Bosak v Queensland Cricketers' Club Ltd [1999] QIRC 21

102 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 February, 1999 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 103 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION (j O \l'.;''iy,l'v J-~Z,,... i '~i ,"\ Industrial Relation,T Act 1990- s. 295 - application for reinstatement Workplace Relations Act 1997 - s. 346 - application to dismiss Q (;r-y;-.. Caroline Jane Bosak AND Queensland Cricketers' Club Ltd (No. B1053 of 1996) CIIIEP INDUSTRIAL COMMISSIONER HALL 27 January 1999 J ,. Application for Reinstatement - Failure to Take a Step for Well Over Two Years Application for Leave to Proceed Reinstatement Application be Dismissed Re!>pondent' s Application Rejected - Leave Granted. DECISION Application by Respondent that Caroline Jane Bosak was dismissed from her place at the Queensland Cricketers' Cluh on 24 May 1996. On 5 June 1996 she filed an application for reinstatement under s. 295(2) of the Industrial Relations Act 1990. There was a conference in the Commission on 6 August 1996 with a view to com.:iliation of the matter. Conciiiation faile.d. Over 2 years were to elapse before the applicant requested a date of hearing. The explanation for the delay lies in continuing attempts by the solicitors for the applicant and the solicitors for the respondent to negotiate a settlement. It may be accepted that the dispatch of correspondence is not an "ae,tion" within the meaning of Rule 136 of the. Industrial Court Rules 1997. However, if the applicant had asked for a date of hearing and directions for the conduct of the hearing, and the request had been granted, action would have been taken. It is understandable that the applicant's solicitors refrained from taking that step whilst negotiations were ongoing. It is to be noted that it was not until 11 August 1998 that the respondent's .solicitors wrote to the applicant's solicitors indicating that the respondent was not prepared to enter into further negotiations until "leave of the Commission to proceed" had been granted. The matter came before me at a call over on 11 November 1998. At that call over the solicitor for the respondent made application for the matter to be ·•struck out". I understood that application to be a re.ference to the Commission's power w dismiss a matter or to refrain from hearing a maner under s. 346 of the Workplace Relations Act 1997. I listed the respondent's application for hearing on 14 December 1998. When the matter came before me on 14 December 1998 counsel for the applicant sought leave to proceed pursuant to Rule 136. I have some difficulty with that application. It concerns me not at all that no document indicating that such an application was to be made had been filed with the Industrial Registrar or served upon the respondent. Given the legislative directions to the Commission to act on the suhstantial merits of the case and without emphasis on formality, those omissions may readily be overcome. What does concern me is that the matter was listed for call over on 11 November 1998. I rdther think that in listing the matter for call over, the Industrial Registrar was permitting the applicant to take action. Since, by Rule 136(2). the Registrar is authorised to make an order allowing action to be taken, there is perhaps some reason fC£ relying on the presumption of regularity and implying that he did. In any event, the respondent persists with the dpplicatiou under s. 346 of the Workplace Relations Act 1997. Since the considerations which will arise on that application are considerations which will arise on an application under Rule 136, I propose to put to one side the significance of what has occurred in the Industrial RegistJ:ar' s Office and deal with both applications . Counsel for the respondent placed great emphasis on the length of the delay, the public interest in the expeditious determination of unlawful dismissal claims and the applicant's prospee,ts of success on the matter of remedy. Certainly, the length of the delay makes it unlikely that reinstatement will be ordered. On the exi.sting authorities, if the respondent succeeds on it's submission that there was a bona Jule redundancy, the applicant would be granted no more than compensation on the scale in the Commission's Statement of Policy upon the matter of Termination, Change and Redundancy. In fact, the applicant was paid such a sum upon termination. 'lbe problem is that the materials before me do not justify the conclusion that the applicant will not succeed on her claim that the termination was not in conseque.nce of a bona fuie redundancy. It is certainly true that the delay is substantial and that the delay sits ill with the policy pursued both by the Industrial Relations Act 1990, which governed the dismissal itself, and the Workplace Relations Act 1997 whid1 provides the forum and the procedural scheme for the determination of the application. The delay also conflicts with the Commission's policy of insisting that, a.~ far as is practicable, unlawful dismissal cases should be brought to a rapid resolution. However, on the facts I can understand how the delay occurred. On the respondent's claim that it was a bonafuie redundancy I doubt that the respondent will be overly prejudiced by the dimming of memories which must inevitably have occurred. No ixejudice other than that seems to be alleged. The prejudice to the. appl\cant will be the applicant will be deprived of her case. The matter is not a happy one but, on balance, I consider the interests of justice are best promoted by rejecting the respondent's apphcdtion and granting the application to take a step. 27997 r -- 1 of 2 -- 104 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 February, 1999 Tue respondent asks for costs. I agrne with Ms Linnane's submission that the matter is developed bys. 35_0(1) of the Workplace Relati_ons Act 1997 and tht\ principles directed by de Jersey, President in Toowoomba City Council v Schaumberg 153 QGIG 541 m Lather v Lucas 155 QGIG 1058 govern the exercise of the statutory discretion. However, T adhert\ to the view which I expressed in Tomasieilo v S,lverview Homes :'Y 1.Jd l 55_ QGIG 1060 that the cin.:umstance that an applicant seeks an indulgence is not decisive of the question of costs. Here tht\ respondent made a forensic dec1s1on to oppose grant of the application for liberty to proceed and mounted as. 346 application covering the same issues. It may be that the respondent will succeed at tnal and recover the whole of its costs, including the costs of these proceedmgs, but I am not prepared to grant costs on the mdulgence argument. It was then contended that costs should be awarded because the applicant had (successfully) sought an adjournment. The adJournment 1s to be regretted. But 1t arose because both parties delivered affidavits very late, as sometimes happens at this time of the year. I dismiss the application for costs. I order that the applicant be at liberty to prosecute the application and i list the matter at the next call over for the purpose of setting a trial date and issuing directions. Dated this twenty-seventh day of January, 1999. Appearanas - D.R. HALL, Chief Industrial Commissioner. Released: 27 January 1999 Mr R. Ohver (instructed by Baker Johnson Solidtors) for the applicant. Ms D. Linnane (instructed by Mullins and Mullins Solicitors) for the respondent. ########################################################################################################################### 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 -- 2 of 2 --