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Thomson v Toowoomba Regional Council[2021] QIRC 128

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:

Hartigan IC

HEARD AT:

Brisbane

ORDERS:

  1. The application for reinstatement in matter TD/2020/13 is dismissed.

CATCHWORDS:

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

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 317

CASES:

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

APPEARANCES:

Mr S. Thomson, Applicant.

Mr D. Clifford, solicitor for the Respondent. 

Reasons for Decision

Introduction

  1. [1]
    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.
  1. [2]
    The Council raises a jurisdictional objection to the application for reinstatement on the basis that it is out of time.

Legislation

  1. [3]
    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. (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.
  1. (2)
    The application must be made within—
  1. (a)
    21 days after the dismissal takes effect; or
  1. (b)
    if the commission allows a further period on an application made at any time—the further period
  1. (3)
    An application may be made by—
  1. (a)
    an employee; or
  1. (b)
    with the employee’s consent, an organisation whose rules entitle it to represent the employee’s industrial interests.
  1. (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.
  1. (5)
    If the registrar rejects the application, the registrar must, by written notice, notify the applicant—
  1. (a)
    that the application has been rejected; and
  1. (b)
    of the reasons why the registrar considers the dismissed employee is a person mentioned in section 315 (1) as a person to whom section 316 does not apply.
  1. (6)
    The applicant may, by written notice given within 21 days after the registrar’s notice is received, inform the registrar that the applicant wishes the application to proceed.
  1. (7)
    If the applicant does so, the commission must deal with the application, despite the registrar’s rejection.
  1. (8)
    The commission and registrar must deal with an application as quickly as possible.
  1. [4]
    Section 317(2)(b) of the IR Act provides the Commission with a discretion to extend the time for filing of the application for resinstatement. The exercise of the discretion to extend time has been considered in previous decisions of the Commission and the Industrial Court.
  1. [5]
    In Queensland Public Sector Union of Employees v Department of Corrective Services,[1] President Hall said:

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.

  1. [6]
    In Wantling v Department of Community Safety (Queensland Corrective Services)[2] ('Wantling'), Deputy President O'Connor observed,[3] that the statutory time limit in s 74(2)(a) "should only be departed from in the most compelling of circumstances and where necessary to ensure that justice is done between the parties." Relevantly, in Wantling, Deputy President O'Connor (citing a decision of President Hall) stated as follows:[4]

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) 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 Ltd (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) 74 ALJR 1348 at 1354 per Gleeson CJ, Gaudron and Hayne JJ."

  1. [7]
    In exercising the discretion to extend time vested by s 317 of the IR Act, the Commission has previously had regard to various key factors[5] including the following:
  1. (a)
    the length of the delay;
  1. (b)
    the explanation for the delay;
  1. (c)
    the prejudice to the applicant if the extension is not granted;
  1. (d)
    the prejudice to the respondent if the extension of time is granted; and
  1. (e)
    any relevant conduct of the respondent.
  1. [8]
    In Erhardt v Goodman Fielder Food Services Limited,[6] Vice President Linnane also noted as follows:
  1. (a)
    that the relevant provision vests an unlimited statutory discretion which must be exercised;
  1. (b)
    the time limit of 21 days provided for must be respected; and
  1. (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.

Length of Delay

  1. [9]
    The application for reinstatement was made on 6 February 2020 and consequently was made 65 days after Mr Thomson's employment came to an end. This was 44 days beyond the statutory time limit of 21 days.
  1. [10]
    I consider, in the context of the relevant statutory scheme, that a delay of 44 days beyond the statutory time limit of 21 days to be a substantial delay.
  1. [11]
    This conclusion is consistent with the Commission's reasoning in other decisions including Petruch v Davy Kinhill Fluor Daniel Joint Venture[7] where the President stated that delay of 6 weeks was a "substantial delay in the statutory context of a requirement that reinstatement application be lodged within 21 days of the dismissal".
  1. [12]
    In both Lockhart v Queensland Health[8] and  Aurukun Shire Council v Schiardijn[9] Deputy President Kaufman respectively found that a delay of 42 days and 49 days were substantial delays.

Reasons for the delay

  1. [13]
    Mr Thomson contends that the reason for his delay in filing the application for reinstatement was due to uncertainty around the procedure for the service of the application. Mr Thomson contends that he was informed by the Commission, that he was to serve his application at the same time as filing his application, and/or that the Council neglected and/or refused to inform him of how to appropriately serve documents on the Council.[10]
  1. [14]
    The Council contends that from 13 November 2019, Mr Thomson was aware that the Commission was the appropriate body to deal with his application.
  1. [15]
    Relevantly, by email correspondence dated 12 November 2019, Mr Thomson emailed an officer of the Council inquiring as follows:

Would one of them manage unfair dismissal matters, would you know please.

Is there possibly some "Fair Work Australia" government agency perhaps please?

Exceptional thanks for every byte of assistance you are able to send to me. :)

  1. [16]
    The Council responded by email correspondence dated 12 November 2019, advising Mr Thomson in the following terms:

Hi Simon

The relevant agency for Local Government would be the Queensland Industrial Relations Commission. The Fair Work Commission don't look after Local Government.

  1. [17]
    The Council states that Mr Thomson was further informed in writing by the Council about the process associated with serving the Council with relevant documents.
  1. [18]
    On 23 December 2019 (one day before the expiration of the 21 day statutory time limit), Mr Thomson inquired with the governance department of the Council as to where documents could be served on the Council.
  1. [19]
    The governance department responded, in writing, on 23 December 2019, advising that the documents could be served at the Council's customer service centre; that the customer service centre was open until 1.00 pm on 24 December 2019; and a Commissioner for Declarations would be present at customer services however it may not be appropriate for an employee of the Council to witness the applicant's documents given that they would likely be the employee who was to accept service of the documents.[11]
  1. [20]
    Mr Thomson responded by email correspondence on the same day and inquired in the following terms:[12]

Cheers, again, but, Whom is the appropriate person to serve please?

  1. [21]
    In a written reply to this further question on the same day, Mr Thomson was informed by the Council that:[13]

There is no one particular person. You just need to go to the counter  Customer Service staff have a process to handle these matters. They are all trained.

  1. [22]
    Mr Thomson contends[14] that the Council “failed to .. advise me whom I could serve” so he says he decided to wait until his former manager, Mr David Pascoe, returned from annual leave in late January 2020.
  1. [23]
    Mr Thomson failed to take any further progress in relation to his application until 28 January 2020 when he spoke to the Industrial Registry about filing his late application.
  1. [24]
    On 2 February 2020, Mr Thomson signed his application for reinstatement and swore the accompanying affidavit in the presence of a witness. On 6 February 2020, Mr Thomson filed the application and subsequently served it on the Council.
  1. [25]
    Mr Thomson submits that after asking the Council’s “legal department (Governance) whom I could serve documents on, and they offered one suggestion only, and then promptly advised that option would be inappropriate.” The email exchange referred to above does not reflect this submission. The Council officer (correctly) points out that it may not be appropriate for the same Council officer to witness Mr Thomson deposing to the documents as a Commissioner for Declarations and be the Council officer who is served those documents on behalf of the Council. The second email response from the Council on 23 December 2019 advises Mr Thomson that he can serve the documents by going to the customer service counter and that all staff have been trained to handle these matters.
  1. [26]
    Consequently, I am satisfied that Mr Thomson was promptly advised by the Council of the process with respect to how to serve the Council and that the advice was provided to Mr Thomson before the expiration of the statutory time limit.
  1. [27]
    I have concluded, on the material, that Mr Thomson was aware that he had a remedy to commence unfair dismissal proceedings, and that he had already been directed by the Council to the Commission with respect to making an application for reinstatement. Further, and on his own material, Mr Thomson did contact both the Industrial Registry and the Council with respect to filing documents prior to the expiration of the limitation period on 23 December 2019.
  1. [28]
    Mr Thomson has not provided any proper explanation to explain the delay between him taking any steps from 23 December 2019 to the filing of the application in the Industrial Registry on 6 February 2020. I do not consider a unilateral decision made by him to delay serving the documents until after his former manager returned from leave to be such an explanation, particularly as the Council has advised Mr Thomson of the process associated with serving the Council. Further, upon being advised by the Industrial Registry on 28 January 2020 that he was outside the limitation period prescribed by the legislation, Mr Thomson did not act with haste, but rather took another 9 days to file the application in the Industrial Registry.
  1. [29]
    In these circumstances, I do not consider that there was a reasonable explanation for the delay.

The prejudice to Mr Thomson

  1. [30]
    The prejudice to Mr Thomson is clear in so far it as if an extension of time is not granted, he will be unable to proceed to have his application for reinstatement heard and determined.

The prejudice to the Council

  1. [31]
    The Council contends that it would be prima facie prejudiced if Mr Thomson is granted an extension as the Council would incur costs in defending an application where it would ordinarily have had the benefit of the application being barred by the limitation period imposed by s 317 of the IR Act.

The conduct of the Council

  1. [32]
    There is nothing in the conduct of the Council that is relevant to explain the delay in the filing of the application. Relevantly, I consider on the material that when Mr Thomson has sought information from Council about the process that it has provided him with information in a timely way.

Prospects of success

  1. [33]
    Relevantly, Mr Thomson does not deny the substance of the allegations (being several breaches of the code of conduct)[15] made against him in the show cause process, but, rather argues that he has been treated unfairly compared to other employees. I note relevantly that the allegations that were substantiated with respect to Mr Thomson's conduct were done so after a show cause process during which Mr Thomson was provided with several opportunities to be heard in writing.
  1. [34]
    Prior to terminating Mr Thomson’s employment the Council advised him[16] that the substantiation of the allegations would be viewed in the context of his employment history with the Council which included the receipt of two formal written reprimands during the course of 2016 and undertaking a Performance Management Plan during 2018.
  1. [35]
    Mr Thomson submits[17] that whilst he is concerned the Commission will not accept his late application, he believes the Commission would be very interested to learn of matters associated with his case and hopes that the Commission's consideration may be allowed to further Mr Thomson's attempts to expose very concerning conduct within his local government, specifically, in "their unusual unreasonable harsh treatment they have applied to me." Mr Thomson further continues as follows:

Though concerned my application to the commission will be dismissed for its lateness, I have realised it is still worth a shot, and hopefully the commission, and the spirit of the commission, will be interested in reviewing and examining the significant matters that have been ongoing within the Local Government of TRC.

  1. [36]
    Mr Thomson also submits in his affidavit filed on 22 April 2020, the matters of substance he will rely on should the matter proceed to hearing:[18]

I believe the matters I have raised in my application, and the evidence council withholds regarding those, are exceptionally significant. I would humbly suggest, the matters and evidence in my application will be of more interest and significance to the Commission than many cases before them to date.

I was a victim from the actions of my previous Supervisor Kevin Gooch. It is my understanding he was questioned / interviewed many times by management for his conduct. If the Respondent was fair and consistent with their management of "bad" staff, Kevin would have gone well beyond "3 warnings" and should have been dismissed, yet was allowed to stay, and continue his poor conduct upon me and the organisation.

My present supervisor had been investigated for a number of matters. I believe there was commonly hard proof to "convict" him of raised allegations. I believe he also went way past 3 events, I believe he should have had his 3 warnings, and been dismissed. Technically, that would have ended the alleged disrespect there and then. Further to the insult I suffer from this, is that this Supervisor confessed to me that that he has confessed to management the he had in fact lied about some matters (involving me). Then salt to my open wounds, after years of my 2 supervisors being caught lying, my Manager David advised me the organisation does not tolerate liars. I struggle to understand how this adds up.

I was verbally abused / assaulted by a subordinate, in front of our Supervisor. I allege he and my supervisor changed some wording to the investigating officer Coordinator Peter Lembo to lessen the damage. The offending staffer had already been 'processed' by management for the same "violent" behaviour. However, it is my understanding when he did the same abuse to me, investigator Peter Lembo elected to not advise Human Resources (POD) the person's behaviour was continuing. I believe that person's behaviour deserved dismissal on the 1st occasion. The fact Peter chose to not let HR / POD know he was continuing such conduct, intrigues me.

A staffer physically assaulted me (in aggression). I would have assumed such conduct would have been instant dismissal. However, investigating officer Manager David Pascoe elected to not advise HR / POD of the event. This was soon after the person was processed for theft of new stock. I fail to understand how that is equivalent managing of a "bad" staffer, compared to Management's actions upon me.

If the Respondent were to have "technicalities" applied to the consideration of my request for a "further period", may I humbly also bring to the Commission's attention:

It is my understanding the Respondent failed to comply with the Commission's Direction Order issued to the Respondent 6 Feb 2020, directing the Respondent to file in the Industrial Registry their Form 12A Employer's Response within 7 days. I am guessing 7 days would then mean the 13th. Even if 7 days meant the 14th, the Respondents response was not filed until after the 14th. I believe it may had been the 17th. (I asked the Commission for a stamped copy of the Respondents response, but I was only issued a non stamped copy.)

To save some debate in this matter, being over 30 pages long, the Respondents response could not be filed until the Commission had it in hardcopy, and to my understanding that did not happen within the 7 days ordered by the Commission.

I apologise if that seem [sic] irrelevant, however, from my dealings with the Respondent (and their representatives), I anticipate I will face all kinds of technical argument me, and thus thought it relevant to discuss my understanding that the Respondent also failed to comply with a prescribed timeframe in submission of their response.

My application contains references to very inappropriate conduct by TRC management, in their managing, and more relevantly how they chose to manage other staff for their conduct, in contrast to the harsh actions they chose to effect upon me.

I believe TRC records will verify near all of my allegations I have made against them.

I believe if the Commission granted me "further period", and if TRC end up having to produce all records connected to each of my allegations, the Commission will likely be very disappointed with TRC's conduct and actions.

I believe matters in my Application, some having been referenced in this statement, are exceptionally significant, and exceptionally worthy of the Commission's attention and investigation, and deserve to form a very significant factor in the Commission's consideration of granting me a further time period of acceptance of my Application.

  1. [37]
    Whilst I accept that Mr Thomson has identified circumstances in which he alleges wrong doing by other Council employees whose employment has not subsequently been terminated by the Council, there is no direct evidence in relation to those matters and further it is difficult for the Commission to draw any inference from examples raised in abstract without any clear correlation to Mr Thomson and the particular circumstances of his matter. In the absence of such information these other matters are simply not relevant to the consideration of whether Mr Thomson’s dismissal was harsh, unfair or unreasonable in the circumstance of this matter.
  2. [38]
    Further, I do not consider it appropriate for the proceedings relating to Mr Thomson's reinstatement application to be used as a vehicle to conduct a roving inquiry into all conduct by the Council that Mr Thomson does not agree with.
  1. [39]
    I do not consider that the matters raised by Mr Thomson are matters which fall in Mr Thomson's favour when assessing the merit of his matter.
  1. [40]
    In the circumstances, I do not consider that the merit of the matter is a factor in favour of the exercise of my discretion to extend time.

Conclusion

  1. [41]
    For the reasons I have identified above I have concluded that the delay in lodging the application for reinstatement is significant and I have found that Mr Thomson's explanation for the delay to be unsatisfactory. I have further determined that Mr Thomson's prospects of success is not a factor weighing in the exercise of my discretion and further that there are no other matters that would persuade me to extend time.
  1. [42]
    For these reasons, I have determined not to exercise my discretion to extend time to Mr Thomson within which to lodge his application for reinstatement.

Orders

  1. [43]
    I make the following orders:
  1. The application for reinstatement in matter TD/2020/13 is dismissed.

Footnotes

[1] (2006) 182 QGIG 503.

[2] [2013] QIRC 43.

[3] Ibid, [49].

[4] Ibid, [26].

[5] See Breust v Qantas Airways Limited (1995) 149 QGIG 777.

[6] (1999) 163 QGIG 20.

[7] (1996) 153 QGIG 543.

[8] [2014] QIR 12.

[9] [2014] QIRC 091.

[10] See Exhibit 1 to the Affidavit of Mr Thomson 2 February 2020.

[11] Affidavit of Claire Patricia Ryan affirmed on 6 May 2020, Annexure 2.

[12] Ibid.

[13] Ibid.

[14] Affidavit of Simon Thomson filed 22 April 2020, Exhibit 11, [6] – [9].

[15] Although Mr Thomson is critical of some of the evidence relied on and the veracity of some of that evidence.

[16] In correspondence of 6 November 2019

[17] Affidavit filed 6 February 2020, A Ⅴ.

[18] Affidavit filed 22 April 2020, [20] – [28].

Close

Editorial Notes

  • Published Case Name:

    Thomson v Toowoomba Regional Council

  • Shortened Case Name:

    Thomson v Toowoomba Regional Council

  • MNC:

    [2021] QIRC 128

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    27 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aurukun Shire Council v Schardijn [2014] QIRC 91
2 citations
Breust v Qantas Airways Limited (1995) 149 QGIG 777
3 citations
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
1 citation
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540
2 citations
Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108
3 citations
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348
1 citation
Doorley v Queensland [2019] QIRC 89
1 citation
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
2 citations
Lockhart v Queensland Health [2014] QIR 12
2 citations
Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543
2 citations
Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 354
1 citation
The Queensland Public Sector Union of Employees v Department of Corrective Services (2006) 182 QGIG 503
2 citations
Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060
1 citation
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
4 citations

Cases Citing

Case NameFull CitationFrequency
Weaver v Ipswich City Council [2021] QIRC 2342 citations
Zadravec v Mornington Shire Council [2025] QIRC 942 citations
1

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