Berry v Queenstate Nursing Service Pty Ltd [1999] QIRC 14 (1999) 160 QGIG 94

94 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [5 Febmary, 1999 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION ( (~ ,,,-\ Industrial Relations Act 1990- s. 295(1) - application for reinstatement Donna Berry AND Qneenstate Nursing Service Pty Ltd (No. B320 of 1997) CHIEF INDUSTRIAL COMMISSIO~ER HALL Application for Reinstatement_ Application for Liberty to Take a Step - Application Refused. DECISION 10 January 1999 0 2 1 Feb 1997 he filed an application for reinstatement. 'Ibere was a conciliation conference The applicant was dismissed on 31 January 1997. n . :ary f s th flurry of correspondence between the applicant's solicitor and the m the Commission on 4 March 1997. In the week foll°':mg I~ c:t::n~;ew ~r;; ::~e:nent. There were also two telephone calls. No action has been Queensland Chamber of Commerce and Industry Ltd ( QCC ) , t . th Ii nt and called upon her to show cause why the application taken since. Ultimately, on 5 November l 998, the Industrial Regitr;r wro;eC o rte ~ 2~a November 1998 the applicant's solicitor indicated that the should not be struck out pursuant ~o Rule 136 of the Rules of the 1:;stn~ °'; 998 :t that hearing, Ishould add, QCCI appeared to submit that the applicant did wish to show cause. [he matter came before me on . ece er · matter should be dismissed pursuant to s. 346 of the Workplace Relatwns Act 1997. · D [ G rt d C, , No B289 of 1998 I do not consider that the For rea-ions which I developed in Vibe Allerup v H~ka Pty Ltd t/as Brisbane en~ drou~~ ~::e~:: "~r~::edin~' at Order 90,' Rule 9 of the Rules of the noun "action" at Rule 136 is to be giv~n the more ngorous of the, constru~10ns p ac:d~::ce albeit supplemented by telephone calls, upon the matter of Supreme Court. However, on any view ot it, an mformal exchanged o E eorr~(i° ~ further action had been taken for some 21 months when the settlement is not action to advance the litigation or to bnng it to a hea . ven 1 1 were, 0 " lndu~ial Registrar wrote his letter. · · b • the c was no allegation that the delay had prejudiced the respondent. It was contended that the applicant should be granted hberty ~o take action ec:u;;. r cessary to look at the inordinate delay (and one has only to have There was no such allegation. However, the absence of preJU ice is n~. enoug ~ is ne ia~, how inordinate it is) which has caused an application for regard to the 21 day period of limitation for thendbrmg1~gRoflaatn appA1rat,1190;0 ~ :~~::o;e a case about money. It is also necessary to look at the · th · · remedy under the l ustna, e ions c • · h ld b bl remstatement e pnmary .. . r was waitin until she found alternative employment m order that s e woo ea e explanation for the delay. The tirst explanation was ,th:t t:~:r. l~I~e context !fa statute which imposes a cap of six months rermmerat10n upon that to prove how much she bad lo51 when the matter v. en . 1 . th d l ~fter 31 July· 1997 Toe other explanation was that, whtl~ no . . _ · ey the explanation cannot exp am e e ay "' · · · · · d which an apphcant may recover m mon ' . . f h h d by telephone indicated (on 7 April 1997) that a response was to be flle . undertaking was given, an employee of QCCI with carnage o t e matter da ' th (former)' employee was not available at the time of the hearing - l h b fled Accepting that the representat10n was ma c - e th • 1 A response as not een 1 . . . . . d 21 th My i~ession is that this is one of the many cases where e pract1ca consider that the applicant ~hould ~ave done s:iethm~ ~bout it;::,! 1:uer :;er sRule 136 is the re-awakening and re-invigorating of a matter which had consequence of the lndustnal Registrar d1spat mg a s ow ea long since quietly gone to sleep. I order that the application be 61.rUck out. Dated this twentieth day of January, 1999. D.R. HALL, Chieflndustrial Commissioner. Released: 20 January 1999 Appearances:- . • Mr J. Manners (of J.R. Manners, Solicitors) for the apphcant. • Ms w. Richards (of Queensland Chamber of Commerce and Industry Organisation of Employers) for the respondent. Limited, Industrial 5 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 95 -- 1 of 1 --