Dallow v Queensland Police Service [2004] QIRC 169 (2004) 177 QGIG 255

1 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 255 ########################################################################################################################## ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 53 – application for payment of long service leave John Dennis Dallow AND Queensland Police Service (No. B1342 of 2004) COMMISSIONER BLADES 17 September 2004 Industrial Relations Act 1999 section 53 – Cashing out of long service leave – Financial hardship – Principles – Previous applications – Refusal to provide documentary proof – Previous dismissal of similar application – Documents now provided – Estoppel – Abuse of process – No new material or grounds – Application dismissed. DECISION This is the third application by Mr Dallow for the cashing out of his long service leave pursuant to the provisions of s. 53 of the Industrial Relations Act 1999 (the Act). Two previous applications sought the payout of 160 days entitlement, this application seeks the payout of 170 days entitlement. The Queensland Police Service, as has been the practice with all similar applications, neither supports nor opposes. It is confirmed there is an entitlement to 170 days leave. Previous applications have been before the Vice President. The first application (B1248 of 2003, filed 1 August 2003) was brought to a close by Mr Dallow who withdrew it. It had been adjourned to 2 September 2003 for the production of certain material by Mr Dallow but on 1 September, by letter to the Registry, it was withdrawn. The circumstances leading up to its withdrawal were described by her Honour in her decision in another matter involving Mr Dallow on 31 October 2003, now reported at (2004) 175 QGIG 235-6 when she said: “Mr Dallow was given the opportunity to be heard and to adequately present his case in B1248 of 2003. Mr Dallow did not await any outcome of that application. He was asked for supporting documentation for the claims he made in evidence before me and/or an affidavit to the effect that he was unable to obtain this information from either Medicare or his medical benefits provider. On that occasion I further indicated that I was not prepared, in the exercise of the discretion vested in the Commission under s. 53(4) of the Industrial Relations Act 1999, to make any order that would leave Mr Dallow with no entitlement to long service leave. I did however indicate that I was prepared to look at a payment in respect of 100 days of -- 1 of 3 -- 256 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 October, 2004 long service leave entitlement provided supporting documentation was provided in respect of his claims about medical expenses incurred and the need for a spa to be installed in his home to help alleviate an arthritic condition diagnosed some two years earlier. Mr Dallow did not avail himself of the opportunity of providing that supporting documentation. Mr Dallow decided to withdraw his application the day prior to the re-listing of the matter.”. The next application (B1614 of 2003, filed 2 October 2003) was set down for hearing before her Honour on 22 October 2003. Mr Dallow then requested her Honour to disqualify herself from hearing the case on the grounds of bias which understandably, she dismissed. The application was to all intents and purposes identical to the first application. When the hearing proceeded on 31 October 2003, her Honour once again sought the documentation she had sought on the previous occasion. What happened then is recorded in the following passage from her Honour’s decision (2004) 175 QGIG 234-5 where she says at para 13: “On this occasion I also indicated to Mr Dallow that I would require documentary evidence to support his claims i.e. the documentary evidence I required in B1248 of 2003. In response to this Mr Dallow said that I had his word. I indicated that I was not prepared to make any payment unless I had documentary evidence of the expenditure of these monies. Mr Dallow indicated that he would not supply documentary evidence of this expenditure. Again understandably, her Honour then dismissed his application. Mr Dallow appealed to the Court on the basis of ostensible bias. That appeal was dismissed – (2004) 176 QGIG 69-71. The position now is that similar applications by Mr Dallow have been before the Vice President on a number of occasions and Mr Dallow has chosen not to comply with the Vice President’s requests for evidence. Because of that his application, B1614 of 2003, was dismissed. In my view an estoppel has arisen so that until Mr Dallow can rely upon new evidence, he is prevented from again raising the issues which were determined against him. He had the opportunity to produce the evidence. He refused. He is bound by that conduct. He had the opportunity to appeal the Vice President’s decision and the only ground relied on was bias. In essence, in dismissing the application, the Vice President found that the basis for the application had not been proved to her satisfaction. Unless new issues have arisen, this latest application may well constitute an abuse of process which in itself is a form of estoppel – Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 127 FLR 350 at 358. The Vice President is now on leave, a fact which could very easily have come to the notice of Mr Dallow and the timing of the application deserves scrutiny. In Ho and Anor v BMW Australia Finance Ltd, (Unreported Supreme Court Victoria 3.5.95 No 7728/94) Smith J held that an application before a second Magistrate for an adjournment based upon identical material which the previous day had resulted in the denial of an adjournment constituted an abuse of process. The application had, in effect, sought to challenge the first decision. There are distinct parallels to be drawn in Mr Dallow’s present application. So what are the differences then between this latest application and application B1614 of 2003 so that it can be said that this is a new application based upon new grounds and not just a rehash of the previous? Mr Dallow has produced a folder containing accounts, quotations and receipts which were not in evidence in the earlier hearings but which mostly refer to expenditure incurred prior to the lodgement of the last application on 2 October 2003. The point is that the Vice President asked for them and Mr Dallow refused, not failed, to produce them. The matters which appear to have arisen since that application was filed are: • his wife was admitted to intensive care for four days earlier this year after contracting whooping cough. • he has had to replace ageing worn out appliances and furniture (comprising wall oven, cook top, rangehood, refrigerator and lounge suite) at a cost of $4,566. Much of the documentation now produced went to prove expenditure which occurred prior to the previous application. Thus acquittances for solar hot water system (June 2002 – $1,831), above ground pool (February 2003 – $10,166), pool fence (February 2003 – $3,430), most of the account for pool chemicals (March to November 2003 – $382), new washing machine (July 2002 – $765), Orthodontist quotations (February 2000 $4,257 and March 2001 $3,737) and documents relating to overtime for most of the period July 1997 to June 2004 were available to be provided in the previous hearing. These are not new matters which are available to be considered under this application. They could have been raised then and, under the principle of res judicata, it is irrelevant they were not. At the hearing, the applicant also mentioned compassion. In that regard he addressed his illness and his associated financial difficulties but once again, it is important to note that it was raised before the Vice President in B1614 of 2003, particularly in his letter of 12 October 2003 when he also raised the question of bias. Mr Dallow has obtained and exhibited quotations for other proposed works being replacement of the roof for $14,850 and termite treatment for $726. The cashing out of a long service leave entitlement is not to be had just for the asking. The attitude of the employer may have some relevance but is not conclusive. There is a legislative fetter upon the discretion of the Commission. Section 53 of the Act permits the Commission to make an order only if satisfied the payment should be made (a) on compassionate grounds; or (b) on the ground of financial hardship. The Act does not define what “financial hardship” might entail. The Concise Oxford Dictionary includes “severe suffering or privation” among the meanings of “hardship”. The Macquarie Concise Dictionary defines “hardship” as “a condition that bears hard upon one; severe toil, trial, oppression or need”. In my view, “financial hardship” means or includes “severe financial need”. While recognising that there are degrees of financial hardship, the Act requires something more than merely being in debt and in my view means more than voluntarily and purposely generating debt so as to claim financial hardship. The Act does not permit long service leave to be just swapped for cash. The circumstances under which cashing out will be permitted cannot be defined. The Commission may be more flexible when only some of the leave is sought to be converted. It may be that an approval will be given to a partial cash out in circumstances were a holiday is proposed but unable to be afforded. This circumstance was identified by the Full Bench in the Review of Entitlement to Long Service Leave case, reported at (2000) 164 QGIG 236 where it was also stated: “We have decided to proceed upon the view that long service leave is intended to be a reward for long service (not long leave after service) and that long service leave is also intended to provide a respite from work… … On this issue the employee organisations and the employer organisations (and consultants representing employers) were divided beyond redemption. We unreservedly accept that the ‘cashing out’ of long service leave is incompatible with the purpose for which it is granted. Widespread ‘cashing out’ has the capacity to undermine any campaign by employee organisations for further enhancement of long service leave entitlements and, perhaps, capacity to undermine the current entitlements.”. -- 2 of 3 -- 1 October, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 257 With respect to the expenses for the swimming pool, the evidence reveals that the Doctor advised Mr Dallow to undertake hydrotherapy, not that he go to the expense of $13,596 to install a swimming pool for hydrotherapy. Mr Dallow does not say how his wife’s illness has contributed to his hardship. The very fact that he is able to replace the worn out appliances and as recently as August 2004 (lounge $1,527) leaves an inference that he is not suffering the financial hardship he alleges. These factors do not augur well for favourable consideration because the voluntary assumption of debt provides evidence of a lack of hardship. Moreover, Mr Dallow still has not attempted to produce any evidence of the cost of the spa and its installation which surely would be facilitated by the production of documents from the seller/installer. His only explanation is that he cannot locate the receipts. The net entitlement of the long service leave “cash out” is $14,344. The voluntary expenditure identified in the swimming pool and the appliances and furniture far exceeds that amount. So why make an application for the cashing out of long service leave if there is no real financial hardship? That question is probably answered by the following sentence in his affidavit: “Under the terms and conditions of our present Enterprise Bargaining Agreement I am not able to take my Long Service Leave as holidays because I would lose $476.09 per fortnight in Operational Shift Allowance thus exacerbating my financial hardship.”. Because of the loss of that allowance, there is an understandable incentive for Officers to seek to cash out long service leave rather than to access it. There is no real incentive to take it, whether an Officer needs the rest or not. The failure to provide new grounds to justify the grant of this application together with the principles of estoppel lead me to refuse this application, which is dismissed. Whether the Vice President will be prepared to again consider Mr Dallow’s circumstances in view of his preparedness to now submit documentary material her Honour had previously sought, is a matter for her Honour upon her return. B.J. BLADES, Commissioner. Hearing Details: 2004 16 September Appearance: Mr J.D. Dallow on his own behalf. Released: 17 September 2004 -- 3 of 3 --