Elston v Exogen Software Pty Ltd [1994] QIRC 215 (1994) 146 QGIG 188

188 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l20 May, 1994 #################################################### QUEENSLAND IND USTRI AL RELAT IONS COMMISSION Industrial Relations Act 1990 s. 174 - application for reinstatement William Stephen Els ton AND Exogen Software Pty. Ltd. (No . 8573 of 1993! COMMISSIONER BECH LY 9 May 1994 Te rmi nation of Employment - Dism issa l - Reinstatement - Preliminary I ssue - Extension of Time - Lega l Represen tation - Un sworn Informat ion - Change of Business Ndme Employment Contract - Contract Altered - Employer/Employee Rela tionship - Employee Performance - South Australian Based Company - Applicant Moved to Queensland ior Trial Per iotl - Interstate Commission - South Australian Industri al Commission - Conierences - Fai lure of Appiicant to Make H,mself Avai lable - Matter St ruck Ou t - App licant Commenced Proceedings i n Queensland - Application for Extension of Time Refused. DECIS ION ,\n extension of time to file an application under Part 11 D ivision 4 of the Industrial Relations Act 1990 has been so ught by Mr Wi l liam Stephen El ston w ho is see king re instatement to employment with Exogen Software Pty. Ltd. of 6/430 Prospect Road, Ki lburn, South Aust r al i a. The matter was first heard i n Brisbane on 10 December 1993 by way of preliminary hearing when Mr Elston opposed leg al representation an d elected 10 conduct his application personally. The responden t was not represented at these proceedi ngs due to lack of knowledge of the application through no fault of their own . However a procedure was establ i shed to enable both parties to pr ovide information to the Commission to support their respective positions. Thi s procedure, wh ich involved written submissio ns an d respons es as wel l as verbal submissions was cu mb ersome and the cause of some delay. Add i tional l y, Mr Elston's recollection of communications with solicitors representing h im in earlier proceedi ngs in South Australia was in some instances qui te vague. None of the informat ion is sworn and the Commission must consider what weight it gives to confl icting information. Mr Els ton apparently was originally employed as a Sa les Represen tati ve by a Company known as Exogen Bu si n ess Tools Pty. Ltd. in June 1990. II appears that in March 1992 Mr Elston was appoin ted National Sales Manager of that Company. In December 1992 the employer changed to Exogen Software Pty. Ltd. The nature and circumstances of this change have not been sufficiently dealt with to enable me 10 comment further. Associated wi th that change it appears that a con t rac t was entered into between Exogen Software and Mr Elston, the terms of which were recorded on 23 December 1992. This cont ract provi des the following rel evant information:- • Commencing date 4 December 1992; • Basic co ntract fee pl us commission; • Posi ti on de~ignated as National Support Services Manager reporting to the Director Busin ess Development; • Details of Company faci l it i es ava ii able for use; • [ntitlement to parti cipate m the produc ti v it y performance award; • Relation.ship to be of a consultat ive basis rather than employer/emp loy ee . M r Elston to make provision for ta xatio n, i ncome protection and superannuation; • Contract to be effective from 1 Jan uary 1993, reviewable on 1 July 1993; • Mutual option to terminate by giving 14 days no ti ce. In May 1993 that contract was alter ed m the follow ing 1erms:- • Mr El st on was to move to Queensland for a maximum tri al perio d of 6 months; ·1he base con tract fee and commission were altered; An allowance was paid for remova l expenses; Certain leave was giv en; A review of the terms and conditions was to be conduc ted at the exp iration of the 6 month trial pe riod. The Company sta t es that this alteration to the cont ra ct followed the applicant 's fa i lure to perform to a sa1isfac1ory standard. Mr Elston moved lo Queensland during June/July 1993 and, on 6 August 1993, his arrangement was terminated. It is stated by Ex ogen Soitware Pty. Ltd. that a 'Co mmission Only' arrangement was then entered in to. I· lowever Mr Elston disputes that such an arrangement was made Mr Elsto n con tacted a firm of So licitors ,n Adelaide on 10 August 1993 who apparently advised hi m of several opt ions open to him to pursue the matter. One of the options was to take his complain t •10 the Industria l Courts of South Australia or Queensland' . Mr El ston states that he • . decid ed that taking Exogen to the Industrial Courts of South Austral ia was the right and the 20 May, 199 4] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 189 appropriate thing to do on the grounds that they were a So uth Australian Company based in South Australia and that I'd received other documentation from Exogen pointing out that they were sub1ect to the laws of Sou th Australi a, to w hic h I would like to te nder a document. Mr Esa u (h is so lici tor) agreed that he would act on my beha lf to make a quick settlement in this matter th rough the Co ur ts oi South Australia." (Tr an script p. 3). An application was then fi led with th e lnduWial Commiss io n of_ South Australia. Severa l conferences were held by that Tribunal and eventual ly the matter was st ruck out, it wou ld appear for want of p ros ecution, on 12 Oc tober 1993 . The basis of this act io n seems to be the fai lure of Mr El ston to make himself ava il able by phone or in person at some stages of the proceedi ngs b ef ore the South Austral i an Indust rial Commission to enable the matter to proceed. f h ave been informed th at there may have been a misunderstanding as to phone con ta ct numbers with Mr El_ston, however, exhibit 3 ten dered by Mr Elston reve als a series ot phone ca l ls from his Solicitor during September and October 1993. I understand t ha t co ntact was made between Mr Elston and his Sol icitor on a number of these occasions when i nstructions were sought and given on the ma tter. M r Elston w as represen ted at al l conference proceedings before the South Austral i an Commission by hi s Solicitor who acted on his behalf i n various communications w ith the Company during the who le of the conference process incl uding communica tio ns r ega rding a settlement proposal by him. . The Company has stated that i t w as rep resen ted by a Solicitor on each occasion the mal\er was dea lt wi th in conference and was r eady to proceed to finalise the matter before the South Austra lian Commission. Absence of instruction from Mr Elston prevented the matter from proce ed ing. . . h woul d appear that some considerat i on was given to the 1unsd1c11on of th e South Austral ian Commission to deal with the matter but no conclusion reached on t hat issue. Incl uded In that consideration was the nature of the contractual arrangement betwee n Mr Elston and the Company. M r Elston commenced proceedings in the Qu eens l an d Industrial Relatio ns Commission on 20 Oc tober 1993. . The preceding commen tary is a summary only of the 1nformat 1on provided to assist the Commission to form a view as ro whether an extension of time should be granted i n this matter. I have formed the view that an extension of time should not be so granted. In fo rmi ng this vi ew I have taken i nto account the failure of the app li cant to effectively prosecute the matter before the South Austral i an Commission inclu di ng the reasons pu t forward by M r Flston; the preparedness of the employer to proceed wi th the matter on all occasions when the matter was before the South Australian Commission; the nat ure of the cont ra ctual arrangement between the parti es from May 19 93 until date of te rm ination· th e reason gi~en for terminat io n (fail ure to achieve a single sa le of the Company s f roducts) and the prospect of a successful prosecu ti on o the application. As to this la st matter, although the merits of th e matter have not_ been dealt with i n any great detail it appears to me that the basis of the application is weak on meri t. Mr Elston apparently relies on the six mon th term of the contract and ho l ds the view that because the arrangemen t did not run i ts fu l l term then the action of the Company in termi nating was harsh and unjust. The contractual arrangement between them was for a maximum trial period of six months and, whereas the contract provi des for a review at the expiration oi that period, there is nothing, In my view, wh ich wou ld preclude an ea rl ier rev iew circumstances warrant ing. ' The ~i rcumstance _apparently relied on by the Company in this case Is the lack or performance of th e appli ca nt dur ing the short period of operat,on in Queensland of w hat appears to be a consultancy ar ra ngemen t rather than an employer/employee relationship. This application for extension of time is refused. R.£ . B(CH LY, Commissioner. App earances: - Mr W . Elston appeared on his own behal f. Operative Date: NIA Decision - Rei nstatement - Exte nsion of Time Re leased: 10 May 1994 ############################################# ####### -- 1 of 1 --