Brown v David Jones, Toombul [1996] QIRC 869 (1997) 154 QGIG 54

54 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE IO January, 1997 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lndiwria/ Relations Art !990 , , 295 - application for extension of time Paul Brown AND lJavid Jones, Toombul (No BJ 128 of 1996) COMMISSIONER DEMPSEY 20 December l 996 Dismissal - Re,nsratement •- Extension of Time - Medical Condition oi Applicant - Applicant Represented Himwlf Prospe;;.ts of Succe;,s iri Rein11111emen1 - Possible Future Competent Representation - Extension oi Time Granted - Parties Should Confer. DEClSlON The app!icam in this matter wa• employed at David Jones Department Store, Toombul ;is restaumnt Manager or section head. His cmplt,ymen, was ,enninated on 23 April l 996. Jn thr course of these proceedings the applicant rerre~m:ed himself and seemed 10 ha,c been acting or operatinii or. infom1ation •.1htaineu llu0ugb a friend who 1s legally quahfloo, What ha, transpired in these discussions l am not prwy to. however, Mr brown asserts tnat he wa, given certain infomiation f1"'.Jm hi~ fri!"nd with ll'spect to legal representation in these proct>edings, lJ rider these circum~ram:es the appli.;ant reprcsemcd hinh,elf fh,.~ fomi of representation was le,s than adequate for an applic.im i>eci<ing an extem,1on of rime pur;;uruit to the provisions of s 295 ln e:.senc.e the applicant contend, thu! prior am! .ubscquent to the tctmma!iun of hrn employment he wa, under stress and medical! y elfected. In the course of hi~ ~ubmiss\oni Mr Brown contended that his doctor Mary Ditton, hn<l provided him with a letter reforring to hi, col'dition. Thi;, :etter wwi nut tendered !JS a result i,;f fill 0bjec1ion raised by Mr Walker representmg the respondent, on che basis tnat he would nut nave me Opportunity !O CTOS~aexarnim!' f)octl"'I Ditton, Given th ..t the lene, !mm Doctor Dmon was nc1,er tendered I am compelled 10 accept the evidence of ~r Brown that before ll!ld followmg the termination he was 3.ffectoo t,y some medical condition and wa~ visiting Doctor IJ:tton for ttcatmenL Under thcSe circumstance:. l ac.:ept that a mt:dical condition ex1,i<:ld Md that tJ1is condition .:ould have impaired Mr Hrown'~ ab11ity to make ll!S application in time, Mr Walk-:r :elied on principle, previously enmdatcd with re.;;pcet to the Ccmmi.,si:in g~anting an extco~ic;n 0f!ime (Boris Vagen an;J Mru;,:ot Hill Pty LtJ, Wi:tiJn,s and lfayman Island), Hi~ fuhmls~ions were comprehensive, concise and '.o the point Jn pa.!tkular he has wncentiated en "the applicant, prospect of sucu,ss" In ,his rcg.u:d the applicant's work hiswry was refen"etl to in de,a.ii and the fact lhru the apphcam had a scncs of di,ciplinary discurnons with lw, supenors in recent times Ther~ was on 31 October l 995 a fi.m fomi:i.l wru-ning then a furthfr fir-,.! fom1al warr,ing ,Jn 8 Di!eembcr l 995, a second fomial warning on 4 January 19\16, a third fonual wPJning or, 22 March 1996 and an interim follow•up wruning on 9 April 19%. Docum.,,nlatlOn in supp0rt of each of the•,e Wllr.lil'iS was ir-n1ered, Given t."et:e circum•.!llllces i! wa:; sabmittcd that the applicant's pro&pect :>f success was exl!ei.rely slim, l am indincd :o agree with this asse1tion given the documentation provided in support of each of the in,:.anccs (warning,) previously referred to I have taken into consideration the fact that the applicant represented him~lf a'ld as previously stated the poor level of thl5 representation coupled with the applicants desire to address the issues that led to the warnings and his inability to do this effectively. Mr Brown is nol sldiled m this area of advocacy and I am of a v1e,w that he should not be disadvantaged hecause of this. Therefore weighing up all of the circumstan..:es ,ha! have led to this application including the response to a question from me which resulted in the applicant saying that he would be competently represented in fature proceedings should that be allowed, l am prepared to exercise my discretion pursuant to the provisions of section 295 and grant lhe extension of time. The Co1nmiss1on crder:; ae:::cordingly. Havmg acceded to !he applicanr's request and again taking all of the circumstances SU!TOUnding this matter into consideration l recommend as follows:- i ai Having obtamed competent representation the applicant and the re,pondem should further confer principal! y to enable the applicants representative to be fully infom1ed of the applicants work history and be in a position to effectively and objec!ivdy advise the applicant vnth respect to his prospects of success (b) Should either the applicant or the respondent feel that the Cmmnission could be of funher assistance in bring:mg about a resolution to their respective contentions I would be prepared to convene a conference for this purpose prior to hearing dat.es being determine,:!. (c i I would encourage the panies to proceed along this course 1:xpeditiously in order to assist the Comrrussions availability for other matters. The Cornrn1ssion orden; accordingly. H. DEMPSEY, Commissioner. Appearances,- Mr P Brown on his own behalf. Mr R. Walker of the Retailers' A.ssociation of Queensland Limited. Union of Employers, with him Mr J, Connor, for David fonc~. Operative Date· NIA Decision -· Extension of time Releo.sed: 20 December 1996 -- 1 of 1 --