Mr David Brown v Maritime Safety Queensland

[2012] FWA 5462

[2012] FWA 5462

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Substantive application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment - Jurisdictional challenge - s.632(14) - Extension of time

Mr David Brown
v
Maritime Safety Queensland
(U2011/12088)

DEPUTY PRESIDENT SWAN BRISBANE, 4 JULY 2012

[1] This matter relates to an application for an extension of time in which to hear and determine an unfair dismissal claim made by Mr David Brown [the Applicant] and Maritime Safety Queensland [‘MSQ’ the Respondent].

[2] Mr Brown had been employed by MSQ as a Marine Pilot.

[3] The conduct to which reference is made in this matter occurred during 2008.

[4] The application had been made pursuant to s.394(3) of the Fair Work Act 2009. However, the relevant legislation for the purpose of this application is the Workplace Relations Act 1996 [repealed] [WR Act]. See Section 1, schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[5] Under s. 632(14) of the WR Act an application for reinstatement had to be filed within 21 days of the termination of employment taking effect.  The Australian Industrial Relations Commission had a discretion to extend time.  It is accepted by the Applicant that the WR Act is the correct legislation under which matter should be heard.

Representation

[6] The Applicant was represented by Mr M Pope of Counsel instructed by Mr B.K. Gillan, Solicitors of Innisfail. The Respondent was represented by Mr M Spry of Counsel, instructed by Crown Law, Queensland.

Jurisdiction

[7] The Respondent advised the Tribunal that there were two jurisdictional points to be considered – namely, the extension of time question and, if successful, then the question of whether or not the Applicant abandoned his employment.

[8] This decision relates to the application for an extension of time.

[9] The Respondent relied upon the principles espoused in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 for the purpose of determining whether the application should be granted. These principles are as follows:

i. “Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

ii. Action taken by the Applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

iii. Prejudice to the Respondent including prejudice caused by the delay will go against the granting of an extension of time.

iv. The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

v. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

vi. Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion”.

[Respondent’s submissions - point 3].

The explanation of the delay

[10] The Applicant says that his employment was terminated by the Respondent in July 2008 and back-dated to 8 April 2008.  Upon speaking to an employee of Fair Work Australia, the Applicant claimed he was advised that because of the back-dating of the termination to 8 April 2008, the application was out of time for the purpose of pursuing an application for reinstatement.

[11] The Applicant says that he did not consider the matter again until 26 May 2009 when the Respondent commenced an action against him in the Magistrates Court to recover $15,631.52 which was claimed to be overpayments and monies owing for goods and services provided. However, no application for relief for his alleged unfair dismissal was made until July 2011.

[12] The Applicant rejected the claim and counter-claimed the amount of $73,170.01 from the Respondent for alleged non-payment of recreation leave, long service leave, public holidays and meals.

[13] The Applicant states that he did not think of his original reinstatement claim again until 29 June 2011 when he had a discussion with his solicitor concerning the Respondent’s action against him in the Magistrates Court. He says he was then advised that he could seek an extension of time to lodge his application for reinstatement.

[14] On 12 July 2011, the Applicant lodged a reinstatement application with the Queensland Industrial Relations Commission [QIRC]. As the QIRC was the incorrect jurisdiction, the Applicant filed a similar application with Fair Work Australia on 20 September 2011.

[15] The Respondent says that the delay on the Applicant’s part in lodging an application for unfair dismissal is extreme. The Respondent also believes that the Applicant had abandoned his employment on or about 7 April 2008 and that the Respondent had notified its acknowledgement of this to the Applicant on 28 July 2008.

[16] As at the date of lodging his application for reinstatement, the application is still some three and a half years out of time for lodgement of such a claim.

[17] While the Applicant states that he had sought to challenge the termination of his employment with the Respondent in July 2008, there is nothing more in the Applicant’s evidence on this point to show that there exists an acceptable explanation supporting the granting of the application. The Applicant’s loss of employment was a matter which lay dormant for many years, only to be activated, apparently, by the Respondent’s determination to recover monies it says are outstanding from the Applicant.

Any action taken by the Applicant to contest the termination

[18] Other than the telephone call made by the Applicant to the tribunal in 2008, there appears to have been no further action taken to dispute the termination of employment by the Applicant until 2011.

Prejudice to the employer (including prejudice caused by the delay)

[19] The Applicant says he had not abandoned his employment, but nonetheless the Applicant believed that the Respondent would not suffer any prejudice because the issue between the parties had been live for about three years. The Respondent’s view is that the absence of prejudice would be an ‘insufficient basis to grant an extension of time’. [Transcript PN 298]. The Respondent says that there is no acceptable explanation for the delay.

The merits of the substantive application

[20] The Applicant placed significant emphasis on the merits of the case saying that if this application was successful, then the issue between the parties before the Magistrates Court would become redundant.  The Tribunal is asked to consider the following events.

[21] The Respondent’s allegation is that the Applicant had abandoned his employment without considering that pilots often work from home and, during the period when the Applicant was said to have abandoned his employment, he had simply not received any piloting tasks.

[22] The Applicant states that during this period the Respondent was aware that his pilot licence had expired and it was the Respondent’s role to ensure that the appropriate work was performed for the issuing of licence.

[23] From February 2008 to 4 April 2008, the Applicant was absent from work because of an injury which was covered by medical certificates. At this time, he undertook a course instigated by Rio Tinto in Western Australia. He states that

“I spent some time in Western Australia where I did not work as a full time marine pilot nor was I paid as one as I was there to learn from Rio Tinto”.  [Applicant’s submissions – point 16]

[24] After the expiration of the Applicant’s medical certificates, the Applicant remained unlicensed because the Respondent would not activate the issuing of his licence. The Applicant believed that the Respondent adopted this course because he had made a complaint to the “CMC in relation to the way the piloting service in Cairns was being run”.  [Applicant’s submissions – point 20]

[25] Against those assertions, the Respondent [through an affidavit signed by Ms Nicola Smith – Principal Lawyer of Crown Law Queensland – Exhibit 2] made the following submissions.

[26] That between 7 April 2008 and 7 June 2008 the Applicant took sick leave for which medical certificates had been issued stating that he was suffering from a “medical condition” however no further medical certificates were issued beyond 7 June 2008.

[27] The Applicant was rostered to work on 8 June 2008 but did not attend.

[28] On 12 June 2008, the Applicant was advised by Captain Callahan for MSQ that he was to attend a meeting with the Respondent on 13 June 2008.  On that date, the Applicant responded that he wishes to take long service leave at half pay from 17 June 2008.  This request was refused by the respondent.

[29] On 18 June 2008, the Respondent wrote to the Applicant requesting his response to some issues which were identified as “potential breaches of the Maritime Safety Queensland Marine Pilots (Cairns Mackay and Townsville Regions) Agreement 2003-2006” and the Respondent also enquired as to whether the Applicant was employed elsewhere while on sick leave and still receiving his salary from the respondent.

[30] On 30 June 2008, the Respondent received confirmation from Marine Services WA that the Applicant had commenced working for them on 8 April 2008.  On that date, the Applicant was still employed by the Respondent. [Exhibit 2 - NS 8].

[31] On 8 July 2008, the Respondent sent the following correspondence to the Applicant which, inter alia states as follows:

“In light of his ongoing unauthorised absence from work and the information received by MSQ that the Applicant had engaged in employment as a marine pilot with Marine Services WA Pty Ltd while on sick leave and in receipt of his salary from MSQ, it should not be considered that he had abandoned his employment with MSQ”. [Exhibit 2 – point 14]

[32] The Applicant responded on 14 July 2008, but failed to address his non-attendance at work since the expiry of his medical certificate on 7 June 2008. He also failed to address the allegation that he had engaged in other employment while on sick leave and in receipt of his salary from MSQ.

[33] On 28 July 2008, the Respondent wrote to the Applicant advising that it had accepted his abandonment of his employment.

[34] The Respondent commenced debt recovery proceedings from the Applicant on 26 May 2009.

[35] The assertions made by both parties with regard to the merits of the substantive application are largely supported by documentary material and there has been no challenge made to any of the material tendered. [Exhibit 1 and 2]. Notwithstanding that documentation, there remains a clear dispute between the parties on the question of whether the Applicant has a strong case if the reinstatement application were to be litigated.  Whilst I am of the view that, prima facie, the Applicant does not have a strong case, those differences could only be fairly considered at a hearing.

Fairness as between the person and other persons in a similar position

[36] The Respondent stated that it would quite exceptional for an application of this type to be successful after the expiration of a number of years. This is particularly so when there has been no acceptable explanation as to the lateness of the application.

Consideration of Evidence

[37] An issue had arisen during the Applicant’s cross-examination where he had given contradictory evidence as to when he first raised the matter of reinstatement with his solicitor.

[38] The Applicant had legal representation from the same solicitor since 2009 and says, during evidence, that he first raised the issue of reinstatement with this solicitor in 2009. In response to a question from the Respondent as to whether the Applicant’s solicitor had advised him as to “how you would go about making an application”, the Applicant agreed that he did get that advice. [Transcript – PN121]

[39] Correspondence from the Applicant ’s solicitor showed that as at that time the solicitor’s instructions from his client related only to the possibility of pursuing a complaint to the ‘Human Rights Commission’ because of workplace bullying.  [Exhibit 2 NS - 14].

[40] When further questioned on the point of when the Applicant first discussed reinstatement with his solicitor, the Applicant said he probably had not discussed the matter of reinstatement with his solicitor around August 2009.  [Transcript – PN132]. The Applicant also stated that even though he had told his solicitor from the beginning that he had wanted reinstatement, he was not provided with any advice as to how one might proceed to achieve that outcome.

[41] The Applicant reiterated his earlier claim that “If I was returned to MSQ, then what grounds would there be to go to the Magistrates Court?”.  [Transcript – PN149]

[42] Mr Pope, for the Applicant, chose not to re-examine the Applicant. Rather, Mr Pope sought to be given leave to call the Applicant’s solicitor, who was not present at the hearing. The Respondent objected to this course, saying that it had prepared its case as a response to the Applicant’s affidavit and that Mr Pope could have sought clarification upon the Applicant ’s evidence by way of re-examination.

[43] I agree with the Respondent’s submissions around this point. Clearly the Applicant gave contradictory evidence during cross-examination, but Mr Pope could have sought to obtain clarification from his witness through re-examination, and chose not to do so. In my view, it was too late in the day to seek to call the solicitor [whose business is in Innisfail, North Queensland] to give evidence on the point.  The Applicant was directly involved in all negotiations with his solicitor and his evidence, contradictory though it was, should be considered within that context.

[44] It appears that whether or not his solicitor gave him advice as to the manner in which to pursue an application for reinstatement in 2009, by that time the matter was significantly out of time, without explanation.

[45] I do not accept that the Applicant has provided an acceptable explanation of the delay or for that matter, any identifiable circumstances of note to support his claim.

[46] While the Applicant had sought to challenge the termination of his employment which had occurred on or about 28 July 2008 by way of a telephone call to Fair Work Australia, there was no other challenge made until late June 2011 when he made an application for reinstatement with the Queensland Industrial Relations Commission [QIRC].

[47] The Section 75(3)(a) Industrial Relations Act 1999 Certificate which issued from the QIRC on 16 August 2011, relevant to that conciliation, identified jurisdiction as a matter which required determination by way of formal hearing. The Commission also noted that the Applicant’s prospects of success, on that point, “may be limited.”

[48] The Respondent states that it had advised the Applicant that the QIRC did not have jurisdiction to hear the matter on 21 July 2011 and that the Applicant was advised by the QIRC on 16 August 2011 that it was unlikely that it had jurisdiction to hear the matter. However, it took until 20 September 2011 for the Applicant to lodge the current proceedings with Fair Work Australia.

[49] In all, the Applicant has been an unreliable witness. His contradictory evidence has been detailed. Notwithstanding that, the delay is more than significant and there has been nothing put in evidence which would permit an extension of time to the Applicant pursuant to the requirements of the legislation previously cited.

[50] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Pope for the Applicant

M. Spry for the Respondent

Hearing details:

2012
Brisbane
21 May

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