Dr Lawrence J. Gaffney v Director-General of Education [1993] QIRC 99 (1993) 142 QGIG 508

508 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 April, 1993 ###l#lf#l-#.####/t##############ll###################tl##/##1#### Q UEEN SLAND I 1 DUSTRIAL RELATIONS C OMMISSION /ndustnal Relalions A c- 1 1990 s. 11.37 - appl icat ion for reinstatement Dr La wr<nc< J. Gaffney AND Diri:ctor-Gencral of E duc;ition (No . B ! 05 of 1993) COMMISSIONER BOlJOOURE 8 Apri l 1993 Termination of Employm.:nl - Dismissa l - Reinstalcrncnt - Pre liminary Issues - - E"1ension or Time - - App li ca1 ion pursuam to section 11.37(1) of lndu sl•ial Relarrons Act 1990 - Appl icati on for Extens ion of T ime Rdused . DECIS!O~ On 3 March 1993 an applicat,on for r.ai 11 stal~ men1 was tiled in this Crnnrnission on beha lf of Dr. L. J. Gaffo ev whr, fo nn erlv he ld a position as Science T~acher w,1h the Depa,1me,i1 of Edm:ati,,n_ By kllcr dated 9 November 1992 Dr, Gaffney wa, adv is ed i.,y the Dircctor-G,mcral of £duca t io11 a~ follows :- "lt h,~ heen aprmved 1hat 1,nd.::r Sec1i on 26 -0 f th~ Publ ic Servic·c 11.fanagemenl and Emp loyment Acl 1988- 19? 1 you he retired from the !.:aching scrvic-, on lhc: grounds of i ll heal th as from 26 October J 992.". Section 26 of the Puh/ic ,',e,v1ce M anagemem and 1:;; m ploymen1 .4 et 1988 re levanLly provides :- " (]) If the presc ribd auth or i1 y bdis:vec on rca.sonahk gro un ds that an officer bccau ·e 0 1· nwntal or physic,,! inJ,nnity h as not the capacity or is u11fit as pr.:scri hed b} subsectio n (2 ). lhe presc ri bed authority ma y ca ll upon th~ otlicer lo ret ire from the public service within a lime sp.:cificd by the presc ri bed auth ority. (4) If an officer called upon under sub~~c1ion (3) to rctir, doe~ n ol retire within the time specified. the prescrillcd authority may di smiss th~ officer from th e public servic~. •· . Dr . Ga ffnev was. by kner of 24 Augu~t 1992. ca lle d up on 10 retire pursuant to tha rrovi s,ons of Sec ti on 26(3) aforem<!ntior1ed but he decl incd to do so. The !ell er of 24 August I 992 did warn Dr Gaffney in the folhl\ving iemis :- if you do not subm it a rctircmenl app licalion within 14 days of th~ date of th is lclter you will be d is m issed from the public se rvi ce_"_ Whilst the letter of 9 November 1992 afor.:ni.:nt,oned staks that Dr. Gaffn ey is "retired" ii sa~m s to m~ 1ha1 ell~ct ivdl y he has bl!~n dismissed pu rsuant to Section 26(4 ) aforementioned ;md I will daal wilh the mall~r on 11ml b:isis. St~ti on 11.37(1 ) ()f th e f nd11s 1na/ Relcmons .4 et / 990 provides that an applii:,ation for re instatern.:nl may he made t,, the Commiss ion: ··· "(a) wi 1hin 2 l days aft.er dismiss aL nr (b) within a larger period aft.er the dismissal lhat the Commi ss icin may allow al any time in 1he c ircu mstances of 1h e case.". As I haw prev ious ly indicated, the "dismissa l" was effective as from 26 October 1992 , bul was only notified by lett er dated 9 November 1992. Such le tt er was apparen t ly received by Dr. Gaffney several days later. If the period between 26 October 1992 and 9 November 1992 was considered 10 be part of th e 21 day period and for th;u reason only resu hl!d in the late fi ling of the appl ication 1 wo uld not hes itak to e \:crcise my discretio n in favour of Dr. Gaffney However, in 1hi s case Dr. Gaffney did not file hi s forma l appli1:atio11 until 3 Mardi 1993, a lthough he did apparently visit the: Registry on 22 D~cem ber 1992 and lodge a notifi cation for conferrnce iu rel ation to the disp ut e. It should be clearl y understood l11at !he filing of a notification in relat ion Lo a dispute does not ensure compliance with the tim e limit outl ined in Section 11.37(! ) aforementi on.:d, although ii is of course a factor which will be considered along w ith all other relevant factors. in detem1ining wh ether an enlargement of l ime should be gramed . It seems to me that in the ordinary course of post the letter of 9 November 1992 hould haw been delivered to D r. Gaffney by 12 November 1992 (S .J9A( I ) A c rs ln1e,pretal 10n A cl 1954). 1l1e re fore it was almost 6 w~eks atkr receip t of advi ce of d is missal that Dr. Gaffn.:y lodged the noli!icali on of dispute with th is Commission and it was approxim,1tely 16 wcck.s before the fo rmal application for reinstatem ent wru; Ii led . The lnd11s1n·(l1 Relations A e t 1990 bestows a wide discr.- ti on upon th is Co mmi ssion in relation to an application for en largem e nt of 1ime, how eve r. some relevant marters for consideration were outlin ed in Ul,lwsk:i v. Miller (1968) S.A.S.R . 277 wherein at page 280 Bray C.J. said:- "!t must be re, r. emb ered that we are dealing here w i th a di~cretio 11 and in my view it ought not 10 be fenered by the absolut., or inflexible rules. It cl~arly appears . t.hal five paramount mailer;: to be considered are the length of the delay, the exp lanation for the delay. the hards h.ir> to th e plain tiff if the aclion is di smissed and the cau se: of action left statu te barred, the prejudice to the defendant if lhe actio n is allowed to proceed n ot withstanding th e delay_ and th e co ndllCI of the defendanl in th e litig at ion ." . In dctem1ining this appli c a1 1011. I take into considerat ion the las1m~ntion~d matters but do no! r es1ric1 mys elf Lo th~m- What 1hen are th e rdevant matt e rs p!a~cd before me by Dr, Gaffney in 1h i, <.:IL~c. in su ppor1 of his appl ica ti on for eXtcn~ion of time . In the co n1ext of a tim e limi t or 21 days a delay of almost 6 weeks unli I first l odging any document in the Commission is 1101 insubstantial. Of course the delay unti l 3 March 1993 is qu ite substantial. Perhaps Dr . Gafliley s uffered under some misund erstanding in rda tio n to the notification of dispute and hdieved that the fili ng of that document am ount ed lo a fom,al app lication , ·111at ,s some e.~planat ion for the further delay until J March 1993. bu1 11 pr,wides, in my vio!" ·· an inadequate explanation for the de la y up 10 22 Decemher 1992. Upon the material befi.1re m,; Dr. GalTncy i~ a h ighly ed ucated person who has be.en personally pursuing ccr1ain claims in relation to his (:mployment both before and suhsequenl 10 his dismi ssal. As I have alread y ind icaled, as fa r b~ck as the lellc r of 24 August 1992_ he was warned of the poss ib ility of dismissal hence the dism is sa l s hC1ul d not haw heen unei.;pected. During Nove mber 1992 Dr. G:tffney Ji scusse d his matter witli a membe r of Par li ament and appa rently cau~ed the asking of questions in Parliame1,1. He also wrote to 1he Co mmi ssion er for PtJblic Sector Equi ty and slate s lie had earl ier approa ·hed E ARC and PSMC. Outing Decemh,n 199'2 he also accessed ce rtain tiles of the Depar1men1 of £ duca t ion and 1h c Work<!rs ' Comp~nsati on 8oard punaiant to the Freedom of lnfonnat ion Act . Dr. GafTne also slates that about 16t h or 17th Decem he r 1992 he was advised by a Solic itor 10 immcd iat dy ludge an app lica ti on ith th is Commission for reinstatement. ·11it1£ Dr . Gn/Tn.:y h a; di splayed an al,ility to pursue hi s prob l em with a number of auihorit ies ov er a substantial peri od and ha., also had the adva nta g~ of legal ass istance. ~el he has failed to comply with lhe time limil im posed by the fnJus 1n al Re/arions A er 1990 . If thi s applica1ion is refused and the acl ici n for reinstatement is left slatlllt: harred. the question of hardsh ip to !he app li canl arise.s . The app licant is 63 years of age and apparentl y as a re sult of hi dism iss al is in receipt of so,11e superannuation incapacity be11efit. The r~ is some maieri al before me referring 10 his incapacity to ret um to work on medi ~al grounds. \Vithout in anyway determining the 23 April, I 993) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE matter or relying on 1h _e matte rs just mentioned in determining the 1_ssue now befo re me . _,t ma y w_ell I.le tha t ultimately Dr . Gaffney cou ld find his apphcat1on for reinstatement an exercise of prac ti ca l futility m _so far. as a return to work is ~oncemed. which is the pnmary relief ava_1lable .under the lndusfna/ Relations A et 1990. The degree of hardship wh,ch . the a~plicant might s uffer directly as a result of the refusal of this apphcahon for extension of time is at least doubtful. . ln a~y app lication for extension of time the co ndu ct of the applicant 1s. ~ relevant consideration. In this . case Dr. Gaffney seems lo ?ave m111aUy conce ntrated lus efforts 111 other directi ons and ha vmg ~a iled 10 _those ai-eas, he has somewhat belal.,dly pursue d an applicat1on for reinstatement. . As I ha ve indi.cated, Dr. Gaffney has had lengthy notice of the poss1b1l,ty of d1sm_1ss~l and therefore ample time to consider and prep~re for an appl1cahon fo r reinsta tement , yet he ~till failed to file w1th111 t he lime allowed . Having considered the circumstances in this case as outlined before me , I am not satisfied that an ""-1.ension ()f ti m.: is just ified . The application for ex1ension of time is rd'used which dispos es of the application fo r reinstatement. The Commiss io n orders accordingly. R.W. BOUGOURE. Com mi s.ioner. A ppearonces :- Dr. L.J Gaffney on his own behalf. Mr G. Jones for the Director-General of Education. Operat ive Date : NIA Decision - Reinstatement - Extension of Time Released: 13 Apr il 1993 lffl##l/####/##1¥11#11,1##1//i,'/###/f.##~-J/########1'################## 509 -- 1 of 1 --