Marilyn Eve Potter v Queensland Mines Rescue Brigade [1995] IRCA 610

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - EXTENSION OF TIME - ADEQUATE ALTERNATIVE REMEDY INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170EB AMACSU v Gold Coast Community Options Assoc. Inc. (1994) IRCR 31 Fraser & Dombroski v Beeflands Aust. Pty Ltd QI 95/1035 & 1036 Boulton JR 8 August 1995 CJC v Council of Shire of Whitsunday CofA Qld nos. 27 & 31 of 1994 8 March 1995 unreported MARILYN EVE POTTER v QUEENSLAND MINES RESCUE BRIGADE No. QI95/1122 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 5 OCTOBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1122 QUEENSLAND DISTRICT REGISTRY BETWEEN: MARILYN EVE POTTER Applicant AND: QUEENSLAND MINES RESCUE BRIGADE Respondent MINUTE OF ORDERS BEFORE: BOULTON JR PLACE: BRISBANE DATE: 5 OCTOBER 1995 THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1122 QUEENSLAND DISTRICT REGISTRY BETWEEN: MARILYN EVE POTTER Applicant AND: QUEENSLAND MINES RESCUE BRIGADE Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 5 OCTOBER 1995 REASONS FOR JUDGMENT Background The applicant's employment with the respondent was terminated by letter dated 6 October 1994. She did not apply to this Court for relief until 27 April 1995. Her application is substantially out of time, para 170EA(3)(a) of the Industrial Relations Act 1988 (the Act) providing that an application must be made within 14 days after the employee receives written notice of the termination .... The matter was referred to the Australian Industrial Relations Commission which certified on 31 May 1995 that it had been unable to settle it by conciliation. In the meantime, the respondent had filed a notice of motion seeking orders, inter alia, that the Court decline to consider or determine the application, relying on section 170EB of the Act. This notice of motion came on before me on 19 June 1995. On that date, the applicant moved orally that the Court order that the time for the making of her application be enlarged to 27 April 1995. At the request of the applicant, I adjourned the substantive application, the respondent's notice of motion and the applicant's application for an extension of time to allow the applicant to file material in support of the latter application. The applicant filed a notice of motion seeking the aforeshadowed extension of time, on 14 July 1995. The parties agreed that this issue could be addressed by written submissions. The applicant filed a written submission on 18 August 1995, directed to the question of time only. The respondent's written submission, filed on 31 August 1995, addressed the question of the application for extension of time not only on its merits but also on the basis that this Court ought, in any event, to decline to consider the application if there be an adequate alternative remedy in terms of section 170EB. The applicant was then invited to address that question by the filing of further written submissions. She chose not to, and I re-listed the matter for today. The representative who appeared for the applicant today informed me that there was nothing more the applicant wished to add. The respondent made a further brief submission. Adequate Alternative Remedy Since the decision of Spender J in AMACSU v Gold Coast Community Options Association Incorporated (1994) 1 IRCR 31, I am bound to hold that at least in the case of a person who is not subject to a federal award the remedies provided under the Industrial Relations Act 1990 (Qld) (the Queensland Act) answer the description in section 170EB of the Act, namely, an adequate alternative remedy available to the applicant in respect of the termination under existing machinery that satisfied the requirements of the Termination of Employment Convention. The respondent submits that an application for extension of time, provided for by para 170EA(3)(b) of the Act, is an application contemplated by section 170EB as being one the Court is obliged to decline to consider or determine if satisfied that there is available to that employee an adequate alternative remedy within the meaning of section 170EB. I agree. I have previously so ruled in two matters in this Court, being Fraser and Dombroski v Beeflands Aust. Pty Ltd QI 95/1035 & 1036 8 August 1995. The question that then arises is whether or not the Queensland Industrial Relations Commission (the Queensland Commission) has jurisdiction in respect of this applicant's termination of employment. It is common ground that the applicant's employment with the respondent was the subject of a federal award. Spender J in the Gold Coast Community Options case qualified his remarks in respect of such a person, by reference to a decision of Moynihan J, then President of the Queensland Industrial Court, who determined in Dowling v CSR Wood Panels (1992) 46 IR 16 that the Queensland Commission did not have power in respect of persons who had been employed under federal awards where those awards dealt with questions arising out of termination of employment. The respondent submits that this qualification no longer applies, and the Queensland Commission does have jurisdiction in this case. The question has been touched upon by the Queensland Court of Appeal in an unreported decision of Criminal Justice Commission v The Council of the Shire of Whitsunday, appeal numbers 27 and 31 of 1994, 8 March 1995. At page 7 of the judgment of the majority, their Honours pointed out that the reason for the conclusion in Dowling was that the operation of the Queensland legislation, as it then stood, was inconsistent with the relevant federal award. That was no longer the case, both the Act and the Queensland Act having been substantially amended since Dowling was decided. Their Honours went on to say that there was no indication in either the Act or the Queensland Act that the Queensland Act was not intended to apply in relation to employees who are subject to federal awards which do not contain valid inconsistent provisions with respect to termination - pages 7-8. As the respondent points out, the question of there being any valid inconsistent provision with respect to termination in the award governing the applicant's employment does not arise in this case. The applicant's employment was carried out in Queensland. Her employer is Queensland based. If the majority decision in the Shire of Whitsunday case be correct, provided State law makes available to employees "an adequate alternative remedy, in respect ... of termination, under ... machinery that satisfies the requirements of the Termination of Employment Convention", the intent of the Act is that this Court cannot grant a remedy, an employee's remedy, "in respect ... of termination" being found in, and granted under, State law - page 8. I propose to follow this decision. Accordingly, I rule: The applicant's application for an extension of time within which to file the substantive application is an application contemplated by section 170EB of the Act. There is available to the applicant an adequate alternative remedy in terms of that section. I decline to consider the application for an extension of time. Orders In the circumstances, I consider that the appropriate order to be made is that application no. QI 95/1122 be dismissed. I so order. I certify that this and the preceding THREE (3) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 5 October 1995 Counsel for the Applicant: Mr G. Martin (on 19 June1995) Solicitor for the Applicant: Boulton Cleary Kern Counsel for the Respondent: Ms Atkinson Solicitor for the Respondent: Crown Solicitor, Queensland Dates of hearing: 19 June & 5 October 1995 Date of judgment: 5 October 1995