Booth v Golden Circle Limited [1997] QIRC 585 (1998) 157 QGIG 3

2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 January, 1998 9 January, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act /9(,X) s. 295(1) - application for reinstatement s . 295(2)- application for ext£:.nsion of time John Broh AND Golden Circle Limited (No. B86'2 of 1997) CO\1MISSIONER BALDWIN 23 December 1997 Application for Extension of Time - Re.asons for Delay in Lodging Application Insufficient - Limited Pro.,;pe.cLs of Success - Application Refused. DECISION lhis is an application for an extension of time in which to m:,ke an application to remedy unlawful dismissal under s. 295(1) and (2) of the Industrial Relations Acr /990. The applicant's employment with the respondent came to an end on 13 March 1997. The application for reinstatement was filed on 16 May 1997. It was 43 days beyond lh� time allowed by s. 295(2)(a). The applicant's submission is that both he and his solicitor attended a meeting with the respondent held on 4 March 1997 and that the purpose of the meeting revolved around the question of the "employer's need to have a more definite date for the likely return to work". A doctor's report (exhibit 3) dated 28 Felm1ary 1997 recording a date of an1icipated return to work as "indefinite" was referred 10 in this rel!ard. It was submined that the applicant's solicitor pointed out to the �licant the need for him to operate with the respondent in obtaining a "more specific return 10 \\'Ork date". Further, that an authority allowing the re�pondem to di.scu.<s the applicant'.< medical <:ondition with his psychiauisi was drawn up al 1ha1 meeting and signed in front of th" company's M r Ingham. The applicant suhrmt, that hoth he and hLS solicitor helieved they had '·secured an agreement that there would b e no action taken in regard to the employment contract until the fut1her medical advice was obtained from the treating specialist . . " He suhmit< that he expected to be able to consult with hL< treating specialist and following this have the employer and his doctor di.scu.s, and con.sider his likdy return to work date, within 2 weeks, hut that he could not get an appointment until IS April - seven (7) weeks later. From the time 1he applicant reeeived the letter dated 13 March 1997 advising the termination of his employment hi.s argument i$ that he was continuing to pursue a course of action that, though lengthier than wa, anticipated at the meeting of 4 March, was in accordance with what had been agreed at that meeting. The respondent's submission is that the applicant had been absent from hi.s workplace for more than 12 months when his medical cenificate expired on 23 January 1997. Following this 1he respondent "TOie lO the applicant on 11 Fehruary 10 request a meeting to discuss his employment. At the meeting held on 4 March. i1 was made clear 10 01e applicant and his solicitor "that a tim1 return to work date and an authority to speak to the applicant's treating doctor was required within one week of the meeting or the matter of termination would be taken funher." Although it was agreed that the authority would be given, the respondent did not receive either advice regard .ing the return to work date or the authority to speak to the treating doctor. The respondent terminated the applicant's employment one and one half weeb later in accordance with its advice to the applicant and his .solicitor at the meeting of 4 March. Further, there was no response from either the applicant or hi.� solicitor until 29 April when the respondent received a letter from the applicant· s solicitor enclosing a doctor's cenificate and an authority for the respondenl to speak to the applicant's doctor. The authority was dated 4 March. lhe respondent answered this letter by sending a leuer in re.ply to the solicitor (dated 30 April 1977) indicating that the applicant's employment wa5 terminated effective I 3 March and that they "did not intend to have funher dealings in this matte.r''. The solicitor acknowledged receipt of thi.� communication (6 May 1997) and the respondent had no funher c<>ntact until receiving a ''>PY of the rein.<1a1e.rnent application on 23 May 1997. The factors the Conunis.5ion takes into account in a5'sessing whether 10 exercise it< di.scretion to grant an awtication for an extension of time are t1etailed hy Chief Industrial Commissioner Hall in Breu.rt v Qantas Airways /.Jd. (1995) 149 QGIG 777. The te1.1 expressed there is "if the Commission con�ider.s that this would be appropriate in the circumstances of the case". These factors, to which I will now give my consideration. are a, follows:- the length of the delay; the explanation for the delay: any prejudice to the applicant were a formal hearing denied; any prejudice to the re.spondenl if the application were to 11\l granted: and prospects of ;uccess. amongst other factor.s. The application is 43 days oot of time aod is dated 64 days from the effective date of the termination of the applicant's employment. In considering this issue l have referred to Carolyn Sue Wilder v John Daniel trading ar LJ. Hooker Nundah (1997) I 55 QGIG 1124. In this case, Chief Industrial Commissioner Hall observes:- "The discretion to extend the period within which a reinstatement application may be made, which LS vested hy s . 295(2), is unfettered. However, one must respect the legislature's decision that the relevant period is 2 I days:· I regard the delay to be a lengthy one. In considering the reasons for the delay, I accept that the submissions of both the applicant and the respondent provided a background to the meeting called at the request of the respondent in the letter dated 11 February J 997 and outlining the issues the responde.nt wished to discuss with the applicant. The tone and content of the letter Strongly indicated that the respondent intended dealing with the "fru.51ration" they believed existed in respect of their employment relationship with the applicant. 25707 _I.DOC -- 1 of 2 -- 4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 January, 1998 I am of the view th at !he respondent'.< purpose in calling !he meeting wa.,;; to involv� the appli<:<tnl in a discu$sion thi1t would h�-'<olve the status of his e/li.sting and future relationship wilh th em. 1ne. lener and !he subsequent mceli ng pu1 the cmploye.e on no1ice 1hat the continuation of his employment with lhc respondent wa.< under 4uestion. The i.•sue of termination was raised in thi.s lell<!r and the applic.an1 was instructed to contact Mr Ingham to set the m�e.ti ng up within seven (7) t1ay.s. The rn<!eting was hdd on 4 Mart·h - !'ouncen (14) ,tays OUL5ide the time rcquc.�tcd hy the respond ent. Even iJ I a ccepied that the applicant provided the rc.�pondeni with an authority 10 discus.s hi.s condition wilh his doctor al !he meeting of 4 March, and I am n(� indined to th at view, there i.< no .sa1i.sfactory expla nation M It) why ii was nec<.1Ssary for the applicant lo consult wilh his doctor once again prior to any discussions taki ng place between !he respondeni and !he doctor. There is also no satisfactory explanation provided a., to why lhere was no communica1ion with the r,:spondent from ei1her !he applicant or his solicitor following !he meeting on 4 M:\l'c:h until 29 April 1997. I do nOI accept that ei1her th� applicani or his solici1or would have lefl th e meeting of the 4 March t>elieving that if an appointment with the doc1or could nOI he oola.ined promptly it would be acc eptahle to the reSponde nt 10 wail for an indefinit e P"riod to hear from eith er of them. I do nOI accept that posting a doctor's certificate and an authori1y for !he re.spondent to spe.ak to the doctor on 29 April was an appropria1e re.<ponse 10 the meeting. I have taken into account that the applicant chose to have l egal representation at the mee.1ing of 4 March. Also I have n01ed that the solicitor who was prese nt with the applicant, al that meeting, and on which so much of the applicant's submission turns, did not appear at !he he.aring. When questioned about !h e reason for the applicant's non-appearance it was suhm1t1ed that "his solicitor advised him he would not be required and he had gone ahead and made other arrangements for today". I am of 1he view that there has been a lack of care l>y the applicant, firstly in responding 10 the requir ement of !he respondent 10 introduce an expectation of a return 10 certainty into t heir employment relationship and secondly, 10 respect the time. limitation of 21 days in whidl 10 file an application to remedy unlawful dismissal under .s. 295 of the Act. I consider that there is no satisfac.1ory explanation for the delay between !he termim�ion date of 13 March and 16 May; !his being !he date on which !he application to remedy unla.,,fol dismissal under s . 295 of the Act was filed. '(lie applicam's submission on the i.s.<ue of "what prejudice would apply to th e applicant if th e extension was 001 granted" is that there would be, in addition to !he accep1ed loss of !he right to litigate, funher severe consequence., such ,<t a prejudice to his future pr�cts to the extent that he "will he left believing that the cessaiion of his employment was becaus e of a psychological disorder". In considering the prejudic e to the applicant should the application be refused !hereby denying !he applicant lh e opponunity of a formal hearing, I am cognizan1 of the fact that the applicant has 001 been al his place of employment since September 1995. It is now more than two (2) years since he ha5 attended hi.s pla�e of work. This L5 now an indelible pan of the applica nt's record of employment. On the applicant's own submi.<sions he has been suhjeet to a medical certificate for mo�1 of !he period in quesuon. Whatever the applicant's prospecls of employment, I do nOI accept that !he granting or refusing of this application is hl<ely to be a determining feature in this regard. The respondent employer is a larg e organisation and the employee held a mid-level supervisor's position. In lhe.se circum�tauces. I regard !he prejudiceto the respondent should the application be grant ed as moderate .. J\'eilher the prejudice 10 the applicant if this applica1i()n were denied nor th e prejudice lo the respondent if this application were granted is of suffic.ient order to be of sig nificance in determining the application. In all the circu1rutan<.-es, having re.gard to !he material presented, the way in which 11 wa< preSented, !he conduct of each of the parties between Sep1emher I 995 and 16 May I 997 when the application was filed, I am of th e view that were I to grant !his application, !he applicant would have limit<d prospects of succes.�. The.refore having regard 10 all the criteria I have taken into account in a-�sessing whether to e,xercise my discretion under s. 295(2)(b), I hereby refuse lhe application. D.B. BALDWIN, Commissioner. Mr C. Woods (KTW Workplace Consultancy Pty Ltd) on behalf of !h e applicant. Mr M. Belfield for M�tal Trade.< Industry A.ssoc1ation of Aus1ralia, Queen.<land Brnnch, l.iD1on of Empk)yer.s. with him Mr S. Ingham, on behalf of the respondent. Operative Date: NIA D<:cision - Extension of Time - Application R�fu.sed Rde.a,ed: 24 De.:emher 1997 ########################################################## 9 January, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 -- 2 of 2 --