Christoffelsz v Achieve Cleaning Services Pty Ltd [1999] QIRC 192 (1999) 162 QGIG 23

_2_2 _ _ _____0_VE_ E_N_S_L_AN_D_ G_o_VE_R _N_ M_E__ NT_I_ ND_u_s_ TR _I AL __ G _AZ_E _ ITE___10_s_e _ p_te_m_ b _er_, _ 19 _9 _ 9 r 10 September , 1999 QUEENSLAND GOVE RNMENT INDUS T RIALGAZE TTE 23 ####################ll###it################/1##11##############/t############################################################### QlJEENSLAND INDUSTRIAL RELATIONS COMMISSION COMMISSIONER BECHL Y /11d11strial Relariont Acr 1999- s . 74 - application fo r extension of time David ChristofJelsz AND Achieve Cleaning Services Ply Ltd (B27 of 1999) 3 I August I 999 Application for Reinstatement - Appltcation for Exten sion of Time in Which to File Application - Retro �-pective Termination of Employmen t - Sixty_<even days out of ltme -Application den ied. DECISION \.1r David Christoffelsz seeks an extension of tim" w1th10 which to file an application for re in sta tement. The applicant states that on 9th October I 998 he was given a letter of ter mination dated 7th October which purponed 10 t�rminate his employmentmr ospecuvel y to 30 September J 998. The application for reinstate ment was filed on 6 Januar y I 999. I f the l atest of the above da tes ,� taken as 1he receipt of tbe termi nation advice theapplication is 67 days out of time. No w1tn,ess ,-:vidence was called du ring the hearing. Essential facts are disputed. /vl r Christoffelsz in dicates that he cook leav e to get married and had an arrangemen t to return lo work within the agreed kave period if requi red. The period of approved leave is said by him to have been from 15 S eptember to 7 October. The responden t indic ates thac Je;,ve was approved for two weeks onl y and 1hat th e ap plicant was to resu me duty on 29 September J 998. Attempts weremade to comact him at about that time. They were un successful. The applicant comac1ed the respondent on 6 October and he claimed to be ill on thatday. The respon dent advises thac che applicant was infocmed on that day tha t his e mployment was to be termi nated. He returned 10 work on 7 Oc to ber. Thereis conflict as to wh at occurred on tha t day. A lett er of termination was given to the applicant by an administrative staff member apparently on thac date but cffecci ve from 30 September - the date o n which it was claimed that he wa s required to resume duty. Intruding into this mailer is an allega tion by the applicant that the respondent's representative, Ms Gaye Borodin, the sole director of the respondent, badmade advanc es 10 him of a sexual nature which he advises he rejected. Ms Borodin was absent from the offic e f rom 9 October 1998 to 27 Octobe r 1998. The applica nt states that he had a t el ephone conversation with her on 27 October and that she mdicated regrel for her action a nd wanted the applicant to resume working for her. This is denied by her. Although ter minated on 7 October, said to be effective from 30 September. the applicant appears to have taken no steps 10 s eek advice as to brin ging an application for reinstatement unti I 22 Octobe r I 998. In th e meantime however he did take s ieps to registe r a business in the name of Assent P roperty Services P1y Ltd, which was regisLered on 4th November !998, and to seek cleani n.g c ontracts from existin g clients of the respondent. This action apparently cau sed loss of contracts to the respondent . ::ODMA\GRPW ISE\QlRC-DOM.JRO-POI .GENERALJ:29451.1 -- 1 of 2 -- 24 QUEE NSLAND GOVERNME NT INDUSTR I A L GAZETTE 10 September, 1999 There was a further communication between the parties on 2 December J 998 when any prospect of r e -employment was rejected, however an application was not filed until 6 January I999. A conference as required was held on 4 February 1999 by the Act. No application was made until 16 June 1999 to bring the matter to a hearing. The applicant had access to advice. from staff of Department of Training, Employment and Industrial Relations on both 22nd October in a limited manner and 2 November in a detailed manner. He also had access to legal advice during the process of setting up a company 10 compete in the cleaning business with the respondent. In my view there is no adequate reason for his delay in taking the basic steps necessary to initiate his claims for reinstatement within the 21 days allowed or at a much earlier date than 6 January 1999. Additionally there is no adequate reason as to why the applicant took nineteen weeks to activate this action after the required conference, knowing that an extension of time had 10 be gained before the action could proce�. The applicant will be denied access to a process of redress of his claims. However that is the fault of his unreasonable dela)' in initiating action without reasonable cause. He has established an entity to compete with the respondent and others in the deaning business and has apparently developed an income earning business. He will not be denied access lO recovery of alleged unpaid wages if his extension of time in this matter is rejected. The period of employment is quite short, May I 998 to September I 998. There was a prior period of employment, apparently from I 993 until a termination occurred on 28 April 1998 apparently also for failure to resume work at the appointed time alier annual leave. The break in the employment 1 is acknowledged by the respondent but the reason is suggested as being a breakdown in the relauonship between the apphcant and Ms Borodin. It was further suggested that the re-employment at that time gave the applicant reasonable reason to believe that his employmeni would be regained on this occasion. None of this is sufficient to demonstrate good reason for failing 10 file within the allotted time. The application to extend time within which to file this application is denied. R.E. BECHLY, Comnussioncr. Released: 3 September I 999 Appearances:- • Mr M. Loane, of Michael Loane and Associates, for the Applicant. Ms B. Callaghan, of Counsel, i1i;�ruc1ed by Deacon and Milani, Solicitors, for the Respondent. ########################################################################################################################### 10 September, 1999QUE E NSLAND GOVERNME NT INDUST RIALGAZETTE 25 -- 2 of 2 --