Dunn v Queensland Volleyball Association [1994] QIRC 191 (1994) 146 QGIG 36

36 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 May, 1994 #################################################### QUEENSLA1'.D INDUSTRIAL RELATIONS CO,\t\~ISSION Industrial Relations Act 1990 s. 174 - application for reinstatement Victor L. Dunn AND Queensland Volleyball Association (No. B635 of 7993) COMMISSIONER SWAN 28 April 1994 Termination of Employment - Dismissal - Reinstatement Preliminary Issue - Application for Extension of Time - s. 174 (l)(bJ - Industrial Relat,ons Act 1990 Aware of Cont,nued Employment Status - Sought Immediate Industrial Relations Advice - Correspondence Entered Into - EmployPr AIPrtPrl to Applicant's Intention Discussions with Solicitor Solicitor on Leave Misdirection or Misplacement of Papers - Difficulty in Contacting Applicant - Reference to Case Law Position rilled Other Avenues for Relief - Degree of Delay Satisfactory Reasons Exist - Industrial Relations Reform Act 1994 - Disadvantage to Applicant - Prejudice to Respondent Non- Profit Organisation - Application for Extension of Time Granted. REPORT ON DECISION (as edited) In giving a decision from the Bench on 26 April 1994, Commissioner Swan stated:- ''This application seeks the waiving by the Commission of the 21 day time constraint for the lodgement of an application for reinstatement in accordance with the provisions of section 174 of the Industrial Relations Act I 990 (the Act), as amended. That section provides that an application for reinstatement to the Commission shall be made within twenty-one days after the dismissal or within such longer period after dismissal as the Commic;sion might allow in all the circumstances. This provision is the appropriate provision to be utilised in this case, notwithstanding the enactment of the Industrial Relations Reform Act 1994. This is so, because the Industrial Relations Reform Act I 994 states as fol :ows:- 'T ransitional provision ahout dismissals "488.(1) Part 11, Division 4 as it existed immediately before the commencement of the Industrial Relations Reform Act 7994 (the 'amending Act'), from the commencement continues to apply to dismissals within the meaning of the Divis 1 on that happened before the commencement as ii the amending Act had not been passed . "' The lndustnal Relations Reform Act 7994 came into effect on 30 March 1994. The dismissal in this case occurred in September 1993. Mr Dunn had been in the employment of the Queensland Volleyball Association (the Association) since 1985. On 17 September 1993, Mr. Dunn's employment was terminated by the Ass?c1at1on because the Board had not been satisf;ed with your pertormance as Brisbane Competition Manager and following your staff review we feit we had no other option'. Mr Dunn's application for reinstatement was filed with the Registrar of the Queensland lndustr:al Relations Commission on 5 November 1993, some seven weeks post dismissal and some four weeb out of time as per s. 174 oi the Act. To support his application that the Commission should waive the time co~straint cornained in s. 174 of the Act, the Applicant listed tne toilowing chronological account of events as they transpired up until the date of filing his applica:ion for re1 nstatement. On 7 August 1993, Mr Dunn first became awa·e, through _discussions with his employer, that his continued employment status was precarious Mr Dunn sought immediate industrial relations advice from the Surfers Paradise branch of a Solicitor's firm. As a consequence of that consultation, correspondence was entered into between Mr Dunn and his employer on 12 August 1993. It is claimed that Mr Dunn alerted the emfiloyer to his intention to seek relief in the Queens and Industrial Relations Commiss,on were he to be subsequently dismissed if an alternative resolution could not be agreed upon. The employer responded to Mr Dunn's correspondence on 20 August 1993 offering to further discuss the issue between the parties The matter was not resolvea and Mr Dunn's employment was terminated on 17 September 1993. Some 11 days latPr Mr Dunn discussed the issue again with his Solicitor. Mr Dunn's file, held by these Solicitors, was sent to the Brisbane officP of the law firm for consideration by a senior Solicitor of the firm. As it transpired, the particular Solicitor was on leave from his office at that time and first became aware of the fi!e and the situation on the week beginning 18 October 1993. After an interview between the Solicitor and Mr Dunn on 25 October 1993, and the drafting of an application for reinstatement, the Solicitor informed both the employer and the Queensiand Industrial Relations Commission of Mr Dunn's intention to seek reinstatement by way of corresoondence dated 28 October 1993. Because Mr Dunn resided on the Gold Coast and was difficult to make contact with (Mr Dunn resided In a caravan park and did not possess a telephone), it took until 5 November 1993 before the application wds filed with the Registry of the Queensland Industrial Relations Commission. The Solicitor for the Applicdnt sidled that at al I times the employer was aware that Mr Dunn contested the validity of his dismissal; that he tntended to pursue the matter through a reinstatement hearing before the Queensland Industrial Relations Commission; and tf1dt the rpason for delay involved 'the misdirect;on or the misplacement of papers in my office and cannot be attributed to any fault on the part of Mr Dunn himself. rinally, it was submitted that there had bePn no suggestion made to the Applicant or his advisor that the employer would be prejudiced m any way as a result of Mr Ounn making his application. The Applicant's Solicitor tendered four decisions of the Queensland Industrial Relations Commission to support his claim for a waiving of the 21 day time constraint. These decisions included:- Mauricc Christopher GARDNER, Harold Craig f ARQUIIARSON, Phillip Alan AIKEN HEAD and Errol Lester GRAMS v. AN/ Corporation Limited (1991) 136 QGIG 387; D. Bradley v. Access Engineering (1992) 140 QGIG 82; Ian Francis Portas v. Tamborine Mountain RSL Services Club (1992) 141 QGIG 646; and Richard David .~fagoffin v. All Souls and Saint Gabriel's School Charters Towers, (1993) 143 QGIG 64. All four mentioned cases were determined under the provisiom of the Industrial Relations Act 1990 (Act No. 28 of 1990) and specificaily the relevant provision of the Act which stated that 'special circumstances' needed to exist before the Commission could determine to waive the time constraint. . All of the abovementioned cases detail a range of circumstances under which the Commission either granted or refused waiving of the 21 day time period. Whde reference in these cases was frequently made of the test as detailed 1n Ulowski v. Miller (1968) _SASR 277, _the Commission, whilst acknowledging and often util1s1ng the basic tenets of that case, has dPtermined each case on its own particular merits The Respondent referred to the period of time (i.e. 21 davs) as being an appropriate time deemed by Legislation for ~n aggrieved person to lodge their claim for reinstatement against 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 37 their former employer. Were the lodgement of the claim to fall outside of this period, then the Kespondent claimed that considerations as were detailed in the case of Frank De Barros v. Remmington Pty I irnitt>d (1992) 139 QGIG 927, snould be raised. Such considerations went to matters of whether, during the intervening oeriod between the exp1ratIon of the 21 days and the lodgempnt of the reinstatement application, there. had been any discussions between the parties regarding the termmat1on and the manner in which it occurred. The Respondent states that, after the date of dismissal (i.e. 17 September. 1993), therP was no communication bPtween thP parties until the application was lodged with the Registry of the Queensland lndustria 1 Relations Commission on 5 November 1993. Keference was made by the Respondent to the case of D. Bradley v. Access Engineering (1992) 140 QGIG 82 where an extension of time had been granted by the Commission after the lapse of some considPrablP period of of time. The Re.,,pondent sought to distinguish Bradley's case from the one at hand in that the Commission in Bradley's case had determined that:~- 'AII of the discussions, whether they be before an Industrial Magistrate, through correspondence with the Registrar of the Industrial Relations Commission, or through employer and employee representatives, pursued a similar course. All were aimed at <;eeking the rPsolution of thP dispute at hand. At all times the employer was aware that the Applicant was seeking to resolve the dispute. It wouid come as no surprise to the employer that the Applicant was still seeking redress to his situation. This course of events clearly puts this matter outside what might normally be tne case if there was a similar time lapse in other matters which have come before the Commission. The constant progression of the claim over a period of time, to my mind, qualifies the Applicant to successfully claim that 11 special circumstances" exist in this case.'. On the question of whether the employer might suffer any prejudice were the application for reinstatement to proceed, it was claimed that Mr Dunn's position had been adver·tised by the employer on 22 September 1993, however interviews for the vacancy had not occurred until after the 21 day expiry period (1.e 5 October 1993) on 11 October 1993, with the successful Applicant commencing duties on 15 October 1993. It was clainwd that the plizht of the newly appointed employee, were Mr Dunn's application to be heard and were he to be successful in his claim for reinstatement, constituted a prejudice of some proportion to both the employer and the employee in question. The Respondent then detailed to the Commission further reasons as to why the 21 day time period should be not waived. These included:-- No adequate reason has been stated by the Applicant as to why the delay occurred. There was nothing in the correspondence from the employer to the ,A.ppl1cant that indicated there existed prospects for further discussions between the parties. The Applicant has other avenues for relief if he believes that there has been a breach of his contractual arrangement with his former employer. The fault for the delay lies with the Solicitor and not the Applicant as the Applicant had first sought legal advice some nine days after his dismissal. l he above, generally, represents the main thrust of the subm1ss,ons made by both parties in this matter. Conclusion I have referred earlier to a number of cases decided in this iur,sdiction as they rPlate to extension of time questions. While each case deals with distinctly different issues, the outcome of each case generally has been determined by the Commission utilising relatively fundamental principles. Such princples include (but not exhaustively) the following consicierations:- the degree to which the application is out of time; whether a satisfactory reason exists for the length of the delay; any disadvantage the Applicant may experience by not being able to litigate the claim; and dny prejudice which may attach to the Respondent. If one considers the first principle (by how much is the application out of time), the application is not out of time by such an extraordinarily IPngthy period of time that one would be inclined to view the time factor alone as constituting the sole reason to reject the application, There have been much longer periods of time waived by this Commission, but only after a consideration of a range of factors which weighed heavily in favour of other principles, sufficient to relegate the time factor to less significant consideration (see D. Bradley v. Access Engineering (1992) 140 QGIG 82). In Bradley's case, the application was some 95 days out of time, but the Commission determined that the dispute between the parties had remained 'live' during most of this period, sufficient to permit the Applicant to litigate his claim, notwithstanding the time factor. The second factor relates to whether there existed a satisfactory explanation for the time delay. In this instance, the delay appeared to relate to two factors:- (a) the transfer of Mr Dunn's documentation from one branch of a law firm to another, coinciding with the particular officer to whom the material was addressed being on leave at the time; and (b) the fact that Mr Dunn resided in a caravan park at Surfers Paradise, did not possess a telephone and therefore was difficult to make contact with in terms of obtaining his signature to certain documentation. These are factors outside of the control of the Applicant. What is clear, however, is that the employer was alerted early in the dispute (1.e. on 12 August 1993) to the fact that, amongst other considerations, Mr Dunn may seek to pursue a claim for reinstatement with the Queensland Industrial Relations Commission. The correspondence was sufficiently clear in its terms to ensure that the employer was aware that Mr Dunn was aggrieved and intended to seek whatever recourse was open to him. As well, the delay is not the fault of the particular Solicitor concerned; the delay goes more to an unfortunate set of circumstances wherPby the normal checks and balances within office administration failed. Upon his return to work and after being apprised of the documentation, the Solicitor set in train a process aimed at furthering Mr Dunn's claim. These set of circumstances, while representing the fai!ure of a process which had commenced within the appropriate time frame, do not of themselves remove the possibility nevertheless of allowing the substantive application to be considered. In this context, they explain, in a satisfactory manner, why the lodgement of the appiication was out of time. It should also be noted that the earliPr requirement in the Industrial Relations Act 1990 (Act No. 28 of 1990) of establishing 'special circumstances' is no longer a pre-requisite to be satisfied. The Act now permits the Commission to waive the time constraint as the Commission SPPS fit 'in the circumstances of the case'. In Salter Rex & Co. v. Ghosh (1971) 2 QB 597 at 601, (Lord Denning M.R., Edmund Davies and Stamp L.)J.) Lord Denning M.R. had stated:- 'So Dr. Ghosh is out of time. His Counsel admitted that it was his, Counsel's, mistake, and asked us to extend the time. The difference between two weeks and four weeks is not much. If Dr. Ghosh had any merits which were worthy of consideration, we would certainly Pxtend the time. We never I ike a litigant to suffer by the mistake of his lawyers.'. In Regina v. Secretary of State for the I fame Department, Ex Parte Mehta (1975) 1 WLR 1087, the Court of Appeal (Lord Denning M.R., Browne and Geoffrey Lane L.JJ.) stated that it was not inappropriate for the Bench to have some brief understanding of the Applicant's case in that:- 'We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper thdt the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to -- 1 of 2 -- 38 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [6 May, 1994 know something about the case before deciding whether or not to extend the tim e. In short, the rule gives the tribunal a discretion to do what is j us t and right. It should be liberally i nterpreted by them so as not to let an appellant sufier uniairly.'. In terms of an 'outline of the case ·, the Commission has know ledge only of limited facts as they relate to Mr D un n' s te rmination and t hes e have been gleaned from a perusal of the correspondence before the Commission at this preliminary stage . The fact t hat Mr Dunn was a reasonably long-term employee (he had commenced emp loy ment with the empl oyer on a casual bas is i n 1985 and had progressed to ful l-time emp loymen t in 1988) and that there is so me debate in the correspondence from the App licant as to whether what occurred to Mr Dunn constituted a constructive dismissal, would, on the face of it, sugge st that the clai m being made is not ·fl ims y' and so 'w eak on the merits' as to d iss uade the Comm iss ion irom gran ting an extension of time. In te rm s of w hether th e Applicant would have any opportunity to litigate his claim at all were he not permitted to pursue his case in thi s forum, the Re spondent states th at the Appl icant co uld have recourse to a d ifferent jur isdiction. However, the pract 1cal1t 1es of tha t occurring w ithin a reasonabl e period of time preclude that opt io n from being feasible in these particular circum stances . l he submission by the Respondent on this poi nt, w ere i t 10 be accepted by the Commi ss ion as a meritorious argument, w ould on ly serve to recreate the problems currently confront ing bo th parties In a different fo rum. The quest ion oi prejudice to the employer ra ises more difficulti es for the Commission than any of the previously referred tO iactors. This is so, as the employer has, after the expiry of th e 21 days, appoin ted another person to th e position iormerly held by Mr Dunn. Re fe rence has bee n m ade previously by the Commission to the potential di fficulties employers place th emselves i n, b ei ng aware that a reins ta tement case may be pending from a dismissed employee, if they pr oceed to appoint another pe rson to the vacant posi tion (see Or Peter Bernard Chi/colt v. Pemnsula and Forres Srraic Regio nal Health Authorit y (1994) 145 QGIG 420). In that case, the Commission viewed the appoi nt ment of a replacement employee (a pro_cess μroceeded w i th by the employer after being made aware ol the lodgement of the dismis sed emp loyee 's app li cation fo r re instatement) as a factor which would have no im pact upon the Commission's d ec ision to award the rel ief of rei ns tatement 10 the dismi ssed empl oyee, were that to be the outcome of th e case. In this case, the employer advertised the vacancy some days after Mr Dunn' s dismissal, but did not interview or apμo int anyone unti l after the 21 day expiry period. W hether this outcome (i n terms of th e timing of the interviews) simply evolved as a ma 11er of cour se or whether 11 was pre-determined rema i ns unclear to me. How ever, by th e mere fac t that applications for Mr Dunn's previo us ly held posit io n were ca lled some days after Mr Dunn's dismissal, when the employer had been alerted to the fac t that the employee was intending to pursue so me type of cla im against the employer, I am more incli ned io the view that the employer p ursued this course of action regardless of its knowled ge oi the possibility of action being taken against ii by Mr D unn. . In any ~vent, the fact that another pe rson has been employed in Mr Dunn s posi tion, and the manner in wh ich this occurred, would be a factor wh ich wou ld be tak en into account by the Commis si on in terms of what relief m ay rea listic al ly be afforded to Mr Dunn by the Commission were he to be successful in his cla im aga in st the employer. The Respondent has also raised the fact that the employer is a non-profit organisation, employing some 9 people for who m parti al Government funding exists. It was stated that there was no Government funding provided for the position prev io usly held by Mr Dunn. Also raised as a tactor which may prejudice the emp loy er were the application to proceed, was that a num ber oi the ofi i ce holders oi the Association at the time of Mr Dunn's dismissal, no longer had any involvement with the Association; res ided in cit i es outside of Brisbane and, coupled with these factors, there ex isted uncertainty as to their ava i l abi li ty to give evidence were the case lo proceed. It is acknowledg ed by the Commission that there often exists problems of the abovement 1o ned type in organisations such as this Associat ion. However, th ese factors must be weighed aga inst other pertinent factors which have b een detail ed in th is case . In doing that, I have formed the view t ha t having considered the submi ssio ns of both parti es , the tim e const ra i nt should be waived for the r easo ns ,tated i n this decision. As such, the Registry wi l l advi se the parties of a date upon whi ch a pre lim inary hearing can be held to progress this claim. The Comm iss ion O rders Accord i ngly.'. Dated this twenty-eighth day of April, 1994. By the Commi ss ion, [L. S ] M .J. CALLEN, Industri al Reg i strar. Aμpea,ances:- Mr D.R. Mi ller (of Feez, Ru1hning, Solicito rs ) for the Appl icant. Mr G. Dearlove (of M ci nne s, W ilson and Jensen, Solicitors) on beh al f of the Queensland Vol leybal l Association . Operative Date: NIA Report on Decision - Extension of Time Released: 28 April 1994 #################################################### 6 May, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 39 -- 2 of 2 --