Efu v Chubb Protective Services Pty Ltd [2003] ICQ 37 (2003) 174 QGIG 4

4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 September, 2003 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Tafuaupolu Efu AND Chubb Protective Services Pty Ltd (No. C35 of 2003) PRESIDENT HALL 26 August 2003 DECISION The appellant lodged an application for reinstatement on 21 November 2002. He alleged a dismissal on 10 June 2002 and sought reinstatement together with reimbursement of wages lost during the period between 10 June 2002 and the date of reinstatement. The application was 144 days out of time. The application for extension of time (which was sought by the application of 21 November 2002 previously referred to) was heard in April of this year. By a decision of 1 May 2003 the Queensland Industrial Relations Commission refused to extend time and dismissed the application for reinstatement. This is an appeal against the decision to refuse to extend time and the subsequent order dismissing the reinstatement application. The Commission refused to extend time because the application for reinstatement could not succeed. If the finding that the application for reinstatement could not succeed is unimpeachable, so also is the decision to refuse to extend time. It is settled that an extension of time should not be granted when the subsequent application has no or only illusory prospects of success, see Tarong Energy Corporation Ltd v. Campbell (2002) 169 QGIG 132. And the conclusion that the application for reinstatement could not succeed may be impeached only on the ground of error of law. The case sought to be made by the appellant was one of dismissal by way of demotion/deployment. The Commission correctly recognised that demotion/deployment may or may not involve the dismissal, referred to the leading authority, viz. Advertiser Newspapers Pty Ltd v. Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240 and quoted the following passage from the decision of Bleby J (at 251): “Depending on the original contract, there may also be a term of that contract that the employer reserves the right to direct the performance of higher duty for such period as the employer shall determine and to pay the employee at that higher rate for only so long as such duty is performed. If in those circumstances the employer determines that there will be no more higher duty performed, the employer will be acting within the terms of the contract. There will be no termination of the contract by the employer and no repudiation, because the employer was acting within the terms of the contract.”. That was not quite the situation here. However, on the findings made by the Commission, the situation was analogous. In October 2001, the appellant was a part-time security officer employed on an indefinite engagement by the respondent. By an agreement struck in that month he was deployed to participate in Chubb’s activities relating to asylum seekers in the Republic of Nauru. The contract between the appellant and the respondent was reduced to writing. Relevantly, and immediately above the signature of the parties, it provided: “(For those currently employed by Chubb only) You agree that the work performing (sic) in Nauru is separate from your existing contract of employment with the Company. You and the Company mutually agree that you are not required to perform work under your existing contract of employment with Chubb, for the period during which you work in Nauru. You agree that, during the period of operation of this agreement for you to work in Nauru, you will not be paid under your existing contract of employment with Chubb. The Company confirms that continuity of your employment with Chubb will not be broken by you agreeing to work in Nauru under this agreement.”. The Commission found, as a matter of fact, that after the deployment to Nauru came to an end on 10 June 2002 the respondent resumed paying the appellant pursuant to the original contract. (There was some issue as to whether work was actually performed). Given the terms of the contract and that finding, it cannot be said that there was not any evidence to support the Commission’s conclusions that there was but one employment beginning prior to the deployment to Nauru and concluding after the deployment to Nauru. It cannot be said that the findings made by the Commission were perverse (if perversity equates to error of law). The conclusion that the same employment was on foot prior to and after 10 June 2002 is unassailable. Additionally, the appellant quite failed to advance any adequate explanation for the lengthy delay. Some attempt has been made to rely upon inadequacies in the performance of the industrial organisation of employees which originally represented the appellant in dealings with the respondent about the termination of his deployment to Nauru. My suspicion is that the industrial organisation pursued the matter by way of dispute notification rather than by lodging a reinstatement application because the organisation made a forensic judgement that the demotion/deployment did not amount to a dismissal. If that be the case, the decision of the Commission will have greatly comforted the organisation. In any event, by the time the dispute notification was lodged the appellant was already out of time. Given that the appellant was required positively to demonstrate that there should be an extension of time, it seems to me it was necessary for the appellant, amongst other things, to lead evidence about why a dispute notification was filed instead of a reinstatement application. The appellant failed to do so. The Commission found: “The application for reinstatement, prepared by a Solicitor, was a little unusual in that it alleged firstly that the dismissal occurred on 10 June 2002 but then in the annexure of material facts, alleged that if the dismissal had not occurred on 10 June, 2002, it occurred on 13 November 2002.”. -- 1 of 2 -- 5 September, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 If I was satisfied that the appellant had pleaded in the alternative, I would have reversed the order dismissing the application for reinstatement. I would have dismissed the application only in so far as it related to the dismissal of 10 June 2002 and would have allowed the alternative plea of dismissal on 13 November 2002 to go to a hearing. Under the old system of pleading, a statement of claim might always enlarge upon a writ which was not a nullity by adding additional causes of action, compare Hill v. Luton Corporation [1951] 2 KB 387 at 391 per Devlin J and Patterson v. Richards [1963] VR 179 at 185 to 186 per Sholl J. There is no suggestion here that the application for reinstatement was a nullity. Indeed, the application for extension of time which has been the subject of all the proceedings, was made by the application. The circumstance that the allegations of material fact are not, pursuant to the rules made under the Industrial Relations Act 1999, delivered by way of a separate statement of claim but are annexed to the application cannot provide justification for refusing to give full force and effect to additional and alternative claims raised in the Statement of Material Facts. However, once the Statement of Material Facts is properly read it is apparent that the appellant was not developing an alternative case of unfair dismissal on 13 November 2002. All suggestion of unfairness is directed at the loss of his deployment to a higher position in Nauru. The reference to the cessation of employment on 13 November 2002 seems to be in the hope, that unfair treatment by an employer may be made actionable if cobbled together with a dismissal, whensoever and for whatsoever reason the dismissal might occur. The hope is (clearly) misconceived. In a large part the appellant’s grievance relates to the conference held pursuant to s. 75 of the Industrial Relations Act 1999. I am satisfied that the appellant entertains a genuine belief that the Commissioner who conducted the conference granted him an extension of time. The Commissioner who conducted that conference had no power to grant the appellant an extension of time. The certificate which enabled the appellant’s (then) solicitor to have the matter sent to a call over was a certificate about the failure of the conciliation conference, not a certification that the case should be allowed to proceed. I dismiss the appeal. Dated 26 August 2003. D.R. HALL, President. Released: 26 August 2003 Appearances: The appellant in person. Mr A. Herbert of counsel, instructed by Mr G. Muir of Employer Services Pty Ltd, for the respondent. -- 2 of 2 --