Fletcher v State of Queensland

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Paterson v Medical Benefits Fund of Australia Ltd (1998) 159 QGIG 232

Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159

The Queensland Public Sector Union of Employees v Department of Corrective Services [2006] QIC 42; (2006) 182 QGIG 503

Wantling v Department of Community Safety (Queensland Corrective services) [2013] QIRC 43

Weaver v Ipswich City Council [2021] QIRC 234

Mr G. Carthew for the State of Queensland (Queensland Police Service).

• [1] Mr Alexander Fletcher ('the Applicant') was employed by the State of Queensland (Queensland Police Service) ('the Respondent') as a Line Pilot (Fixed Wing) with the Respondent Airwing based at Mt Isa from 18 June 2019 until his employment was terminated by the Respondent on 7 March 2022.

• [2] On 6 April 2022, the Applicant filed an application for reinstatement ('the Application') in the Queensland Industrial Relations Commission ('the Commission') pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the Act') seeking reinstatement or, in the alternative, compensation.

• [3] The Applicant indicated in the Application that it was not filed within 21 days of his dismissal taking effect. The Respondent subsequently filed a response, objecting to the Application on the jurisdictional ground that the Application was filed beyond the 21 day statutory time frame.

• [4] The issue to be determined in this decision is whether an extension of time should be granted for the filing of the Application.

• [5] Section 317(2)(a) of the Act requires that an application for reinstatement must be made within 21 days after the dismissal takes effect.

• [6] Section 317(2)(b) of the Act provides the Commission the discretion to extend the time for filing of an 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.

(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.

• [7] The Applicant bears the onus to demonstrate that the justice of the case requires an extension of time.[1]

• [8] In The Queensland Public Sector Union of Employees v Department of Corrective Services,[2] President Hall stated:

This Court has consistently adhered to the view that the 21 day limitation period imposed by s. 346 should be seen as an assessment by the legislature that in the ordinary category of case justice will be best be served by adhering to a 21 day limitation period, though on occasion the limitation period may defeat a perfectly good case...

• [9] In determining whether the discretion to extend the time under s 317(2)(b) of the Act should be exercised, the Commission has previously had regard to the following factors:[3]

(c) the prejudice to the applicant if the extension of time is not granted;

(d) the prejudice to the respondent if the extension of time is granted;

(f) the prospects of success of the substantive application.

• [10] Each of the above factors will be considered below.

• [11] The 21 day time limit imposed on reinstatement applications is not a requirement that is set aside lightly. The rationale for the legislature imposing limitation periods was considered in Brisbane South Regional Health Authority v Taylor:[4]

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 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...

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

• [12] The Applicant was terminated from his employment on 7 March 2022. The Application was filed on 6 April 2022 which was nine days beyond the statutory time limit of 21 days. In the context of a 21 day time limitation, this delay is not insignificant.

• [13] The Applicant submits that the Application was initially filed on 28 March 2022, however, was not in the correct form. The Applicant contends that the Application was held by the Industrial Registry 'pending confirmation of intent' and that the confirmation was supplied in the first available instance.

• [14] On 28 March 2022, the Applicant sent the following correspondence to the Industrial Registry:

I would like to submit the following for review with QIRC.

The remaining contents as listed are enroute via express post.

• [15] On 29 March 2022 the Industrial Registry sent the following correspondence to the Applicant:

Thank you for your email and Appeal. However, I note from the information you provided that you may be trying to apply for unfair dismissal or reinstatement which would be our attached Form 12 Application for reinstatement. Please also refer to our website for more information on reinstatements...

Otherwise should you wish to continue to file the attached appeal please indicate by return email.

Please note that as Registry we are unable to provide legal or employment advice. We can only provide general information about our forms and court and conference procedures.

• [16] The Applicant then filed the Application on 6 April 2022.

• [17] The Applicant submits that his submission was not made out of time, contending that the correspondence with the Industrial Registry outlined above at [14] did not state that his submission was 'not accepted' or deemed to be out of time and that it was 'merely being held pending confirmation of intent'. It is not the role of the Industrial Registry to advise parties if the material filed is within the statutory time period. Nor is it the Industrial Registry's role to provide advice to parties about material that it has received in an attempt to establish the purpose for which it has been sent. The email stated clearly that the Industrial Registry is unable to provide legal or employment advice. Determinations regarding whether discretion is granted to extend the timeframe are a matter for the Commission.

• [18] The Applicant contends that he did not file the material outside of the allowable timeframe, but that it was 'merely the processing of my submission that was delayed due to an administrative error'. This is simply not the case. The implication that there was a delay in processing the application is incorrect. The correspondence sent to the Industrial Registry on 28 March 2022 did not include an application for reinstatement and consequently, there was no application to file. When the Applicant did send the Application on 6 April 2022, the Industrial Registry ensured that it was filed on the day it was received.

• [19] The Applicant submits that the 21 day period 'begins the day after termination of employment' and that all relevant material was provided to the Commission 'on the 21st day after termination of employment'. As outlined above, s 317(2)(a) of the Act provides that an application for reinstatement must be made 21 days after the dismissal takes effect. The termination letter dated 7 March 2022 outlined to the Applicant that his termination was 'effective immediately'. Consequently, the timeframe within which any application for reinstatement could be filed ended on 28 March 2022.

• [20] The Applicant submits that the Respondent was informed and was aware that the Applicant was managing a medical condition. Further, that the Respondent was provided with a medical certificate which confirms that the Applicant 'was totally incapacitated for work' during the 21 day time limitation period. The medical certificate indicates that the Applicant was unfit for duty up to 24 February 2022 and including 24 March 2022. The time period within which the Application could have been filed within the statutory time period expired 28 March 2022.

• [21] The Applicant submits that he was also served with a 'notice to leave' upon being terminated by the Respondent. The termination letter outlined the following:

You will be granted a reasonable period of time to exit the government funded residence and arrangements should be discussed with your direct supervisor.

• [22] The notice to leave indicates that the notice was issued to the Applicant in person on 10 March 2022 and outlined that he was to vacate the property by midnight on 7 April 2022. The Applicant submits that after vacating the property, he spent several days relocating to Innisfail. I note the Application was filed prior to the Applicant's journey from Mt Isa to Innisfail. Whilst packing and cleaning the property may have been time consuming, it does not adequately explain why the Application was not filed during this time.

• [23] The Applicant made submissions that he did not have access to devices to assist him in filing the Application within the time period. The Respondent confirmed that the Applicant's laptop and phone were taken on 6 December 2021. I note this occurred some three months before the Applicant's employment was terminated. The evidence demonstrates that the Applicant was able to access his email account in order to receive the termination letter and was able to email the Industrial Registry on 28 March 2022, receive the reply on 29 March 2022, and email the Application on 6 April 2022. I am not persuaded that the Applicant did not have access to devices during the relevant period.

• [24] The Application was ultimately filed on 6 April 2022, some eight days after the Industrial Registry advised the Applicant of the deficiencies in his material. Whilst the Applicant has made submissions that he was addressing the notice to vacate during this time, there is no evidence that this prevented the Applicant from filing the Application.

• [25] As outlined above, extensions to the statutory time limit may be considered in circumstances in which compelling reasons exist to do so. It is often the case that former employees find themselves in challenging circumstances following a dismissal, however that in itself does not make those circumstances compelling.

• [26] The prejudice to the Applicant if an extension of time is not granted is that he will be unable to have the Application heard and determined.

• [27] The prejudice to the Respondent would be that it would not be able to rely upon the statutory time limit and would incur costs associated with defending the application.

• [28] There is no evidence before me of any conduct by the Respondent that may have contributed to the delay in the filing of the Application. At the time of dismissal, the Respondent advised the Applicant of both his appeal rights and the 21 day time limit in which to pursue an application for reinstatement in the Commission.

• [29] The Respondent terminated the Applicant's employment following the implementation of a Performance Improvement Plan. The Respondent determined that they have lost confidence in the Applicant on the basis that the Applicant is unable to fulfil the duties associated with his contract of employment. The Applicant made substantial submissions contesting a number of factual conclusions and contending that the Respondent abandoned him for over six months with no communication or instructions.

• [30] It is clear that the parties are in dispute over many of the allegations upon which the disciplinary finding and decision to terminate the Applicant was made. Whilst I have read the submissions and heard from both parties, there is insufficient evidence before me to allow for an assessment of the Applicant's prospects of success.

• [31] The Applicant was aware of the 21 day time period within which he was able to file an application for reinstatement following his receipt of the letter terminating his employment. No adequate explanation was provided as to why the Applicant did not file an application for another eight days beyond the time limit after being informed by the Industrial Registry of the requirement to file an application if he intended on seeking reinstatement. The failure to file an application within the statutory time period despite being advised by the Respondent and then a further delay despite information provided by the Industrial Registry indicates an indifference to the legislative time limit. As considered in Wantling v Department of Community Safety (Queensland Corrective services),[5] the statutory time limit should only be departed from in the most compelling of circumstances. I am not persuaded that such circumstances are apparent in this matter.

• [32] The discretion to extend the time in which to file the application for reinstatement has not been enlivened. Accordingly, the Application is dismissed.

The application for reinstatement in matter TD/2022/132 is dismissed.

[1] Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159.

[2] [2006] QIC 42; (2006) 182 QGIG 503.

[3] Breust v Qantas Airways Limited (1995) 149 QGIG 777; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Paterson v Medical Benefits Fund of Australia Ltd (1998) 159 QGIG 232; Weaver v Ipswich City Council [2021] QIRC 234.

[4] [1996] HCA 25; (1996) 186 CLR 541, 552-553.

[5] [2013] QIRC 43.