Stanton v State of Queensland (Department of Education and Training) [2016] QIRC 22 (22 February 2016)

Last Updated: 25 February 2016

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Stanton v State of Queensland (Department of Education and Training) [2016] QIRC 022
PARTIES:	Stanton, Barry v State of Queensland (Department of Education and Training)
CASE NO:	TD/2015/137
PROCEEDING:	Application for Extension of Time
DELIVERED ON:	22 February 2016
HEARING DATE:	5 February 2016
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Fisher
ORDER:	The application is dismissed
CATCHWORDS:	INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICATION FOR LEGAL REPRESENTATION - whether respondent may be legally represented - where legal representation opposed by applicant - where commission satisfied special circumstances exist - where respondent granted legal representation. INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICATION FOR EXTENSION OF TIME - whether commission should exercise its discretion to grant an extension of time for applicant to file application for reinstatement - where length of delay is insignificant - where key factors taken into account - where applicant notified in his letter of dismissal of the 21 day time period and where to seek further information - application dismissed.
CASES:	Industrial Relations Act 1999, s 74, s 75, s 295, s 319 Fair Work Act 2009, s 394 Wanninayake v State of Queensland (Department of Natural Resources) [2014] QIRC 079 Paul Ross v Pacific Waste Management Pty Ltd (1997) 155 QGIG 936 Karen Wantling AND Department of Community Safety (Queensland Corrective Services) (TD/2012/220) - Decision <http://www.qirc.qld.gov.au> Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Aurukun Shire Council v Schardijn [2014] QIRC 091 Shane Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159 Breust v QANTAS Airways Ltd (1995) 149 QGIG 777 Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 McCauley v Office HQ [2015] FWC 3654 Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131 Savage v Woolworths (Queensland) Pty Ltd [1999] QIC 64; (1999) 162 QGIG 353 Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QIGI 543
APPEARANCES:	Mr B. Stanton, in person, for the Applicant. Mr M. Healy, Counsel instructed by Crown Law, for the Respondent.

Decision

[1] Barry Stanton filed an Application for Reinstatement on 24 November 2015, 20 days after the 21 day period allowed by s 74(2) of the Industrial Relations Act 1999. A conference was held in the Commission in relation to the application, attended by Mr Stanton and the Department of Education and Training. The Department declined to discuss the merit of the application given it was filed outside the statutory time limit. In the circumstances, Mr Stanton was required to file an Application for an Extension of Time. Consistently with the position it took in the conference, the Department opposes Mr Stanton being granted an extension of time in which to file his application for reinstatement.

[2] The Department made an application for an order that it be legally represented. Mr Stanton objected to the order sought. After hearing lengthy argument, the Commission considered special circumstances existed to grant the Department's application for legal representation. In giving my decision from the Bench on that matter, I said I would expand on my reasons for granting this application in the decision on the application for an extension of time.

Legal representation

[3] The Department applied for an order that it be legally represented pursuant to s 319(2)(b)(iii) of the Industrial Relations Act 1999. That section provides that legal representation may be permitted on two grounds - that the Commission is satisfied that either there are special circumstances that make it desirable that a party be legally represented (s 319(2)(b)(iii)(A)) or that the party can be adequately represented only by a lawyer (s 319(2)(b)(iii)(B)). In considering whether to make an order for legal representation, s 319(4) provides a list of matters as examples which the Commission might consider.

[4] All of the matters listed as examples were addressed in the Department's written submissions. In addition, its oral submissions canvassed the Model Litigant Principles. Submissions were also made about the nature of the allegations made against Mr Stanton, that is, that it involved threatening conduct.

[5] Mr Stanton opposed legal representation for the Department primarily on the grounds that it would be unfair to him as he was unable to obtain legal representation because of his straightened financial circumstances caused by the dismissal.

[6] In relation to the issue of fairness, I adopt the reasoning of Neate C in Wanninayake v State of Queensland (Department of Natural Resources)^[1] where he said:

"The fact that one party, either by choice or circumstances, is not represented by a lawyer is no reason to deny the other party or parties of legal representation, particularly in significant and potentially complex cases. That point is strengthened when, as in this case, the respondent party is meant to act as a model litigant in accordance with Model Litigant Principles.

To the extent that a self-represented party considers it likely that they will be at some disadvantage in proceedings where the other party is, or parties are, represented by lawyers, the self-represented party should proceed on the basis that the Commission will attempt to ensure that the proceedings are conducted fairly within the time allotted for the hearing."

[7] One of the grounds advanced by the Department in support of its application was that it did not have the capacity to represent itself. The Commission queried this argument during the proceedings. In the course of the exchange the Department referred to its practice of seeking legal representation if the application proceeds to a hearing.

[8] The Department has a significant history of representing itself in unfair dismissal applications. Some have been lengthy and complex. The Department remains a large one with a substantial human resource/industrial relations capacity. Staff from these areas regularly appear in the Commission. Notwithstanding the authorities from this jurisdiction that set out the benefits of legal representation it is not unreasonable to expect that staff could represent the Department's interests particularly when the applicant is unrepresented and the matters involved are not particularly complex or do not involve difficult points of law. This is particularly pertinent in applications for an extension of time.

[9] Further, extension of time proceedings might also be considered to be discrete, similar to a s 75 conference. The decision of de Jersey J in Paul Ross v Pacific Waste Management Pty Ltd^[2] makes clear that legal representation can be permitted for discrete steps in dismissal proceedings.

[10] The Commission decided to make the order for legal representation on the basis of the cross-examination likely to be required and the nature of the allegations made against Mr Stanton. In expanding on my reasons, the Department's submissions about nature of the allegations against Mr Stanton carried substantial weight. The allegations concern verbal abuse and threats against staff of the Department. It is not relevant in a legal representation argument to consider the veracity of the allegations, although they were found by the Department to have been substantiated. Given that the staff who provided statements about the matter or who were the subject of Mr Stanton's alleged behaviour would be required to give evidence should the application for reinstatement proceed, I considered it prudent for the Department to be legally represented so as to provide some separation between those staff and the Department on the one hand and Mr Stanton on the other.

[11] Further, given Mr Stanton disputes the allegations made against him, it was accepted that skilful cross-examination would be required. This conclusion was prescient as Mr Stanton proved to be a difficult witness in the extension of time proceedings.

[12] For these reasons, the Commission was satisfied that having regard to the matter the proceedings relate to that special circumstances made it desirable that the Department was legally represented in the proceedings, including the substantive application should an extension of time be granted.

Extension of Time

[13] The issue for determination is whether the Commission should exercise its discretion to grant Mr Stanton an extension of time in which to file his application for reinstatement.

[14] In Wantling v Department of Community Safety (Queensland Corrective Services),^[3] O'Connor DP drew on the decision of Brisbane South Regional Health Authority v Taylor^[4] and a range of authorities from the Industrial Court of Queensland to conclude that the statutory time limit in s 74(2)(a) should only be departed from in the most compelling of circumstances to ensure that justice is done between the parties. Kaufman DP agreed with that approach in Aurukun Shire Council v Schardijn.^[5]

[15] Section 74(2)(b) does not have equal standing with s 74(2)(a).^[6] An applicant has a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.^[7]

[16] The discretion provided by s 74(2)(b) is statutory and unfettered.^[8] However, In Breust v QANTAS Airways Ltd,^[9] ('Breust') Chief Commissioner Hall identified the key factors the Commission might, in ordinary circumstances, take into account in determining whether to exercise its discretion to grant an extension of time:

(i) the length of the delay;
(ii) the explanation for the delay;
(iii) the prejudice to the applicant if the extension of time is not granted;
(iv) the prejudice to the respondent if the extension of time is granted; and
(v) any relevant conduct of the respondent.

[17] In the decision of Paterson v Medical Benefits Fund of Australia Limited,^[10] ('Paterson') Chief Commissioner Hall placed three caveats on the approach he had taken in Breust:

"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." (references omitted.)

(Note: s 74(2) is in substantially similar terms to s 295(2) of the Industrial Relations Act 1990.)

[18] Of the various factors to be considered, the Department relies particularly on the length of the delay, the explanation for the delay and Mr Stanton's prospects of success.

(i) Length of the delay

[19] The delay was 20 days. The Department contends that this is a substantial delay and as such, there is a greater onus on Mr Stanton to explain it than otherwise would be the case had a shorter delay been involved. In particular, in weighing the various factors, the Commission would need to be confident that Mr Stanton's case is not one in which he has no, or very limited, prospects of success.

[20] As Hall CC said in Paterson, the time limit is established by the Legislature and must be respected. In this case, the length of the delay is almost the same as the length of the period in which an application for reinstatement is required to be made. Although I do not necessarily accept the Department's submission that a 20 day delay is substantial, it is not insignificant.

(ii) Explanation for the delay

[21] Mr Stanton essentially relies on three arguments to explain his delay in filing the application:

(i) unsuccessful attempts to contact the Department;
(ii) unsuccessful attempts to secure legal representation; and
(iii) personal issues.

[22] Attempted Departmental contact: Mr Stanton received the letter terminating his employment by email on his mobile telephone on 13 October 2015. He noted that the last paragraph of the letter advised that he could contact the author, Cathy Heffernan, Assistant Director-General, Human Resources by email or telephone. Mr Stanton said he copied Ms Heffernan's email address from the letter and attempted to email her. He showed the Commission and the Department during the course of his oral evidence that when he hovered his mobile telephone over the email address given for Ms Heffernan it altered. Instead of the suffix reading @dete.qld.gov.au, it became @dete.qld.qov.au. He thus copied and pasted the incorrect address with the result he was unable to contact Ms Heffernan.

[23] The Department noted that Mr Stanton did not indicate how many times he had attempted to email Ms Heffernan. Given that Mr Stanton was inadvertently using an incorrect email address, the number of times he emailed does not matter. Mr Stanton made a passing reference in cross-examination to Ms Heffernan "refusing to answer her phone". Beyond that, there was no evidence from Mr Stanton that he attempted to telephone her, and in particular, the time and duration of those attempts.

[24] The Affidavit of Kate Pike, Crown Law, which attached a number of documents relating to the dismissal of Mr Stanton, included nine emails sent to a Departmental Senior Advisor, Workforce Relations and Review, Human Resources, on and after the date Mr Stanton received the letter notifying him of his dismissal. In an email dated 13 October 2015 Mr Stanton said he looked forward to "seeing you in court and on tv". This is the only indication given by Mr Stanton that he intended to challenge the decision and in my view, given the content of the remainder of the email, it cannot be construed as credible notice that an application for reinstatement was to be made.

[25] This view is supported by consideration of the subsequent emails, the last of which was dated 4 November 2015. A number of the subsequent emails were sent at or about the time Mr Stanton was seeking legal representation. He did not advise in any of them that he was seeking legal advice and/or intended to challenge the decision.

[26] Although Mr Stanton's anger at his dismissal and the process used to dismiss him is evident from his emails, I do not consider that the Department could reasonably have been put on notice by these emails that he was intending to make an application for reinstatement either within or outside the statutory time period.

[27] Attempts to secure legal representation: After approximately five days of unsuccessfully attempting to contact or obtain a response from Ms Heffernan, Mr Stanton turned his focus to obtaining legal representation. In his Application for an Extension of Time, Mr Stanton stated that he made "roughly a dozen unsuccessful attempts" to contact lawyers. His oral evidence was that he sent emails to about six firms of solicitors. He encountered some difficulties in obtaining responses. It was only when he received a response from Shine Lawyers dated 12 November 2015 that he realised a 21 day application window applied.

[28] The Department submits that Mr Stanton did not adequately explain the extent of his enquiries to obtain legal representation and when those enquiries commenced.

[29] The Commission accepts that Mr Stanton made various enquiries about obtaining legal representation, including to Legal Aid Queensland. Responses from two legal firms were received after the 21 days had expired.

[30] At or about the time Mr Stanton received the response from Shine Lawyers, Mr Stanton said that he began to research how to challenge his termination. He accessed various unfair dismissal websites and said "[t]he only thing that was made painfully clear ... was that ignorance of the 21 day application window was 'no excuse'." Despite his gaining this understanding about the time the application window was about to close, another 12 days elapsed before he filed his application for reinstatement.

[31] Personal issues: Mr Stanton gave evidence of the personal issues that he was dealing with at the time of the investigation(s) and subsequently. The Commission accepts that his straightened financial circumstances limited his ability to secure legal representation.

[32] Mr Stanton experienced some mental health issues during his employment. He has also been dealing with a range of difficult personal issues which have, at times, diverted his attention. I accept that his dismissal was an added burden in testing times. However, no evidence from a health practitioner was provided to the Commission to show that his capacity to lodge an application for reinstatement was diminished because of his dismissal, personal circumstances or the combination of both. The letters from his treating psychologist that Mr Stanton tendered relate to mid-2015 and thus cannot be relied on to assess his capacity at and after his dismissal.

[33] These circumstances can be distinguished from those in McCauley v Office HQ^[11] where the Fair Work Commission accepted and relied on the medical evidence about the dismissed employee's psychological condition as constituting a factor in establishing exceptional circumstances, the test under s 394 of the Fair Work Act 2009.

[34] Other factors: Mr Stanton said he had lodged a public service appeal. However, the Department submits there is no evidence of this placed before the Commission and the Commission should not rely on this evidence.

[35] A review of the Industrial Registry's electronic data base shows that such an appeal was lodged on 19 November 2015, however, this is also beyond the 21 day time period both for lodging public service appeals and applications for reinstatement. Both Mr Stanton and the Department were notified that his appeal was being held in abeyance pending the (successful) determination of his reinstatement matter. The Commission accepts that this information cannot be treated as evidence and is thus not relied on to inform my decision.

[36] Mr Stanton also gave evidence about the inconsistent information he was provided by staff of the Industrial Registry. Even were this evidence to be accepted, it appears his first contact with the Registry occurred on or about 11 November 2015, again outside the statutory time period.

[37] The letter from Ms Heffernan dated 12 October 2015, and which Mr Stanton acknowledged receiving on 13 October 2015, states that:

"You may appeal against the disciplinary action undertaken by lodging an appeal with the Queensland Industrial Relations Commission (QIRC), within twenty-one (21) days of your receipt of this letter."

The website and telephone number of the Commission were then set out.

[38] In his evidence, Mr Stanton conceded that he did not read the whole of the letter from Ms Heffernan and overlooked this information.

[39] The letter from Ms Heffernan unhelpfully refers to an "appeal against the disciplinary action undertaken". Making an application for reinstatement is not strictly an "appeal" against the dismissal decision and the use of the term "appeal" in this context may be misleading. However, the letter makes clear that Mr Stanton was advised of his ability to take action against the decision, the time limit for doing so and where he could access information. The Commission cannot disregard the advice he was given by his employer and that he neglected to read the letter in its entirety.

(iii) the prejudice to the applicant if the extension of time is not granted

[40] It is clear that were Mr Stanton to be denied an extension of time in which to file his application for reinstatement he will be denied the opportunity to have the Commission determine whether his dismissal was harsh, unjust or unreasonable.

(iv) the prejudice to the respondent if the extension of time is granted

[41] The Department concedes that it will not suffer any particular prejudice if an extension of time was granted other than the "objective prejudice that matters are more difficult to deal with because of the passage of time." The Department submits that the absence of prejudice should not be a factor considered by the Commission in exercising its discretion on whether to extend time.

(v) any relevant conduct of the respondent

[42] Although acknowledging very few processes are perfect, the Department did not consider that any of its conduct was worthy of consideration by the Commission.

[43] Perhaps the only issue to be identified here is that Mr Stanton did not receive a hard copy of the Department's letter dated 18 September 2015 advising him of the second show cause letter concerning a fresh allegation until 12 October 2015, the day before he received the letter of dismissal. Mr Stanton said that because he did not receive it, he was unable to respond and was consequently disadvantaged.

[44] The penalty letter dated 12 October 2015 notes that Mr Stanton did not respond to the letter of 18 September 2015. However, Ms Pike's Affidavit attaches an email delivery receipt purportedly showing that delivery of the 18 September 2015 letter to Mr Stanton's email address was complete but that no delivery notification was sent by the destination server. In the particular circumstances of this case, and for reasons set out later in this decision, I do not consider that Mr Stanton's not receiving the letter of 18 September 2015 falls within relevant conduct by the employer to be considered by the Commission.

Other issues - Prospects of Success

[45] The case law establishes that an application for an extension of time may be dismissed where it is shown that the substantive application could not succeed^[12] but the merits or the lack thereof must be clear cut.^[13] Where an application for reinstatement had no or very limited prospects of success, this could be taken into account together with other considerations in deciding whether to extend time.^[14]

[46] The Department argues that the essential facts of the case are sufficiently clear cut for the Commission to form a view that Mr Stanton has no, or very limited, prospects of success given the facts of the case.

[47] In essence, the case is that Mr Stanton was alleged to have communicated or otherwise acted in an inappropriate way towards other employees. The particulars of the allegation are that he verbally abused and threatened a number of his work colleagues on 5 December 2014. Six witnesses provided written statements setting out their observations or involvement in the incident. These witnesses corroborate the conduct alleged against Mr Stanton.

[48] Other particulars concern a remark Mr Stanton was alleged to have made to his Principal.

[49] Mr Stanton was suspended from duty with remuneration while the allegation was investigated by the Department. He was given the opportunity to respond to the allegation. He took that opportunity but could not recall using foul language in relation to the incident of 5 December 2014. Mr Stanton admitted he reacted badly. He provided an explanation of the interaction with the Principal.

[50] The Commission was not provided with the Department's letter(s) setting out the decision(s) made in relation to disciplinary findings and/or the disciplinary penalty. According to Mr Stanton, the result of the investigation was that he was to be moved to another school. Before the decision on the disciplinary action could be implemented a further incident occurred on 17 July 2015 when it is alleged that Mr Stanton threatened violence against a senior Departmental staff member. He was again suspended from duty on normal remuneration and another investigation commenced.

[51] Mr Stanton was also given notice of the allegation and advice that it was to be investigated. The show cause letter dated 18 September 2015 set out the fresh allegation as well as the earlier allegation which had been investigated and a penalty determined. The Department noted that Mr Stanton had previously responded to the earlier allegation and it was unnecessary for him to respond again unless he wished to do so. There was no explanation provided in the letter as to the reason the earlier allegation was being reactivated when it had been finalised.

[52] The evidence before the Commission shows that Mr Stanton was aware of the allegation and the preceding investigation. He sent a text message to the investigator asking her to provide "a recording or tape of the alleged conversation or threats" as he had "no recollection of any conversation and have concerns that there is any actually (sic) proof or evidence". He also sent an email on 14 August 2015 to the investigator referring to "some proof to support an allegation". Although I accept that he did not receive a hard copy of the show cause letter containing the second allegation, the investigation report shows that no recording was made of the alleged conversation. The allegation was developed from a report of Mr Stanton's comments by the other party to the conversation.

[53] I accept that Mr Stanton was denied the opportunity to properly respond to the show cause letter containing the allegation as a result of the delayed receipt of the 18 September 2015 letter. That letter attached the investigation report. It may have been that the report refreshed Mr Stanton's memory of the conversation. However, in his evidence to the Commission, Mr Stanton continued to deny knowledge of the conversation where he is alleged to have threatened the senior Departmental staff member.

[54] Mr Stanton made clear to the Commission that were his application for reinstatement to he heard, there is other evidence that he could bring that would shed a different light on the first allegation. He claims certain witnesses who could support his case for that allegation were not interviewed as part of the investigation. He is also critical of the manner in which the statements from the witnesses were collected. I note in relation to the second allegation that in correspondence to the Department after his dismissal he raises an issue of possible bias by the Departmental officer making the report of his threat.

[55] In my view, Mr Stanton does not have good prospects of success on his application for reinstatement. He has raised some concerns about the process including putting the first allegation against him a second time and the denial of an opportunity to put his response to the second allegation. There may be some matters for the Department to address regarding its process. However, an important consideration is always the substance of the allegations made. In this regard, I have perused the investigation reports and the statements and interviews of the witnesses. In relation to the second allegation, the other party made a contemporaneous note of the conversation and reported it to others. I consider it would be extremely difficult for Mr Stanton to dismantle the case against him, notwithstanding the evidence he seeks to call. Further, his prospects of reinstatement are slim were the Commission to find that he had engaged in the conduct as alleged and especially considering that the trust and confidence is an essential ingredient in any employment relationship.

Conclusion

[56] However, I do not rely on his prospects of success to exercise my discretion not to extend the time period. I have carefully considered the evidence and submissions and have taken into account the difficult personal circumstances that Mr Stanton has experienced and continues to face. Despite that adversity, there is one issue that Mr Stanton has been unable to surmount, that is, the notification in his letter of dismissal of the 21 day time period and advice of where to seek further information. That Mr Stanton did not read that paragraph until after the time limit had expired is a problem of his own making.

[57] No factor in his favour outweighs this one. The length of the delay is not insignificant and his explanations do not counter the very clear notice of the time limit he was given and his referral to the relevant resources.

[58] The application for an extension of time is dismissed.

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^[1] Wanninayake v State of Queensland (Department of Natural Resources) [2014] QIRC 079.
^[2] Paul Ross v Pacific Waste Management Pty Ltd (1997) 155 QGIG 936.
^[3] Karen Wantling AND Department of Community Safety (Queensland Corrective Services) (TD/2012/220) -
Decision <http://www.qirc.qld.gov.au> ^[4] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.
^[5] Aurukun Shire Council v Schardijn [2014] QIRC 091, [19].
^[6] Shane Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159, 160.
^[7] Ibid.
^[8] Ibid.
^[9] Breust v QANTAS Airways Ltd (1995) 149 QGIG 777, 778.
^[10] Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232, 233.
^[11] McCauley v Office HQ [2015] FWC 3654.
^[12] Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131.
^[13] Savage v Woolworths (Queensland) Pty Ltd [1999] QIC 64; (1999) 162 QGIG 353.
^[14] Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QIGI 543.