Lugton v Brisbane City Council (Brisbane Transport)
[2014] QIRC 85
•19 May 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lugton v Brisbane City Council (Brisbane Transport) [2014] QIRC 085 |
PARTIES: | Iain Lugton v Brisbane City Council |
CASE NO: | TD/2014/21 |
PROCEEDING: | Application for extension of time; application for reinstatement |
DELIVERED ON: | 19 May 2014 |
HEARING DATE: | 15 May 2014 |
MEMBER: | Deputy President O'Connor |
ORDER: | The appeal is dismissed. |
| 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 - Conduct of respondent - Prospects of success - Significant delay in filing substantive application - Discretion to extend time not exercised. |
| CASES: | Industrial Relations Act 1999, ss 73–4 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 |
| APPEARANCES: | The applicant in person. Mr A. K. Herbert, instructed by Brisbane City Legal, for the respondent. |
Decision
On 26 February 2014 Mr Iain Lugton ("the applicant") filed an application for reinstatement under s 74 of the Industrial Relations Act 1999 ("the Act").
The application for reinstatement seeks an extension of time in which to file.
Section 74 of the Act provides:
"74 Application for reinstatement
(1)If it is alleged that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this chapter.
(2) The application must be made within—
(a) 21 days after the dismissal takes effect; or
(b) a further period the commission allows on an application made at any time."
The sole question to be determined on this application is whether grounds exist for the Commission to exercise its unfettered discretion contained in s 74(2)(b) of the Act to allow a further period of time for the applicant to file him application for reinstatement.
The applicant bears the positive burden of establishing that the justice of this case requires an extension of time.[1]
[1] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554 (McHugh J) ("Taylor").
The applicant relies on the further material facts to support his application for re-instatement:
"●Q-Comps findings that they are satisfied that I sustained a personal injury of a psychological nature due to incidents involving BT managers.
● A report from my psychiatrist stating that at the time and under the current guidelines I suffered an injury in the dispute.
● Workers comp certificates from my GP stating clear instructions for me to stay away from all parties involved in the dispute.
●Witnesses that were named to substantiate facts and my complaints were not interviewed or as far as I know ever spoken too.
● Council deliberately withheld information and facts relating to my application for workers compensation with City-Work Cover (BCC own insurer).
● Witnesses to support my claims of abuse, mismanagement and fraud in the workplace."
The application for an extension of time is supported by the material attached to the application for reinstatement filed on 26 February 2014.
It is not in dispute that Mr Lugton would otherwise be entitled to access the unfair dismissal jurisdiction of the Commission contained in ch 3 of the Act had it not been for the Applicant's failure to file the application for reinstatement within 21 days after the dismissal took effect.
Background
The applicant commenced work with the respondent on 8 June 2010 as a trainee bus operator with Brisbane Transport which falls under the aegis of the respondent. He accepted a permanent position as a bus operator on 7 June 2012.
The applicant's employment was terminated by a letter under the hand of Alan Warran, dated 25 November 2013.[2]
[2] See Exhibit M to the affidavit of Sally-Anne Briggs sworn on 8 May 2014.
In the affidavit of Sally-Anne Briggs sworn on 8 May 2014 she deposes that "At that point (25 November 2013) he had been absent from work without authorisation since 24 July 2013."
Extension of time
Counsel for the respondent referred the Commission to the decision of Christie v Austotel Management Pty Ltd.[3] In that case, which is apposite to the current matter before the Commission, Chief Commissioner Hall (as his Honour then was) held:
"The discretion to extend time is full and unlimited, save presumably that it may only be exercised for considered and justified reasons, compare Wyatt v. Albert Shire Council (1987) 1 Qd R 486 at 487. However, one must remember that it is a statutory discretion and not a discretion vested by a rule of court or a rule of practice. The discretion is vested by the statute because the time limit is imposed by the statute. The Legislature's decision to impose a twenty-one day time limit must be respected, compare Tomasiello v. Silverview Homes Pty Ltd 155 QGIG 1060. Applicants are not at liberty to set aside the policy decision of the Legislature and to defer the institution of proceedings to a time of their choosing. Further, the discretion at s. 218(3) will not be exercised as a matter of course to restore the remedy of an applicant who consciously chooses not to act within twenty-one days, even where the inaction is in ignorance of the time limit. It is not an answer to say (as legitimately may be said here) that if the applicant had instituted proceedings within the twenty-one day period and had then sought to defer listing of the matter for hearing because of the ongoing police investigation (and now criminal proceedings), the deferral would have been permitted and the respondent would be in the same position as it is actually in today. The applicant who lists in time and then seeks to defer complies with the policy of the Legislature. The current applicant has not so complied. That said, it must be taken into account that the applicant had no actual knowledge of the time limit, and the respondent would almost certainly be in the same position as that in which it finds itself today, if the application had been made within time. There is, after all, a statutory discretion to depart from the time limit in an appropriate case. In fairness to the applicant it must also be noted that the respondent was not without knowledge that proceedings in relation to unfair dismissal were in prospect. The applicant's then solicitor wrote to the respondent's solicitor on the day after the dismissal to inform him that he had instructions to commence such proceedings and to seek confirmation that the respondent's solicitor had instructions to accept service.
In other circumstances the absence of an explanation for the applicant's failure to take the prudent step of filing within time might call for comment. Here, the absence of the explanation is to be found in the case made by the applicant at the hearing. The case developed was that he did not take proceedings within twenty-one days because his then solicitor had told him he had sixty days within which to take proceedings. I do not accept the case that the applicant sought to make. If inaccurate advice had been the explanation, one would have expected the applicant to have advanced that reason on his application form rather than the (now discarded) explanation that he was waiting for information from the police. Further, after some pressing cross-examination, the applicant ultimately conceded that his solicitor's inaccurate advice (which actually was that the applicant had two months within which to file an application) was first brought to his attention by a letter dated 6 March 1998. Doubtless that letter gave him false comfort between the time of its receipt and the filing of the application on 18 March 1998. However, by 6 March 1998 the applicant was already out of time. The explanation for the omission to file within time cannot have been advice of which he was unaware. The issue of instructions to the applicant's solicitor to institute proceedings, on or before 4 February 1998, must also be taken into account. The impression conveyed by the solicitor's letter of 4 February 1998 is that the institution of proceedings was about to take place. At some point there must have been a change of heart. The realisation that the police were investigating the matter and a decision to wait the outcome of the investigation sits well with what occurred."[4]
[3] (1998) 159 QGIG 108 ("Christie").
[4] Ibid, 109.
In Rich v Chubb Protective Services,[5] his Honour President Hall referred to Christie and outlined the effect of the limitation period contained in s. 74(2) as follows:
[5] (2001) 167 QGIG 159.
"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 QGIG 777 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."[6]
[6] Ibid, 160.
In Hazell v Vox Retail Group Ltd,[7] 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."[8]
[7] (1997) 154 QGIG 954.
[8] Ibid, 955.
In Taylor McHugh J wrote:
"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as times go 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."[9]
[9] (1996) 186 CLR 541, 552–3.
The matters to be taken into account in an extension of time application were set out by Vice President Linnane in Erhardt v Goodman Fielder Food Services Ltd.[10] The key factors are:
(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.
[10] (1999) 163 QGIG 20 ("Erhardt").
Her Honour went on to express the following three caveats:
(a)that s 74(2)(b) vests an unlimited statutory discretion which must always be exercised;
(b) that the time limit of 21 days provided for in s 74(2)(a) must be respected; and
(c) 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.
However, as her Honour noted in Erhardt, for an applicant to fail in an application for an extension of time the assessment of the prospects of success must be clear cut.[11]
[11] See also Savage v Woolworths (Qld) Pty Ltd (1999) 162 QGIG 353; Tarong Energy Corp Ltd v Campbell (2002) 169 QGIG 132.
Length of delay
The delay in filing the application in the present case was some 92 days. In Petruch v Davy Kinhill Fluor Daniel Joint Venture,[12] a delay of six weeks was regarded as "a substantial delay in the statutory context of a requirement that a reinstatement application be lodged within 21 days of the dismissal." [13]
[12] (1996) 153 QGIG 543.
[13] Ibid. See also Lockhart v Queensland Health [2014] QIRC 012, affd Queensland v Lockhart [2014] ICQ 006.
Reasons for the delay
The applicant provides the following explanation for the delay in filing the application for reinstatement:
"I had lodged a complaint with OWHS on the 04/10/2013 which was before my termination date. That investigation is still on-going as I have not had a response back to their findings.
After my termination letter dated 25/11/2013, I lodged an appeal with Q-comp on 02/01/2014 against the decision of City-work cover (BCC Councils own workers compensation insurer) to appeal their decision, this report only came back to me on 18/02/2013 which states I 'did' suffer an injury in the workplace due to BT management. This report vindicates the reason why I had to wait before I could lodged my appeal for unfair dismissal, without the medical proof supporting my story it would be too difficult to prove my case unless it was before a court of law.
I had lodged an appeal with The Fair Work Commission, only to be told that it had to be lodged locally with the QIRC. This information came a few days after I had lodged already online on 21/02/2014.
I did not know the process of appeals with Unfair dismissals as I have never used their service before and I did not know it was 21 days minimum to make an appeal. It would seem that most other government agencies work around a longer appeals basis. I.E Q-Comp 3 months."
In short, he said that he did not commence proceedings within the statutory time limit in the belief that he had the same time as he did in filing a claim for workers' compensation and that the respondent had never told him the limitation period within which he was required to file an application for re-instatement with the Commission.
The applicant did file an application with the Fair Work Commission ("Fair Work"), again out of time, and was subsequently told that he must file in the Commission as the respondent fell within the Commission's jurisdiction and not that of Fair Work.
In his evidence to the Commission, the applicant accepted that he was aware of his right to make an application to seek reinstatement but did not make any inquiry with the Commission (or anyone else) in relation to the time within which he had to lodge an application.
He was not at the time of his dismissal a member of a Trade Union.
In his application, the applicant states that he applied to the Regulator for a review of the decision of the respondent (as a self-insurer) to refuse his workers' compensation claim. In his application for reinstatement he states that the reasons for decision of the Workers' Compensation Regulator states:
"I 'did' suffer an injury in the workplace due to BT management. This report vindicates the reason why I had to wait before I could lodged my appeal for unfair dismissal, without the medical proof supporting my story it would be too difficult to prove my case unless it was before a court of law."
The reasons for decision of the Regulator do not support the applicant's contention that he suffered an injury in the workplace due to Brisbane Transport's management. In fact, the Regulator confirmed the decision of the respondent to reject the application for workers' compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003. Simply put, they found that the respondent's management action was reasonable and taken in a reasonable way.
There is no other evidence before the Commission, in particular, medical evidence which might suggest that the applicant was unable or incapable of submitting his application. His primary reason was his ignorance of the statutory time limit of 21 days.
I accept that the applicant was aware that he had a remedy available to him to pursue reinstatement and was aware that or assumed that there was a time limit within which to make an application. However, he made no inquires nor did he take any steps to ascertain what the time limit was.
As in Christie, the discretion at s 74 (2)(b) will not be exercised as a matter of course to restore the remedy of an applicant who consciously chooses not to act within twenty-one days, even where the inaction is in ignorance of the time limit.
I do not accept that the reasons advanced by the applicant raises a sufficient basis upon which the discretion under s 74(2)(b) should be exercised.
Prejudice to the applicant
There is no doubt that, should the discretion not be exercised in favour of the applicant, the prejudice which would flow to the applicant lies in his inability to have the claim heard and determined.
Prejudice to the respondent
The respondent did not submit that there was any significant prejudice which they would suffer.
Conduct of the respondent
There is nothing in the material before the Commission to raise any concern in relation to the conduct of the respondent.
Prospects of success
The respondent did not argue before the Commission whether or not the applicant had reasonable prospects of success. Whilst accepting that the occasions for rejecting an application for an extension of time on the grounds that an applicant has poor prospects of success will be few, the present matter is one in which the Commission would be able to reasonably to conclude that the applicant's prospects of success are poor.
In Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt),[14] Chief Industrial Commissioner Hall (as his Honour then was) stated:
"I continue to adhere to my observation in Breust (at 779) that the strengths and weaknesses of the applicant's substantive case will not always emerge, and add that in my view it would be inappropriate to permit the hearing of an application for extension of time to develop into a preview of the trial in order that a view might be formed of the Applicant's prospects of success. In my view, in the ordinary case, an application for extension of time should be a short matter dealt with expeditiously. A conclusion that an applicant could not in any event succeed will usually flow from formation of a view that there is an obstacle which no amount of evidence will overcome, eg. a conclusion that the respondent was not the employer or that the applicant was not an employee."[15]
[14] (1996) 151 QGIG 1010.
[15] Ibid, 1011.
In Savage v Woolworths (Queensland) Pty Ltd[16] Hall P reinforced that observation and stressed that in assessing the prospects of success in an application to extend time the merits or lack thereof must be clear cut.
[16] (1999) 162 QGIG 353.
The scope and purpose of ch 3, pt 2 of the Act ("Unfair Dismissals") is to provide the primary remedy of reinstatement or re-employment where an employee has been unfairly dismissed; if reinstatement or re-employment is impracticable, the Commission has discretion to order compensation.
Nothing contained with the applicant's application for reinstatement, in particular, the material facts upon which the applicant relies or in his evidence before the Commission was such that the Commission could conclude that the applicant's dismissal was harsh, unjust or unreasonable and therefore not "unfair" within the meaning of s 73.
Conclusions and orders
I am of the view that the material before the Commission does not disclose any sufficient grounds which would support the Applicant's claim that the Commission should exercise its discretion to extend the period of time in which to file his substantive reinstatement application. His reasons for the delay were in my view unsatisfactory.
The applicant has failed to discharge the positive burden of demonstrating that the justice of the case requires the indulgence of the further period of time in which to file his application.
As was observed in Erhardt, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time.
I have formed the view that the applicant's prospects of success are very limited.
The statutory time limit in s 74(2)(a) should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties.
It is essential for the proper administration of justice that these matters are heard and determined as quickly as possible.
In all of the circumstances, I have decided not to exercise my discretion to extend time to the applicant within which to lodge his application.
Mr Lugton has failed to make out a case for an extension of time and, accordingly, I dismiss the application.
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