Aurukun Shire Council v Schardijn - [2014] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Aurukun Shire Council v Schardijn [2014] QIRC 091

PARTIES:

Aurukun Shire Council

(Applicant)

Schardijn, Irene Elizabeth

(Respondent)

CASE NO:

B/2014/18

PROCEEDING:

Application to Dismiss

PARTIES:

Schardijn, Irene Elizabeth

(Applicant)

Aurukun Shire Council

(Respondent)

CASE NO:

TD/2014/20

PROCEEDING:

Application for Reinstatement

Application for Extension of Time

DELIVERED ON:

26 May 2014

HEARING DATE:

16 May 2014

MEMBER:

Deputy President Kaufman

ORDERS :

1.	Application for Extension of Time dismissed.
2.	Application for Reinstatement (TD/2014/20) struck out.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Extension of time - Application filed beyond statutory time limit - Commission's unfettered discretion - Length of delay - Reasons for delay - Prejudice to the applicant or respondent - Prospects of success - Significant delay in filing substantive application - Discretion to extend time not exercised.

CASES:

Industrial Relations Act 1999, s 72(1)(a), s 72,

s 72(1), s 72(1)(a), s73, s 73(1), s 73(1)(a), s 73(2)(e),

s 73(2)(f), s 73(3), s 74, s 74(2), s 74(2)(a),
s 74(2)(b), s74(6), s 75(2)(b)

Brisbane South Regional Health Authority v Taylor

(1996) 186 CLR 541

Queensland Public Sector Union of Employees v

Department of Corrective Services (2006) 182 QGIG
503

Wantling v Department of Community Safety
(Queensland Corrective Services) (TD/2012/220) -
Decision <
Erhardt v Goodman Fielder Food Services Ltd

(1999) 163 QGIG 20
Breust v Qantas Airways Limited (1995) 149 QGIG
777

Petruch v Davy Kinhill Fluor Daniel Joint Venture

(1996) 153 QGIG 543
Lockhart v Queensland Health [2014] QIRC 012

APPEARANCES:

Ms I. Schardijn, the Applicant, by telephone
Mr G. Newman, for the Respondent

Reasons for Decision

[1] On 25 February 2014 Ms Irene Elizabeth Schardijn filed an application for reinstatement under s 74 of the Industrial Relations Act 1999 (the Act) alleging that she had been unfairly dismissed by the Aurukun Shire Council because the dismissal was harsh, unjust or unreasonable. Throughout these reasons, Ms Schardijn is referred to as "the Applicant" and the Aurukun Shire Council is referred to as "the Respondent".
[2] On 31 March 2014 the Applicant filed an amended application for reinstatement on the basis that she had been unfairly dismissed, adding as a ground an allegation that her dismissal had also been for an invalid reason within the meaning of that term within s 73(2)(e) and (f) of the Act.
[3] On 2 May 2014, the Respondent filed an application (B/2014/18) to dismiss the Applicant's application for reinstatement on the basis that it had been filed out of time and, further, that, as her dismissal had occurred during the first three months of her employment, pursuant to s 72(1)(a) of the Act, Chapter 3 does not apply and no application for reinstatement was able to be made. The Respondent added a further ground for the dismissal of her application to the effect that no evidence had been established that the dismissal was for an invalid reason and thus there was no basis upon which she could make that claim. However, as I pointed out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QIRC 91
Decision Date: 26 May 2014

CaseChat Overview and Summary

The case of Aurukun Shire Council v Schardijn involved a dispute between the Aurukun Shire Council and Mr Schardijn, who was an employee of the Council. The matter before the Fair Work Commission was an application by Mr Schardijn for reinstatement to his employment following his dismissal, and a subsequent application to extend the time limit for filing his reinstatement application. The Fair Work Commission was tasked with determining whether the application for extension of time should be granted and, if so, whether Mr Schardijn's application for reinstatement should proceed.

The primary legal issue before the Commission was whether it should exercise its discretion to extend the time limit for Mr Schardijn's application for reinstatement beyond the statutory deadline. The Commission was required to consider the length of the delay, the reasons for the delay, any prejudice to the parties, and the prospects of success of the application. The Commission was also required to consider whether the delay was significant enough to warrant an extension of time, and whether granting the extension would cause any undue prejudice to the Aurukun Shire Council.

The Commission found that Mr Schardijn's delay in filing his application for reinstatement was significant, and that he had not provided sufficient reasons for the delay. The Commission also found that the delay had caused prejudice to the Aurukun Shire Council, as it had disrupted the Council's operations and caused uncertainty for other employees. The Commission held that the delay was such that it could not be considered minor or trivial, and that the prospects of success of Mr Schardijn's application for reinstatement were low. The Commission concluded that it should not exercise its discretion to extend the time limit for filing the application for reinstatement, and that the application should be struck out.

In light of the above, the Fair Work Commission dismissed Mr Schardijn's application for an extension of time and struck out his application for reinstatement. The Commission held that the delay in filing the application was significant, and that there were no sufficient reasons to warrant an extension of time. The Commission also held that the delay had caused prejudice to the Aurukun Shire Council, and that the prospects of success of the application for reinstatement were low. The Commission exercised its discretion not to extend the time limit for filing the application for reinstatement, and the application was accordingly struck out.

Orders

Orders of the court

Application for Extension of Time dismissed.

Application for Reinstatement (TD/2014/20)

struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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