Bellette v Fluor Daniel Pty Ltd [1996] QIRC 803 (1996) 153 QGIG 1170

r 1170 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 1996 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 295 - application for extension of time David Noel Be llette AND Fluor Daniel Pty . Ltd. (No 8988 of 1996) CHIEF INDUSTRI AL COMMISSIONER HALL 5 November l 996 Application for an Extension of time - Review of Principles - Application Gmnted. REPORT ON DECISION (as edited) In giving a decision from the Bench on 5 November J996. Chief Industrial Commissio ner Hall stated :- "By an application filed on 27 May 1996 the applicant, David N oel Be Ilene. alleges that on or aboot 28 February I 996 he was orally advised that his em ployment was to tenninate on 31 March I 996. He h as tendered an affidavit which suggests that what in fact occurred on_28_Febru'"?' 1996 was that he w as given advance oral notice of a le tter of d1 srrussal which _wa~ subsequently delivered to him on 4 March 1996. There were n egona11o ns bet ween Mr Bellette and the respondent and in the result cenain pay ments to Mr Bellette were continued until 30 April 1996. I have recited the various dates because the applicant seeks relief under Division 5 of Part 12 of the Indu strial Relatio ns Act 1990. By secti on 295(2)(a}. any application seeking re lief under Division 5 of Part 12 must be filed within 2 1 days after the dismissal. If the dismissal occurred on 28 February, the applicant was 68 days out of time. If the dismissal occurred on 4 March. the applicant was 63 days out of time. If the dismissal occurred on 30 Apri l, the applicant w as six da ys out of time. By seclion 295(2)(b}. the Commission is authoris~d to allow an applicant a funher peri od of time within which to make apphcauon m respect of a dismiss al . The Commi ss ion may exercise the power at section 295(2){b) even after the period of 21 days has expired. I have in Breust v. Qantas Aim•ay.1 limited 149 QGJG 1n set fonh my view of the correct approach to the exerci se of the discretion at s. 295 (2)( b). I do not n ow repeat that which I there wro te. It suffices to say that in my view. in ordinary circumstances, the rel evan t factors w il l be : (I) The length of the delay. (2) The ex plan ation for the del ay. 2 I 862_ I.DOC I \ I I I l I' I l 6 D ecem ber , 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 171 13} T he prejudice to th e applicant if the application for extension of time is rejected . (4) The prejudice to the respondent if !lie appli cation for ex tens ion of time is granted: and (5) The conduct of rhc responden t. I add t hat in many cases it wi ll be possible to fonn a view of the strength of Ihe applicant's case and that if it is possible to fom1 su ch a view. t hat matter should be tak en into account also. (Relev ant ly I add that in the cir cums1ances of 1his ca<:e , I ha ve not. on the material current ly be fore me been able 10 fonn any view of the ap pl icani's subs tan1ive ca~e .). l au ach also the caveac !hat fundamencally the discretion is a statutory discretion which cannot be l imited or controlled by any number of decided cases. In Ihe circumstances of th is ca~e th ere are two limbs to che explana1 ion. On the view th at the dismissal referred to al Divi sion 5 of Part 12 is a te miination by the employer of the contracc of employment. I am of the view th at the 1ermination occurred cilher on 28 February or on 4 March. I have elaborated my rea~ons for I hat view in Cowan v. Truwlea Pty Ltd ( 1995) 14 8 QGJG 369 at 642 and Hodges v. Buderim Ginger Lid (1994) 148 QGIG 644 at 64 5. In summary, it is my view that because a noti ce of dismissal cannot unilaterally be withdrawn by t he employer. the employer has. at that point, done all 1ha1 he can to bring the employment to an end and ha~ pul it ou 1 of h is power without the consem of the applicant to retract th al whi ch he has d one. On that view, as I say. the len1.,1h of the delay would be either 68 or 63 days . However, i1 seems to me to be arguable that the dismissal contempl ated by Division 5 of Part 12 is the tennina1i on of 1hc relationship of employer and employee. On 1ha1 view of it, I can understand, bec ause of the continuation of cenain pa yme nts un til 30 April and be cause of 1he circumstance that the applicant was allowed continued access to a project motor vehic le unci l thaI dme. th al he might r easonab ly have concluded chat 30 Apri l 1996 was the date of dismissal. The seco nd limb to the ex plan at ion is thi s: T he applicant was aware of lhe 21 day time li mit. The applicant soug ht l egal advice. He says that the 21 da y limit was discussed wit h his solicitors. He tenders a lener infom1ing him that the solicitor had filed 1he document :11 a date which, on the assumption that 30 Apri l 1996 was the relevant date . wa.~ a date within Iime and is unable to provide an y explanation for thaI which h a.~ happened because th ose solicicors no longer act for him. In Rer & Co,,. Gha.<h ( 1971 ) 2 QB 597 at 601. Lord Denning, Master of !he Roles obse1ved : ·so Doctor Ghos h is out of time. His counse l adrnined t hat il was hi ~ Counsel's mi stake, and asked us to extend the time. The difference between two weeks and four weeks is not much. If Doctor Ghosh h ad an) merics which were worthy of considcrauon. we shou ld cenai nly ex tend the ti me. We never like a li11gant tO suffer by the mis1ake of his lawyers: for myself. for reasons which I advanced i n 8mm (Supra) tliac dec ision seems 10 me to be. in the circumstances of 1996, overly ebullient. In any evenc, in this case coun,-e l was not engaged and remed ies againsc soliciwrs arc m uch belter und erstood than remedies agains t counsel. That ha ving bee n said. n <;eems 10 me thal there is au1hority for the more modest proposition that a so lici tor's error operates less severe ly against an applican1 t han a persona l error. see Allen,·. Sir Alfred McA/pine & Sons Ltd (1968) 1 All E. R 543 at 555 to 556 per Diplock L J at 561 per Salmon L J ru1d Ullowski v. Miller ( 1968) SASR 277 at 282 to 283 per Bray CJ. I think for myself . that in a case such as this. where on one view of il the pe1iod is very shon. the simplicity of the robust approach taken by the M a~ ter of the Rol es ha.~ much lo commend it The disadvantage which the applicanc w ill face if he L, refused an extension of time is self-evident - he wi ll l ose his claim. It is not immediately apparent j ust whai disadvantage the respondent would suffer. Th ere is some sugges tion that the respondent w ill have 10 defend the ca.<;e. but that disadvantage does not arise from the delay. That d!s.,dvan tage arises from the passage of the legislation and from the circumstance that the Commission has cxerci,-ed its discret ion adversely 10 the respondent. 16 32 04-88 There is no suggest ion here that anything which has been done by che respondent has contributed to the delay. Th ese matters are always matters of balance and weighing and in the c ircumstances of this ca~e I entenain a clear view that I should extend time, and I do. I ex1e nd ti me until 28 May 1996.". Dated this fifth <l a)' of November. 1996. By che Commi ss i on, [L.S.) E. EW ALO. Industrial Registrar. Appearanres :- Mr D. Aellette appeanng on his own behal f. Mr J.J . Wilson on behalf of the responden t. Operative Date: NIA Repo11 on Decision - Reinstatemen t (Prelimi nary I ssue) Relea~ed: 25 November 1996 #######################################################11## 21862_1 DOC -- 1 of 1 --