Kearin Peter Dombroski v Beeflands Australia Pty Limited

[1995] IRCA 483

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -  CLAIM OF UNLAWFUL TERMINATION  -    EXTENSION OF TIME  -  ADEQUATE ALTERNATIVE REMEDY

INDUSTRIAL RELATIONS ACT  1988 , ss170EA, 170EB

AMACSU & anor v Gold Coast Community Options 124 ALR 505
Liddell v Lembke (1994) 56 IR 447

KEARIN PETER DOMBROSKI  v  BEEFLANDS AUSTRALIA PTY LIMITED  

No.  QI95/1036

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       8  AUGUST  1995        

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                    No.  QI  95/1036
QUEENSLAND DISTRICT REGISTRY

BETWEEN:       KEARIN PETER DOMBROSKI

Applicant

AND:  BEEFLANDS AUSTRALIA PTY LIMITED

Respondent

MINUTE OF ORDERS

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                8  AUGUST  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 95/1036
QUEENSLAND DISTRICT REGISTRY

BETWEEN:                 KEARIN PETER DOMBROSKI

Applicant

AND:  BEEFLANDS AUSTRALIA PTY LIMITED

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                8  AUGUST  1995

REASONS FOR JUDGMENT

Applications filed by applicants Blain Norman Fraser and Kearin Peter Dombroski were heard together. These reasons should be regarded as applicable to both applications.

In these applications, I have earlier ruled today that a letter dated 10 January 1995, received by the applicant, Fraser, amounts to a written notice of termination of employment within the meaning of paragraph 170EA(3)(a) of the Industrial Relations Act 1998 (the Act); likewise, in respect of the applicant, Dombroski.  I have also ruled that each application has been filed out of time.

The applicants seek an extension of time within which to make their applications.

The respondent submits that I must decline to consider or determine the applications to extend time. 

It is common ground between the parties that the work performed by each applicant for the respondent was not the subject of an award of either the Australian Industrial Relations Commission or the Queensland Industrial Relations Commission. In consequence, the Queensland Industrial Relations Commission has jurisdiction in respect of the applicants' terminations.

The respondent relies on section 170EB of the Act. In conformity with the decision of Spender J in the Gold Coast Community Options case 124 ALR 505, I must hold that the provisions of the Industrial Relations Act 1990 (Qld) provide a remedy at least as adequate as that provided by the Act.  The respondent submits that the words "an application under section 170EA" in section 170EB embrace an application under paragraph 170EA(3)(b) to extend time for the making of the substantive application.

The difference in the present cases from the circumstances encountered by the Full Court in Liddell v Lembke (1994) 56 IR 447 is that the applications in the latter case were each filed in time.  In the present cases, neither applicant has, in this court, an entitlement to a determination on the merits of his claim for relief; each may only presently seek the exercise in his favour of the court's discretion to extend time.

The respondent points to the fact that the applicants presently have available to them the same remedy in the Queensland Commission, that is to apply for an extension of time within which to bring proceedings, as they have in this court. 

As I am satisfied in terms of section 170EB of the Act, I decline to consider the applications to extend time.

If I be correct in these conclusions, I record that it is quite unsatisfactory that those assisting the applicants in the prosecution of these applications have, apparently, not given timely consideration to the implications of their employment being award free.

In the circumstances, it seems to me that the only appropriate order to make is that each of applications QI95/1035 and QI95/1036 be dismissed. I so order.

I certify that this and the preceding THREE (3) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  8  August  1995

Appearing for the Applicant:           Ms F. Robinson

Counsel for the Respondent:            Mr A. Herbert and
  Mr Horneman-Wren

Solicitor for the Respondent:           Thompson King Connolly

Date of hearing:  8  August  1995

Date of judgment:  8  August  1995