Codianni v Water Resources Commission, Department of Primary Industries [1994] QIRC 478 (1994) 147 QGIG 284

28 4 QUEENSLAND GOY ER NM ENT CND UST RI AL GAZETTE I I6 September. 1994 l/llllllllllllllll#llll#/l##l/11/lllllllllilll##l/l/llllll#llll##//#111/####/1#//IIIIII#### QUFI \.C.,I •\XD I l>l C., fRJ AI RH ATIO\.", CO:'\IMl<;\10' lnd11 s1r,al Relatt011J Act I 990 ,. 29~(2)- c:.1cn,ion of11n1c Joseph Ct•1.lianni AND \\ atcr Re<ourcc, (. ommi:s,on. O.:pan111cn1 ofl'nma~ lndu~ tnc~ 111r.1 o f I Y'i-1 1 1·1 ·ou c ', Uff t< t. A" \ RD - .., I'\ n: ('0 \1\1 1'-'-IONt:R NI I II R - Scp1cm bc1 199-t I cnn inatinn of 1:mplo) men I - 1Jis111is~al Reinstate ment l'rehminary bsuc - htcn,ion or I imc - Delay Re feren ce to Ca,;e I ' " - Ch wn, •l og~ ol I ,cn1s \txt.:ial ( 1r,11 111,tan,c, I \l,t - •\pp lica1ion t or l:'l;tcn,11111 of Time (,ranted DEChlO'\ fh,~ ,lf) phca11on q)cl.., an C>.lcn\11111 of 111111: 111 "hi..:h In hring an .ipplica1ion Im t he rcmstatcmem or rc-c111p l,1ym cm of an c 11 1plo,cc Mr (. ,ld 1anni. th e applicant. ,,a, .id, bCd b~ the Department of l'rim.10 lndu ,tnes t t he I.>epartm cn1 ) that hh cmplo)1m:n1 .. \\ould r.c ase eftcc11\c from the dose ofhu~111css on 12 Ja1111.ir) 19 9· 1... ·111c tr an,u mnal pro\ ismn.; allC1u1 d1~m:,,:il, m the l11tl11 , t,-iaf Rdauom R{jorm .-let /99./ state :- " 4XX ( I) Part 11. l)iv 1s io11 ~ a, ii exi, ted immediately he to re 1he cnmmcnccmcnt of 1hc /nciustrial Rd, 111nns R, /orm •le/ /?9 -1 (the "amc ndin:: \r e"). from thc commcnlemenl rnntmues 10 appl) 10 di,m1,,als "i1h1n the m~3n111 g of the D1vis1on that haprc ned hcforc the co111111cnccmcn1 11 ~ il t.ht: amending Act had n<'l been p,1ssed." Thu~ the prO\ tsmn~ relatin g to the d:,nmsa! b.:lnrc the Co111 1111ss1 on n1e cove red by :he Ar.I a~ it cxi,tc<l at the 1i1 11~ of the d1,1111.,sal 16 Se pte mber, 199 4] QUEENS LAND GOVERNMENT CNDUSTR IAL GA ZETTE 285 TI1c peninent ~cction as 11 relates to ex tension of time reads as follO\\ S - ··p \ RT 11 - GE'\'E RAI. CO~DIT IO'\ S or DIPLO\ .\ IE~T Division 4 - Reim raremenr and r e-employment 17-t .(I) If an cmpf o)ec i~ dismissed fr om cmplo)mCnl. application fo r relief under section 175 ma) be made to the Commission (a) within 21 days a Ocr the dism issal: or (b) \\l lhm a longer period afier the di~m,~sal 1ha1 the Commiss ion may allo\\ at any tune in the ci rcumstance, of the case.". Dc1a1Ied sub m1 ,~1ons \\ere presented h} both parties and t h~c rcc.:l\cd consi dcrot1 on. In su mmary the major points made h~ Mr Baumgartner for the applu.:,1111 "ere d!> follows·- 1ha 1 th e app li cant was the subject of a (' J(' investigation. 1ha1 acting on the findm(!, of that Ill\ cstigation the Director- ( ,cncral suspended the apphcam from du1~ from II October I993 and asked him to "s how cause" 10 wh)' disciplin ar> action 1hr m i~conduc1 should 1101 be tal..en again~t him . ·1he applicant lum1shed a rc, ponse to the allegalions that t he D1rcdor-Gencral dismissed the applicant with cllcct from 12 January 1994. thJt the ad, ice of dismissal \13S fon,ardcd 10 the applicant o ,cr th e Chris tma~ holiday period a1 \\h 1ch time the db1ric1 ot'ticc 111 1s closed and in addi1ion the applican t was 1101 .iblc to acce s~ In, ,ulicitors \\h os e office \\:l.S also closed. This contributed to p.irt of the dcla~ 111 furthering the case that t he app lit:a nt had sought copies ol documcn,~ or access l (l fik~ rccei, ed b~ the Department frol!l the CJC- but had been 1frmed such material l>oth prior 10 and alicr tennmation llt111e,cr. he h,1d been permitted to sig ht such documents allcr receiving hi s "s ho" cause" in October 1993 . that the re fusal lo pro, ,de ,uc h documents or access to files hJmpercd the applicant in h is abilit) 10 respond to accusations thai had been made against him and th at this was a cn11 1r ibu 1i 11 ~ l.ictur to th e dcla) in d..:fcnding. the claim (i.e. in lodging the Jpplication) the app li cant through his solici tors advbcd in a lc11c r dated 22 February 199-l that action 11ould be taken under the Jud,d nl R,, ,1(·11 Act /99/ ,md the /111/mtna/ Rdut,ons Act /990 in resp,:ct of th e inaner although the maner itself "as not lodged um il 7 April 199 -t th;u the solicitor handling the mancr lor the apphc,mt \\a,, 1101 31\Jrc of an} !mutation lor the filing of the application and th e ar,plican1 should not be denied t he right to progress the :1 pplicati on us n result of h is ,olicitor·s lnck oflnowlcJge on th e l\~UC th, 1t m the circumstance~ the deld, 11as not ~uc h that the Commiss i on should refuse an ex 1cn s1~ n of ti rn e. Reference 11l1s nMt.le to pr.:, iou~ decisions of these ·1n hunal and c,1hcr Trit>unal , "here extensions of time on , arious mancr.. had been sought that the refusal to grant an extension would deprive the applicant of th e right 10 have the matter determined by an 111depende11 1 body. that the respondent could not claim that he had hccn cau~ed a detriment in any real wa) . In response Mr ~1emkamp for the Departm en t ind1ca1ed ·- tha1 every conside ra tion hud been given to th e appl1cdnt ·~ request und er Lhc freedom of lnfonna1ion legisl:1tion (FOi) hut 3.\ certain of the documents were the subject of a ( J(' Ill\ cstigation the release of such documems could prcJudice the m, estigation. they could not be rcle;ised. llowcver, th e applicant was given the ri j:! ht (which he exercised) to pcru~c documentS o, er a I\\O daJ period an d tal..e note~ 10 a,sist in hb rc<.ponse to the "s how cause" He \\3 ~ also g i,·en the su, ice, of a Sli:nographer. tha t the applicant had e, er~ opportunil) 10 lodge Lh c applica11on \\1thin the pre, cn bed pcnod. He wa,, 111111all~ represemed bJ th e l Inion who \\ere fully a\,,trt: of the rcqutrem..:nts of t.hc re le, ant /\e t nnd in diea tl!d lhat they would advi se the upplicam of hb app.:al right,. th at no cogent rca~ons had ~-..:n advanced from the further dela) from 22 Fcbniar)' 1994 to 6 i\pril 1994. that the filing of n reinstatement applicati,m i~ a simp le matter. 1ha1 the applicant had been olfered assistance with the mater hut dtd not avail himself of such help. that 1hc Department will Ix' prejudiced I r the action 1~ allo "ed to proceed. An other emp!O)CC III March \\a, tram, fe rred into tht' position prc~iousl) occupied by the applicant 1ha1 the applicant had apprtiached the department in relation II\ , olumary retrenchment and this places ,ome queqion on hi\ ,mccri1y to be reinstated. (' co ncl usions During the hearing of the application I "as rcfen eJ 10 a number of dcc1~ 1on s in mailer. of this nmurc. One of particular relevance ,,_a s lJlowski v Mi ll er 1968. Federal Court of So ut h Austra li .o S .I\ . 'i R. 277 "hich has been previousI~ quoted w ith approval by th is Commission In that decision Bra} C.J. sazd "II must be remcmhcred that \\C are dealing here \\llh a discretion and in m~ view it uught not to he fe uered b)' a ny absulu1c or in ncxi b lc ru les. I1 clearly appears from these cases 1ha1 five paromount maners to l>c con~1dercd are the length of the delay. the c,planat ion for the dcla}. the ha1J~h1p to the plaintilT if the action is dismissed and the cause of the action lefi statute ba rred. the preJudicc 10 the dcf.:ndam if th..: action is allowed 10 proceed notwithstandi ng the dcla) . and th.: conduct ufthe delcnddllt in the liligmion :· . Appl} mg these principles lU th is case: 7h it length and r ewons for the delay The applicant !>ubmitted th .i t part of th e dcla} \\a s caused by thl! dismiss al occu rring over th e Christ mas period an d the applicant 1101 bein g able to contact his solici tors during this period. Pan of the dcla} ~cc med 10 al~o be related to t.he applicant not bcmg ab le to obtain documenLS from the Dcpartmc111 in respect to the CJC invc~11ga11011 wh ich he (t he applicant) believed he nccd.:d to assis i11 refuting the allegations against him . A funhcr dcla_v occurred as u result to the solicitors for the Jpplicanl 11 01 lodgmg an apphcauon unti l 6 April 199 4 Jhhough th e~ ad\ iseJ the Department that theJ would be proceeding under the lnduJ trml Refcu iom Act 1990. Advice \IU S gi ven at the hearing that the ~olicitor was u 11 awnrc of th e 21 d a~ requi rement for filing a rcmstatcm~nl application - -- 1 of 2 -- 286 QUEENSLAND GOV ERNMENT IJ\roUSTRIAL GAZETTE (16 September, 1994 The President of the Industrial Court, Moynih an J. in a decision cited at I 44 QGIG 92 upheld an appeal against a refusal by the Commission granting an extension of time to app ly for reinstatement. In the course of that decision the President stated: ' The explanation for the delay between the exchange of correspondence just referred to and the commencement of proceedings in the Commission lies in the fact that the applicant's so licitor was inexperienced in industrial law, was unaware of the time limi t for the bringing of an app lication for reinstatement and obviously failed to make appropriate inquiries as to that. ". The extension of time sought on that occasion was 132 days . That decision is peninent to this case. In the absence of other compe lli ng factors I do not believe the ext ens ion of ti me as sought shou ld be denied. Hardship on the Applicant The dismissal provisions provide a benefic ial entitlement to dismissed employees over and above what would apply at common law. To take away the right of the applicant to argue his case in an independent forum should not be done lightly. The appl icant had been with his employer for over 14 years and the dismissal had great ramifications for him in relation to his livelihood and entit lements. Under the circumstances there is hardship on him if he is denied the right to proceed. Prejudice to 1he Responden1. T he advice given to the Commission was that in March 1994 the Depanment t ransferred ano1her employee into the position previously occu pi ed by the applicant. This was a transfer at level i.e . the officer transferred was at the same classification level as was applicable 10 the position. It was no t a situation of an additional (outside) appointment being made by the Department and the consequential need to tem1inate an employees' services should the extension of time be granted and a later decis ion be made that the applicant be reinstated. However options would e xi st for the Commissioner hearing the merit argument in this regard if it was decided the dismissal was unfair. It could however mean some inconvenience for the Department. I am not of the view that any potential minor inconvenience ou1weighs the ri ghts of the app licanl to pursue his case. Conduc/ of1he Applicant. On the infom1ation provided to me, it was clearly the intention of the applicant to proceed with the application. Reasons for delay were detailed in the submissions. I have not fom1ed the view on the submissions before me that the ap plicant at any stage by his actions gave the impression that he was no t pursuing the matte r. However. th rough a range of circumstances the application was lodge d out of time. It is evident from the forego ing that I have come to the conclusion that the Commission should grant the extension of time as sought. The Commission the refore de tem1 ines tha t the ti me in wh ich to br ing th is app licat ion is extended to 7 April I 994. Order accordingly. R.J . NUTTER, Commissioner. Appearances:- Mr T.A W. Baumganner for the applicant. Mr H. Steinkamp for the Department of Primary Industries Operative Date: NIA Decision - Extens ion of Time Released: 7 September 1994 ####################################################### 16 September, 19 941 QUEENSLAND GOVERNMENT JNDUSTRIAL GAZETTE 287 -- 2 of 2 --