College v Lawrence Waterman [1999] QIRC 294 (1999) 162 QGIG 269

268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 November, 1999 5 November, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 269 ###ll#################################-#################################################1/it################################//## QUEENSLAKD JNDUSTRIAL RELATIONS COMM[SSION lndustnal Re/atiom Act 1999 - s. 274 - general powers and s. 331 (b) - application to dismiss or refrain from hearing John Paul College AND La,..TCnce Waterman (B1249 ofl999) COMMISSIONER FISHER AND Queensland Chamber of Commerce and Industry Union of Employers Limited AND Lawrence Waterman (ll1350 of 1999) 20 October 1999 Applkat'o l d' . fr . f h . _ '. ns o ,_sm,ss or re am rom eanng a matter - Application for Order 10 dismiss extension of time applications - Criminal proceedings on footComrruttal hearing - Medical certificate - Adjournment granted - Applican t to provide written advice on outcome of committal hearing. DECISION QGIG 5/J 1/99 -- 1 of 2 -- 270 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 November, 1999 The Commission has before it two applications which s eek an Order unde r ss. 274 and 331 (b) of the /11duscrial Relations Ace /999 that the Commission dismiss, refrain from hearing, further hearing or deciding dismissal applications BI 057 of 1998 and B l 058 of 1998 and in particular an Orde r dismissing the extension of time application contained in each dismissal applicati on. Case No. B1057 of 1998 is an application by Lawrence Waterman against Rentokil/lnitial Pty Ltd and BI 058 of 1998 is an applicati on also by Lawrenc e Wat erman against John Paul College. The first mentioned dismissal application was filed 59 days beyond the limitation prescribed by s. 218 of the Workplace Relations Acl 1997 while the second mentioned was 47 days beyond the staLUtory limitation. The two applications now before the Commissi on were filed by John Paul College (B1249 of 1999) and Remokil Pty Ltd (B1350 of 1999). B1249 of 1999 was listed for mention at th e same time given its similarity to the John Paul College application. In reality both applicants outlined their cases and M r Waterman's solicitor responded to both. Both dismissal applications flled by Mr Waterman contain the same reason for a.n extension of tim e to b e granted to file the dismissal application viz: "My dismissal is subj ect to criminal proc eedings initiated by the Queensland Police Service against me for st ealing as a servant. Such proceedings presently listed for committal h earing on 13 and 14 September 1999 at Brisbane.". In an affidavit filed on 29 Septembe r I 999, Brendan Patrick Ryan, s olicitor for Mr Waterman, said th at the committal hearing was adjourned to 23 November 1999. Those p roceedings are listed fo r four days. In addition Mr Ryan attached a medical certificate dated 28 Septemb er 1999. It advised that Mr Waterman has recently been medically incapacitated and unable to attend to activiti es of daily living. He will be unable to attend the industrial court for up to fou r weeks.". Neithe r Mr Livingstone, who ap pear ed for John Paul C oll ege, nor M r Nance, who appeared for Rentokil, sought to have the "strik e out" applic ations heard while Mr Waterman was incapacitated. However, th ey a rgued their applications should not be delayed pending the decision of the committal p roceedings or in the event Mr Waterman was commiued to stand trial, then the outcome of th e trial. Both Mr Livingstone and Mr Nance argued their respective cliems could be severely p rejudiced hy th e delay esp ecially in the event M r Waterman was ultimately acquitted a nd the C ommission ordered reinstatement Mr Ryan pointed out the prejudice which faced his client in the event the "strike out" applications or even the extension of time applicati on were heard prior to a determination in respect of the criminal matters. He referred to Breus1 v QANTAS Airlines (149 QGlG 777) wh e(e the prospect of success was identified as a relevant factor in consid ering ext ension of time applications. Mr Ryan said his client would be in no position to give evidence befo re the determination of the criminal maners and hence his prospects of success in the extension of time hearing would be damaged. Refe rence was also made to the general p rinciple where criminal m atte rs are allowed to be exhausted before related civil matters a re h eard. Although Mr Livingst one and Mr N ance submiued thei r applications stood apart from the criminal matters, as Mr Ryan pointed out, much of their applications goes to the allegati ons against M r Wat erman and includ ed Statem ents made lo the police by relevant staff. lt sh ould be noted that the principles generally adopted by th e Commission in determining "strike out" applications ar e similar to those applied in extension of time matt ers. (see Jones "Hilton hllemational Brisbane 149 QGIG 1255). Bearing this similarity in mind, were Mr Wate rman requi(ed to give evidence in this Commission about the allegati ons contained in the "strike out" applications or alternative advised not to give such evidence on the grounds of incriminaLion, then Mr Waterman's case in ihe Commission would be prejudiced. Th e Commission has generally adopted the principle outlined by Mr Ryan of exhausting criminal mauers as it does provide fai rness to the accused. Fo r those reasons I am disposed to adjourn Cas e Nos B1249 of 1999 and B J:\50 of I 999 at least until a decision has resulted from their commit.ta! proceedings. Mr Waterman is required to provide wriuen advice to the Indust rial Regi.Stra(, John Paul College and Rentokil imm ediately the outcome of the comm11tal hearing is kn own. That is not the eJ1d of t he matter. M r Livingstone foreshadowed a submission conce rning th e status of dismissal applications prior to an extension of time being fo rmail)' granted hy the Commission. He referred 10 th e specific wording of the rel evant section. ll is an int eresting argument and one that could pe rhaps be hea rd independently of specific case circumstances. Bearing in mind the comments I h ave made about the commiual proceedings I am no1 yet minded to hear Mr Livingstone's particular arguments to which I have just referred. I consider it would be prudent to consid er th e future direction of relevant matters before hearing the specific ,,rgument Ord er accordingly. G.K. FISHER, C ommissioner. Released: 20 October J 999 Appearances - M r R. Livingstone (Livingst ones Australia) on behalf of John Paul College. M r S. Na nce of th e Queensland Chamber of Comme rce and Industry Limited, Industrial Organisation of Employers on behalf of Rent okil Pty Ltd. Mr B. Ryan (Ryan and Bossher) on behalf of Mr L Waterman. ##################1/########## ###########il#######ffl####################ffl############l#l####-################il#############il 5 November, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 271 -- 2 of 2 --