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[2017] QIRC 106
General information, not legal advice.
Queensland Industrial Relations Commission
2017-12-08
Original judgment source is linked above.
[8] Notwithstanding the Crown's desire to strike out Mr Ingram's application, Mr Merrell, no doubt in light of the amended application for reinstatement, approached the hearing of the matter, correctly in my view, by resisting the extension of time. If the application for extension was refused, it would necessarily follow that the application for reinstatement would be struck-out.
[9] The grounds for the Crown's opposition to the granting of extension of time can be summarised as follows:
[10] On 23 October 2017 Mr Ingram filed an amended application for reinstatement. The amended application inserted the following after the explanation contained above in [2]:
"7A The application for reinstatement was not lodged until 14 December 2016 (131 days out of time). The Applicant submits he was under a legal disability and relies on the evidence of Dr Wasim Shaikh, psychiatrist."
[11] An additional new paragraph appeared under the heading of "Actions of Solicitor" and was in the following terms:
"19A In the event Dr Shaikh's evidence provides only a partial excuse for late lodgment of the Application for Reinstatement, the late lodgment arose from the conduct of his solicitor who he engaged and relied to act diligently."
[12] Reliance on the "Actions of Solicitors" as a ground for the granting of an extension was, however, in light of the paucity of the evidence adduced at the hearing, abandoned.[2]
[13] An application for reinstatement is made under Section 74 of the Act, which is in the following terms:
(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.
(b) a further period the commission allows on an application made at any time."
[14] That section enables the Commission to exercise a discretion to grant a further period in which Mr Ingram can file his application.
[15] The primary question to be determined on this application is whether grounds exist for the Commission to exercise its discretion contained in s 74(2)(b) of the Act to allow a further period of time for the Applicant to file his application for reinstatement.
[16] The applicant bears the positive burden of establishing that the justice of this case requires an extension of time.[3]
[17] As outlined above, Mr Ingram's case is based upon an argument that he was under a legal disability, namely a psychological injury which impeded his ability to make his application for restatement.
[18] In Karen Wantling AND Department of Community Safety (Queensland Corrective Services) I wrote:
"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] HCA 25; (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 Lt_d (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] HCA 47; (2000) 74 ALJR 1348 at 1354 per Gleeson CJ, Gaudron and Hayne JJ."
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."
In Brisbane South Regional Authority v Taylor McHugh J wrote:
"The effect of the delay on the quality of justice is no doubt one of the important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. ... 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 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."
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 (1999) 163 QGIG 20. The key factors are:
(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
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: Savage v Woolworths (Qld) Pty Ltd [1999] QIC 64; (1999) 162 QGIG 353; Tarong Energy Corp Ltd v Campbell (2002) 169 QGIG 132." [4] (Footnotes omitted)
[19] The Crown made the following submission in regards to the length of the delay:
"The length of the delay in this case is significantly large, being 131 days. The delay of 131 days, in the present case, equates to approximately four and a half months.[5]
In the case of Foundadjis v Bailey,[6] President Hall of the Industrial Court of Queensland (albeit in an application to extend time in which to appeal to the Industrial Court of Queensland) found that a delay of five months was a "substantial delay".
In Maller v Suncorp Metway QIDC Staff Pty Ltd,[11] Commissioner Bloomfield (as his Honour then was) in declining to extend time, decided that an application which was 171 days out of time was quite significant."(Citations updated)
[20] I accept the Crown's submissions that the delay is significant.
[21] Mr Ingram relies on the evidence Dr Wasim Shaikh, consultant psychologist, to explain the delay in filing his application. Dr Wasim Shaikh, a Consultant Psychiatrist undertook a medical examination of Mr Ingram on 31 January 2017 and prepared a medico-legal report dated 10 February 2017.[12]
[22] So far as it is relevant, Dr Shaikh's report records the following conclusion:
"[Mr Ingram's] symptoms now are quite reflective of the condition of Major Depressive Disorder, of a moderately severe nature. He presents with the entire appropriate gamut of spectrum of symptoms. It is reasonable to conclude that following notification of his termination Mr Ingram was not in the right frame of mind to provide an appropriate response, and instead sought other avenues of action, including involvement of the media, the Ombudsman and the Premier."
[23] In the report of Dr Shaikh, in answer to question 10 he says:
"I do not believe that because of his psychological ill-health Mr Ingram was not in the right frame of mind to submit his application for reinstatement during the limitation period."
[24] In cross-examination, Dr Shaikh agreed with the suggestion that when he made reference to Mr Ingram not being "... in the right frame of mind to submit his application for reinstatement during the limitation period" he was thinking of a very detailed application, the kind of application that was sent to him by Mr Ingram's lawyers.[13]
[25] The following exchange between Dr Shaikh and Counsel for the Crown is instructive:
"MR MERRELL: Now, Dr Shaikh, if it was the case that - if you can assume for the moment that what was required for an application for reinstatement by Mr Ingram was to set out his contact details, set out his former employer's contact details, set out his length of employment, the title of his position, what he wanted, what remedy he wanted and why his dismissal was unfair, if you assume for the moment that's what was required in a reinstatement application, would that affect your opinion that you give or the answer you give at question 10?
MR MERRELL: Well, if the last piece of information that's required, why was the dismissal unfair, given what Mr Ingram had said to the Crime and Corruption Commission at page 294 of his affidavit and what he'd said to the Queensland Industrial Relations Commission at 295 as to why he believed his dismissal was wrong, wouldn't that indicate to you that he had the ability to put down in an application to the QIRC within the 21 days why he believed his dismissal was unfair?
DR SHAIKH: I believe it will different putting it down in an email and putting it down on an application, a formal application.
MR MERRELL: But a formal application is simply reciting on a piece of paper or electronically why he believed his dismissal was unfair. If he said that to the Crime and Corruption Commission on the 19th of July and said that to the Queensland Commission registry on the 25th of July, it's not such a big jump is it, Dr Shaikh, for him to be able to put that sort of information down in an application to the Commission?
DR SHAIKH: I believe it would be quite subjective for him. I think it would be only him who can determine the detailed information that would have been required in such an application.
MR MERRELL: So it wouldn't be - you're not saying that it was impossible for him to put that information down in a reinstatement application within the 21 days, are you? Yes. Perhaps not impossible, no."[14]
[26] Whilst Dr Shaikh expressed the opinion that Mr Ingram was not in the right frame of mind to submit his application for reinstatement during the 21-day timeframe there was a recognition by Dr Shaikh that there may have been a possibility that he could have completed the application for reinstatement within the requisite timeframe.
[27] There is other evidence before the Commission to suggest that the opinion of Dr Shaikh may not be an adequate explanation for the failure of Mr Ingram to file his application within that 21-day timeframe.
[28] It is not in dispute that Mr Ingram was aware of the 21 day limitation period. In his statement of 30 June 2017 at paragraph 62, he says:
"In the letter of termination, I was advised I had 21 days to appeal the decision to terminate my appointment. I did not pay attention to any advice in the termination letter nor any advice from the QIRC registry. At the time, I was numb and had stopped caring about things."
[29] Whilst Mr Ingram argues that he was under a disability during the limitation period he nevertheless had the presence of mind to undertake some of the following tasks, as outlined by the Crown:
[30] The extensive and varied list of conduct, some of which occurred during the 21 day limitation period, appears to demonstrate in my view a capacity to deal with issues which would have been, and are, the subject of an application for reinstatement.
[31] The following two examples demonstrates, in my mind, that Mr Ingram had a far greater capacity to function than has been submitted. The first example relates to the email sent to the Industrial Registry of the QIRC on 25 July 2016 regarding an inquiry about making an application for reinstatement. In that email he wrote:
"My name is Jeffrey Ingram. I was employed at Cleveland Youth Detention Centre for 14 years. My termination was brought about because I saw a manager assault a young person within the centre in 2014. I've been trying to get something done for the last two years re this assault. In the last seven months, I have been accused of some horrendous things, such as inappropriately touching young females present in the centre, this touching being hugging. I feel these accusations are a reprisal act by management of Cleveland Youth Detention Centre to stop me pushing for action to be taken on this assault of a young person who was in the care of the Queensland Government. I wish to appeal the termination of my employment by a reprisal act from management, who tried to cover up the whole episode and lied to me about meetings that management had with the young person, the young person's mother and Ethical Standards being present. Can you please direct me further in my appeal process? Thank you. Jeff Ingram."
[32] The Industrial Registry responded in the following terms:
"Good afternoon, Jeff. You did not say when you were dismissed. The normal timeframe for filing a form 12 application for reinstatement following dismissal is 21 days. Can you please advise your date of termination so I could advise you further? You can phone me or email me directly ..."
"Hello, Glenys. My paperwork says I was terminated on 8.7.2016. It was signed by Shaun Harvey, and this paperwork said I have 21 days from my receipt of this letter to lodge an appeal, which - I received the letter on the Friday the 15th of July 2016. Thank you. Cheers. Jeff Ingram."
[34] The second example involves an email addressed to Mr Mark Gallagher of the Queensland Crime and Corruption Commission dated 19 July 2016. In that email Mr Ingram relevantly states:
"Mr Shaun Harvey has now terminated my employment with Cleveland Youth Detention Centre because of these reprisal allegations against me, and the managers who have covered up the assault and the manager who assaulted the young person all continue to be gainfully employed by the department. Where can I go to now for help? Who will listen to these serious allegations? Because the Justice Department do not want to know about it other - another cover-up by a Queensland department. That is not in the best interests of the public. Thank you for your help before, Mark, although I did lose my employment because I brought it to your department's attention. You know the saying evil men will continue to be evil when good men do nothing. I did something, Mark, and I'm proud of that, and I continue to do the right thing. Cheers. Jeff Ingram."
[35] Both emails demonstrate a capacity to clearly and concisely articulate the nature of his concerns regarding his termination and, in particular, layout a basis for the argument why his termination was unfair.
[36] In cross-examination the following exchange took place:
"MR MERREL: ...Right. I'm correct in suggesting this, aren't I, Mr Ingram, that that's a very well-reasoned and articulate email to the Crime and Corruption Commission why you say that your dismissal was wrong?
MR INGRAM: That probably took me a week to write or longer.
MR MERRELL: But you were able to do it, weren't you? That is to say, your? I mental state was such that you were able to write that very well-reasoned and logical email to the Crime and Corruption Commission?
[37] Even if I was to accept Dr Shaikh's evidence that Mr Ingram was under a legal disability during the limitation period it does not explain why it was that between 5 August 2016 and the date of filing of his application on14 December 2016 that he was unable to make any attempt to lodge his application for reinstatement.
[38] Dr Shaikh's oral evidence to the Commission painted a somewhat different picture with respect to Mr Ingram's capacity in the period after the 5th of August 2016 and the date that he gave instructions to his solicitors to make the application, namely, 17 November 2016.
[39] On this point, Dr Shaikh was asked the following in cross-examination:
"MR MERRELL: Can you assume for the moment, Dr Shaikh, that his current lawyers did not give him any advice to make an application to the Industrial Commission until the 11th of November 2016 and that he gave instructions to his current lawyers to make an application to the Industrial Commission on the 17th of November 2016? Can you just assume that for the moment? Am I correct in suggesting this to you, Dr Shaikh: it was confusing to you why Mr Ingram was able to do all of the things set out in question 15 but not be able to make an application to the Industrial Commission after the 5th of August up to the 17th of November 2016, when he gave his instructions to his lawyers?
DR SHAIKH: Yes, I believe that was too long a period.
MR MERRELL: Yes. In your opinion, it was difficult to explain why he didn't submit an application to the Industrial Commission after the 5th of August 2017 up to the 17th of November 2016 when he gave - sorry, I beg your pardon; I'll start that again. In your opinion, it's difficult to explain why he didn't submit an application to the Industrial Commission after the 5th of August 2016, between that date - the 5th of August 2016 - and giving instructions to his lawyers on the 17th of November 2016?
MR MERRELL: Thank you. And the fact that he did not take any step to make an application for reinstatement after the 5th of August 2016 up to the - up to giving instructions on the 17th of November 2016: that can't be explained by the symptoms he was experiencing over that time, can it?
DR SHAIKH: In some ways, it could be explained as a [indistinct] too long a period; he should - should have been able to prepare an application in that period."[16]
[40] In relation to the limitation period, Mr Ingram said that:
"I did not pay attention to any advice in the termination letter nor any advice from the QIRC registry. At the time, I was numb, and I stopped caring about things."[17]
[41] Mr Ingram was aware of the time limit, but he did not act. In spite of his feeling numb and having "stopped caring about things" he was capable of doing a number of other things which would have required the same amount of thought and input as would have been required of the application for reinstatement. The explanation is not satisfactory.
[42] There is little doubt that, should the discretion not be exercised in favour of the Mr Ingram, the prejudice which would flow to him lies in his inability to have the application for reinstatement heard and determined.
[43] The respondent properly concedes that in the present case it would not suffer any significant prejudice other than the ordinary prejudice that would apply to the respondent in having to gather evidence going back over nearly two years to meet the claim by Mr Ingram that he was unfairly dismissed.
[44] There is nothing on the material before the Commission to raise any concern in relation to the conduct of the respondent.
[45] 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 Crown has submitted that this is not a case where it could be submitted that Mr Ingram does not have a good case, or that his case is a weak one. As his Honour President Hall stressed in Savage v Woolworths (Queensland) Pty Ltd [1999] QIC 64; (1999) 162 QGIG 353 that in assessing the prospects of success in an application to extend time the merits or lack thereof must be clear cut.[18]
[46] In Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers Appointed) (1996) 151 QGIG 1010 at p. 1011 Chief Industrial Commissioner Hall (as his Honour then was) expressed the view that the strengths and weaknesses of an applicant's substantive case will not always emerge. He went on to observe: "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".
[47] As it is often stated by this Commission, the statutory time limit contained 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. This is not such a case.
[48] For the reasons advanced above, I have decided not to exercise my discretion to extend the time in which to lodge an application for reinstatement.
[49] Mr Ingram has not discharged the burden of establishing that he has a case for an extension of time.
[50] So far as costs are concerned, no submissions were made by either party on the issue at the hearing. Accordingly, I am minded to make no order as to costs.
D. L. O'Connor, Deputy President: ....................................
NOTE: THIS CERTIFICATION IS TO BE REMOVED FROM THE DECISION BEFORE IT IS RELEASED TO THE PARTIES
[1] Section 1023 of the Industrial Relations Act 2016 causes applications filed in accordance with the now repealed Industrial Relations Act 1999, and before the commencement of the 2016 Act, to have the 1999 Act apply as if it had not been repealed. As such, this matter is dealt with under the relevant portions of the Industrial Relations Act 1999.
[3] Brisbane South Regional Health Authority v Taylor (1996) 180 CLR 541, 554.
[4] Karen Wantling AND Department of Community Safety (Queensland Corrective Services) [2013] QIRComm 54, [26]-[31].
[5] Cf. Murphy v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129, [9], [39].
[6] Foundadjis v Bailey [2007] QIC 8.
[7] Aurukun Shire Council v Schardijn [2014] QIRC 091.
[9] Lockhart v Queensland Health [2014] QIRC 012.
[11] Maller v Suncorp Metway QIDC Staff Pty Ltd [2000] QIRComm 22; (2000) 163 QGIG 281, 282.
[18] Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers Appointed) (1996) 151 QGIG 1010, 1011.
Ingram
State of Queensland [2017] QIRC 106
Aurukun Shire Council v Schardijn [2014] QIRC 091
Foundadjis v Bailey [2007] QIC 8
Lockhart v Queensland Health [2014] QIRC 012
Murphy v State of Queensland (Darling Downs Hospital and Health Service) [2015] QIRC 129
(1996) 180 CLR 541
(1996) 186 CLR 541
(1996) 186 CLR 540
(2000) 74 ALJR 1348