Joseph Bugner v Queensland Power Tools Pty Ltd

[1995] IRCA 609

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION  -    EXTENTION OF TIME  -  ADEQUATE ALTERNATIVE REMEDY

INDUSTRIAL RELATIONS ACT  1988 , ss170EA, 170EB

Liddell v Lembke (1994) 56 IR 447
AMACSU v Gold Coast Community Options Assoc. Inc (1994) IRCR 31
Potter v Queensland Mines Rescue Brigade  QI 95/1122 unreported
  Boulton JR  5 October 1995

JOSEPH BUGNER v QUEENSLAND POWER TOOLS PTY LTD

No.  QI95/1116

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       17  OCTOBER  1995

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                    No.  QI  95/1116
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  JOSEPH BUGNER

Applicant

AND:  QUEENSLAND POWER TOOLS PTY LTD

Respondent

MINUTE OF ORDERS

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                17  OCTOBER  1995  

THE COURT ORDERS THAT:

1.      The application be dismissed.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )       No.  QI 95/1116
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  JOSEPH BUGNER

Applicant

AND:  QUEENSLAND POWER TOOLS PTY LTD

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                17 OCTOBER  1995             

REASONS FOR JUDGMENT

BACKGROUND

I set trial dates for this application on 30 June 1995.

By letter dated 13 October 1995 and received by the court that day, the applicant's solicitors informed the court that the applicant would be seeking to have the application "stood over sine die pending the hearing of an application in the state jurisdiction." This was said to be on the basis that the respondent was going to rely on section 170EB of the Industrial Relations Act 1988 (the Act) when the matter came on for trial.

Issues

At trial the applicant maintained his stance, seeking in effect to have the trial adjourned sine die.  He also applied for an extension of time within which to file the substantive application.  His counsel conceded that the applicant had received written notice of termination of his employment on 1 March 1995.  The application for relief in this court not having been filed until 19 April 1995, it is out of time.

The respondent opposed the adjournment sought, arguing that I ought to decline to consider or determine the substantive application on the basis that there is available to the applicant an adequate alternative remedy within the meaning of section 170EB.

The applicant's counsel conceded also that the applicant's employment with the respondent was award free, and that he carried out his employment substantially, if not totally, within the State of Queensland.  He also informed me that while the applicant had filed an application in the Queensland Industrial Relations Commission (the Queensland Commission), it too appeared to have been filed out of time.

Decision

I consider that I am bound by Liddell v Lembke (1994) 56 IR 447 to determine the section 170EB point now. Accordingly, I refuse the application for an adjournment. Had I a discretion in the matter, I would have exercised it against the applicant in any event, given the time which has elapsed since the fixing of trial dates and the fact that the respondent has appeared at trial prepared to fight the case on its merits.

As to section 170EB, there appears little doubt that the Queensland Commission has jurisdiction in the matter of the applicant's termination. I am bound to hold that the remedies provided under the Industrial Relations Act 1990 (Qld) (the Queensland Act) answer the description in section 170EB, namely an adequate alternative remedy available to the applicant in respect of the termination of his employment under existing machinery that satisfies the requirements of the Termination of Employment Convention - AMACSU v Gold Coast Community Options Association Incorporated (1994) 1 IRCR 31.

That is enough to dispose of the applicant's opposition to the respondent's submission.

It is a fact that the applicant has presently no entitlement to be heard on the merits of his application in the Queensland Commission, he, as I have said, apparently having filed out of time there. I add for the sake of completeness that I consider that the prohibition in section 170EB, once enlivened, extends also to a consideration or determination of an application to extend time for the making of a substantive application in this court - Potter v Queensland Mines Rescue Brigade QI95/1122, unreported, Boulton JR, 5 October 1995.

I decline to consider the applications.

Order

I order that application no.QI95/1116 be dismissed.

I certify that this and the preceding TWO (2 ) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  17  October  1995  

Counsel for the Applicant:               Mr Larbalestier QC

Solicitor for the Applicant:              Witheriff Nyst

Counsel for the Respondent:            Mr Amerena

Solicitor for the Respondent:           J.A. Walker

Date of hearing:  17  October  1995

Date of judgment:  17  October  1995