QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 90 – application for extension of time
Susiladevi Kinsella AND April Blend Pty Ltd, Lu Tchia Investment Development (Aus) Pty Ltd (B52 of 2001)
COMMISSIONER FISHER 5 June 2001
Application for extension of time – Case law – Criteria for determining extension of time – Prospects of success – Extension granted.
DECISION
This is an application for an extension of time within which to file an application for reinstatement. The applicant, Ms Kinsella, was dismissed from her full time employment as a housekeeper on 6 November 2000. Shortly thereafter she was employed on a casual basis. That employment ceased on 11 December 2000.
Section 90 of the Industrial Relations Act 1999 (the Act) provides, inter alia, that an application for reinstatement is to be made before, or within 21 days after, the dismissal takes effect. That section also provides that the Commission may extend the time for filing. The Act provides a time limit that should be complied with. (Paterson v Medical Benefits Fund of Australia Limited (1989) 159 QGIG 232; Ryan v Ritepak Investment Pty Ltd (1999) 162 QGIG 201). An applicant seeking to pursue an application which is outside this statutory time limit needs to persuade the Commission to act in their favour. Any consideration of whether to extend the time for filing remains an exercise of the Commission’s discretion. (Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108).
The Commission has generally considered five issues in determining whether to extend the time for filing an application. These are:–
1. The length of the delay.
2. The explanation for the delay.
3. The prejudice to the applicant if the extension of time is not granted.
4. The prejudice to the respondent if the extension of time is granted.
5. Any relevant conduct of the respondent.
(See Breust v Qantas Airways Ltd (1995) 149 QGIG 777).
Another relevant issue also identified in that decision was the applicant’s prospect of success at the substantive hearing. This issue seems to have gained greater currency since the release of the Breust decision. From the decision of Hall, P., in Savage v Woolworths (Queensland) Pty Ltd [(1999) 162 QGIG 353)], it seems that if the substantive merit is to be the issue upon which the decision to extend time is based, there is no need to go to the factors listed above.
Each of the relevant points will now be considered.
1. Length of delay
Although the Commission was advised the application for reinstatement was a combined complaint about the dismissal from the full time position and the casual employment, the application seeks reinstatement to the full time position of housekeeper. The application for reinstatement was filed on 10 January 2001. This is 44 days beyond the statutory time limit, if the dismissal from the full time position is considered to be the time line, but only 9 days outside the required period for filing should the cessation of the casual employment be determined as the relevant time.
2. Explanation for delay
The explanation for the delay is that the applicant is from a non-English speaking background and is very reliant on her husband for support and to handle their affairs. When Ms Kinsella was dismissed on 6 November 2000, her husband was serving with the Royal Australian Airforce in East Timor. Ms Kinsella managed to contact him to advise of her dismissal. This prompted Mr Kinsella to telephone the manager of the business to discuss the matter. A few days later Ms Kinsella was offered casual work which continued to 11 December 2000.
Mr Kinsella was still serving in East Timor when his wife’s casual employment was terminated. He returned to Australia on 14 December 2000 and underwent three days of debriefing. On 20 December 2000 Mr and Ms Kinsella travelled to Adelaide to collect their daughter. Whilst in Adelaide Mr Kinsella learnt of the possibility of taking action in relation to dismissal. On their return from Adelaide on 3 January 2001, Mr Kinsella made further enquiries with the application being filed on 10 January 2001.
Both Mr and Ms Kinsella gave evidence during the extension of time hearing. This presented the Commission with the opportunity to observe Ms Kinsella’s capacity for speaking and understanding English. It was apparent that Ms Kinsella experiences difficulty with both speaking and understanding English, although when necessary Ms Kinsella was capable of expressing a point of view. Nonetheless, the Commission is satisfied that on her own Ms Kinsella would be incapable of making enquiries about, completing or filing an application for reinstatement. The Commission is also satisfied that Ms Kinsella relies almost totally on her husband to provide the relevant support. The evidence from Mr Kinsella was that except for the telephone call to the Manager, he was unable to enquire about or provide further assistance while stationed in East Timor.
3. Prejudice to Applicant
Clearly Ms Kinsella will lose any avenue for redress if the extension of time is not granted. Ms Kinsella has not gained alternative employment.
4. Prejudice to Respondent
5. Relevant conduct of Respondent
Neither of these issues were especially pressed in the hearing. It should be noted the respondent is defending another application for reinstatement from an employee who was dismissed at the same time Ms Kinsella’s casual employment ceased. I have not been persuaded that either of these two issues are relevant to the determination of this matter.
Prospects of success
This is the issue which causes the Commission most concern. Evidence was called by the respondent from Vern Gardiner, whose evidence was that he was acting as a power of attorney for a director of the operator of the hotel. Mr Gardiner’s evidence was that there has been a substantial reduction in the number of units made available for rent as a result of restructuring. In addition, issues about the financial viability of the Company were addressed in some detail. As a consequence of the financial issues and the restructuring process, the owners decided to contract the cleaning to a private company. That way the owners only have to pay to have cleaned the number of units rented. This is a lesser financial impost than ongoing staff costs which are not related to unit usage.
In the Savage decision, the President comments that if the application was to be dismissed on the basis that the applicant had no prospect of success on the substantive issue, there is no need to address the five factors identified above. In this case it does not appear that the substantive merits argument was foreshadowed by the respondent in sufficient time to allow the applicant’s representative to be prepared to test the complex oral evidence given by Mr Gardiner. In Savage, the President suggested that where an employer respondent seeks to seriously raise a matter of substantive merit to oppose an extension of time, it may be appropriate for this to be identified at the call over so the Vice President can issue directions about filing an response. Had this suggestion been followed by the respondent, the Commission may have been placed to consider an argument about the substantive merits of the case.
The Commission clearly does not have all the relevant information before it upon which to make a determination of the applicant’s prospects of success. From what has been made available, the applicant will have to meet an argument about the dismissal relating to the operational requirements of the business. In addition, the applicant is likely to face a difficult task in arguing reinstatement when full time positions no longer exist.
In these circumstances, the Commission, while expressing reservations about the prospects of success, is not inclined to dismiss the application on the basis of substantive merit.
This leaves the case to be determined on the basis of the other factors. The delay is not considerable if it is calculated from the date the casual employment ceased. Moreover, the explanation for the delay is reasonable given the particular circumstances of the case. Balanced against the prejudice to the respondent, I consider the applicant would be considerably disadvantaged if the extension of time was not granted. Accordingly, I propose to extend the time for filing the application for reinstatement to 10 January 2001.
Order accordingly.
G.K. FISHER, Commissioner.Released: 5 June 2001 /
Appearances:–
Mr G. Chidgey, agent for the applicant.Mr C. McCowie, agent for the respondent.