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[Extract from Queensland Government Industrial Gazette,

dated 23 February, 2007, Vol. 184, No. 8, pages 93-96]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 74(2)(b) - extension of time

Brenden Lloyd Mackay AND Glenlogan Park Stud Pty Ltd (TD/2006/342)

VICE PRESIDENT LINNANE / 13 February 2007

Application for an extension of time for filing reinstatement application - Applicable principles - Delay of 56 days - Applicant unaware of time limitation period - Applicant's representative aware of time limitation period at all times - Applicant's representative involved in some negotiations with Respondent - Those negotiations commence shortly after cessation of employment - Respondent thus aware that Applicant disputing the termination of his employment - Application granted - Industrial Relations Act 1999 s. 74(2)(b).

DECISION

[1] This is an application by Brenden Lloyd Mackay (Applicant) seeking an extension of time within which to apply for reinstatement in respect of an alleged unfair dismissal from his former employer Glenlogan Park Stud Pty Ltd (Respondent). The application is made pursuant to s. 74(2)(b) of the Industrial Relations Act 1999 (Act).

[2] The Applicant's employment with the Respondent ended on 25 January 2006. The s. 74 application was filed in the Industrial Registry on 12 April 2006. In the circumstances the application was filed 77 days after the Applicant ceased employment with the Respondent. Section 74(2)(a) provides that an application in respect of unfair dismissal must be filed within 21 days of the dismissal taking effect. The filing of the Applicant's application is thus 56 days outside the time limitation period.

[3] In Rich v Chubb Protective Services (2001) 167 QGIG 159 Hall P commented on the Commission's power to extend time pursuant to s. 74(2)(a) of the Act as follows:

"It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s. 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed).

Subject to the above, the Act gives no direct guidance as to the basis upon which the power at s. 74(2)(b) is to be exercised. Notwithstanding the omission of the facilitative verb 'may', it seems to me that like s. 218(3) of the Workplace Relations Act 1997 the power has to be approached upon the basis that the power to extend time is a 'full and unlimited' discretionary power, compare Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. It is useful to marshall up the cases in which the power has been exercised (or not exercised) and distil 'principles' or 'guidelines' for the disposition of other cases in which the power at s. 74(2)(b) is invoked. However, any such set of "principles" or "guidelines" may not be treated as exhaustive. Neither may testing the circumstances of a particular case against the "principles" or "guidelines" become a substitute for the exercise of the power itself: compare Breust v Qantas Airways Limited (1995) 149 QGIG 777 at 778.".

[4] As indicated by the President in the abovementioned case, it is the Applicant that has the positive burden of demonstrating that the justice of the matter requires the indulgence of the further period: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed).

[5] The key factors to be considered in any application to extend time as detailed in the decision of the then Chief Commissioner Hall in Breust v Qantas Airways Ltd (1995) QGIG 777. These factors are as follows:

(i) the length of the delay;

(ii) the explanation for the delay;

(iii) the prejudice to the Applicant if the extension of time is not granted;

(iv) the prejudice to the Respondent if the extension of time is granted; and

(v) any relevant conduct of the Respondent.

[6] Caveats were identified in the decision of Erhardt v Goodman Fielder Food Services Ltd (1999) 163 QGIG 20 which included:

(i) the time limit of 21 days must be respected; and

(ii) the Applicant's prospects of success at the substantive hearing is always a relevant matter i.e. where it appears that the Applicant has no, or very limited prospects of success in the substantive matter then the Commission should not grant an extension of time.

[7] The Applicant in this matter relies upon representative error. The evidence is that the Applicant obtained advice from Brian Newman within five to seven days after the cessation of his employment with the Respondent. In fact the Applicant was still in residence at the Respondent's premises when he first consulted Mr Newman. MrNewman is the President of the Queensland Prison Officers' Association (QPOA). The QPOA is not a registered industrial organisation under the Act. It is an organisation which seeks to represent the industrial interests of prison officers. At the time when the Applicant sought Mr Newman's advice he was also conducting a business called Workers First Industrial Advocates. It would seem that in representing the Applicant Mr Newman was operating as Workers First Industrial Advocates.

[8] Mr Newman's evidence is that he was first contacted by the Applicant's mother who was a member of the QPOA requesting that Mr Newman assist her son. Mr Newman's evidence is that the Applicant was the only private sector client he had represented in the Queensland Industrial Relations Commission. Given that Mr Newman also represents employees of privately operated prisons in Queensland it may be that this evidence is not strictly correct. I do however accept that the Applicant may have been Mr Newman's only client outside employees or former employees of Queensland correctional facilities (public and private) and outside the Queensland public sector.

[9] In any event it is the evidence of Mr Newman that he did not recall advising the Applicant of the 21 day time limitation period. Mr Newman was unable to produce his file relating to his representation of the Applicant. Thus he could not produce any diary notes of conversations he had with the Applicant. It is somewhat difficult to accept that someone running a business of providing industrial advice to clients is not able to produce a file, or at least notes, relating to the matter. Mr Newman communicated in writing with the Respondent within the 21 day time limit i.e. a letter dated 7 February 2006. He also had a telephone conversation with Kimberley Beard, the Respondent's Business Manager and Company Secretary, on 14 February 2006. Again, this conversation was within the 21 day time limit period.

[10] Following the expiry of the 21 day time limit Mr Newman had two conversations with Mr Beard, one on 1 March 2006 and one on 10 March 2006 and he wrote to the Respondent in a letter dated 15 March 2006. In correspondence dated 22 March 2006, Solicitors for the Respondent wrote to Mr Newman denying that the Applicant was constructively dismissed, asserting that the Applicant resigned his employment and confirming that the Respondent would not re-employ the Applicant.

[11] The application for reinstatement was filed within 21 days of receipt of that correspondence dated 22 March 2006.

[12] Mr Newman's evidence is that he does not recall advising the Applicant of the 21 day time limitation period because firstly, the negotiations with Mr Beard were "extremely encouraging" and secondly, in the public sector generally the 21 day time limit is advised to employees by the employer in correspondence confirming the termination of employment. If one accepts Mr Beard's evidence as to those "negotiations", evidence which I found to be quite persuasive, it is difficult to see how Mr Newman could have formed an opinion that the negotiations were encouraging, let alone that the negotiations were "extremely encouraging". As to the second reason i.e. that in the public sector the employer will advise the dismissed employee of the 21 day time limit, I again have some difficulty. In this instance the Applicant does not appear to have received a letter of termination. The Respondent asserts that the Applicant resigned his employment. In those circumstances should this application be successful and the matter goes to trial the first issue the Applicant will need to address is whether or not there was a termination of employment at the initiative of the Respondent. In evidence Mr Newman said that he tended to agree that he had been "grossly negligent" in not advising the Applicant of the 21 day time limitation period.

[13] I accept the evidence of the Applicant that he was not aware of the 21 day time limit prior to receipt of correspondence from Solicitors for the Respondent dated 22 March 2006. When he first became aware of the time limitation period is not known.

[14] Length of Delay: The delay here is 77 days from the date of cessation of employment with the Respondent i.e. the application is filed 56 days outside the time limitation period. The period of 56 days is a quite substantial delay. The application for reinstatement was filed within 21 days of receipt of correspondence from Solicitors for the Respondent dated 22 March 2006 which clearly put an end to any negotiations about the possibility of the Applicant's return to work.

[15] Explanation for the Delay: The Applicant's explanation for the delay is plausible i.e. he was unaware of the time limitation period. This is in contrast to the facts in Strugnell v Workpac Light Industrial Pty Ltd (2005) 178 QGIG 215 where the employee was aware of the time limit from the beginning and agreed with her advocate's attempt to engage in private negotiations with the employer prior to instituting an application for reinstatement, and Speare v Kidston Craft Pty Ltd (2005) 179 QGIG 497 where the employee was also aware of the time limit for filing reinstatement applications. Mr Newman, however, did have knowledge of the time period at all times. He did nothing to apprise the Applicant of this legislative requirement. The negotiations he had with Mr Beard should not have been a factor in delaying the filing of the reinstatement application. There is nothing to prevent negotiations between a former employee and a former employer continuing even though an application for reinstatement has been filed.

[16] Prejudice to the Applicant: If the extension of time is not granted then the Applicant will lose any right to pursue his unfair dismissal application.

[17] Prejudice to the Respondent: The Respondent was aware as and from 30 January 2006, or thereabouts, that the Applicant was disputing the cessation of his employment with the Respondent. Within that 21 day period the Respondent had received correspondence from Mr Newman. Negotiations of some sort continued until receipt of the correspondence from Solicitors for the Respondent dated 22 March 2006. The application for reinstatement was filed within 21 days of receipt of that correspondence. There does not appear to be any particular prejudice to the Respondent should this application to extend time be granted.

[18] The Respondent contends that the fact that the Respondent has undertaken a restructure of its enterprise since the cessation of the Applicant's employment adds to the prejudice likely to be suffered by the Respondent should the application be granted. The Commission is not limited to reinstatement or re-employment in s. 74 applications. If the Commission in the substantive application were to find that the Applicant was dismissed unfairly and further that the position previously occupied by the Applicant had been restructured out of existence the Commission can award compensation in lieu of reinstatement or re-employment.

[19] Relevant Conduct of the Respondent: The evidence does not reveal that the Respondent's conduct contributed in any way to the delay in initiating proceedings.

[20] Prospects of Success in the Substantive Application: This is not a matter where the Applicant's prospect of success in the substantive application is clear cut. The Respondent contends that the Applicant resigned his employment with the Respondent. The Applicant contends that he was forced to resign his employment. The determination of merits is one for the substantive application and not one for determination in an extension of time application.

[21] As indicated previously I was impressed with the manner in which Mr Beard gave evidence. Whilst I accept that the Applicant did not have the opportunity to put evidence before the Commission on a number of the matters raised by Mr Beard as to the prospects of success in the substantive application, I have formed the view that if MrBeard's evidence is accepted in the substantive application then the Applicant will have difficulty in establishing, firstly, that he was dismissed from the Respondent's employment and secondly, if a dismissal did occur, that it was unfair. The Applicant will need to give serious consideration to the evidence adduced from MrBeard and whether he can adequately respond to the issues canvassed by Mr Beard in his evidence.

Conclusion