Lockhart v Queensland Health

[2014] QIRC 12

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Lockhart v Queensland Health [2014] QIRC 012
PARTIES:	Lockhart, Kristie
(Applicant)
v
Queensland Health
(Respondent)
CASE NO:	TD/2013/58
PROCEEDING:	Application for Reinstatement
Application for Extension of Time
PARTIES:	Queensland Health
(Applicant)
v
Lockhart, Kristie
(Respondent)
CASE NO:	B/2014/1
PROCEEDING:	Application to Dismiss
DELIVERED ON:	21 January 2014
HEARING DATE:	20 January 2014
MEMBER:	Deputy President Kaufman
ORDERS :	1.  Application for Extension of Time

dismissed.

2.      Application for Reinstatement struck out.

CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Extension of time - Application filed beyond statutory time limit - Employed under various fixed term temporary contracts - Commission's unfettered discretion - Length of delay - Reasons for delay - Prejudice to the applicant or respondent - Conduct of respondent - Prospects of success - Significant delay in filing substantive application - Discretion to extend time not exercised.
CASES:	Industrial Relations Act 1999, s 72(1)(d), s 74, s 74(2)(a), s 74(2)(b), Chapter 3
Brisbane South Regional Health Authority v
Taylor (1996) 186 CLR 541 at 547
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 at 543
State of Queensland (Queensland Health) AND Dr Farzana Mitra (B/2012/18) - Decision <hppt://
APPEARANCES:	Ms K. Lockhart, Applicant, in person. Mr M. D. Healy, Counsel instructed by Crown Law for the Respondent.

[1] On 19 July 2013 Ms Kristie Lockhart (the Applicant), filed an application for reinstatement under s. 74 of the Industrial Relations Act 1999 (the Act) alleging that she had been unfairly dismissed by Queensland Health (the Respondent).

[2]      On 8 January 2014, the Respondent filed an application (B/2014/1) to dismiss Ms Lockhart's application for reinstatement on the basis that it had been filed out of time and, further, that, as she had been engaged for a specific period of time, pursuant to s.72(1)(d) of the Act, Chapter 3 does not apply and no application for reinstatement was able to be made.

[3]     Both applications were listed by the Vice President for a four day hearing commencing on 20 January 2014. On Thursday, 16 January, I had my Associate notify both parties that I would deal with the extension of time issue first.

[4]      That matter was heard at 10 a.m. on Monday 20 January 2014. Ms. Lockhart appeared personally and Mr. M. D. Healy, of Counsel appeared for Queensland Health. Throughout this Decision "the Applicant" is Ms Lockhart and "the Respondent" is Queensland Health.

[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 (the Commission) allows.

[6] The application was made some 63 days after the dismissal, or 42 days beyond the statutory 21 day time limit prescribed by s.74(2)(a) of the Act.

[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 evidence.

[9]      It is not disputed that the termination of the Applicant's employment occurred on 17 May 2013, although the Respondent contends that the termination of the Applicant's employment came about by virtue of the effluxion of time consequent upon a temporary period of employment coming to an end. If the Respondent is correct, the application for reinstatement is barred by operation of s.72(1)(d) of the Act.

Background

[10]   The Applicant had been employed in several positions within Queensland Health first at Royal Brisbane and Women's Hospital (RBWH), then at the Princess Alexandra Hospital and again at RBWH.

[11]   The Applicant contends that she had always been a permanent employee, whereas the Respondent contends that since 28 November 2010, when she resigned from her position at RBWH, she was a temporary employee, employed under various fixed term temporary contracts which were extended from time to time until the final period of temporary appointment which expired on 17 May 2013.

[12]    According to the Respondent it was the effluxion of time due to the non-renewal of that appointment which caused the termination of the Applicant's employment. The Applicant contends that she was dismissed from a permanent position on that day, and that the dismissal was unfair.

[13]    If this matter were to proceed to a substantive hearing the critical issue would be the nature of the Applicant's employment at the time she stopped working for the Respondent on 17 May 2013. On this application for an extension of time it is not necessary, or desirable, to finally determine that issue.

21 day time limit

[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:

[1]

"… 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."

[16]    In the same case, 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 extension."

Extension of Time

[17]    In Brisbane South Regional Health Authority v Taylor, the High Court observed:

"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 legislatures 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 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

2

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)[3] (Wantling) Deputy President O'Connor, (26 March 2013) 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.

[3]

[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,[4] Vice President Linnane,

adopting the remarks of then Chief Industrial Commissioner Hall in Breust v Qantas

[4] Erhardt v Goodman Fielder Food Services Ltd (1999) 163 QGIG 20

5

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 Applicant 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:

(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 63 days after the Applicant's

employment came to an end. This was 42 days beyond the statutory time limit of 21

days. In my view such a delay is significant. In Petruch v Davy Kinhill Fluor

6

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."

Reasons for the Delay

[26]    In support of her application for an extension of time the Applicant states that:

 she was advised on 22 February 2013 that her appointment was being

terminated;

	a formal grievance lodged on the same day was unsuccessful;
	an appeal lodged on 22 April 2013 was also unsuccessful;
	upon dismissal, after having dedicated two months to chasing material and compiling her grievance appeal she felt exhausted, depressed, cheated and defeated;
	she was not a member of a union, and thus felt alone and in over her head;
	she was not given any information (presumably by the Respondent at the time of the termination of her employment) on how she could further pursue the matter;
	when she felt that she had the mental and emotional capacity to review all the documentation, she made further enquiries and was made aware of the avenue of reinstatement in the Commission as well as the 21 day time limit;
	after realising that the time limit had lapsed, by one week, she again felt that her plight was useless and continued to be depressed;
	new information then came to light, and key points were identified;
	her ability to earlier review the documentation had been hindered by the severe emotional impact the termination was having on her ability to function normally.

[27]   The Applicant also said that she sought advice from Legal Aid, the Australian Working Women's Association, A Whole New Approach - Industrial Advocates, Together Queensland, Industrial Union of Employees, Fair Work Australia, this Commission and various law firms. She says that she was not told that lodging the application for relief, notwithstanding that it was out of time, would result in the convening of a conciliation conference.

[28]   She asserts that she was continuously given the impression that, as she was outside the 21 days, no further avenues existed.

[29]    It was on 11 July 2013, during a conversation with a member of the Registry staff, "that the process was clarified adequately to me and this is when I first understood that by lodging this application (regardless of the 21 day time frame) that a conciliation conference will be scheduled to take place, and that the matter might be resolved during this conference." That was the best news that the Applicant could have hoped for and she immediately began putting the application together.

[30]    It is noteworthy that the Applicant does not disclose when it is that she was told that she could make an application for extension of time, although she appears to have been aware of the 21 day time limit no later than a week after its expiration.

[31]   The main reason given for the delay seems to be that after she lost her job the Applicant was too emotionally upset to take steps in relation to the matter. During the hearing she said that she was depressed. It was not until after the 21 day period that she felt capable of ascertaining what she could do.

[32] I do not accept this reason as a sufficient basis upon which to exercise the discretion to extend time under s. 74(2)(b). It is undoubtedly often the case that the termination of a person's employment results in emotional upheaval. I am prepared to assume that the Parliament was cognisant of this when fixing the 21 day time limit.

[33]   In any event, that the Applicant was actively applying for other jobs during the 21 day period, as she said in her oral evidence, gainsays her being too emotionally distressed to file her application for relief within time. Nor is there any suggestion by the Applicant that she sought any medical or other assistance to help her deal with her emotional distress or depression.

[34] Further, she had been aware since February or March 2013 that her employment was to be terminated and had actively challenged that decision through a formal grievance process in Queensland Health and then via an appeal under s. 194 of the Public Service Act 2008. She had had ample time to seek advice as to what to do about her impending, and then actual, loss of employment. Her active prosecution in challenging her impending dismissal also tells against her being too emotionally distressed to pursue this application.

[35]   The Applicant then asserts that she consulted several law firms, unions and other industrial relations experts, "I was never provided with the knowledge that by lodging this application (regardless of the 21 day time limit) that I would be entitled to a conciliation conference." This seems to me to be an odd comment to make. It is almost as though the application for reinstatement was made to obtain the conciliation conference. This inference is supported by her later comment that on 11 July 2013 when speaking to a member of the registry staff: "that the process was clarified adequately to me and this is when I first understood that by lodging this application (regardless of the 21 day time frame) that a conciliation conference will be scheduled to take place, and that the mater might be resolved during this conference. That was the best news I could hope for and I began putting this application together immediately." (Original emphasis)

[36]    It seems that the Applicant was largely motivated to lodge her application in order to gain access to conciliation. In any event, she does not say that it was at this time that she first became aware that the time limit could be extended.

[37]   In cross-examination the Applicant said that the inquiries to the various law firms and industrial organizations were made approximately a week after the expiration of the 21 days. I find it hard to accept that nobody informed her that an extension of the time limit was possible.

[38]    The Applicant also stated that new information came to light after the 21 day period had expired. The inference she sought to have drawn is that somehow the new material informed her decision to make her application for relief. It became evident during her cross-examination by Mr. Healy that the new information came to light well after the Applicant had lodged her application. Its coming to light does not bear upon the delay in applying for reinstatement.

Prejudice to the Applicant or Respondent

[39]    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, although the Respondent noted that a considerable period of time has elapsed and the usual problems with recollection by witnesses arises.

The conduct of the Respondent

[40]   The conduct of the Respondent in its response to this application causes me some concern. Instead of moving expeditiously to have the question of the extension of time dealt with, it waited until the eve of the hearing that was listed for four days to bring its application to dismiss. The Respondent has expended significant time and resources in preparing many witness statements dealing with the substantive issues in the case. The Applicant has had to read this material and reply to it. Had she been legally represented she would, no doubt, have incurred substantial legal costs.

[41]   Although Mr. Healy provided me with an explanation for the delay, I nevertheless consider that the Respondent, even before it engaged lawyers, should have sought to agitate the time limit issue much more expeditiously than it has.

[42]    Although the conduct of the Respondent militates in favour of an extension of time, on balance, it is not sufficiently egregious to persuade me that I should exercise my discretion in favour of the Applicant.

Prospects of Success

[43]   The Respondent relies on witness statements and its employment records to demonstrate that the Applicant had been a temporary employee. However, there appear to be anomalies in those records that are, to some extent inconsistent, with that position. It would also adduce witness evidence to the effect that the Applicant had been employed on a temporary basis as at 17 May 2013. The Applicant would challenge the Respondent's records and denies that she was ever offered or accepted temporary employment. She does not propose to lead evidence beyond her own testimony.

[44] At the hearing, Mr. Healy drew my attention to State of Queensland (Queensland

7

Health) v Farzana Mitra (Deputy President Bloomfield, 31 January 2013), a case also relied upon by the Applicant. That case also concerned the issue of whether Dr. Mitra was a permanent or temporary employee. The facts of that case seem to be eerily similar to the facts of this case, at least given my limited understanding of those facts. If that be the situation, it is unlikely that the Applicant would succeed in her substantive application.

[45]    Although, in my view, it would appear that the Applicant would have a hard row to hoe, I cannot conclude that her prospects of success are so poor that that should be a reason to exercise my discretion against her. Given the nature of this matter, and given that it is often the case that new evidence emerges during the running of a case, especially during cross-examination, I am not prepared to find that the Applicant's case is so weak that I should reject her application for that reason alone.

Conclusion

[46]    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 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.

[47] The Commission determines accordingly.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547
2

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 <

5 Breust v Qantas Airways Limited (1995) 149 QGIG 777
6

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

7 State of Queensland (Queensland Health) AND Dr Farzana Mitra (B/2012/18) - Decision

<hppt://