Draper v Hayman-Ansett International Resort [1993] QIRC 375 (1993) 144 QGIG 438

438 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [22 October, 1993 #################################################### QUEENSLA ND INDUSTRIAL RE LATIONS COMMISSION Industrial Relations Act 1990 s. 11.3 7 - applicati on ior re instatement s. 11.3 7 - application for extension of ti me Warren Lesli e Draper AND Hayman-Anse ll International Resort /No. 83 12 of 1993) COMMISSIONER BLOOMF I ELD 12 Oc tober 1993 Reinstatement - Re-emp loyment Termin at ion oi Employment - Dismissal - Extens ion of Time - Case Law - Whether sec tion 11 .11 (repeal ed ) or section 11.37 apply - Whether " Spec i al Circumstances" Ex i st - Arbitrated Matter - Spec ial Circumstances not found to ex i st - Ex tension of Time Ref used. DECISION Introducti on Th is is an app li cation !,)y_Warren Les lie D raper (the _applica~l) for extension of ti me within wh ich to m ake an application tor reinstate m en t, re-emp loymen t and/or compensation, under D1v 1s1on 4 Part 11 of the lndustr1al Relations Act 1990 as amended, aga inst his former empl oyer Hayman-Anse ll International Reso rt (the respondent ). Ba ckg ro und On 19 December 1991 the appli can t was apprehended on Hayman Island by the Australian Fe_de ral Pol i ce and char$e_d with being in possess ion of a prohibited im po rt under the prov1s1ons of t he Customs Act. The applicant was committed for trial by the Proserpine Magistrates Court on 20 December 1991. Later tha t day, 20 December 1991, the apr licant' s servi ces were terminated by the respondent for breach o the house rul es vi z. possession of an ill ega l drug. or substance at any time and notwithstanding the circumst ances involved. After committal proceed in gs at Proserpine in February 1992 the applicant was committed io r trial on th_e abovementioned charges to the criminal sitti ngs ot the Town sv 1lle Supreme Court on 19 August 1992. On that date, after the prosecu ti on had ad duced all of i ts ev idence, the presiding Su preme Court j udge directed the j ury to find the applican t not gu ilty of the charge (a bove) relati ng to posses sion of a prohibited import on the grounds that there was no prima facie eviden ce of him having committed the alleged crime. The applicant claims th at on 7 September 1992 he con tacted management of Hayman Island Re sort to inform them of his acqui tta l and he clai ms to have asked to be reinstated. T he applicant further cla imed th at a number of subseque~t telephone conversat ion s took place between management and h im se lf which proved fru itless other than that he was asked to submit his \W itten deman ds in writing to management. By letter d ated 20 September 1992 the applicant informed the resp ondent:- "This letter con ta ins my demands against the wrongfu l dismi ssa l of myseli, las t December, twentieth, on the grounds of wi lful misconduct. The two elements of my compensation are - (1) a reference from Mr N. and that th ere is (sic) no records oi incrimination or prejudi ces (sic) aga in st me from Hayman Island Resort and Associa te (sic) Compani es. (2 ) a mo netary compensation of two years sa lary, be i.ng the ab so lute minim um of ti me I had set to stay. Th is being set by the fact I h ad enrolled for another two year cour se wh ich was immediately relevant to my work.". By letter dated 2 October 1992 the applicant's claims aga i nst t he respondent were rejected by the respondent's so licitor w ith a requ est th at "s hould you wi sh to take the matter further, wou ld you please direct all correspondence to the wri ter". The applicant claimed that fol l ow ing receipt of thi s letter he had attempted to talk to managem en t on Hayman Isl and without success . He also cla ims to have made approaches to unions which operated on Hayman Isl and, to the Queensl and Ombudsman, the local member of Parli_ament, the counsel who represen ted him in the cr imi na l proceedings, and that he made a number of other enquiries about his situation. By way of "No ti ficat i on of Dispute i nvo l ving Dismi ssa l/ Re i nstatement" (da ted 20 November 1992) the appli can t informed t he In dustrial Reg istrar by facs i mi le on 25 November 1992 of a dispute surrounding his d ismissal in wh ich he indicated he was seek ing "rein statement/re-employme'!t to the former posi ti on of water quaI ity con trol officer and tu ll clearance and monetary compensation (t ime losted [sic])". The "No t if i catio n of D i spu t e i nvo l ving Dismi ssa l/Reinstatemen t" was ta k en directly from the Industri al Regi st rar's " Reinstate ment Guide" (pages 16 -1 9 inclusive). In the advice to the lndusuial Regis trar the applican t stat ed •1 earnestly ask for an extension of time for you to investigate my di sm i ssa l. I was only referred to you ju st recently by the industrial re latio ns man at Mackay. Up until that point of time I was unaware th at you r Commission existed.". 22 October, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 439 On t he following d ay (26 November 199 2) the Industrial Reg i stra r wrote to the applicant acknowledging receipt of the iaxed advi ce and refe rring to the fact th at th e applicant had asked i or an extension of time. The Regist rar's Office went on to advi se the applicant in the foll ow ing terms:- "There is a 21 day time lim it from t he date of di sm i ssa l to when you lodge a formal re instatement applica ti on (you have not stated the date of your dismissal on the D ispute N otification form ). To lodge an Ex tension of Tim e, you mu st fill out a formal rei nsta temen t appli ca ti on and pay t he appropri ate fee of $38.30 and fi le it in our office (see appendix 2, pages 19 - 22 of rei nstatement guide. Also see pages 4 and 5 oi guide 1.3(1)(a), l b)) • Note - Fo r extension of ti me, pl ease fill out part 1A of appli cati on io rm, pl us rest of appli ca ti on form.". Subsequen tl y, di spu te co nferences pursua nt to section 11 .11(8) of the Ac t were held on 8 and 16 December 1992 before another Member of the Commission. Those conferences did not resolve t he matter. A number of letters then passed be tween the applicant and his solici tors, his so licitors and himself, hi s so li citors and the re spondent's so licitors an d the respondent's sol ic itors and the applicant's sol ici tors. In cluded in this correspondence was a letter from the applicant to his solici tors dated 22 February 1993 in wh ich he indicated that he ha d given Hayman the ult imatum that "I wanted a perso na l reference from N and 24 months's sa lary as I was booked in for another 2 yr cou rse on th e Is land.". A letter d ated 23 April 1993 from the applican t' s so l ic it ors to solicitors for t he respondent (not marked "wi thout prej udice") con ta in ed the following claim:- " ln order to bring th is matter to an end our cl ient h as instructed us that he w ill accept the following in sett lement of his clai ms in re l at i on to his di smissa l. He h as requested:- 1. A written reference from Mr N performance. as to hi s work 2. An alteration and amendment to his personnel fil es and records to refl ect that he was di sm i ssed but not due to wilful misconduct. 3. Paymen t of the sum of $8,000.00 as damages for w ilful misconduct.". This d eman d was re jected by the responden t's solicitors on 27 Ap ril 1993. On 21 May the appli ca nt wrote to the Industrial Reg i stra r making claim for reinstatement. By letter dat ed 31 May 1993 the Industrial Regi st ra r wrote to the applican t informi ng him that "t he appl icati on form attach ed to your l etter is not in conformity with the requ i re men ts of the Comm is sion and therefore it cannot be accepted as a filed document". An appl icat i on for re instatement in the re quired form was lodged in the Industrial Regis trar's Office on 1O June 1993 some 536 days from the date of dism is sal, 292 days from the date of ac quittal, and 196 days from the date of advi ce from the Reg i st rar that the re was a 21 day time lim it from the da te of di sm issa l to lodge a formal appli ca tion for re i ns tatement and of t he need to do certa in things to seek an extension of time. Whether s. 11 . 11 or 11. 37 of the Act Appl ies The appli ca nt h as cla imed that section 11.37(1) i s applicable in the instant case. No au th or ity is cited to support this contention. Sect ion 11.37{1 ) prov i des as follows:- " 11 ,37(1) If an employee is dismi ssed from employmen1 , application io r relief under sect ion 11.38 may be made to the commi ss ion - (a) within 21 days after the dismi ssa l; or lb) wit hin a longer peri od after the di sm i ssa l that the Commi ss i on may all ow at any time ,n the circumstances of the case.". On the other hand, th e responden t argues that the appropriate remedy lies in section 11 .1 1(1) wh ich is in the following terms:- ··1 1.1 1 (1) An employee dismissed from emp loyment by an employer may apply to the Industri al Commi ssion for re lief under th is section wit hin 21 days, or such extended period as t he Commission may, in special circumstances, permi t, following the di sm i ssal ta ki ng effect.". In support oi i ts conten tion that sect ion 11.11 is the appropri ate remedy the respondent has referred the Commission to a number of authoriti es, including Magoffin v All Souls' and St. Cabriel's School Charters Towers (No. B 125 of 1993 Chief Commissioner Hall 143 QGIG 64) and a recen t decision of H is Honour the Pres ident dated 10 September 1993 when he dismissed an appeal aga inst the decision of the Chief Commissioner (No. Cl 1 of 1993). For reasons clearly spelt out in the two decisions involvi ng Magoffin it is clear that the appropriate remedy for the applicant i s to be found in s. 11. 11 and that the applicant is required to show that "special circumstances" exist which are such that an extension of time to lodge the appli ca tion shoul d be granted. In the case before me the applicant argu ed thar the l esse r t es t of "in th e circumstances of the case " applied and quoted a number of authoriti es wh ich supported his contention that he h ad given a full and satisfactory explanation for the delay in making the application for re instatement, re-employment and/or compensa ti on wh ich had been brok en down into three par ts as follows: - (i) The del ay arisi ng from the cri mi na l proceedi ngs (19 December 1991 to 19 August 1992) (ii) Engag ing in negotiations wi th the respondent (7 September 1992 to 24 November 199 2). (ii i) Events arising from the compulsory conference proceedi ngs in the Industrial Re lations Commission (24 November 1992 to 8 June 1993). W ith respect to (i) it was clearly likely that the applicant would have pl aced priority on defending the crimi na l proceedings as opposed to devoting his attentions towards a reinstat emen t claim. Nonethel ess the applicant had th e opportunity of at l east alerting the employer, and the Industri al Commission, of his intentions to pursue a reinstatement claim if he successfu ll y defended the crimi na l proceedings. However, no such in te ntion was sign al l ed to the employer and nor was there any "holding" applicat ion lodged w i th the Industri al Commission. Consequently, be1ween 20 December 1991 and (if the applicant's contentions are accepted) 7 Sep tember 1992 there wa s no request made of the employer that i t consider re in sta ting t he applicant. Although t he applicant contends that he sought reinstatement in various telephone conversations between 7 September and 20 Sep te mber,when he was as k ed to set out his cla i ms in wri ting, the fact remains that when the clai m was exp ressed in wr iting it contained no reference to any clai m for reinstatement in employment. Rather, the applican t sought other forms of recompense/compensation. Further, the applicant gave no express ind i cat ion to the employer until after 25 November, when he lodged a dispu te no tifica ti on with the Industri al Rel at ions Commission, tha t there was a possibility oi a claim for reinstatement. Notw ithstanding the lodgement of this notific at i on of a dispute surrounding his dismissal, in whi ch he sought reinstatement/re-employmen t and full cl ea rance an d monetary compensation, the appli cant's actions from that ti me - including the ac tions of his solicitors - di sclose tha t he was more concerned with pursuing a clai m for matters other than his reinstatemen t. This is exemplifi ed by the letter da te d 22 February between the applicant and his sol ic itors in which he indicated what he was seek in ii from the employer (a bove) and the letter dated 23 April 1993 trom the applicant's so li citors to so licitors for the respondent wh ich set out the applicant's claims (al so above). Now h ere was i t mentioned that the applicant was pursuing - or even considering - a claim for reinstatement. The Commission notes and accepts that the express intent oi the l egi slation is to encourage the resolution oi disputes involving term ination to be resolved by consent (see s. 1 1. 11(8), rep laced by s. 11.37(4), now s. 174(4)) and th at rhe resol utio n of disputes surrounding such iss u es of ten involves monetary compensation an d alt eration to employee records. Notw ithstanding thi s, the applican t' s actions in rel at ion to this matter do not reveal any rea l urgency to have his clai m, that he was wrongfu ll y dismissed, addressed by the Industri al Comm iss ion . -- 1 of 2 -- 440 QUEENSL AND GOVERNMENT rNDUSTRlAL GA ZETTE [22 October, 1993 H is decision to pursue t he claim for reinstatement/re- employmcnt seems to have occurred after all attempts to settle his cla im for compen sa tion fa il ed. Th e arg ument that th e delay in ma king the formal app li cation for reinstate ment was attribut ab le to the two (2) stage s suggested at (ii) and (iii) above is simp ly a conveni en t argument and not one supported by the facts. Wh ether "Special Circumstances" Exist In the decision of Hall C.C. invo lving Magoffin (above) at pdge 64 the re is an extensive examination of t he expr ess ion " special circum stan ce s", and how i t ha s been applied in a number of cases in a variety of jurisdietions, in whic h the Chief Commission er state s: - "The core id ea seems to be that 'special' do es no t mean 'exceptional •. but is to be treated as a word en abling ea ch cas e to dealt with on its own circumstance s; compare Ex parte Bu chne/1 (19 36) 56 CLR 221 at 22 4 and see Holpit1 Pl y. lid. -v• Var umu Pty. Ltd. (199 1) 103 ALR 684 at 686. The res trictive element is that the factors relied upon must not always be present or otherwise such that to act upon them wo uld be to override rat h er th an re l ax the statutory rul e; see Re lvoric and Director- Gen eral of Social Services (1 981) 3 ALN 95 at 96 to 9 7 and Re AFPECS Print K6546 at 4 per Hall D.P.". Both the appl icant an d the res pondent made d etai led submissions concern ing the Commission's discretion to extend time. These submissions contained a number of references to other cases and the Commission indi ca t es t hat it has re ad 1he cases to whi ch it was referred which were avai la ble lo i t. It n eeds to be sta led that t he applicant's references we re b ased around the position pu t by hi m that th e lesse r tes t of " in 1he circumstances of the case " applied wher eas the re spondent's were directed more to issu es surrounding the intNpretation of "special c ircumstances·. Notwiths tanding th e different thrust of t he argumen ts a number of the cases to which the Commission was referred by the applicant do not su pport his contention that the Com mi ssion sh oul d exe rc is e discretion in his fav our. In Lucic v Nolan and Others (45 ALR 4 11 at 416) Fitzge ra ld J. sta tes .- "! do not think that th e cou rt, in exercising its power to make exceptions in appropriate cases, should coniine its attention to t he consequences lo the applicant of a refusal to extend time. Just ice, as t he ultimate obJ ect to be obt ained by the exercise of t he discretion, seems to me to require th at regard be had to broader consideration s th an merely the interests oi the appli can t .... It may be that ex ce ptional circumstances need not alw ays be shown before time can be extend ed . However. I consider that an applicant for an extension of time maintains throughout the burden 01 sho wing why, In all the circumstan c es, the ex tension of time sh ould be grant ed. I do no t thi nk t hat , given proof of ce rta in matters by an app licant, eg an explanation for his delay in making application, an evidentiary onus shiits to the respondents to es ta bli sh that pre1udice will resu lt if the extension is grant ed; nor, in my opinion, if the del ay is explained and the re w ill be no personal prejudice to the named respondents, should an extension always be granted. There seems to me no need to undertake a detailed analysis of the circumstances wh ic h I have set out above. There is abso lutely no ieature which, in my opinion, provides any support fo r th e application th at time be extended. In my opin io n, abso lutely no explanat io n whatever w as provi ded by the applicant for the i no rdinate and inexc usab le delay which occurred, both before and aiter he consulted his solicitors. If, as he clai m s, he laboured at any time und er a misapprehension as to the detail of h is sta tutory ri ghts or as to the cond111ons upon wh ich they were exercisabl e, the iault is entirely his own and stems from neither more nor less than his er r at ic an d c areless con du c t. ". See also Hicke y and Others v Aust r al,;in Tele communications Commission (4 7 ALR 517 at pages 523- 52 4. The respondent highlighted in i ts submissions tha t the Industrial Commission has continually rcierred to the South Australian Commission of Ulowsk, v Miller (1968 SASR 227) wherein th e foll ow ing passage app ears: - "It must be re membered that we are dealing here wi th a discretion and in my view it ought not to be fettered by any absolute or inf lexible rules. It cl early app ears from the se cas es th at five pa ramount mail ers to be considered are th e length of the delay, the expl ana tion for the del ay, the hardship to the plain tiff if the action Is di smissed and t he cau se of ac ti on left statu te ba rred, t he prejudice to the deien da nt if the act ion is dllowed to proceed n otw ith stand i ng the delay and the conduct of the defendant in the litigation.". In the i nsta nt case t he length ·or the del ay betw een the date of termination and the date of the fo rmal lo dgement of the applica ti on is con siderable (536 da ys). It is also 292 days from the date of acquittal and 196 days from the date of advice from th e Industrial Regi stra r th at there was a twenty-one d ay time limit from the date of di smissa l to l od ge a formal appli ca tion for reinstatem en t. Other t han the explanations advanced at (i), (ii) and (i i ,) above, wh ic h are unconvincing, the ap plicant has advanced no rea l rea sons for the delay in formally lodging t he app lic ation for re instatement. Whilst he might have been engaged in di scuss ions/negoti at io ns w ith the respo ndent these were iocused on ga in ing comp ensa tion and other forms of recompe ns e r at her t han the pursuit of a claim for reinstatement. Since Se ptember 1992, shortly after t he applicant was acquitted, his ac tions have cl ea rly demon st ra ted tha t he has been seeking some monetary compensation and other matters dealing w i th h is employment records rather than reinstatement. The application to seek re i nsta tement only occurred after all other attempts to ac hi eve a moneta ry se ttlement fa iled. To n ow entertain a proceeding under section 11 .11 11), after such a long delay, must c au se a questioning of the applicant's intentions with respe ct to that section. Fo r the reaso ns spelt out by C hi ef Commissioner Hall in Madhu Achal v Electrolux Pt y. Ltd. (14 3 QGIG 144-6) and by Commissioner N utter in Barbara Anne Mason v David Jones (Au st.) Ply. Ltd. (143 QGIG 136) the Industria l Co mmission's pr im ary func ti on is rei nstatemen t or re- employment, not damages . Compen sat io n is only availabl e as an alternative 10 the Commission if it reac hes Ihe contemporan eous opinion the dismi ssed employee should be remstated or re- em ployed an d an opinion that each of an order for reins ta te ment and an order for re-employmen t is inappropri ate (see Acli,1 1). For reasons outlined in its submissions there would be distinct p re judice to t he respondent if the applic ant" s claim for di sc retion was entertained. Qu ite ap art fr om the difficulty in locating all witnesses who might be required to give eviden ce there is also the position of other third parties to be considered and in part icular the posit io n of the p erson who was recrui ted by t he respondent to replace the applicant wh en he w as terminated in December 1991 (See Lucic v Nolan and Others and Hicke>• and Others v Australian Telecommunications Commission) . The conduct of the applicant since h is acqu ittal in August 1992 has been focused on obtaining some form of monetary recompen se and changes to his em ployment rec ords. Despite it be in g drawn to his attent io n in Nov em be r 1992 that the re were formal time li mi ts on the making of any cl aim for reinstat em en l the applicant has chosen to ignore th is as a potential remedy and instead has exp lored other forms oi redress. Having made a choice to pursue a single pa th and having reached a dead-end the applicant has now seen fit to attempt to walk down another pathway. There are no compe lli ng reasons why he should be allo wed to do so and in the Co mmission's mind no "s p ec ia l circum sta n ces" ex i st which sh ould ca u se di sc re ti on IO be i ssue d in his favour. The Com miss ion refuses th e application for extension of tim e. Order accordingly. A.L. BLOOMFIELD, Commissi oner. Appearanccs:- Mr W. Draper appea red on his own b eh aii. Mr J. Lawson appeared for I layman-Ansell Internation al Resort . Ope ra ti ve Da te: NIA Decision - Rei nst ate ment - Ext ens ion of Time Released: 12 October 1993 22 October, I 993] QU EE NS L AND GOVERNMENT INDUSTRIAL GAZ ETTE 44 1 -- 2 of 2 --