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 to the representative for the Respondent, that was a matter that would finally be decided at the trial were I to extend time for the filing of the application for reinstatement. The strength of the Applicant's case is, however, a relevant factor in the exercise of the discretion to extend time for filing.
[4]      That matter was heard at 2.00 pm on 16 May 2014. The Applicant appeared personally by telephone and Mr G Newman, from the Queensland Local Government Association appeared for the Respondent.
[5] Section 74(2) of the Act requires that an application for reinstatement be made within 21 days after the dismissal or a further period the Queensland Industrial Relations Commission allows.
[6] The Applicant's employment was terminated on 21 January 2014. Her first application was made some 36 days after the dismissal, or 15 days beyond the statutory 21 day time limit prescribed by s 74(2)(a) of the Act. The amended application was made 70 days after the dismissal, or 49 days beyond the statutory time limit.
[7] Pursuant to s 74(2)(b) of the Act, the Applicant seeks an extension of time in which to file her application for relief.
[8]      The Applicant relied on the grounds for an extension of time contained in her application for reinstatement, and supplemented them with oral submissions.
[9]      It is not disputed that the termination of the Applicant's employment occurred on 21 January 2014, and that at that time the Applicant was a probationary employee, having commenced her employment with the Respondent on 25 November 2013. Thus if the dismissal was for a reason other than an invalid reason it follows that the first application which alleged that the termination was harsh, unjust or unreasonable, was impermissible as the application for reinstatement is barred by operation of s 72(1)(a) of the Act which provides that s 73(1) does not apply to an employee during the probationary period. In those circumstances whether to extend the time for filing the first application does not arise.
[10]   However, as the amended application alleges that the dismissal was for an invalid reason, it is not caught by s 73(1)(a) and it may proceed if time to file it is extended. Although the Applicant did not argue that there was only the one application, that filed on 25 February, as amended, I doubt that such an argument is tenable given that s 73(1) does not apply to that application.
[11]   In any event, given that the only "application" that could invoke the jurisdiction of the Commission is the amended application filed 49 days out of time, it is appropriate that the exercise of the discretion whether to extend time be exercised on that basis.
Background
[12]   The Applicant was offered, and accepted, a position as an Indigenous Knowledge Coordinator with the Respondent. Her letter of offer, dated 4 November 2013, stipulated that she would initially be employed on a probationary period of three months. It is apparent from a brief perusal of the material filed by the Applicant in support of her substantive application that she experienced significant difficulties with the working environment in which she found herself. Her employment was terminated less than two months into her three month probationary period.
[13]    The Applicant has filed copious material relating to the alleged unfairness meted out to her during her brief tenure with the Respondent. None of the material filed to date seems to support her allegation that she was unlawfully dismissed contrary to s 73(2)(e) or (f) of the Act.
21 Day time limit - Discretion to extend
[14]    It is the Applicant who must persuade the Commission to extend time for the filing of her substantive application.
[15]   In Brisbane South Regional Health Authority v Taylor,[1] per Toohey and Gummow JJ, the High Court declared that:
"… on well-established principles an Applicant must satisfy the Court that
grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective Defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the Applicant."
[1]

[16] McHugh J (with whom Dawson J agreed) declared in similar terms that:
"The discretion to extend should therefore be seen as requiring the
Applicant to show that his or her case is a justifiable exception to the rule
that the welfare of the State is best served by the limitation period in
question. Accordingly, when an Applicant seeks an extension of time to
commence an action after a limitation period has expired, he or she has the
positive burden of demonstrating that the justice of the case requires that
2

extension."

[17] McHugh J went on further to say:
"Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period...The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible...
… In enacting limitation periods, legislatures have regard to all these
rationales. A limitation period should not been seen therefore as an
arbitrary cut off point unrelated to the demands of justice with general
welfare and society. It represents the legislature's judgment that the welfare
of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may
3

often result in a good cause of action being defeated."

[18] The Industrial Court of Queensland, among other superior courts has followed and applied the decision in Brisbane South Regional Health Authority v Taylor. In
Queensland Public Sector Union of Employees v Department of Corrective
4

Services, President Hall said:
"This court has consistently adhered to the view that a 21 day limitation period imposed by section 346 should be seen as an assessment by the legislature that in the ordinary category of case justice will be best served by adhering to a 21 day limitation period, though on occasion a limitation period may defeat a perfectly good case."

[19] In Wantling v Department of Community Safety (Queensland Corrective Services)

5

(Wantling) Deputy President O'Connor observed, at [59] that the statutory time limit in s 74(2)(a) should only be departed from in the most compelling of circumstances and where necessary to ensure that justice is done between the parties. I respectfully agree with the observation of his Honour.
[20] In Wantling, Deputy President O'Connor, cited from a decision of President Hall The passage reads:
"[26] His Honour President Hall outlined the effect of the limitation period set
out in s. 74(2) as follows:
'The view which I expressed in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109 about the counterpart provision in the Workplace Relations Act 1997 (s. 218(3)) is equally applicable here. The power to allow a further period of time within which an application about an alleged unfair dismissal may be made is vested in the Commission by statute because by statute a time limit of 21 days is imposed and because the legislature recognised 'that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case', Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J (with whom Dawson J agreed). In exercising the power the legislature's choice of a 21 day limitation period must be respected, Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060 at 1060, Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature's judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 553 per McHugh (with whom Dawson J agreed). Section 74(2)(b) should not be treated as having equal standing with s. 24(2)(a). Section 74(2) is not the equivalent of a rule of court providing that if a matter is not commenced within 21 days it may be commenced only with leave of the relevant tribunal. 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 QGIG777 at 778.
The exercise of the power at s. 74(2)(b) is a quintessential example of the exercise of discretion, compare Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 354 at 354. The discretion is that of the Commission (not of the Court) and the Commission is allowed 'some latitude as to the choice of the decision to be made', compare Coal and
Allied Operations Pty Ltd v Australian Industrial Relations Commission

(2000) 74 ALJR 1348 at 1354 per Gleeson CJ, Gaudron and Hayne JJ."

[21] Deputy President O'Connor continued:

"[27] In Hazell v Vox Retail Group Ltd (1997) 154 QGIG 954 at 955, Chief Industrial Commissioner Hall (as his Honour then was), in referring to the limitation period in the previous legislative regime, said:
'The discretion vested by s. 295(2)(b) is full and unlimited. One may not
commence with preconceptions as to its exercise, save that it can only be
exercised for considered and justified reasons, compare Wyatt v Albert
Shire Council [1987] 1 QdR 486 at 487 (Full Court). It is helpful to
refer to the reported decisions as an aid in ensuring that no relevant
factor is excluded from consideration and no irrelevant factor is taken
into account. Reference to the reported decisions will often be helpful in
marshalling up the facts. But at the end of the case, every application for
an extension of time must be determined on the basis that the discretion
of the exercise is statutory and unfettered. And the adjective 'statutory'
is not without significance. The time limit is not imposed by rule of
court or by a practice note. The Legislature has chosen to impose a 21
day time limit. Doubtless there will be those who consider that period to
be too short and others who consider that period to be too long. Such
views may not be permitted to influence the exercise of the discretion to
extend time. The Legislature's decision must be respected., compare
Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG

543 at 544 per de Jersey P.' "

[22] Assistance on the exercise of the Commission's unfettered discretion whether or not to extend time vested by s 74(2)(b) is also gained by reference to other reported decisions.
[23] In Erhardt v Goodman Fielder Food Services Ltd, [8] Vice President Linnane,
[8]
adopting the remarks of then Chief Industrial Commissioner Hall in
9

Breust v Qantas Airways Limited, identified the key factors as being:
(i)      The length of the delay;
(ii)      The explanation for the delay;
(iii)      The prejudice to the Application 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.

[24] Her Honour then added three caveats: [10]
[10]
(i) That s 74(2)(b) vests an unlimited statutory discretion which must always be exercised;
(ii) That the time limit of 21 days provided for in s 74(2)(a) must be

respected; and
(iii) That the Applicant's prospects of success at the substantive hearing is
always a relevant matter; that is, where it appears that the Applicant has no, or
very limited, prospects of success the Commission should not grant an
extension of time.

Length of Delay
[25] The application for reinstatement was made 70 days after the Applicant's employment came to an end. This was 49 days beyond the statutory time limit of 21 days. In my view such a delay is significant. In Petruch v Davy Kinhill Fluor
11

Daniel Joint Venture the President stated that a delay of six (6) weeks was a
"substantial delay in the statutory context of a requirement that a reinstatement
application be lodged within 21 days of the dismissal." I found that a delay of 42
12

days was a substantial delay in Lockhart v Queensland Health.
Reasons for the Delay
[26] In her first application for reinstatement, not amended in this respect, in support of her application for an extension of time the Applicant states that: [Amended Application for Reinstatement]
"I received information that I could not lodge the application for
re-instatement, because I was on probation when dismissed.
I believed my only avenue for re-instatement was the Qld Government Ombudsman. After lodging the complaint with them I thought it would be better to wait for a response from Council.
As I waited I sent an email to the Industrial Relations Commission and learned that it was possible to lodge a complaint, but was not told there was a time limit.
It was only when the Ombudsman told me Council has 6 weeks to give a response, that I decided to lodge this complaint with you. Also because the
Ombudsman said they had no power to request a re-instatement."

[27] The Applicant also filed extensive written submissions in the matter before me. Although most of the submissions dealt with the merits of her substantive application, she devoted 26 paragraphs to the extension of time issue. Rather than summarize them, to be fair to the Applicant I set them out in full:
" 16. In the case of Jennings v Salvation Army [2003] FCA 1193 (24 October 2003) Judge Marshall J, in order to decide to grant an extension of time to the applicant, took into account whether or not the Respondent (in this matter, ASC) alleged to be taken by surprise by any of the issues raised.

17. Nowhere in the many documents provided by ASC regarding this matter so far (TD/2014/20) has the CEO alleged surprise with the issues I raised. My last words at my dismissal meeting were "you'll hear from me", making it clear that I did not accept the dismissal and would take measures wherever I could. I have no doubts they perfectly understood what I meant by that.

18. I arrived in Cairns 2 days after my dismissal, on the 23rd of January with lice in my head, a bladder infection and a cold, all contracted in the Library. I lost 6 kg; I was shaken, exhausted and terribly sad. For more than a month afterwards I could not control my tears, not even in public. As I explained in my job application letter, Aurukun, was not just a job for me, it was a lifetime dream, 15 years in the making. (Exhibit A to affidavit, WITNESS STATEMENT, Point 96), and it had just been crushed in a most unfair way.
19. As I had already started looking into the bullying and H&S issues while still in Aurukun, I called QWH&S the next day and was explained that they would send further instructions by mail. The same day I proceeded straight away to research what I could do about my dismissal because I couldn't believe that in this day and age, Senior Government Officers could behave the way they did and I wanted my job back.
20. I remembered the words "Industrial Relations" from my dismissal meeting and I searched for that term on the net. I eventually found the QIRC website and then, downloaded the Industrial Relations Act. I went straight to Chapter 3 on Dismissals. Although my dismissal was unfair, harsh and vindictive I concluded that the Act did not apply to people on probation and for me that was the end of the story. I did not try to read the Act further as I found it quite complex and overwhelming.
21. I continued looking for other possibilities to get justice to what I thought was an absurd way to dismiss someone and I tried to get legal advice. I contacted 9 legal agencies:
a. Legal Aid and
b. Qld Working Women Inc., only help employees that fall under Fair
Work Legislation.
c. Qld Public Interest Law Clearing House and
d. Caxton are able to provide Probono assistance in many cases, but
alleged lack of resources.
e. The Australian Workers Union and
f. Maurice Blackburn required me to be a Union member, which I am
not.
g. The Public Servant Grievance Commission told me Local
Government Employees don't fall under them.
h. Peters Bosel Lawyers asked for an initial fee I cannot afford and
i. Preston Law alleged a Conflict of interest but I would probably not be
able to afford their fees either.

22. Several of the above legal agencies required me to send them detailed information and I had to wait weeks for a reply. While I waited and without any legal advice, I came to the conclusion that my only avenue was the Qld Government Ombudsman and with the help of some e-mails I had copied from the IKC, I started writing down all the facts as they were still very fresh in my mind.
23. Judge Marshall J, in the above mentioned case, also said that in the decision to grant an extension of time, it favours the Applicant if the decision to terminate was actively contested before making the Application to the Commission.
24. Besides the fact that I told the CEO and other Officers at my dismissal that
I would take measures and despite the physical and mental state I was in, I

lodged a complaint with the Qld Government Ombudsman on the 28 January, 3 business days after my arrival in Cairns! (See e-mail confirmation - Doc 8A).
That same day a letter from QWH&S arrived (Doc 2 – Bullying Complaint),
acknowledging my complaint and giving me further instructions (Document 2-
a, Bullying complaint).
25. After lodging both complaints, I believed it was the right thing to do to wait until I heard from Council. I waited for about 10 days and then called the Ombudsman. It was only then that I learned that Aurukun Shire Council had 6 weeks to give me an answer and that the Ombudsman actually only had an advisory function. I got worried and called the QIRC to find out what else I could do.

26. I was then told that if I believed that my dismissal was unfair, the QIRC would look into my case, even though I was on probation. On that phone call nothing was said about a 21 day limit.
27. On the 7th of February, before the 21 days limit, I sent an e-mail to QIRC telling my story and got a letter in reply. (Document 41-a, page 1-2 of "1st complaint & modification QIRC"). As you can see from Document 41-a, again, nothing was said about the 21 days limit. The letter explained that a reply had to be given after receiving a letter, not after being dismissed. I didn't really understand that letter, so I called a few days later to clarify and only then I understood what I needed to do. Procedures of the QIRC are a lot more complicated than that of the Ombudsman. I needed time to write a new complaint.
28. Not understanding the procedures made me waste a lot of time. I didn't know that it wasn't necessary to send all relevant documents together with the application. I spent quite some time going through everything I had, put together a lot of documents, 6 copies of everything all signed by a Justice of the Peace. I finally managed to send it on the 21th of February. I also didn't know that I could send the application electronically, which would have saved the 4 days the application was in transit in the postal system, even though I sent it express.
29. It was only when I was filling out the application for re-instatement that I
became aware of the 21 days.
30. In an unfair dismissal case between H Wemyss v Mission Australia and request for extension of time, Commissioner Cambridge said that 'ignorance of the time limit or for that matter ignorance of the Act more generally, is a matter which can be given due consideration in the exercise of the discretion to extend any prescribed time.'
31. The CEO alleges considerable prejudice if the matter was to proceed. Whatever prejudice ASC may have does not have any relation to the date my application was lodged. The difference in time between the decision of granting an extension and the final hearing re. re-instatement is just over 2 weeks! Any prejudice ASC may have is due only to his disrespect for due process and the Policies in place and his lack of basic skills in communicating with his employees. Besides, the CEO has an agent and costs paid, I believe, by Public Money.
32. For myself on the other hand prejudice so far has been enormous. Not understanding what the proper procedure are and not being able to get any legal advice on this has been a very stressful and a very anxious and steep learning curve with a huge impact on my normal life. It has been very difficult coping with it all. In March, I finally gave in to the requests of family and doctors and I am now undergoing counselling on a weekly basis. Since my dismissal I have done little more than work on this case. I am in no condition to work normal hours because of it. To have this matter dismissed now would be a blow as devastating as loosing what I believed would be my dream job and my life plans in a vicious and unfair way.
33. I ask the Commission to also look at the merits of this matter. My absurd working conditions, the impossibility of my carrying out any of my duties and responsibilities, over 20 H&S issues plus 2 physical assaults1. Their systematic disregard for my complaints, their refusal or inability to address my needs and concerns, their complete disregard for due process and their repeated use of lies and intimidation as a tactic to either make me resign or accept the appalling conditions. ASC is in breach of a large number of Acts, Policies, Codes and Regulations. Complaints about poor H&S workplace conditions were also made by other employees and a police report for physical assault was made
against the Office Manager by an employee who has recently resigned.
34. I ask you also to take into consideration the fairness of this situation, the balance of Justice between myself, as a low level local government employee and a government body with all the power and public money available to it.
35. There is no other instance I can put my case to, that I know of.
36. I am self-representing myself because I have no money to pay for legal assistance, all my witnesses depend directly or indirectly on a good relationship with the CEO, the threat of intimidation or losing their jobs if they testify in my favour is real.
37. While I was in Aurukun, I have heard many criticisms against ASC management. But, it's one thing to say something in private, when there are no threats hanging over one's head and another completely different to repeat those same words against the people who your livelihood depends upon or in front of a Court. I could summon these people before the courts to repeat what they told me in private but I would have to pay for their tickets, about a 1000 each, 4 days of accommodation and restaurants. What chance do I have when I am on Centrelink? I now perfectly understand why most employees can't find the courage to fight injustice in the workplace and specially those from Remote Communities!
38. Last, but not least I recall the case of Wang v University of New South Wales FCA 1040, 2005, where Wilcox J said 'as this is a strike out application, applicant is entitled to have it dealt with on the view of the facts that is most favourable to her case. Accordingly, I would be obliged to assume she is correct in the criticisms she makes of the employer's procedures and its manner of considering her internal complaints.
39. I started this application for re-instatement in the innocent hope ASC would recognise that they have acted unfairly and would review their decision quickly and that upon re-instatement, maybe with the help of the Commission we would come to an agreement as to how my working conditions should be improved from then on. I didn't know it would take so long and be so complicated. I started all this for no other reason than my wish to go back to Aurukun, because I believe I can make a difference to the people there, specially the children and I still want to go back one way or another. Though now, after having had the opportunity to fully understand the true nature of these men I must say I am at a loss as to how I can get closure with all this. I dread the thought of not being able to go back. I really question my ability to find any meaning in my life if that doesn't happen!
40. The CEO is now desperately trying to cling to technicalities to avoid being called into account for his shocking disregard of the law and his disrespect for employees. Something he and other Senior Officers have been doing for
far too long in remote aboriginal communities. It's got to stop.
41. I truly hope that the Commission agree with me that when I understood what I needed to do I always acted very promptly even when I was not feeling well and accepts that the reasons for my being late are not due to my negligence or fault of my own and that an everyday lay person cannot possibly know and understand such complex legislations and procedures without any legal assistance.
42. Do not allow this matter to be dismissed just because it was lodged outside
the 21 days. "
[28] It is apparent that the Applicant is adept at research as is evidenced by her references to authorities relevant to applications for extension of time. It is also clear that, initially, the Applicant did not make her application within the 21 day time limit because she was aware that as a probationary employee she could not attract the jurisdiction of the Commission.
[29] She appears to have commenced her research a week or so after the termination,
when she had regard to the Act. The Act clearly states that a dismissal is unfair if it
13

is for an invalid reason. Section 72(1) makes it clear that a probationary employee is excluded unless the reason for the termination is an invalid reason. Section 73(3) clearly defines what constitutes an invalid reason. Had the applicant felt that she had been dismissed for an invalid reason it stands to reason that she would have included that ground in her original application, which was nevertheless 15 days out of time. Her researches seem to have been made within 21 of her dismissal and she could have made an application within that time.
[30]   At paragraph 26 of her submission the Applicant refers to a phone call to the Commission wherein she alleges that she was told by an officer of this Commission that even though she had been on probation "the QIRC would look into my case". That such a comment would have been made is unlikely.
[31] The Applicant then complains that she was not advised of the time limit when she received a letter from the Deputy Registrar of the Commission in reply to her email of 7 February 2014. Given that in her email she informed the recipient that she had been on probation, it is hardly surprising that the reply only advised that she was unable to bring an application and that if she did it was likely to be rejected by the Registrar pursuant to s 74(6) of the Act. There was no reason to refer to the 21 day time limit.
[32]    Although the Applicant said that she tried to make inquiries of various law firms and industrial organizations I find it hard to accept that nobody informed her that there was a 21 day time limit and that an extension of the time limit was possible.
[33]   The Applicant asserts that she was too emotionally upset for at least a month after her dismissal to persecute her claim. That she was able to follow up Health and Safety issues with "QWH&S", as well as conduct her own research, belies this assertion.
[34]    I am not persuaded by the Applicant's explanation for the delay.
Prejudice to the Applicant or Respondent
[35]    Neither the Applicant nor the Respondent points to any prejudice beyond that which would be suffered by any other unsuccessful party to an application for extension.
The conduct of the Respondent
[36]    There is nothing in the conduct of the Respondent that is relevant to the exercise of my discretion.
Prospects of success
[37]    The application cannot proceed on the basis that the termination of the employment was harsh, unjust or unreasonable because she was a probationary employee at the time of the dismissal. It is very likely that the amended application, asserting an invalid reason, was filed in order that the jurisdiction of the Commission be attracted. There is at best only a hint that the Applicant might be able to bring herself within s 73(2)(e) of the Act. At the hearing she was not able to point to any event that seemed to me to enable that sub-section to be invoked. Nothing was put that suggests that she was dismissed for any of the reasons set out in s 73(2)(f).
[38]   In my view, the Applicant's prospects of success in establishing that her dismissal was for an invalid reason are negligible. In the circumstances of this case significant weight should be given to this factor in the exercise of my discretion.
Conclusion
[39]    Having found that the delay in lodging the substantive application is significant and also having found that the Applicant's explanation for the delay to be unsatisfactory, and further having found that the Applicant's prospects of success are negligible and there being no other matters that would persuade me to extend time, I have decided not to exercise my discretion to extend time to the Applicant within which to lodge her application for reinstatement.

[40] The Commission determines accordingly.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
2

Ibid.

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

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Wantling v Department of Community Safety (Queensland Corrective Services) (TD/2012/220) - Decision

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7

Wantling v Department of Community Safety (Queensland Corrective Services) (TD/2012/220) - Decision

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Erhardt v Goodman Fielder Food Services Ltd (1999) 163 QGIG 20.
9
Breust v Qantas Airways Limited (1995) 149 QGIG 777.

Ibid.

Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543 at 543.

Lockhart v Queensland Health [2014] QIRC 012.

Industrial Relations Act 1999, s 73(1)(b).