Zadravec v Mornington Shire Council [2025] QIRC 94

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Drage v State of Queensland (Queensland Health) [2023] ICQ 22

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

Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428

Goodchild v State of Queensland (Queensland Health) [2025] QIRC 046

Hazell v Vox Retail Group Ltd (1997) 154 QGIG 954

Lockhart v Queensland Health [2014] QIRC 012

Mather v Commercial and General Insurance Brokers [2005] QIRComm 18; (2005) 178 QGIG 132

Opalicki v Queensland Pine Company (1996) 153 QGIG 624

Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543

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

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

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182

Thomson v Toowoomba Regional Council [2021] QIRC 128

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

Weaver v Ipswich City Council [2021] QIRC 234

• [1] Mr Wolfgang Zadravec ('the Applicant') was employed by Mornington Shire Council ('the Respondent') in the role of Manager Environmental Health Services, from

11 September 2023 until his employment was terminated by the Respondent on 31 May 2024.

• [2] On 16 September 2024, the Applicant filed an application for reinstatement

('the Application') pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the Act') in the Queensland Industrial Relations Commission seeking compensation.

• [3] The Applicant did not indicate in the Application that it had not been filed within 21 days of his dismissal taking effect. However, the Respondent subsequently filed a response on 27 September 2024, objecting to the Application on the jurisdictional grounds that it was filed beyond the 21 day statutory time frame, and that the dismissal subject of the Application was a case of genuine redundancy.
• [4] The issue to be determined in this decision, as discussed with the parties at a mention on 14 October 2024, is the first jurisdictional objection raised by the Respondent, namely whether an extension of time should be granted for the filing of the Application.

• [5] Section 317 of the Act relevantly states that:

(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.

(b) if the commission allows a further period on an application made at any time - the further period.

• [6] The Applicant bears the onus to demonstrate that the justice of the case requires an extension of time.[1] Further, it is well-established that the time limit imposed should "only be departed from in the most compelling of circumstances and where necessary to ensure that justice is done between the parties."[2]
• [7] In determining applications to extend the 21-day time limit pursuant to s 317(2)(b) of the Act, the Commission has previously had regard to the following factors:[3]

(a) the length of the delay;

(b) the explanation for the delay;

(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;

(e) any relevant conduct of the Respondent; and

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

• [8] Each of these factors will be considered in turn below. However, I note that all of these factors may not be equally relevant in considering the present matter. As observed by Industrial Commissioner Asbury in Mather v Commercial and General Insurance Brokers:[4]

All of the principles may not be relevant in all cases. The major consideration is whether in all of the circumstances of a particular case, it is equitable to extend time. This consideration has also been expressed as whether in a particular case justice requires an extension of time. In seeking to achieve an equitable outcome, the Commission will be required to give greater weight to the facts or matters considered under some principles than it does to those considered under others, depending on the facts and circumstances of each case...

• [9] As noted by Vice President O'Connor in Weaver v Ipswich City Council, the starting point for considering this factor is "the recognition that the Legislature has chosen to impose a 21-day time limit on applications for reinstatement which must be respected."[5]
• [10] The Applicant's dismissal took effect on 31 May 2024, giving the Applicant until 21 June 2024 to file an application for reinstatement within the 21-day time limit. However, the Application was not made until 16 September 2024, and consequently was made 108 days after the Applicant's dismissal, and 87 days out of time.
• [11] In their submissions, the Applicant does not address the length of the delay in filing in the Application. However, the Respondent submits that a delay of this extent constitutes "a significant and unreasonable delay",[6] citing a number of matters before the Commission where delays of between 40 and 44 days were held to be significant.[7] I further note that delays of seven and nine days have previously been found to be either "significant"[8] or "not insignificant",[9] respectively.
• [12] In light of the Commission's reasoning in such decisions, and in the context of a statutory 21-day time limit, I consider a delay of 87 days to be significant.
• [13] However, this factor should not be viewed as "some type of number game" with rules as to what number of days is too little or too many.[10] The consideration of the various factors listed at [7] warrants a holistic approach; each factor should be considered in the context of the others, rather than in isolation. As observed by His Honour, Davis J, President in Drage v State of Queensland (Queensland Health), "there will be cases where it is inappropriate to grant an extension of one day, and there will be cases where it will be appropriate to grant an extension of time of months."[11]
• [14] Therefore, while I find the 87-day delay to be significant, this length of delay is to be considered within the context of the remaining factors.

• [15] In respect of this factor, the Applicant submits that:

The reasons for my late application are as follows....

1. I was in shock receiving it on my holiday return but being professional accepted that it was indeed a bona fide redundancy.
2. I inquired with my union (ASU) on 3 June 2024 to confirm it was properly executed. They advised MSC works off an older award and it was compliant. I asked if there was anything I could do and they said no. I later discovered they had let me down with their poor response as I had an opportunity to lodge an unfair dismissal claim.

3. I left for Cairns after the two weeks' notice to vacate Council accommodation.

1. On 27 June 2024 I contracted an unknown virus which had me bedridden for 2 weeks and at one point taken to Cairns Hospital for observation and treatment over 2 days. It took another 3 weeks to fully recover.
2. At this point my time limit to lodge an unfair dismissal had expired but I had no reason to suspect even then that it wasn't anything more.
3. On 1 July 2024 I had made contact with Stan Orlandi, ex manager of MSC workshop. I knew Stan well and was at one point his boss when acting director of engineering. He had a medical incident that required immediate transport to Townsville Hospital. He related comments made to him by Ken on two occasions both stating I was next to leave. The second time was at Cairns Airport when the two crossed paths.
4. Until this moment I had never questioned the authenticity of the redundancy, only its payout limit.
5. I was still criss crossing between motels in Cairns with no reliable internet service. I started to access the Cairns Public Library and started the process of researching the conditions validating an unfair dismissal.
6. I had made further inquiries with another MSC employee, Graham Edwards who also had dealings with Ken (socially after hours). In conversations with Ken, Graham also had his suspicions that I was dismissed unfairly.
7. My 'lateness' in making this unfair dismissal application was because intermittent evidence only presented itself to me when I fully recovered to have the right conversation with the right people that opened my eyes of the unfair nature of the redundancy. Sometimes this happens despite the limited time period permitted, and seeking justice is not time based.

• [16] In reply to these ten reasons, the Respondent submits that:

Point 1 - If the Applicant was in 'shock' it does not constitute a reasonable excuse particularly when no evidence has been provided to support this was the case. If in fact the Applicant was in 'shock' the Applicant has admitted that this did not prevent him from seeking professional advice through his union (ASU) regarding his dismissal on Monday 3 June 2024 which was the very next business day after his dismissal took effect.

Point 2 - Based on the Applicants [sic] own submission he was not dissatisfied with the unions [sic] advice nor has he provided any evidence that it was 'poor' or 'incorrect'. Importantly, based on the Applicants [sic] own admission he accepted it was a 'bona fide' redundancy, obtained professional advice within the 21-day limit and made a conscious choice (decision) not to file an application for reinstatement within this period.

Point 3 - This simply explains the movements of the Applicant after his dismissal and does not constitute any 'exceptional circumstances' or a valid reason/reasonable excuse for the delay.

Point 4 - The Applicant submits he was unwell from 27 June 2024 for a period of approximately five (5) weeks however:

(a) the applicant has failed to provide any evidence to support this was the case; and

(b) if in fact the Applicant was unwell, he has failed to provide any evidence that he was unable or incapable of submitting his application.

In any event the Applicants [sic] illness was clearly not the reason for the delay given:

(a) his illness (if proven) started six (6) days after the 21-day statutory period had lapsed; and

(b) prior to his illness (if proven), the Applicant had on his own admission accepted that the redundancy was 'bona fide', sought professional advice and made a conscious choice not to make an application for reinstatement at that time.

Point 5 - The Applicant's own submission here clearly illustrates that the illness (if prove) had nothing to do with the delay because ... he had already made a conscious choice not to make an application for reinstatement.

Points 6 & 7 - The Applicant claims that on 1 July 2024 he first identified concerns regarding his dismissal due to alleged comments made to him in conversation by former employee Stan Orlandi. The Applicant's submission is based on hearsay and the comments attributed to me as the Human Resource Manager are untrue.

Nevertheless, this submission simply illustrates that the Applicant had at that point in time (31 days after his dismissal) not 'changed his mind'...

Point 8 - The Applicant has failed to provide any evidence to support this submission. In any event the Applicant still clearly had capacity to make an application for reinstatement during this time but again consciously chose not to make such an application until seventy-seven (77) days after allegedly speaking with Stan Orlandi.

Point 9 - The Applicant claims he spoke with former employee Graham Edwards. The Applicant's submission is based on hearsay and the comments attributed to me as the Human Resource Manager are untrue...

Point 10 - Based on the Applicants [sic] own submission here, it is abundantly clear the Applicant made a conscious decision not to file his reinstatement application and then became 'dissatisfied' with the advice provided by his union resulting in him 'changing his mind' and filing an application 108 days after his dismissal.

• [17] As to this factor generally, the Respondent further submits that:[12]
  1. What is clear from the from [sic] Applicants [sic] own admissions (through his submissions) is that the real & sole reason for the delay was the fact that he had made a conscious and considered decision (choice) not to make his application within the 21-day time limit and then changed his mind much later down the track.
  2. What is also clear from the Applicants [sic] own admissions (through his submissions) is that the Applicant changed his mind 108 days after his dismissal had occurred because he became dissatisfied with the advice provided to him by his union and because of alleged comments made by former disgruntled employees who have made false statements.
  3. It is well established that the Commission should not exercise its discretion to extend the period in which an application for reinstatement can be made when an Applicant has 'consciously chosen' not to make such an application within the 21-day limit.
  4. In dismissing an application that was one (1) day beyond the 21-day limit, Deputy President Hartigan observed that an Applicant who had sourced advice from their union but become [sic] dissatisfied with it did not constitute a reasonable explanation for the delay.
  5. The Applicant has clearly failed to discharge their onus of demonstrating to the Commission that grounds exist to support the Commission exercising its discretion to grant the extension of time.

• [18] Contrary to the Applicant's submission that "seeking justice is not time based," the limitation period imposed by s 317 of the Act should be seen "as an assessment by the legislature that in the ordinary category of case justice will be best served by adhering to a 21 day limitation period, though on occasion ... [it] may defeat a perfectly good case."[13]
• [19] The Applicant's apparent indifference to the imposed limitation period, does not displace the importance of acting in accordance with, and with respect for, that period. As observed by Chief Industrial Commissioner Hall in Hazell v Vox Retail Group Ltd ('Hazell'):[14]

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 ...

• [20] On the basis of the Applicant's submissions, the Applicant sought assistance from his union with notable efficiency (within three days of his dismissal), despite having accepted at the time that it was "indeed a bona fide redundancy". While the Applicant submits he later felt let down by his union's "poor response" to his inquiry, there is no indication that he was dissatisfied with the union's response, or that he had a genuine interest in seeking redress, at any point within the limitation period.[15]
• [21] Given the scant nature of the Applicant's submissions in this regard, the substance of the response received by the Applicant on 3 June 2024 from his union is unknown. However, it is apparent that the Applicant chose to accept and rely on that response. If the Applicant was unsatisfied with the union's response, the bulk of the 21-day limitation period remained for him to seek further advice elsewhere. Instead, it is clear from his submissions that the Applicant felt no inclination to question his dismissal until well after it had taken effect, with this change of heart motivated for reasons that had only developed since being dismissed.[16] To the extent that the Applicant attributes his delay in filing the Application to the quality of his union's response, that submission is therefore unpersuasive. As observed in Hazell, this is less a case of error (either of the Applicant or his union), and more "a case of a considered forensic judgement now regretted."[17]
• [22] I note the Applicant's submission that he first questioned the "authenticity" of his dismissal, and started "researching the conditions validating an unfair dismissal", on or around 1 July 2024. Even if it is assumed that the Applicant was entirely ignorant of the prescribed limitation period prior to that period's expiry, I think it reasonable to assume that the Applicant's research at this time quickly led him to belatedly discover the relevant limitation period. Despite this, the Applicant's submissions are entirely silent on why he delayed the filing of his Application until 16 September 2024, over two months after he supposedly first entertained the thought of pursuing such an avenue.
• [23] The Applicant further submits that the delay in filing can be explained by his having contracted an unknown virus on 27 June 2024, and not fully recovering for three weeks. No probative information has been provided in support of this submission (nor, I note, any in support of the submission that he was in shock following his dismissal). Given the

21-day limitation period expired on 21 June 2024, this submission regardless fails to compellingly address the Applicant's reasons for failing to file his Application on time in the first place.

• [24] I am not satisfied that any of the reasons provided by the Applicant constitute a reasonable explanation for the delay.

• [25] The Applicant failed to address the issue of prejudice he may suffer in his submissions, and the Respondent's submission that the Applicant would suffer "no prejudice" is rather insubstantial. It is clear that, should the discretion not be exercised in the Applicant's favour, the prejudice flowing to the Applicant would lie in his inability to further pursue his application for reinstatement.[18] However, the Applicant has not established any additional prejudice to him beyond that which is presumed.
• [26] Delay itself is considered to give rise to a general presumption of prejudice to the Respondent in the event that an extension of time is granted.[19] However, the Respondent has not made apparent any significant prejudice that would be suffered beyond that which is presumed. While the Respondent made submissions to the effect that an extension of time would be "oppressive and cruel" for the Respondent due to significant legal costs, the declining reliability of witness recollections, and having already provided the Applicant with significant financial support,[20] no supporting evidence (compelling or otherwise) of this additional prejudice has been provided. I am therefore not satisfied that there will be additional prejudice to the Respondent "other than that which would have accrued had the application been filed within the required time."[21]

• [27] The Applicant does not make any submissions relevant to this factor. The Respondent only submits it has "not contributed in any way to the Applicant's delay in lodging his application and it is abundantly clear the delay was due to the Applicant making a conscious decision not to make the application until 108 days after his dismissal took effect."[22]
• [28] There is no evidence before me of any conduct of the Respondent that is relevant in explaining, or that may have contributed to, the Applicant's significant delay in filing the Application.

• [29] If an extension of time was granted for the filing of the Application, it is clear that the parties would remain in dispute primarily over the characterisation of the Applicant's dismissal. While the Applicant believes his dismissal to be unfair, the Respondent has raised the additional jurisdictional objection to the Application that the Applicant's dismissal was a case of genuine redundancy.[23]
• [30] Both parties have made general, somewhat cursory submissions as to their respective positions, but there is presently insufficient evidence before me to allow for any meaningful assessment of the Applicant's prospects of success. Noting that it is "often the case that new evidence emerges during the running of a case", I am not prepared to find that the Applicant's prospects are sufficiently dire that I should reject the application solely for that reason.[24]

• [31] The material before the Commission does not reveal any sufficient grounds which would support the Applicant's position that the Commission should exercise its discretion to extend the period of time in which to file his application for reinstatement.
• [32] The delay in filing the application for reinstatement is significant, and the reason for that delay not sufficiently explained by the Applicant. I have been unable to identify any impediment preventing the Applicant from filing an application for reinstatement within 21 days of his dismissal, other than his own lack of interest in doing so within that period. No other factors have been identified which would persuade me to depart from the statutory time limit.
• [33] The Applicant has not discharged the burden of establishing that he has a case for an extension of time. The discretion to extend the time in which to file the application for reinstatement under s 317 of the Act, has therefore not been enlivened.

• [34] In light of the above, I make the following order:

The application for reinstatement in matter TD/2024/92 is dismissed.

[1] Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159; Weaver v Ipswich City Council [2021] QIRC 244 [45].

[2] Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43 [59].

[3] Weaver v Ipswich City Council [2021] QIRC 234 [12]; Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428 [9]. See also Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20.

[4] [2005] QIRComm 18; (2005) 178 QGIG 132, 2.

[5] [2021] QIRC 234 [14].

[6] Submissions of the Respondent, filed 18 December 2024, [10].

[7] Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543; Lockhart v Queensland Health [2014] QIRC 012; Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182; and Thomson v Toowoomba Regional Council [2021] QIRC 128.

[8] Goodchild v State of Queensland (Queensland Health) [2025] QIRC 046 [20].

[9] Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428 [12].

[10] Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173 [35]-[36].

[11] [2023] ICQ 22 [37].

[12] Submissions of the Respondent, filed 18 December 2024, [13]-[17]. At [15], the Respondent cites Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159, and at [16] cites Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074.

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

[14] (1997) 154 QGIG 954, 955.

[15] Opalicki v Queensland Pine Company (1996) 153 QGIG 624, 626.

[17] Hazell v Vox Retail Group Ltd (1997) 154 QGIG 954, 955

[18] Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43, [38].

[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[20] Submissions of the Respondent, filed 18 December 2024, [20]-[22].

[21] Mather v Commercial and General Insurance Brokers [2005] QIRComm 18; (2005) 178 QGIG 132, 4.

[22] Submissions of the Respondent, filed 18 December 2024, [37].

[23] Employer response to application for reinstatement, filed 27 September 2024, 4.

[24] Lockhart v Queensland Health [2014] QIRC 012 [45]; see also Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428 [30].