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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
O’Hara v State of Queensland (Department of Education)  QIRC 155
State of Queensland (Department of Education)
Application for Reinstatement
Application for Extension of Time
24 October 2019
18 September 2019
INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – APPLICATION FOR EXTENSION OF TIME – Application filed beyond statutory time limited – Discretion to extend time.
Industrial Relations Act 1999 (Qld) s 72, s 74, s 366
Rich v Chubb Protective Services  QIRC 34
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Breust v Qantas Airways Limited (1995) 149 QGIG 777
Erhardt v Goodman Field Food Services (2000) 163 QGIG 20
Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543
Johnson v Discovery Bay Developments Pty Ltd (1996) 151 QGIG 1010
Hazell v Vox Retail Group Ltd (1997) 154 QGIG 954 at 955
Wantling v Department of Community Safety (Queensland Corrective Services)  QIRC 43
Foundajis v Bailey  QIC 8
Maller v Suncorp Metway QIDC Staff Pty Ltd  163 QGIG 281
Mr M. O’Hara, Applicant, in person
Ms K. Bell, Department of Education, on behalf of the Respondent
Reasons for Decision
- An application was filed in the Industrial Registry on 7 September 2018 by Mr Michael O’Hara (the 'Applicant') seeking reinstatement to his former employment role with the Department of Education.
- The Department of Education (the 'Respondent') filed a Form 12B Response on 18 September 2018 opposing the application on jurisdictional grounds relating to both the time delay and the temporary status of the applicant’s former employment.
- The Application recorded the date of termination of employment as 21 June 2002, rendering the application in excess of 16 years beyond the time limit identified in s 74(2)(a) of the Industrial Relations Act 1999 (Qld) (the Act).
- The Applicant subsequently filed an application on 6 June 2019 seeking an extension of time, presumably pursuant to s 74(2)(b) of the Act. The Respondent opposed this application for an extension of time.
- A summary of the Applicant’s submissions in the Form 12 Application for reinstatement are as follows:
- The Applicant was called to the Principal’s office on 21 June 2002 and was told by the Principal that he had been ordered by Education Queensland to dismiss the Applicant without notice immediately.
- The Applicant did not receive a ‘show cause’ notice or formal paperwork from Education Queensland outlining reasons for the dismissal.
- The Applicant is of the belief that he was dismissed because of an article that appeared in the Courier Mail dated 12 June 2002.
- The application for reinstatement was not made within 21 days of the dismissal because the Applicant had suffered throughout his life from a mental condition known as Delusional Disorder – Grandiose Type and Focal Dyscognitive Seizure.
- The Applicant contends "it is the opinion of the Applicant's medical team of Neuroscientist Professor Harry McConnell and Doctor Dona Ratnaweera that it would have been very unlikely following the Applicant’s dismissal that the Applicant would have been in a fit mental state to apply for reinstatement within the required 21 days of dismissal."
- The Applicant submits that "it would have been altogether unknown to the Applicant that an application for reinstatement was available to him, given the two chronic mental conditions he was suffering at the time of his dismissal and in addition the exacerbated trauma of the 139 fraud charges that he faced in the Melbourne District Court at some point in the future."
- In the Application in existing proceedings for an extension of time, the Applicant submissions of particular interest include:
- The Applicant was advised by a solicitor Mr Stephen Lather not to make an application for unfair dismissal until the Applicant had received a complete and final medical discharge.
- Although the application for reinstatement was filed beyond the time limit, the Applicant made his application for reinstatement 215 days before he was given a complete and final medical clearance to apply for reinstatement and/or compensation, or to conduct any formal transactional business in the community.
- The Applicant submits that he is therefore 215 days within time, as he "would have had zero chance of success of being re-instated by the Respondent if the Applicant made an immediate unfair dismissal claim against the Respondent".
- In the Respondent’s Form 12B response filed on 18 September 2018, the Respondent outlined the following submissions, in summary:
- The Applicant was not dismissed, rather his temporary contract was not renewed beyond its intended end date of 21 June 2002.
- The Applicant was a teacher engaged in a number of short and long-term temporary contracts, at various schools, commencing June 1999.
- On 13 June 2002, the Department received advice by the Melbourne Major Crime and Fraud Squad that the Applicant had been charged with 139 counts of fraud.
- The Applicant did not advise the Department of these charges as required in accordance with Regulation 13 of the Public Service Regulation 1997 (as it then was).
- Consequently, in correspondence dated 13 June 2002, the Assistant Director (Workforce Relations) directed the Applicant to undertake duties at the Gold Coast North District Office for the remainder of term 2; that is, until 21 June 2002.
- The Applicant was advised that the Department did not intend to employ him any further in the short term.
- In correspondence dated 24 June 2002, the Applicant was also informed that a notice had been placed against his computerised employment records which indicates that any application for employment made by him to Education Queensland must be referred to the Director, Human Resource Operations for consideration prior to approval.
- Regarding the application for an extension of time, the Respondent objected to this application on the following grounds:
- The Applicant filed the application 16 years, 1 month and 26 days out of time.
- This is a significant delay and the Department would be unreasonably prejudiced by the granting of an extension of time.
- The Applicant’s reasons for the extraordinarily lengthy delay do not adequately excuse the delay.
- The medical certificates and reports provided by the Applicant do not explain how his purported illnesses prevented him from making an unfair dismissal application given that he has been embroiled in a host of legal proceedings including proceedings commenced by him for unfair dismissal in Victoria.
- These proceedings include the following:
- An Unfair Dismissal Application filed by the Applicant in 2003 in Victoria.
- An Application to the Australian Industrial Relations Commission in 2004 seeking to challenge the 2003 unfair dismissal decision.
- An application to the Victorian Institute of Teaching seeking to have his registration reinstated in 2006.
- An Application to the Victorian Civil and Administrative Tribunal challenging the decision regarding his registration.
- An Application to the United Kingdom, Care Standards Tribunal in 2006, concerning his ability to teach in the United Kingdom.
- Various Appeals to the Brisbane District Court seeking to challenge criminal convictions in approximately 2014 and 2015.
- If the Applicant had the wherewithal and mental ability to make such applications, and thereafter engage actively in such complex legal proceedings, he clearly had the ability to lodge an application for unfair dismissal before September 2018.
- A medical certificate submitted by the Applicant, signed by Dr Nancy Sturman dated 15 January 2015, states that “Mr Michael O’Hara reports he has been accepted as a candidate for study for a PhD at Monash University”. If this is accurate, it supports the notion that the Application had more than sufficient mental abilities to pursue this type of claim on or about that time but chose not to do so.
- The primary remedy of reinstatement would not be possible given the unlikelihood of the Applicant obtaining a Blue Card given his criminal history. Similarly, reinstatement would not be possible given that the Applicant did not obtain his Teaching Registration following his application in 2017.
Relevant Case Law
- The onus lies with the Applicant to demonstrate that the justice of his case requires an extension.
- In Hazell v Vox Retail Group Ltd, Chief Industrial Commissioner Hall (as he then was) said:
"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 limited. 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."
- the length of the delay;
- the explanation for the delay;
- the prejudice to the Applicant if the extension of time is not granted;
- the prejudice to the Respondent if the extension of time is granted, and
- any relevant conduct of the Respondent.
- An additional factor of relevance in this consideration are the prospects of an application succeeding at a substantive hearing. Where it appears that an applicant has limited prospects of success, the Commission should not grant an extension of time. The occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. The merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome.
Each factor will now be considered in turn.
Length of the delay
- In this matter, the application for reinstatement was filed on 7 September 2018. The Applicant submits that he was dismissed on 21 June 2002, with the 21-day period for filing concluding on 12 July 2002. The length of the delay is 16 years, 1 month and 26 days.
- A number of authorities have provided guidance as to how best to consider the length of time delay. In Wantling v Department of Community Safety (Queensland Corrective Serivces) Deputy President O’Connor (as his Honour then was) considered the length of delay of 227 days as excessive. In Foundajis v Bailey, a delay of five months was regarded as substantial and in Maller v Suncorp Metway QIDC Staff Pty Ltd, a delay of 171 days was viewed as significant.
- In Rich v Chubb Protective Services, President Hall (as he then was) stated the following:
“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.”
- The case history of consideration of time delays beyond the 21-day statutory time period indicate that the delay in this matter is to be considered excessive.
Explanation for the delay – Legal advice and Incapacity
- The Applicant submitted that he did not pursue an application for reinstatement on the basis of advice he had received from a solicitor, Mr Stephen Lather, on 24 June 2002. The Applicant submits that "it was Mr Lather’s professional opinion that to make an unfair dismissal at that time would be doomed to failure due to the fact that Queensland Education would argue that the Applicant had a chronic mental illness and because of that formally diagnosed illness QIRC would have no choice but to refuse his application for re-instatement."
- The only evidence provided to confirm that the legal advice had been sought or provided by Mr Lather was the Applicant’s affidavit and oral evidence. Mr Lather was not called to give evidence. If it is accepted that legal advice of this nature had been provided, the issue arises of representative error.
- In the matter of Maller v Suncorp Metway QIDC Pty Ltd, Deputy President Bloomfield concluded that the behaviour of an Applicant cannot be ignored when an agent is involved.
- In Rich v Chubb Protective Services, President Hall (as he then was) continues:
“It is a substantial step, in an extension of time application, to move from arguing that an adviser’s error carries less weight than personal fault to arguing that the fault of an adviser is an excuse, compare Turner v Best & Less Australian Pty Ltd (1995) 150 QGIG 1129 at 1131 per Hall C.Cl. As between applicant and respondent, an applicant cannot dissociate himself from his agent in that way, see Grumble v Killingsworth  VT 161 at 176 per McInerney J. I think that the passage from Rex & Co v Ghosh  2QB 597 at 601 may properly be invoked to justify granting an extension of time when delay is short and where the error is in the nature of a slip. Here the delay, 470 days, is considerable. This is not a case of error. This is a case of a considered forensic judgement now regretted.”
- Clearly in this matter the delay is not short – over 16 years in total – and the error is not in the nature of a slip. On the Applicant’s evidence, he accepted the legal advice that his prospects of success would be limited if he filed an application prior to having medical clearance.
- Relying on the authorities cited previously, this is not a case of a representative making an error in the nature of an inadvertent slip, but rather a judgement that may now be regretted. A strategic decision that the Applicant had a greater likelihood of succeeding if the time limit was ignored and the application filed at a time that was more advantageous to the party cannot in my view be considered an inadvertent error.
- The Applicant submitted that he did not pursue an application for reinstatement because he was not mentally fit to do so. He cited an extensive medical history and a number of medical reports as evidence of his previous mental incapacity.
- A substantial amount of documentary material from medical practitioners was submitted by the Applicant referring to a history of mental illnesses in support of this application. It is accepted that the Applicant has suffered from these illnesses, both diagnosed and undiagnosed, at the time his employment ceased and possibly for much of his adult life.
- A report from by Dr Lester Walton in relation to a separate legal proceeding and provided as exhibit C to the Applicant’s application states:
“This man remains thoroughly cognitively intact and he is more than able to adequately follow legal proceedings. He has a clear appreciation of the nature of his charges, the implication of pleading not guilty and the likely disposition of convicted. He is certainly able to articulate the nature of the defence he wishes to pursue and he is not compromised in terms of providing instructions, in the sense that he is more than adept at communicating his ideas to others.”
- Dr Walton’s comments suggest that the Applicant was capable of understanding legal matters and able to provide clear instructions accordingly.
- The Applicant’s submissions that he was medically unfit to work as a school teacher until 9 April 2019 may be correct, however it does not follow that his medical condition prevented him from filing a reinstatement application.
- The Applicant’s history of pursuing other legal applications in 2003, 2004, 2006, 2014, 2015 suggest that, despite his medical condition, the Applicant was capable of filing an application for reinstatement at a point in time much earlier than 2018. Of note is the Applicant’s application for unfair dismissal filed in Victoria in 2003, indicating that not only was he capable of pursuing such an application but he was experienced in doing so some 15 years prior to filing his application in this Commission.
- The Applicant's evidence that he sought legal advice immediately after his employment ceased also suggests that the Applicant's illness did not render him incapable of understanding or pursuing his application within the 21-day time limit.
- Whilst the mental illness undoubtedly had an impact on the Applicant's life over many years, it is not accepted that they prevented him from filing this application within the statutory time period, and certainly prior to 2018.
Prejudice to the Respondent
- The prejudice to the Respondent if the extension of time is granted is an important factor in the exercise of this discretion. The Respondent submitted that they will be “grossly and unreasonably prejudiced” by the granting of an extension of time in this matter.
- The Respondent submitted that it will be significantly prejudiced if the extension of time is granted as they will be required to defend an application that would be heard more than 16 years after the cessation of the Applicant’s employment.
- The Respondent also submitted that it does not have documents in its possession that are relevant to the matters raised by the Applicant given that the delay is more than 6 years after the employment relationship ceased.
- It is clear that a defence of this application would require the Respondent to locate relevant departmental employees for the purposes of giving evidence in proceedings many years after the event. It is inevitable that the recollection of any witnesses will be affected following such a lengthy passage of time.
- I accept that the Respondent will be significantly prejudiced if the extension of time is granted.
Prejudice to the Applicant
- The prejudice to the Applicant if the extension is not granted is also an important factor to be considered in the exercise of this discretion.
- The prejudice that the Applicant will suffer if the extension of time is refused is that he will lose the right to have his application for reinstatement heard and determined.
Relevant conduct of the Respondent
- There was no evidence in the proceeding of any conduct on the part of the Respondent that may have contributed to the delay in filing the application for reinstatement.
Prospects of Success
- A number of caveats to the approach in Breust v Qantas Airways Limited regarding factors to be considered in granting extensions of time were identified in Patterson v Medical Benefits Fund of Australia Limited. These caveats are:
- (a)That s 74(2)(b) vests an unlimited statutory discretion which must always be exercised;
- (b)That the time limit of twenty-one (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 are always a relevant matter i.e. that where it appears an Applicant has no, or very limited, prospects of success the Commission should not grant an extension of time.
"It is not the function of an Industrial Commissioner to examine minutely the merits of the case upon an application for extension of time in which to apply under s 175. However, where it is patently clear that the basic facts are essentially uncontested, and that on those facts the prospects of success are minimal, is not an error principal for the Industrial Commissioner to take that into account in refusing leave to appeal.."
- President de Jersey (as he then was) observed in Petruch v Davy Kinhill Fluor Daniel Joint Venture:
"For example, if it appeared that the proposed reinstatement application had no, or very limited, prospects of success, then that might legitimately influence a Commission, taken with other relevant considerations, in the determination whether or not to extend time. Such an applicant should in my opinion ordinarily provide at least prima facie evidence that his application has some merit."
- The Respondent in this matter has submitted that the Applicant’s application for reinstatement cannot succeed because he was not dismissed. The Respondent submitted that the Applicant was employed pursuant to a temporary contract for the period 11/02/2002 to 21/06/2002 and his contract was simply not renewed.
- In the Statement of Service issued on 4/03/2004 by the Department of Education and filed by the Respondent, the Applicant's status is described as 'Temporary Full-time Teacher' from 11/02/2002 to 21/06/2002.
- Section 72 of the Act relevantly provides:
72 Who this chapter does not apply to
- (1)Section 73(1) does not apply to–
- an employee engaged for a specific period or task, unless –
- the main purpose of engaging the employee in that way is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under part 2; or
- the employee is participating in a labour market program and is dismissed before the period ends or the task is complete; or
- the reason for the dismissal is an invalid reason…
- The Respondent has submitted that the Applicant was on a temporary contract and consequently is a person to whom s 72 does not apply as he was an employee engaged for a specific period.
- In State of Queensland (Queensland Health) v Dr Farzana Mitra, his Honour Deputy President Bloomfield concluded: "…someone employed on a temporary contract which expires by the effluxion of time is not able to access the Commission’s unfair dismissal jurisdiction because of the operation of s 72(1)(d) of the Act."
- The Applicant did not dispute the fact that he had been employed under a temporary contract. The Applicant however submitted that the Principal of Helensvale State High School, Mr Glen Hoppner, provided him with a letter dated 8 April 2002 offering permanent employment to take effect upon the expiry of his current contract. A copy of this letter which the Applicant claims he received from the Principal was attached to the Applicant’s affidavit and referred to by the Applicant in oral submissions. No other evidence confirming an offer or acceptance of permanent employment was submitted.
- The letter submitted as an offer of permanent employment from the Principal is unusual in both substance and form. A substantive hearing of this matter would require a detailed examination of this letter including the provision of further evidence from its author.
- A prima facie examination of the evidence suggests that the Applicant was in fact an employee engaged for a specific period and not a permanent employee. If this was accepted at a substantive hearing, the application would not be successful. However, given the Applicant’s reliance upon a letter claimed to be from the Principal of the school as evidence of his permanent employment, I am not willing to conclude that the merits of this application are entirely clear-cut.
- I do not accept the view that the application for an extension of time should be dismissed on the basis that the Applicant has little or no prospects of success. I consider the merits of this application to be a neutral factor in informing this decision.
- The High Court has held that "when an applicant seeks an extension of time to commence an action after the time limit has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension".
- In this matter the Applicant has failed to discharge that onus.
- In all of the circumstances of this matter, I do not believe that the Applicant has justified why the Commission’s discretion should be exercised to extend the time to pursue his application for reinstatement.
- The length of delay of over 16 years is one which is beyond what could be reasonably viewed as acceptable. This delay would be highly prejudicial to the Respondent’s interests given the evidentiary challenges associated with defending an application after such a long passage of time. Whilst noting the prejudice to the Applicant in not having the reinstatement application determined, the reasons provided for the delay do not provide a satisfactory basis to justify such a significant extension of time.
- For the foregoing reasons I have decided not to exercise my discretion to extend time for the Applicant to pursue the application for reinstatement. The Applicant has not made out a case for an extension of time and, accordingly, I dismiss application TD/2018/84.
- The Commission determines and orders accordingly.
- The application for an extension of time is not granted.
- The application for reinstatement is dismissed.
 Note s 1024 of the Industrial Relations Act 2016; proceeding to be heard under the repealed Act.
 Affidavit of Mr Michael O'Hara, sworn 18 September 2019, page 5.
 Rich v Chubb Protective Services.
 (1997) 154 QGIG 954 at 955.
 (1995) 149 QGIG 777.
 Erhardt v Goodman Field Food Services (2000) 163 QGIG 20.
 Ibid at 21.
 Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543.
 Johnson v Discovery Bay Developments Pty Ltd (1996) 151 QGIG 1010 at 1011.
  QIRC 43.
  QIC 8.
  163 QGIG 281.
  QIRC 34.
  QGIG 281, .
 Section 366(4) of the Industrial Relations Act 1999 requires time and wages records to be kept for 6 years after the date the work to which the records relate is performed.
 (1998) 159 QGIG 232.
 See Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131.
 (1995) 149 QGIF 709.
 (1996) 153 QGIG 543.
  QIRC 16.
 Per McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 180 CLR 541 at 554.
- Published Case Name:
Michael O'Hara v State of Queensland (Department of Education)
- Shortened Case Name:
O'Hara v State of Queensland (Department of Education)
 QIRC 155
24 Oct 2019