Eltin Open Pit Operations Pty Ltd v Rogers [1997] QIRC 113 (1997) 154 QGIG 1088

1088 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 April, 1997 further hearing the application pursuant to s. 90( I 1(h) of the / ndustrial Relations Act ]')90. For convenience, and with the consent of the parties, hoth matters were heard together While l shall comment on each application. it seem, logical to determine matter B387 of 1997 first as a positive response to 1t would dispose of 8613 of 1994 ########################################################## QUEE!\SLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act /990 s. 90( 1 )(b) applicat10n to refrain from hearing s. 295(2) application for exten:-.ion of time s. 295 application for reinstatement Eltin Open Pit Operations Pty Ltd AND M.L. Rogt.TS (No. B387 off 997) ANO ML Roge1s AND El tin Open Pit Operations Pty I ,td (No B61 3 of J994 J COMMISSIONER FISHER 20 March 1997 Reinstatement Two separate applica1irn1s Extension of Time Refrarn from Hearing Matters heard together Consent s. 90( I )/bl application heard first Case Law Factors for consideration History of reinstatement appiication Ex.tended delay - No adequate explanation Company would be prejudiced if case to proceed - Malc1ial witnes,-es m-crscas Company records Company conduct reasonable Reinstatement application not in Publte Interest Application granted Application 8613 of 1994 dismissed. DECISION Two applications arc before the Commission for consideration. The lir\l, 8613 nf 19')4. seeks an extension of time for the dismissal application of ~turk Rogers to he icxlged The second matter, H387 of l 9Q7, i\ an application hy Eltin Open Pit Opi..~rations Pty Ltd (the re~pondent 10 the di~mi-;~al application) ,eektng that Ca~e No 8611 of 1994 he di~mi'->sed for want of prosecution or alternatively. that ihe Commission refrain from In Jones v Hilton Jmernational Brishane l( I 995) 149 QGIG i 255)] Hall. CC, considered that s. 90( I )(b) of the Act which confors the power to dirn1iss a cause, or refrain from hearing or from further hearing a cause or from determining a cau~e. if the Commission considers further proceedings are not neces~ary or desirable in the public interest, ex.tended to dismissal applications I accept that view. Hall CC, went on to li~t several factors which were con~idcred to be important for the determination of the application for termination or stay hefore him. These factors, which are reproduced below, W()Uld seem to he apposite to the matter now hefore me. In adopting the approach of Hall CC, I would also note that it was contended tor by the applicant in B387 of 1997 and not ~pecifica!ly opposed by the respondent to that matter. The factors identified by Hall CC, are similar to those generally considered in extension of time matters. They are:- I 1 i the length of the delay; (2) the explanation for the delay; (3) the prejudice to the applicant if proceedings are terminated or stayed; (,1) the prejudice to the 1cspondent if the proceedings are permined to continue; (S) the conduct of the respondent; and (6) general consideration of public interest. Mark Rogers was di~missed on 16 May 1994 from his position of shift supervisor at Eltin Open Pit Operations Pty Ltd of Mount Leyshon Mine. Charters Towers. Mr Rogers attended the firm of Barrett Wherry, Solicttor. shortly after his dismi~sal, causing a letter dated 23 May 1994 to he sent to the former employer seeking details of the "inabilities" which resulted in hi, termination. In addition, advice was sought fiom Counsel on 20 May 1994. in relation to a wrongful dismi,sal claim. rollowing Counsel'~ advice on 14 June ! 994, an unfair di~missal claim was filed in the Queen~land Industrial Relations Commission eight <lays later At that time the application was l 6 <lays beyond the 21 day penod prescribed by:-.. 295 of the Act Although the respo11dent to the dismissal application took i:-,.,ue with the appl!cation being out of time at the conciliatit,11 conference~. had the appltcation been progre,,;ed at an earlie1 stage. that matter may not have been vigorously pursued lt i\ now, and moreover, the Company wi;;he, the application to be disposed of completely. Conciliation conferences were hd<l on 22 July 1994 (m Town.,ville) and on l September J994 and 5 October 1994 (both by telephone) Unfortunately, no appearance for the applicant was registered at the last conference. Some dispute has arisen as to whether the applicant was notified of the conference certainly the Company representatives were and a search of the Registry file leaves the matter m some doubt. Aho 1emaining in doubt i:-. whether the Cornmiss10ner' s direction, i~;sued at that conference reg,u-ding further conduct of the case were conveyed to the applicant. In the result a letter from the applicant's Solicitor wa, :-,ent to the Indu~tt ial Registrar in January 1995 seeking a further conference For rea:-.ons not readily apparent the matter was allowed to lapse for a further ten months before the applicant':-. Solicitor foilowed up 1he reque-;t for a conference Several more request, were ma(k before a further cuncihat10n conference WZL~ hdd on 23 Apnl 1996. It appears the Company and its representatives were unaware of the representations being rnade to the Registry Surprise greeted contact from the applicant'\ Solicitor in February 1996 because of' the more than six.teen months silence on the matter. At that time the Compam':c. repre,entatives responded that any further conference should be conducted under th.: auspices of the Ct nnmission. After the conference was held in April 1996. the matter "' as allowed to rest for another st x months hcfrJre the applicant's Sohciwr advised the Regi~try that it was seeking the matter to be placed on the callovcr list. B: thi~ time approximately 2 l/2 year, had elap~ed from the dismissal t(l seeking a fonnal li~ting of the :ipp!ication. 4 April, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE :--Jo satisfactory explanation for many of the delays occurnng in this matter has been able to be provided by the applicant. Aithough J am prepared to acknowledge the uncertainty about whether the applicant was notified ~f , the _October 1994 conference, the dilatory actions of the applicant s Solicitor have not been satisfactorily explained. Regrettable as it may be that an early response for a further conference was not received from the Commission, the absence of any such response cannDt serve as an excuse for failure to progress the matter by having the matter placed on the callovcr ltst while awaiting news of a conference date. The delay between April 1996 and November l 996 has abo not been adequately explained. In my view the Company was entitled to believe that the appl!cauon was not the subject of serious attention and that it had lapsed. Clearly if the Company's application to have the dismissal application struck out i~ successful, Mr Rogers would have little opportunity to pursue h;s claim ebewhere. In my view the tardiness in pur,-uing the claim prior to No,e'.11her 1996 leads me to conclude that the prejudice to the applicant \\>OUk1 not be great should I decide the Commission should refrain from hearing or dismiss the dismissal application. The prejudice to_ the Company would be significant if the proceedings were allowed to contmue. Two material witnesses are now based overseas and the Company was in no position to indicate with any certainty that those w1tncs-"es would be available. While l note that s. 92 of the Evidence Act may_ provide an avenue of dealing with evidence from witnesses located outside of the country, in this rnalfer. there is no guarantee the witnesses wish to voluntanly provide evidence. In such an eventuality the case of the Company may be _senously weakened. Given the inactivity with respect to the dismissal application _I do not consider that it would be fair to put the Company LO co:-.t to tepatnate the witnesses. i should also add that while the merit of the matter is not integral to mv detenmnat1on ll wou!d seem on the face of material available before me th~t Mr Rogers has a d1ff1cult task m succeeding with his application. Although disputed by hun. t?e Company_'s records indicate a series of "counsellings" o_ver Mr Rogers h11ef penod of three months' employment. In mcumstances where the decision for the Commission boils down to an exercise ot its discretion, that 1s, whether the dismissal is harsh, unjust or unreasonable, the cost to the Company as well as the public interest COil-"ldcrat:ons weigh heavily against the dismis~al application heing allowed to proceed. The ;;rinduct of the Company in the litigation also has been reasonable: part1cipatmg 111 three .,cttlement conferences and responding to offers of sett~ement. While expressing a preference at one point that conciliation coninence:' he conducted under the auspices of the lndmtrial Commission '.hu~ n:.\ul,tmg ma dday due to the Commission's workload, the Company ,ict~d ,111, d rn,anner to ensure_ settlement without resort lo formal hearing. Cor,1pa1ed v.Jth the conduct tn the htigation on the part of the applicant wl.1ch h.1, been anythrng hut expeditious, the Company's con<luct <loe, not derogate from its application to have the mutter dismissed. In my view the puhlic interest docs not favour this application proceeding to hearing. As Hall, CC, said in Jones v Hilton International the matter lS always one of weighing and balancmg. In the absence of~ ,_atisfactl)ry explanation for the not inconsiderable delay in bringing the uisnu~salapphcation to hearing and the prejudice cau~ed to the Company if the dbmissal apphcat10n were to proceed, the matter is one where on balance th e Comrrnso.iOn 1s JUSttfied m deciding to dismiss 8613 of 1994. By ,o doing it is unnecessary for me to determini;: whether to extend time m which the di,rnissal application is to be filed. Order accordingly. G.K. FISHER, Commissioner. Mr RD. Pack (instructed by Barrett Wherry) for the applicant. ~ 1 D. Williams (Mittor Ellison) and with him ~1r I Turner of the Australian mes and Metals A,sociation (Inc.), Queensland Branch for the respondent Operative Date: NIA Decision Refrain from heating Relea~ed 20 March 1997 1089 -- 1 of 1 --