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Weaver v Ipswich City Council[2021] QIRC 234

Weaver v Ipswich City Council[2021] QIRC 234

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Weaver v Ipswich City Council [2021] QIRC 234

PARTIES:

Weaver, Ross Erwin McLean

(Applicant)

v

Ipswich City Council

(Respondent)

CASE NO:

TD/2020/87

PROCEEDING:

Application for reinstatement

DELIVERED ON:

02 July 2021 

MEMBER:

HEARD AT:

O'Connor VP

On the papers 

ORDER:

  1. The application for reinstatement in matter TD/2020/87 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – EXTENSION OF TIME – where application filed beyond statutory time limit – length of delay – reasons for delay – prejudice to the applicant or respondent – prospects of success – whether the commission should exercise discretion to grant extension

LEGISLATION:

Industrial Relations Act 2016, s 317

Industrial Relations Act 1999, s 74

CASES:

Aurukun Shire Council v Schiardijn [2014] QIRC 91

Breust v QANTAS Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Authority v Taylor 186 CLR 541; (1996) 139 ALR 1

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

Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709

Lockhart v Queensland Health [2014] QIRC 12

Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200

O'Hara v Victoria [2006] FCA 420

O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100

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

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

Rich v Chubb Protective Services (2001) 167 QGIG 159

Thomson v Toowoomba Regional Council [2021] QIRC 128

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

Reasons for Decision

Background

  1. [1]
    The Applicant (Mr Ross Weaver) was employed by the Respondent (Ipswich City Council) between 31 July 2012 and 22 May 2017, initially as the Senior Animal Manager and eventually as Animal Management Coordinator.
  1. [2]
    On 14 September 2020, the Applicant filed an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 ('the Act') in the Queensland Industrial Relations Commission ('the Commission') seeking re-instatement or in the alternative, compensation.
  1. [3]
    The Applicant worked as the Animal Management Coordinator for Health, Security and Regulatory Services since a promotion on 22 July 2013.  The Applicant alleges to have been coerced into resigning his position effective of 22 May 2017.
  1. [4]
    On 20 and 29 October 2020 the matter was conferenced before the Commission however no resolution was reached.
  1. [5]
    On 11 March 2021, the Applicant communicated to the Commission a request that the matter proceed to arbitration, including determination of the jurisdictional question; 'whether the Commission ought to exercise its discretion to allow the application pursuant to s 317(b) of the Act'.
  1. [6]
    This decision is a determination of the abovementioned preliminary question.
  1. [7]
    A further area of contention arises out of a debate concerning the validity of a deed of release purportedly entered into between the parties on 22 May 2017.  However, the parties are in agreement that this issue should be addressed (if necessary) following the determination of this preliminary point.

Application

  1. [8]
    The Applicant's request for extension of time relies on the discretion held by the Commission pursuant to s 317(2)(b) of the Act which provides:

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.
  2. (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. [9]
    In Rich v Chubb Protective Services,[1] President Hall outlined the effect of the limitation period contained in s 74(2) of the Industrial Relations Act 1999 as follows:

… 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).[2]

  1. [10]
    The Commission has previously had regard to the following key factors in determining an application for extension under s 317(2)(b) of the Act:[3]
  1. (i)
    the length of the delay;
  2. (ii)
    the explanation for the delay;
  3. (iii)
    the prejudice to the Applicant if the extension of time is not granted;
  4. (iv)
    the prejudice to the Respondent if the extension of time is granted; and
  5. (v)
    any relevant conduct of the Respondent.[4]
  1. [11]
    In Paterson v Medical Benefits Fund of Australia Limited,[5] Chief Commissioner Hall (as his Honour then was) placed three caveats on the approach taken in Breust:[6]

First, s. 295(2)(b) vests an unlimited statutory discretion. The discretion may never be surrendered to precedent or so called settled principles. It must always be exercised. Second, the time limit of 21 days which is imposed by s. 295(2)(a) is a time limit imposed not by rule of practice or a rule of court, but by the Legislature. It must be respected. Third, the applicant's prospects of success at the substantive hearing are always a relevant matter. Where it appears the applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time.[7] (citations omitted)

  1. [12]
    It is possible to distil from the relevant authorities the following principles which ought to be considered by the Commission when exercising its discretion to extend time within which to make an application for reinstatement under s 317(2)(b) of the Act:
  1. (i)
    the length of the delay;
  2. (ii)
    the explanation for the delay;
  3. (iii)
    the prejudice to the Applicant if the extension of time is not granted;
  4. (iv)
    the prejudice to the Respondent if the extension of time is granted;
  5. (v)
    any relevant conduct of the Respondent; and
  6. (vi)
    the prospects of success of the substantive application.
  1. [13]
    The Applicant and Respondent refer directly to these factors in their submissions filed in the Industrial Registry on 21 April 2021 and 20 May 2021 respectively.

Length of delay

  1. [14]
    The starting point is the recognition that the Legislature has chosen to impose a 21-day time limit on applications for reinstatement which must be respected.
  1. [15]
    In Brisbane South Regional Authority v Taylor,[8] McHugh J spoke of the rationale for the imposition of limitation periods in the following terms:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

"The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served."

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[9] (citations omitted)

  1. [16]
    The application for reinstatement was made on 14 September 2020 and consequently was made three years and three months after the Applicant's employment came to an end. This was 1191 days beyond the statutory time limit of 21 days.
  1. [17]
    The Applicant concedes that a delay of three years and three months in this matter is not an 'insignificant time'.[10]
  1. [18]
    The Respondent reinforces this position in its submissions by highlighting a number of matters before the Commission held to involve a 'substantial delay' where the delay was between 42 to 49 days.[11]
  1. [19]
    I consider, in the context of the relevant statutory scheme, a delay of 1191 days beyond the statutory time limit of 21 days to be a substantial delay.

Reasons for delay

  1. [20]
    In his affidavit, the Applicant recounts being seconded to Council's Local Laws & Traffic Branch for 6 months on or about 18 April 2016.[12]
  1. [21]
    On or about 28 September 2016, the Applicant was approached about extending his secondment for a further 6 months to end on 30 March 2017, with an agreement that he would return to his substantive role subsequently. 
  1. [22]
    From February 2017 to early May 2017 the Applicant recalls being asked to sign documents to agree to a transfer of his position.
  1. [23]
    The Applicant requested to remain in his substantive role however he was advised that his options were to transfer to the new role or return to his substantive role on a performance plan.
  1. [24]
    The Applicant claims to have never received a negative comment regarding his performance in the substantive role.  After discussion of his options, the Applicant requested a redundancy package.
  1. [25]
    On 17 May 2017, the Respondent clarified that redundancy could not be offered as the role was still required.[13]  The Applicant was advised that he would be offered 12 weeks of pay plus entitlements under the conditions of a deed of release.
  1. [26]
    On 22 May 2017, the Applicant tendered his resignation from the position as the Animal Management Coordinator to Mr Sean Madigan, the Respondent's Acting Manager (Infrastructure and Environment).[14] 
  1. [27]
    On this same day, the Respondent provided the Applicant with a Deed of Release dated 18 May 2017.  The Applicant expressed concern in respect of Clause 4.1(c); this clause was subsequently deleted, and the deletion initialled by the signatories to the Deed.
  1. [28]
    The Applicant asserts that he was 'conned', 'lied to', or 'tricked' into resigning his position.
  1. [29]
    As best that can be gleaned from his affidavit, the Applicant asserts that he was informed by Mr Madigan that a redundancy could not be offered; that the position remains unfilled; and that 'IP Release documents' obtained by the Applicant prove he was tricked into resigning.  None of the 'IP Release documents' have been annexed by the Applicant to his affidavit to support his claim.
  1. [30]
    The Applicant made a complaint for referral to the Crime and Corruption Commission (CCC) in relation to this matter as council employees were at the time being encouraged to report alleged corruption regarding Ipswich City Council.
  1. [31]
    The Applicant further recalls making repeated enquiries about the complaint from late 2017 through to early 2020.  He said he was interviewed by independent investigators on 29 September 2018 and 28 April 2019 and informed on 20 August 2020 that no further action would be taken in respect of his complaint.
  1. [32]
    There is no evidence before the Commission to support the submission that a complaint was made to the CCC nor the nature or outcome of the complaint.
  1. [33]
    It is submitted that the Applicant was never advised by Council's Human Resources team or Executive Management, including the CEO who the Applicant personally approached, that his dispute was one which must be referred to the Commission within 21 days.
  1. [34]
    The Applicant engaged legal representation in early August 2020. On 20 August 2020 the Applicant was advised that there would be no further action concerning his complaint.
  1. [35]
    An application for reinstatement was filed in the Industrial Registry on 14 September 2020, accompanied by an affidavit sworn by the Applicant on 11 September 2020.
  2. [36]
    The Applicant states its dispute was referred to the wrong agency as a result of the advice and instruction provided by the Respondent.  As this advice was incorrect, it is submitted that the Respondent is responsible for the mistake, causing unreasonable delay which ultimately deprived him of his appeal rights to the Commission.
  1. [37]
    Further, the Applicant submits that while the length of delay is significant, this is not a case which involved the Applicant resting on his laurels or taking no action to pursue his grievance.  The Applicant alleges to have constantly engaged, enquired and pursued the CCC about the outcome of his complaint.
  1. [38]
    In answer to the Applicant's claim, the Respondent submits that although employees were encouraged to take their complaints of corruption to the CCC for further investigation, those complaints and any administrative processes surrounding employee matters are separate matters with their own separate processes. 
  1. [39]
    It is submitted that the Respondent was under no obligation to provide any legal advice or otherwise in relation to the Applicant's claim of unfair dismissal.  Further, any advice in relation to the Deed of Release must be obtained independently to avoid a conflict of interest.
  1. [40]
    The Respondent notes the considerations of Gray J in O'Hara v Victoria:[15]

It was no part of the respondent's function to give the applicant such advice. It was no part of the respondent's function to anticipate that the applicant would wish to bring proceedings in the Court. In particular, it was no part of the respondent's functions to encourage the bringing of those proceedings, and the consequent expenditure of public money.[16]

  1. [41]
    Despite not having an obligation to provide advice, the Respondent further argues that considering the Applicant had signed a resignation letter whereby he demonstrates satisfaction with his tenure at Council, there should be no reason for Council to believe an application for unfair dismissal would follow.[17]
  1. [42]
    For the reasons above, the Respondent asserts the Applicant's delay is a result of his own tardiness and in no way is the Respondent responsible for contributing to that delay.  I agree.
  1. [43]
    The submission of the Applicant that, '...this is not a case which involved the Applicant resting on his laurels or taking no action to pursue his grievance,' cannot be sustained.
  1. [44]
    It is apparent from the Applicant's affidavit material that he has some understanding of the role of the Commission as he deposes that he informed Mr Madigan that his '...QIRC listed redundancy entitlement was 52 weeks'.[18]  Irrespective, ignorance of the 21-day time limit for the making of an application for reinstatement or the Commission's jurisdiction to deal with such applications does not, in the absence of other circumstances, justify an extension of time.
  1. [45]
    It is incumbent on the Applicant to provide a basis upon which the Commission could properly exercise its discretion to extend the time in which to bring a reinstatement application.  The Applicant has failed to set out, in my view, any satisfactory explanation for the delay in filing the application.

Prejudice to the Applicant

  1. [46]
    The Applicant submits that there is a substantial prejudice against it if an extension of time were not granted which extends to:
  • The referral of the Applicant to the wrong agency, thereby depriving him of his rights to appeal to the QIRC within time; and,
  • The Respondent telling the Applicant he was being seconded to other duties when they were transferring him out of his role.[19]
  1. [47]
    The Applicant further argues that in the interest of fairness, its case should be heard.
  1. [48]
    The obvious prejudice to the Applicant is that should an extension of time not be granted he will be unable to proceed to have his application for reinstatement heard and determined.

Prejudice to the Respondent

  1. [49]
    It is conceded by the Applicant that the Respondent will suffer prejudice in the grant of an extension of time.[20]
  1. [50]
    I accept that the Respondent would incur significant costs in defending an application where it would ordinarily have had the benefit of the application being statute barred by the limitation period imposed by s 317 of the Act.
  1. [51]
    The Respondent argues that it will be prejudiced by having to defend a claim that is over four years since the cessation of the Applicant's employment.  Relevant witnesses have left Council, increasing the difficulty and the expense in order to obtain statements from former employees.  Additionally, the substantial delay will mean recollections of witnesses are not likely to be as fresh in recalling contemporaneous facts.
  2. [52]
    I accept that the Respondent is placed in a position of serious prejudice having regard to the lapse of time which has occurred.

Prospects of success

  1. [53]
    The parties have agreed, in the event the Commission exercises its discretion to grant an extension of time, a further preliminary determination will need to be made as to whether the Deed of Release signed by the Applicant was fully and correctly executed.
  1. [54]
    Putting aside the hurdle the Deed presents for the Applicant's prospects of success, or indeed whether this Commission is the appropriate forum in which to challenge the Deed, the Applicant submits its substantive case has merit based on other aspects of the Respondent's conduct.
  1. [55]
    The Applicant argues that the conduct of the Respondent in 'tricking the Applicant to agree to a secondment and then going behind his back to transfer him without his knowledge or agreement is so egregious as to warrant a thorough examination of those facts and circumstances'.[21]
  1. [56]
    The Applicant contends that the 'ongoing coercion of the Applicant into resigning his position establishes a clear case of "constructive dismissal"',[22] and in all circumstances of the matter, the Respondent's conduct was harsh, unjust and unreasonable.
  1. [57]
    The relevant principles applicable to determining whether there has been a termination at the initiative of the employer have been considered in both the Federal and State jurisdictions.
  1. [58]
    The relevant principle is sufficiently summarised in a decision of a Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd;[23] Giudice J, Watson VP, and Cribb C, dealing with the principle expressed by the Full Court of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltd,[24]:

[19]  ...After referring to dictionary definitions of the term "initiative" and the convention giving rise to the statutory provisions, the Full Court said:

"These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

'… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'"

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

"However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

…

[23]  In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.[25]

  1. [59]
    When the facts of this matter are assessed against the principle enunciated in O'Meara v Stanley Works Pty Ltd,[26] it becomes apparent that the evidence before the Commission does not lead to a conclusion whereby it can be said that the Applicant had no effective or real choice but to resign.  No demonstrated conduct on behalf of the Respondent or ultimatum was given to the Applicant to force his resignation.  There is no evidence to suggest that the Applicant had reason to expect that his dismissal may have been imminent.  Something more is required to convert the resignation into a termination at the initiative of the employer.
  1. [60]
    It was agreed that the Applicant's employment would cease on 22 May 2017. The separation would occur via a deed of release.  The draft Deed was provided to the Applicant and he was given a number of days to consider the draft and to seek legal advice if he wished to.
  2. [61]
    After considering the Deed, the Applicant advised Mr Madigan that he objected to the inclusion of Clause 4.1(c).  The clause was deleted, and the deletion initialled by both Mr Madigan and the Applicant.
  1. [62]
    Mr Madigan's evidence is that the secondments were part of a rotational strategy to expose employees to different areas within Council to help with their managerial and organisational skills.[27]  Further, Mr Madigan had received anecdotal evidence from employees that the Applicant was experiencing difficulties in management responsibilities.[28]
  1. [63]
    Whilst it is accepted that the Applicant had some performance issues, it was Mr Madigan's evidence that these could have been dealt with by further training and coaching.  Mr Madigan was quite happy with the Applicant's performance and did not want him to leave.[29]
  1. [64]
    I do not accept that any form of redundancy was offered by the Respondent.  This conclusion is supported by the email of Mr Madigan of 17 May 2017 in which Mr Madigan made the Council's position clear:

As discussed, I am not offering a redundancy as your position is still required.

Your options at present are to sign on for the position in compliance dealing with parking matters or to return to your substantive position in Animal Management.

I need to know what you would like to do by COB tomorrow.

If you would like me to consider a deed of release I can commence a discussion with the CEO in terms of what would be considered.[30]

  1. [65]
    The Applicant replied to Mr Madigan on 18 May 2017 in the following terms:

Could you please have the discussion with the CEO in terms of what would be considered, as I'm no longer happy in this current workplace.

As noted by others, it is affecting my health & mental wellbeing, as well causing damaging affects [sic] to my family life.

The options that are available to me will not help restore this.[31]

  1. [66]
    Inquiries were made of the CEO and Mr Madigan was given instructions to offer the Applicant a financial settlement.
  1. [67]
    Mr Madigan sent an email to the Applicant on 18 May 2017 in which he advised:

  Ross,

I can confirm that we are willing to offer 12 weeks of pay plus your entitlements under the conditions of a deed of release.

Regards[32]

  1. [68]
    What is clear from the Applicant's evidence is that he agreed to his secondment and an extension of the secondment up until 30 March 2017.  He says that thereafter, it was agreed that he would return to his substantive role at the end of the secondment.[33]  As the email from Mr Madigan evidences, the Applicant was offered a choice: accept the position in compliance; or return to his substantive position.  Instead of electing to take either of those options, the Applicant instead chose to resign. 
  1. [69]
    The contention by the Applicant that he was somehow tricked into resigning is not supported by the evidence.  In the absence of that evidence, considerable caution should be exercised in treating the resignation as anything other than voluntary.
  1. [70]
    In considering the prospects of success, it is recognised that this application is assessed in reliance on the affidavit evidence before the Commission.  Nevertheless, both parties have been given an opportunity to put before the Commission any evidence upon which they wish to rely and to clearly articulate through that evidence, and the written submissions, their respective cases.[34]
  1. [71]
    The onus rests on the Applicant to demonstrate that this is a matter in which the Commission should exercise its discretion.  In doing so, the Commission will have regard to the key factors previously identified to assist in determining an application for extension under s 317(2)(b) of the Act.[35]
  1. [72]
    In Herwin v Flexihire Pty Ltd,[36] Mackenzie P said:

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...

I should reinforce that descent into detail and fine distinctions in relation to the evidence is not appropriate upon the hearing of an application for leave to apply out of time but if it is clear that the matter must fail as a matter of principle on the best view of the facts from the applicant's point of view, the futility of the proceedings is a fact which may be taken into account. In my view the Commissioner did not exercise his discretion on erroneous principles and the appeal must be dismissed.[37]

  1. [73]
    In the circumstances, I have formed the clear view that the Applicant has poor prospects of success should the matter proceed to hearing before the Commission. 

Conclusion

  1. [74]
    As it is often stated by this Commission, the statutory time limit contained in s 317 of the IR Act 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.[38]  This is not such a case.
  1. [75]
    The delay in filing the application for reinstatement is, on any assessment, significant.  The reason for the Applicant's delay has not, in my view, been properly explained. Further, the Applicant's poor prospects of success is a factor which weighs heavily against the exercise of the discretion.  Finally, no other factors have been identified which would persuade me to extend time.
  1. [76]
    The Applicant has not discharged the burden of establishing that he has a case for an extension of time.
  1. [77]
    For the reasons advanced above, the discretion to extend the time in which to file the application for reinstatement under s 317 of the Act has not been enlivened and accordingly the application is dismissed.

Orders

  1. [78]
    I make the following orders:
  1. The application for reinstatement in matter TD/2020/87 is dismissed.

Footnotes

[1] (2001) 167 QGIG 159.

[2] Ibid 160.

[3] Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43.

[4] Breust v QANTAS Airways Ltd (1995) 149 QGIG 777, 778.

[5] (1998) 159 QGIG 232.

[6] (1995) 149 QGIG 777, 778.

[7] (1998) 159 QGIG 232, 233.

[8] 186 CLR 541; (1996) 139 ALR 1.

[9] 186 CLR 541; (1996) 139 ALR 1, 8-9.

[10] TR1-8, L2.

[11] Thomson v Toowoomba Regional Council [2021] QIRC 128; Lockhart v Queensland Health [2014] QIRC 12; Aurukun Shire Council v Schiardijn [2014] QIRC 91; Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543.

[12] Affidavit of R. Weaver dated 14 September 2020, [13].

[13] Affidavit of S. Madigan dated 20 May 2021, Ex B.

[14] Affidavit of S. Madigan dated 20 May 2021, [14].

[15] [2006] FCA 420.

[16] Ibid [10].

[17] Respondent's Submissions dated 20 May 2021, [20].

[18] Affidavit of R. Weaver dated 14 September 2020, [34].

[19] Applicant's Submissions dated 21 April 2021, [10].

[20] Applicant's Submissions dated 21 April 2021, [11].

[21] Applicant's Submissions dated 21 April 2021, [16].

[22] Applicant's Submissions dated 21 April 2021, [16].

[23] (2006) 58 AILR 100.

[24] (1995) 62 IR 200.

[25] (2006) 58 AILR 100, [19], [20] and [23].

[26] Ibid.

[27] Affidavit of S. Madigan dated 20 May 2021, [5].

[28] Affidavit of S. Madigan dated 20 May 2021, [6].

[29] Affidavit of S. Madigan dated 20 May 2021, [15] – [16].

[30] Affidavit of S. Madigan dated 20 May 2021, Ex B.

[31] Affidavit of S. Madigan dated 20 May 2021, Ex B.

[32] Affidavit of S. Madigan dated 20 May 2021, Ex B.

[33] See also: Affidavit of R. Weaver dated 14 September 2020, [17] and [19].

[34] Directions Order of 23 March 2021.

[35] Breust v QANTAS Airways Ltd (1995) 149 QGIG 777, 778.

[36] (1995) 149 QGIF 709.

[37] (1995) 149 QGIF 709, 710.

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

Close

Editorial Notes

  • Published Case Name:

    Weaver v Ipswich City Council

  • Shortened Case Name:

    Weaver v Ipswich City Council

  • MNC:

    [2021] QIRC 234

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    02 Jul 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
Jump To
Cite 1 - [2014] QIRC 91
Cite 2 - [2014] QIRC 91
Breust v Qantas Airways Limited (1995) 149 QGIG 777
4 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Cite 3 - (1995) 149 QGIG 777
Cite 4 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
4 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540
2 citations
Jump To
Cite 1 - (1996) 186 CLR 540
Cite 2 - (1996) 186 CLR 540
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
3 citations
Jump To
Cite 1 - (1996) 139 ALR 1
Cite 2 - (1996) 139 ALR 1
Cite 3 - (1996) 139 ALR 1
Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108
1 citation
Jump To
Cite 1 - (1998) 159 QGIG 108
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
2 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Grout v Gunnedah Shire Council (1994) 1 IRCR 143
1 citation
Jump To
Cite 1 - (1994) 1 IRCR 143
Grout v Gunnedah Shire Council (1994) 57 IR 243
1 citation
Jump To
Cite 1 - (1994) 57 IR 243
Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709
3 citations
Jump To
Cite 1 - (1995) 149 QGIF 709
Cite 2 - (1995) 149 QGIF 709
Cite 3 - (1995) 149 QGIF 709
Lockhart v Queensland Health [2014] QIRC 12
2 citations
Jump To
Cite 1 - [2014] QIRC 12
Cite 2 - [2014] QIRC 12
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
2 citations
Jump To
Cite 1 - (1995) 62 IR 200
Cite 2 - (1995) 62 IR 200
O'Hara v Victoria [2006] FCA 420
3 citations
Jump To
Cite 1 - [2006] FCA 420
Cite 2 - [2006] FCA 420
Cite 3 - [2006] FCA 420
O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100
3 citations
Jump To
Cite 1 - (2006) 58 AILR 100
Cite 2 - (2006) 58 AILR 100
Cite 3 - (2006) 58 AILR 100
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
3 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Cite 3 - (1998) 159 QGIG 232
Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543
2 citations
Jump To
Cite 1 - (1996) 153 QGIG 543
Cite 2 - (1996) 153 QGIG 543
Saigen v Sanel Pty Ltd (1994) 54 IR 185
1 citation
Jump To
Cite 1 - (1994) 54 IR 185
Shane Rich v Chubb Protective Services (2001) 167 QGIG 159
3 citations
Jump To
Cite 1 - (2001) 167 QGIG 159
Cite 2 - (2001) 167 QGIG 159
Cite 3 - (2001) 167 QGIG 159
Siagian v Sanel (1994) IRCR 1
1 citation
Jump To
Cite 1 - (1994) IRCR 1
Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060
1 citation
Jump To
Cite 1 - (1997) 155 QGIG 1060
Thomson v Toowoomba Regional Council [2021] QIRC 128
2 citations
Jump To
Cite 1 - [2021] QIRC 128
Cite 2 - [2021] QIRC 128
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
3 citations
Jump To
Cite 1 - [2013] QIRC 43
Cite 2 - [2013] QIRC 43
Cite 3 - [2013] QIRC 43

Cases Citing

Case NameFull CitationFrequency
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Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 1232 citations
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Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 4282 citations
McColl v Toowoomba Regional Council [2025] QIRC 175 citations
Titmarsh v Ipswich City Council [2025] QIRC 2312 citations
Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 2942 citations
Zadravec v Mornington Shire Council [2025] QIRC 943 citations
1

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