Blyth v Standard White Cabs Ltd [1997] QIRC 138 (1997) 154 QGIG 1219

18 April, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZE1TE ]219 ########################################################## QLEENSLA!'W INDUSTRIAL RELATIONS COMMISSION !tzdustrial Relations Act 1990 s. 295 - application for reim,tatement s. 295 application for extension of rime Glenice Joy Blyth AND Standard White Cabs Ltd (No. B1797 of 1996) COMMISSIONER BECHL Y 3 April 1997 m Extension of Time Reinstatement Casual relief radio telephone ~witch oixrator - Affidavit evidence Delay was 15 days - Further casual employment secured for applicant but not taken up Monetary package secured for applicant but not taken up Applicant sailed from Townsville to Brisbane without notifying her representative ~ Applicant now resides in Brisbane with permanent employment - Hardship to applicant if extension not granted inconsequential Application refused. DECISION Glenice Joy Blyth has sought reinstatement to the position of casual relief radio telephone switch operator with Standard White Cabs Ltd in Townsville, a position which she had held since about November 1994. The application was filed on 11 October 1996, a few days after the expiry of the twenty-one day period within which an application for reinstatement must be filed subseyuent to tenninatio11. Hem.:e the matter i~ before me by way of application to exercise my discretion to extend the time within which to file the application. By agreement between the parties evidence was provided by way ot affidavit from the applicant and the respondent. a Mr Kevin Vincent Bye r\either was available for cross examination. I am therefore left to assess and weigh the evidence. patticularly the conflicts in that evidence only on a reading of the affidavits. It seems that, upon ascertaining on 5 September 1996 that further casual employment would not be made available to her, Ms Blyth sought the assistance of the federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (FCUNQ) On the same day the Union contacted the respondent to a-;certain the rea<;on for tennination Shortly afterwards further discussion took place between the FCUNQ and the respondents represented by Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and, on 12 and 13 September an arrangement was entered into for further casual work to be offered to Ms Blyth. Ms Blyth was so informed by the FCL'NQ on l 4 September 1996. However she states in her application that, at that point, she experienced some hesitation about going hack to work. 22943_l.DOC -- 1 of 2 -- 1220 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l 8 April, l 997 The atfidavil material indicates a difference between the parties at this point. The applicant states she was under the impression that the respondent would contact her to arrange further casual employment whereas the respondent believes that the arrangement was that the applicant \\ould cm;tact the respondent with a view· to returning to the 1elief roster on l Q September IC)96. The applicant failed to contact the respondent by 19 September ! 996 although the applicant stale~ that ;-he endeavoured to contact the responrknt on 16 September, 1996. The applic:mt then sought advice from the local Industrial Inspector on 3 October l 996 who informed her as to the time limits that wen~ applicable to the filing of reinstaterncnt applications and whQ also apparently adviss::u her that she should file an application ··to protect her rights". She filed the application on l I October 1996. Prior to this time the FCUNQ and the respondent had had further discussions and it appears that negotiations were ('!X'ned on monetary compensation in lieu of any fu1ther offer of casual employment. It appears that the respondent holds the belief that a compensation pack::lge was agreed between the parties. As a result of the filing of the reinstatement application a conference was set down before Commissioner Bourgoure in Townsville on 19 March l 996 The applicant failed to attend the conference. It appears that she had sailed to Brisbane with her husband on their yacht and was ··out shopping". It further appears that she did not info1111 he1 repri:sen1at1ves, the FCUNQ. that she was leaving Townsvilk. During the hcanng before me I was rnformed that 1t would be inconvenient for the applicant to rerurn to Town~ville for a trial a-; she now resided in Brisbane and had pennanent employment. I have considererl all the evidcnt1ary material and taken into account submissions from the bar table. While a number of the factors commonly reiied on for the grant of extended timt'. within which to file an application are met I am influenced by a number of other factor~, the~e being:- • The applicant's representatives, the FCUl\Q, secured further casual employment which was not taken up by the applicant While the cause for the employment not being taken up has not been e,tablished ab~olutely. I have taken intu accouut the applicant's statement in documems filed in the registry that she was hesitant about going back to work. • The applicant·~ repre~entative, the FCUN(), tht'.n nt.:gotiated a monetary package apparently in rc~ponse to a preference expressed by the applicant • The recommended package wa~ nut takt:n up becaust.: the applicant left Townsvillc to sail to Brisbane without advice to any of those involved in the matter. • The applicant now ,e~iue~ in Bri:,bane anu has permanent employment. • The applicant would have great d1fficulty in returning to Townsvi!le. I rejected an application by the applicant to move the trial to Brisbane. The employment was in Townsville and all witncs,es arc currently in Townsville. • The applicant" s employment was casual relief work albeit of a rostered naiure and relatively long tcm1. As to the matters commonly rched on to secure extens10n of time ! have concluded the lengi:h of the delay is minimal and the explanation f()r the delay 1~ reasonable The hardship to the applicant if the application is dismissed would appear to be inconsequential. In fact if the application did proceed it would appear to create a significant hardship fo1 the applicant. The conduct of the defendant to this matter would appear, from the affidavit material, to have been quite reasonable and give no cause to extend time to enable all matter to be further aired 1 decline to grant the extension of time ;-uughL R.E.BECHLY, Commissioner. Ylr L Norns of Nall Payne for and on behalf of the applicant and with him the applicant. Mr S. Pawlowski for Queensland Chamber ot Commerce an.I lndu~try Limited, Industrial Organisation of Employers and with him Ms J. Minchinton. Operative Date NI A Decision Reinstatement Extension of Time Rele~~ed: 3 April 1997 ########################################################## -- 2 of 2 --