Thomson v Toowoomba Regional Council - [2021] QIRC 128

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Thomson v Toowoomba Regional Council [2021] QIRC 128 Thomson, Simon (Appellant) v Toowoomba Regional Council (Respondent)
CASE NO:	TD/2020/13
PROCEEDING:	Application for reinstatement
DELIVERED ON:	27 April 2021
HEARING DATES:	12 May 2020
MEMBER: HEARD AT:	Hartigan IC Brisbane
ORDERS:	1. The application for reinstatement in matter TD/2020/13 is dismissed.
CATCHWORDS: LEGISLATION: CASES: APPEARANCES:	INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – Extension of time – Application filed beyond statutory time limit –Length of delay – Reasons for delay – Prejudice to the applicant or respondent – Prospects of success – Significant delay in filing substantive application Industrial Relations Act 2016 (Qld), s 317 Aurukun Shire Council v Schiardijn [2014] QIRC 091 Breust v Qantas Airways Limited (1995)149 QGIG 777 Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 89 Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Lockhart v Queensland Health [2014] QIR 12 Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543 The Queensland Public Sector Union of Employees v Department of Corrective Services (2006) 182 QGIG 503 Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43 Mr S. Thomson, Applicant. Mr D. Clifford, solicitor for the Respondent.

Reasons for Decision

Introduction

Between 23 May 2011 and 3 December 2019, Mr Simon Thomson was employed by the Toowoomba Regional Council ("the Council") in the position of Ganger. Following a show cause process, Mr Thomson was dismissed from the employment. On 14 February 2020, Mr Thomson filed an application for reinstatement with the Industrial Registry seeking, inter alia, reinstatement to his former position.

The Council raises a jurisdictional objection to the application for reinstatement on the basis that it is out of time.
Legislation
Relevantly, s 317(2)(a) of the Industrial Relations Act 2016 (Qld) ("the IR Act") provides that an application for reinstatement must be made to the Commission within 21 days after the dismissal takes effect. Section 317 of the IR Act is in the following terms:
317 Application for reinstatement
(1)If it is claimed 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 part.

(2)The application must be made within—

(a)21 days after the dismissal takes effect; or
(b)if the commission allows a further period on an application made at any time—the further period

(3)An application may be made by—
(a)an employee; or
(b)with the employee’s consent, an organisation whose rules entitle it to represent the employee’s industrial interests.

(4)The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in section 315 (1) as a person to whom section 316 does not apply.

(5)If the registrar rejects the application, the registrar must, by written notice, notify the applicant—

(a)that the application has been rejected; and
(b)of the reasons why the registrar considers the dismissed employee is a person mentioned in section 315 (1) as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QIRC 128
Decision Date: 27 April 2021

CaseChat Overview and Summary

The case of Thomson v Toowoomba Regional Council was heard by the Queensland Industrial Relations Commission. The applicant, Thomson, sought reinstatement into his former employment position with the Toowoomba Regional Council after being dismissed. The crux of the dispute lay in the procedural requirement for Thomson to file his application for reinstatement within the statutory time limit, which he had not met. The Council argued that the delay was significant and prejudicial, and Thomson needed to justify this lapse.

The legal issues before the Commission revolved around whether the application for reinstatement could be accepted despite the delay. Key considerations included the length of the delay, the reasons provided for the delay, the potential prejudice to either party, the prospects of success if the application were to proceed, and the impact of the significant delay on the administrative process. The Commission had to balance the statutory requirement with the practicalities of allowing an application to proceed under exceptional circumstances.

The Commission found that the delay in filing the application was significant and that Thomson had not provided adequate reasons for this delay. Furthermore, the delay had caused prejudice to the Council, as it had impacted their ability to respond effectively and prepare for the hearing. The prospects of success for Thomson's application were also deemed low given the circumstances. Ultimately, the Commission concluded that the delay was too substantial to justify an extension of time for the application to be considered. Consequently, the application for reinstatement was dismissed.

Orders

Orders of the court

1. The application for reinstatement in

matter TD/2020/13 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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