Cullen v Austotel Trading Pty Ltd [1994] QIRC 298 (1994) 146 QGIG 541

540 QUE ENSLAN D GOVE RNMENT INDUS TRI AL GAZ ETTE \ 24 June. I 994 24 June, 1994] QUEE NS LAND GOVERNMENT lND US TRIAL GAZETTE 541 ####################################################### QL'EE1'SL.A D INDU\ I RIAL REL.A no~s CO\1MI S1O . lndusmal Rela1ions Ac1 /990 , 174 - application for rc11htJtemen1 Oudle} Richard Cullen Aus101e l I rading Pt) Ltd. ( \ o H:!32 of /99./J (UM\11SSIONI R SWA:-. 15 June 1994 Tcnnmation of l.mplo}ment - D1sm1si.al - Reinstatement Pn:limmaf'\ h,,ue, - Juri,d1c11onal Point r ,tension of I 1me - s 174 ( I )(b)-- Ob.1cction to Legal Reprcsen1a 11 on - Objcc11011 Refused - Fedt:ral Award Exemption Clause Accommodation in Lieu of Pa) Increase C.omphmcntaf} Basis A\,ard-free Fmplo~cc R1c:ht to L111ga1e III State Commtss1on I egal Ad\ 1cc - Claim 111 other Jurisd1c11on - A\,allcd Finding Claim \\:11hdra,,n - Application I odgcd - C,he I ttw - Emplo)er una,,are of Claim ruture Emplo}ment Prosp.:\;IS Appointment Made Prejudice: to I mplo)ee - PreJudice lo I mployer Application {,ranted for I \tension of I 1mc . t>t CISION fhc primary application h.:fore the lommission i, for tht: rc111,1atement of the applicant. 'llfr Cullen 10 his fonncr position of \~,i,tant Manager of The Imperial Hotel at Beenlc1gh (,\u,totcl fradmg Pt) . I td •• the rcspondem) from \\h1ch he ,,a:, summanl} dismissed on 6 January 1994. Before tlu~ application cou ld be proiircssed. lumc,er. 1,,0 thrl!shold matters were raised b) the re,pondent On~ \\l!nt to the question of \,hcther the applicant \\Js pur,umg hi, claim \\lthm the correct Jun-.du.:tion 1.e \\a~ he an tll\ard-frce emplo) ec and thcn,:fore within the State Jt1md1ct1on, or altcmat ivcly. was he emplo)·cd under the tenns ol the I lotcl \1anagenal Stall (Federal) \,,ard 1974 lf this detennrnallon "as la\ ourable 10 the: applicant .inJ he could li11ga1e his cl.um \\lthin the Quccn,land JumJ1c11on. then the second question rel.tted to an c,1cns1on of time application. Ille applicant was sununaril} di n11i.!>Cd on 6 Januat) 199-1 (lia\111g been employed for approximate!} 6 months) and. as such, thi, applicauon falls under the reinstatement provisions of the lndullrial Rela11,ms Ac/ I 990. Reprint No I. in force on 3 Augu~t 1993 It was detennmed b) the Commission that a hearmg date \\Ould be scheduled upon which to hear both thrc,hold applications. The rca,ons for adopting this course of action go 10 a concern held by the Commission that the process of fina ll ~mg this mailer was being unnccessaril} de la}ed and 11 \,as in the public interest 10 dctennine the matter \\ 11hou1 further prucrastmauon Th e Jurisdic1io nal Arg11111e111 I Up unul tlw, !.ccond fonn.il heannj,! the applicant had engaged the: ,er. ices of a Solicitor Shon I) before that hearing. the applicant became a,,are that the respondent inlendcd objecting 10 his u~c of lcgul rep resentation. Gi ve n thnt there had been no men ti on of this tibjection during the pr eviou, conferences and hearing before the Commission. the respondent \\llS a<hiscd b) the Comm1ss1on to dc:s1i.t from pu~umg this argument. This ad\ 1cc was accepted h} the respondent.) II was at the lime of the second fonnal hearing before the Commission (:iller one fonnal heannr and mo conc1ha11on conferences). that the respondent first claimed that the applicant \1as not an award-free emplo}ce, hut rather v.a~ employed under the llotcl Managerial Staff (1-cdcral) A\\ard 1974 As such. it 1,ru, claimed that the applicant could not proceed with his claim for rcm,tatement before the Queensland Industrial Relation, lomm1ssion (QIRC). the Hotel Managerial Staff(Federal) A1\ard 1974 at Ck111.1e 1./ f.'re111p1io11s states· "(a) This a\1ard shall .!!.!tl appl} Lo :- (i) Oil) managerml staff in rece ipt of a ,ulary and/or bourd an d accommodallon tota ll ing $24.000 per annum or more ." (Commission emphasis) II was agreed het\,et:n the panies 1ha1 Mr Cullen \\as in receipt of a yearl y salary of $23,400. On its face, this per ann um sa lary "ould have en,ured that Mr Cullen \\OS covered b} the Federal \\\ard Ho"c' er. Mr Cullen and his f.111111} 11ere afforded accommodation at the Hotel at \\hich he \1as wori..rng For this accommodation (p lus other cons1dera11ons such as the payment by the respondent of electricity. telephone accounts and some meals). Mr Cullen made no pa}ment Mr Cullen claimed that he had been granted this accommodation 111 lieu of a pa) rncrease. There \,as no direct C\ idencc from the re~pondcnt 10 counter this claim other than the comments of Mr Watl..111s. I luman Resources Manager. Austotcl Trading Pty. I td to the effect that he \\,I'> unaware: of any such arrangemem and. 111 the event that it had occurred. it \\as contrary to ('ompan) poliC) It was the conu:ntion ol the respondent that Mr Cullen had bec:n granted this free accommodation on a "comphmental"} " basis. and that any other arrangement, \•1r Cullen had wnh his unmcdiate emplo}cr. as pre, 1ousl) stated. ma) not have been sanctioned by more sen ior hotel administrators. The respondent's !>Uhmission was that. as from I April 1994. becaw,c of I a,auon com1dera11ons. a ,aluc of some ~.000 per annum "ould be attributed to the t~ pe of ,1rrangemen1 \ lr Cullen had cnJO)cd Until that time. no va lue attached 10 Mr Cullen·s omingcment~. according to the respondent \1r Cullen referred 10 a number of d1,cu"1ons he had \\llh his 1mmed1a1c sup.:nurs to the effect that his acc1,111moda11on arrangemen ts fonncd part ol' his overa ll salary package. On the C\ idcnce befon: me. I accept \1r Cullen·, ,ubmissions on this point. -- 1 of 2 -- 542 Q UEENS L AN D GOVE RNMENT IND US TRlAL GAZETTE [24 June, 1994 I accepl that Mr Cullen, as well as h is immediate ,upe ri ors. saw the .irrangements that \\Crc. as a matter of' fact. m place as con~tiLUllng the complete snlary package that Mr Cullen was to be given b) his cmplo)t:r Regard less of how the rc,pondenl attempts to describe the wugc and accommodation arrangementS \\h1ch c,i sted hctween itself .md Mr Cullen at a local le\ cl. the real it) 1, that Mr Cullen. 111 accordance with the abovementioncd clause 24 of the Award. wa, dear\) m receipt of .i pacl.age. the annual \ alue of \\hlCh \\Ould .:.isily have exceeded the 524.000 ceiling. Hence. he would be deemed to he an 3\\ard-free emplo)ce . A, ,;;uch. '1.lr Cullen could rightl) ,cck to litigate his claim bcfon: the QIRC. Ha\ mg dctc:rmmed that pomL l11e Comm1»ion needs 10 cons1dc:r Lhe Extens ion orTimc ap pl ication. Extension of Time 1l1c follO\\ mg rcpresenb the chronology of C\ enb \\ h1ch occurred between th e date o l d ismissal to the date of lodgement or the rem,tatement apphcation \\ 1th the RegiMI) :- rhe applicant \,as summaril) dismb~ed on 6 January 1994 and he sought ad, 1cc rrom hts Sohc1tor (\\ 1th regard to an allegation wh ich had been made against him by the respondent and for \\htch he \\as ,ummanl) di,m1ssed) llll I 2 January 1994. Bccaw,c the claim agamst the applicant \\as being proces,ed in anmher jurisdic1i1111. the applicant's So lici tor advised the applicant to a\,a1t the finding of that bod) before proceeding with l11s claim for remstatcmcnt before the QIRC Upon the claim made by the respondent being w ithdra\,n in the other Juri..d1cuon. the applicant sought to h11ga1e his claim for unfair dism1s,al \\llhm the QIR(. An .ipplicauon for rem,tah:ment \\d> lodged \\ilh the Commission on 24 March 1994. I he sole reason prolfcred b) the appilcanl for the failure to lodge his apphcallon for reinstatement \\ithin 21 da)s a, prescribed b) the Act \\35 that hb Solicuor had ad\ i~ed him to a\\ait the finding in the lirst Jurisdiction in which he found himse lf. It was onl)' ,\hen the case m that Jurisd1cuon \\ii> ,,ithdra,\ll. that the applicant lodged his rem~tatement apphcation. II 1s rclc, ant to note that at the 11me of pur.umg the current app li cation before the Commission. the applicant had dispensed with the sen ices of hb olicitor The apphcant claimed that thi, had occurred on l) bcc,1usc or cost considerations. This 1s understandable gi\en that what \\Ould nomrnll)' have entailed a two or three stage process before the Commission had e,tcnded into a firth appearance before the Commission even before the commencement of the remstatcment hearing proper In l"tctor L Dunn ,. Queemland l'o /leJba/1 1uocia11 on ( 1994) 146 QGIG 36. the C'omm1ss1on detailed. as folio,\,, general principles which wou ld be cons1dcrcd in an extension or time application "Such principles include (but not c,hausthcl}) the follo,\ing con,1dera11ons the degrcc 10 "h 1ch the urp tication 1s out orume . \\hether a satblactor) reason cxJSI S for the length of the delay: • any disadvantage the Applicant ma) experience by not t>eing able to litigate the claim: and any prcjl1dice ,~hich ma) auach to the Respondent.". In applying those principles to this case the follO\\ing scenario emerges Mr Cullen"s applicut1on is ,ome 56 days out of time. Obv1ousl). the degree to \\ hich the apphca11on is out or lime is a factor of some ,1gnilicance in detennining whether 10 gr'dfll an e,tcnsion or time • \ lowe,cr. it is not the only factor and must be ,\eighed ag.amst other rcle\ ant criteria The reasons offercd for the lime dcla) arc as stated earlier (i e Mr Cu ll en was awaiting the determination of another jurbdict1011 \\hich \\as to deal dircctl) \\ith the alh:gauon for ,\hich Mr Cullen h,1d been dismi,,ed). I rom a common sense. pragmatic per.pecll\C, it is understandable "hy Mr Cu ll en accepted this ad\ ice. llad \ilr Cullen been found gmh} of the specific alleged oITcnce in the other jurisdiction. it \~ould presumably have been fu tile for him to ha\C pursued his current claim for reinstatement It ,\ould have been more understandable had Mr Cullen reached this , IC\\ independent or advice -- that he was advised by a Solicitor to refr.1111 from ludging his rein,tatement application \\here there 1\as a clear time const ra int contained within the Statute i, less understandable. l\ot,\ithstanding that. should Mr Cullen he disad\antaged becau,c he honest\) rehcd upon this ad\ ice? In the panicular circumstances or11tis case. I think not In reaching this decision. I adopt the views expressed b) Lord Denning \1 R. in Sahcr Rex & Co . , Ghosh ( 1971) 2 QB 597 at 60 I \,hich state that a litigant should not suffer ru, a re:,uh of a mistake of his la") er and, without fully c,ploring the merits of the case. that 11 " still rele"ant to tal.c into account the apparent strengths or weaknesses of the case (,ee Regina v Sccretarv of State for the Home Department. E\ Pane Mch1a (1975) I WLR 1087. the Coun of Appeal (Lord Dennmg M.R .. Browne and GeofTre) Lane L.JJ.) In this c~c. from Mr Cullcn·s apphcauon. 1t appc~ that he \\oh dismissed for allegedly misappropriating an amount of S 15 .00. On the face of it. the issue ma) appear to be light 111 substance, but from the apphcant"s perspcctl\e. \\ere the mailer not to be resohcd b) an independent decision-maker. he would face prospective employers ha\ ing been summaril) dismi,sed from emplo) ment within the hotel industry for misappropriauon. His ru1urc job prospects would arguabl) be SC\ ere I) hampered. When \\e1gh111g this prospect against an) disadvantage \\.hich might be suITered b) the re pondcnL the balance is in favour of allowmg the case to proceed for a final dc1crmina11on As \\ell. a further prejudice to the applicant is that he may not feasibly litigate his claim in an) other forum . As for the respondent. an employee has been appomtcd to Mr Cullen·s former!) held position. Submissions from the respondent 10 when this appomtmcnt was made were vague. but an appomtmenl "as cenninl) made. I am unsure a, to ,\hether this occurred at a 111nc \\ hen the respondent had no reason 10 suspect that the applicant \\as contemplating contesting the validity of his dismissal. This is a factor that the Commission \\Ould take mto account in detcrrmning what relief might realistically be afforded to the applicant were he 10 be successful in his claim (see l'ictor L Du1111 ,. Queensland l'olleyba/1 Assocw1to11 ( 1994) 146 QGIG 36). One distmguishing factor in this case. hO\\Cver. is the type of business conducted b) the re,pondent ,\ustotel Trading Pt) . Ltd operates a number of hotels w1th1n Queensland and clsc\~hcre. \\hcrcas m the abovemcntioncd case the dispute arose bet\\een the applicant and an emplO) er "ho conducted onl) a smgle business 24 Ju ne, 1994) QUEENS LAND GOVERN ME T IND US TRIAL GAZETTE Generali?· the fact that Jn emplo} er ha!, not been made aware of an apph~ant ~ desire to challenge lus di,missal I~ a factor which r~i/g;;~Sl th e applicant (cf. D. 8r~dle1· V. Access t11gineer111g Se ) QC,IG 82. Rusi 1-ramro:e Surlt ,. Bureau of l:.mergenc)" rv1ces (1993) 14-1 QGIG 323· , .. l . • 1ctor , Dw111 v. Queensland I olle>~a/1 Associauon (199-l) 146 QGIG 36). In all of these case,. a determmant 111 ~vaivmg the c,tension of time constramt wa~ that the issue h~d rema1~ed "live". to some degree, between the panics oier 1 ~~ period of lim: bcl\,een the dbmissal and lodgement or the re111s1a1emen1 apphca11on. In th is case. h<>wever. the extenuating circumstances .are that the mauer \\3S being prosecuted and ''.":nuousl} defended h) the applic.1111 in a different forum It is 1101 .is if the dispute bel\\een the panics had been resohed. 11 "as sull on foot, albeit from a slightl) different pe~pective. tn m) vie,\. 11 ,hould not ha\ c come as a surprise to the respondent that in the event that the cmplo) ec wa, exonerated in the other forum he \\0uld seek to re-estahlish h1~ employment relauonship with. tus fonner cmplo}Cr. • . For these reasons. I \\Ould allow the application for an extension of11me !he Regist ry "ill contact the panics to ad, ise of dates for hearing of the pnmaf) application for reinstatement. I order according!) . I) A. SWAN. Commis~1oner. Appearam:es: - Mr D.R. Cullen. the Applicant Mr D. Jones._ for_ the Queensland I lotels Association. l 'nion of I mplo)crs, \\llh him Mr P. W:ukins. on behalf of AuMotcl T d Pt) Ltd. ra mg Operati\C Date· /A Decision - Jurisd1c11onal Issue :md Fxtcnsion of Time Rdcased 15 June 1994 ###########################/#1########################## 148235-42 -541 -- 2 of 2 --