 file his Unfair Dismissal application as ic was then some cen (I0) days out of time: I accepc that the Applicant was in hospital at the time of his termination suffering a severe infection secondary 10 pneumonia. I also accept that the termination of his .:mploymen1 caused the Applicant 10 suffer a furth er stress relat ed conditio n. • On 14 January 1997 a conference was held in relation to the lJnfair Dismissal application. That conference failed to resolve th e matter. On 11 August J998 the Registry corresponded with the Applicant noting that no action had been taken m relation to th e matte r since 14 January, I 997. That correspondence drew the Applicant's attention to Part 28 of the lridustrial Co11r1 Rules 199i and in particular Rule I 36 and requeste d that the Applicant show cause in writing within twency-one (21) days as 10 why the matter sho\lld not be struck out. • Oo 2 Septemb er 1998 the R egistry received correspond ence from the Applicant to the effect that he wished 10 apply for an extension of time and that he was th en curremly seeking legal advice. As a result of that correspondence the matter was not struck out at that ume: On 6 August 1999 the Registry received corre sponden�-,; from Mr Scephen Royce of Australian Industrial Rein.51a1emen1 Services advising that the Applicant was now in :1 position 10 pursue his Unfair Dismissal Application and asking for a further conciliation conference; The Re gistry responded rn a letter dated 9 August 1999 10 Mr Royee advising that che Applicant would need 10 mak e application under Rule 136 before he could procee d fu rther with B2036 of I 996. Jn that correspo ndence the Regi stry futther advi sed that in any such application the Commission would need:- (i) a co mprehensive, detailed explan:ition to satisfactorily explarn th� Applicant's inac1io11 since the confereoce on 14 January 1997: (ii) to convince the Commission that no prejudice would be suffered by t he Respo ndent if the Commission were to allow him to proceed: (iii) to satisfy the Commission that the Applicant had a very strong cas e and would, on balance, be more prejudiced if the mailer did not proc ee d chan che Respondent would be if it did. 11 seems that from the date of 1ermiua1ion until I June 1999 the Applicant ha.s suffered various medical conditions. Apparently the Applicant did nothing 10 activate his Unfair Disnu ssal application until after he receive. d correspondence from the Industrial Reg1s1rar dated 11 August l 998. On or about 24 August I999 the Applicant forwarded correspondence to Mr Royce and attached the "papers request ed" by :Vlr Royce regarding his '"linfair Dismissal Applicacion". Mr Royce apparently mt:1 with the Applicant and his wife shortly thereafter. At the hearing Mr Royce did 1101 give evidence of any advice he may have offered the Applicant at this time concerning the need for the Applicant to pro gress his matter promptly. Mr Royce a11empted to giv e evid ence from the bar table buc was advised 1ha1 he could not do so. Mr Royce obviously did not understand th< importance of his explaining why he did not take some action 10 further I.he Unfair Dismissal application at that time and/or was no t able to provide the Commission with an adequace explanation of his actions at this time. from the evidence of the Applicant I am able to gather the following account of his hospitalisation or otherwise since th e termination of h is employment. 'The evidence rev eals the following:- (a) the Applicant was hospitalised on J 7 October 1996. I was noc advised when the Applicant was rel eased except that he did attend the conference before the Commission on 14 January I997; (b) the Applicant was at this time being treated f or depression: (c) th e Applicant had a relapse and wa.s ho spitalised on 9 March 1997 Ltntil J 4 March 1997 in 1he psychiatric ward of the Gold Coast Hospital; (d) on J7 March 1997 the Applicant went 10 Goldbridge, a residential rehabilitation centre at Southport. He remained at Goldbridge until 30 JUJle 1997: (e) from there the Applicant mo ved to a halfway house. le seems he was in the halfway house from I July I997 until . <ometime in September/October 1997 when he had a relapse: (f) the Applicant's evidence is that he de toxed himself at home at this time : (g) the Applicant states that between that time and the end of 1997/early 1998 he has no real memory of events. The Applicam's evid ence is that he thinks he ha d anocher re.lapse and that he was in and out of depression and in and out of active addiction be tween that time and when he was admilled 10 Fairhave n to re ceh·e detox tr eatment on 12 Augusc 1998: (h) apparently the Applicant again went into Fairhaven for detox tr�a1men1 on 28 Occober 1998: (i) on 12 November I 998 eh,., Applicant was admitted to Fairhaven for long term residential creatment. He remained in that re sidential ueatnient until I June 1999. The Applicam's evidence is that he would not have heen able to be employed in any capacity from the time he was rusmissed until after J June 1999. H< was on sickness ben efits from t he dat e of termioacion until June, 1999. l\o medical evidence wa.s adduce d to 1he effecc that the Applicant's confinement in hospital or residential care since the termination of his employm�nt with the Respondent is amibu1able 10 his dismissal. The evidence of the Applicant is that he used he.coin up to 1979 and that he had worked in the dnig rehabilitation field since thac time. Hi.< evidence was th,u he was clean fro m drugs and alcohol up until a period of approximat ely chre,., (3) monchs pn(l( to his dismissal when he was pre.scribed medication for hi, back complaint. 12 November, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 289 There is a brief medical report from Dr Morgan O'Bri en dated 17 June 1999 to the effect that he ha.s treated the Applicant during various periods from March 1997 to June 1998. In chat report Dr O'Brien does suggest that if there are "any specific questions" t o contact him. There is n o evidence that Mr Royce made any contact with Dr O'Brien to clarify whether t.he drug addiction was i11 any way connect ed with the Applic:.nt's dismissal from employment with the Respondent. 1 am nm sure whether the Applicant'.< hospicalisation from early 1997 was as a resulc of prescribed drug problems alth ough ther e is evidence from the Applicant that h.: could have been "nususing chem icals'· and got back ••into active addic tion·• shortly aft er the Commission conference in January I 997. fn any eve nt it appears cle ar that as and from September/October I997 the hospitalisation of the Applicant and/or his confinement in res1den1ial accommodation was drug related. On the Applicant's evidence he was not incapable of making a decision as to wheth er 10 proceed or not with hi.s Unfair Dismissal application prior 10 June 1999. le was, howe ver. the Applicant's evidenc e that he would have been incapabl e of silting in a courtroom for four days being c ross-examined. lJ chat were the position then clearly chat would have been an argument as to why the hearing of the matter might be delayed. It d0cs not, however, assis t the Applicant 10 explainillg why he did not pursue his application at a far earlier date. Jn his e vidence ch e Applicant stated that he thought that he had made contact with che Industrial Regiscry seeking an exte nsion of time. Mr Royee suggested that notes of any such t elephone conversation should be on the R e gistry file. I undertook lO peruse the file to see if such documentation was available. A search of the RegiStry fil�s did not locate any indication that S\lCh a messag e was received from the Applicant. The Applicant thinks that the contact would have been mad-, within the first two or three m onths of I 998. He was not, however, sure t.ha.t he made any such contact as this was the period of time where he had no real recollection of events. Th e Applicant a lso could not recall receivi1i.g correspond ence from the Industry Re gis try advisin g him that his application would lapse unless he did something about it within a specific time frame. ·nie reason for the Appl icam pursuing his lnfair Dismissal application appear to be 10 get some '"vindication" for the ""allegations·· of being under the "intluence of drugs <11\d alcohol at work''. There was no medical evidence before me to the effect that the Applicant was incapable of making a rational decision 10 pursue or otherwise his Unfair Dismissa l application from January 1997 umil June I 999. In fact, th e evide nce of the Applicant is to the contrary. I accept that the Applicant suffered depression during part of this time and Lhat he st1ffer<'d from substance abuse during most of that period. I do not find thac th e Applicant's explanacion for his inaction since the conference on 14 Jacmary J 997 to be satisfactory. Furth er, "J am not satisfied that should the matter proceed to a he aring that the Applicant ha s a sufficiently strong case to o vercome tl\e unsatisfactory reason for the delay in pursuing his application. Jn this regard I reft.r to the Applicant's evidence that he would not have been abl e 10 be employed dunug the period l 5 October 1996 to l June I999 because of the medical problems that he suffered. Whilst l appreciacc 1ha1 t he Applicanc will suffer prejudice as a result of not granting the order sought in that he will no1 be abk 10 pursue his Unfair Dismissal application, I am of 1he view that the factors me111io11ed above outweigh the prejudice 1ha1 he will suffer. 1 therefore dismiss che application that the original matter B2036 of 1996 be lis te d for he aring. Dated this 1w e111y-eighth day ofOccob�r, 1999. D.:V1. L!N;'<A!'\E. Vice President. Released: 1 November 1999 App eara11ces:- Mr S. Royce of AuStralian JndustriiLI Reinstatement Services for 1he Applicant with him Mr B.J. Bailey ########################################################################il##-1/############################################### -- 2 of 2 --