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- Unreported Judgment
 QIRC 113
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Robertson v State of Queensland (Department of Communities, Disability Services and Seniors)  QIRC 113
State of Queensland (Department of Communities, Disability Services and Seniors)
B/2018/46 and B/2018/47
Application for unpaid wages
26 July 2019
26 July 2019
INDUSTRIAL LAW - application for unpaid wages - application in existing proceedings to determine if application for unpaid wages within limitation period - directions order issued - determination of whether applications for unpaid wages within time as a separate issue - further application in existing proceedings to amend directions order
Industrial Relations Act 2016 (Qld) s 95, s 47
Ms C. Robertson, the Applicant in person.
Ms C. Laird of Providence HR for the Respondent.
Ex tempore Reasons for Decision (as edited)
- Ms Clare Robertson was employed by the State of Queensland through the Department of Child Safety, Youth and Women.
- Ms Robertson commenced employment with the State of Queensland on 2 December 2002. Her employment ended on 19 October 2012, when she was dismissed because her position was redundant.
- By application filed on 17 October 2018 in Matter No B/2018/46, Ms Robertson made an application, pursuant to s 95 of the Industrial Relations Act 2016 ('the Act'), for proportionate payment of long service leave. In an application also filed on 17 October 2018, in matter B/2018/47, Ms Robertson made application, pursuant to s 475 of the Act, for wages said to be payable and unpaid.
- The State of Queensland denies there are any wages payable and unpaid to Ms Robertson.
- In May 2019, these two matters were allocated to me.
- The matters were mentioned before me on 10 May 2019.
- That mention followed on from correspondence from the Department advising that:
- an external advocate had been engaged to represent the Department in respect of the two applications; and
- the Department had some jurisdictional objection applications it wanted to make in relation to the two applications made by Ms Robertson.
- At the mention of the matter on 10 May 2019:
- the Department indicated that, from its perspective, there is a period of time in respect of Ms Robertson's claims could not be heard and determined by the Commission because the claims fell outside the six-year limitation period; and
- the Department indicated it would be able to file and serve the applications going to that, and other issues, it wanted to make within two weeks;
- I indicated I would make a direction to give the Department 21 days to file and serve the applications the Department wanted to make; and
- following that I would convene a further mention to discuss with the parties the further hearing and determination of the Department's applications.
- The transcript of the mention of 10 May 2019 records the following, starting at page 1‑7, line 44:
DEPUTY PRESIDENT: So how about if I give you 21 days to file and serve those applications. Those will come back to me. I might then convene another mention - a brief mention of the matter for - just to discuss with the parties the further hearing and determination of the department's applications within a case and also Ms Robertson's substantive applications, and at that mention we'll determine, probably, the programming and hearing the determination of the unpaid wages claims for Ms Robertson and also the applications made by the department, and as I said, that mention may determine whether I hear them all together or hear them separately, depending upon what's the most efficient way to deal with them.
It may be that at that mention it may be that I may give consideration also to directing the parties to participate in a further conciliation conference, because it may be the case that the applications brought by the department may help or may not help clarify what the real issues are in dispute in relation to Ms Robertson's two claims; however, I'll - I won't - obviously I won't make any decision about that until the further mention of the matter and after giving the parties the opportunity to be heard about that, as well.
So do you understand that, Ms Robertson. What I'm going to do is I'm going to make a direction today that the department file and serve the jurisdictional objection applications foreshadowed in their email correspondence to the commission and to you sent on the 9th of May 2019. I'm going to direct that they file and serve those within 21 days of today, so that'll be Friday three weeks from today. I'll then, in that same directions order, list the matter for a further mention, and, Ms Robertson, I'll give you leave to appear by telephone again - - -
MS ROBERTSON: Thank you.
DEPUTY PRESIDENT: - - - at that further mention with your partner as your support person, if that's what you desire, and at that further mention we'll have a - by that stage, Ms Robertson, you'll have seen what the department is saying and the relief it's seeking in its own applications within your case, and after hearing from everyone we'll make a determination about the further programming for the determination of all applications, and, as I said, that might be we deal with one or more of the department's applications separately or it might be that we hear them all together, or it might be that before any of those actions are undertaken it might be that I direct the parties to have a further conciliation conference in relation to the matters that are in dispute.
- On 16 May 2019, the Department filed a notice of appointment of agent, appointing Providence HR as its agent.
- On 31 May 2019, the Department filed an application in existing proceedings and an affidavit in both Matters Nos B/2018/46 and B/2018/47.
- In those applications in existing proceedings, the Department contended that, amongst other matters, that:
- first, Ms Robertson's applications are out of time for about three days of the period of the claim;
- secondly, Ms Robertson had been paid for two of the three potential days that fell within the period of the claim which is not out of time; and
- thirdly, that it was not in the public interest to allow an application to proceed which is out of time, but for the potential of one day.
- On 18 June 2019, Ms Robertson filed an affidavit in response to the applications in existing proceedings filed by the Department. The material in Ms Robertson's affidavit went to the substantive issues of whether there were wages payable on unpaid within the meaning of the Act, including by responding to the Department's claims that for all but three days of the period of the claims, Ms Robertson's claims were outside the six-year limitation period.
- As indicated at the mention of the matter on 10 May 2019, following on from the Department filing its applications in existing proceedings, a further mention of the matters took place on 21 June 2019.
- The transcript of the mention on 10 May 2019 records the following commencing on page 2-2, line 25:
DEPUTY PRESIDENT: Thank you very much. When the matter was last before the Commission on the 10th of May 2019, by that stage, the department - or at that stage, the department had foreshadowed that it had engaged some representatives for the purposes of filing an application in the case regarding some jurisdictional objections to the two applications that Ms Robertson's made. Ms Robertson's made an application B46 of 2018 for proportionate payment of long service leave and, in B47 of 2018, for unpaid wages.
Obviously, Ms Laird's organisation has been engaged since that stage or since that time, and on the 31st of May 2019, applications in - sorry. On the 31st of May 2019, application proceedings were filed on behalf of the State of Queensland in relation to both of those - both of the claims made by Ms Robertson. And I indicated at the last conference, once I had regard to those applications, I'd make a decision after hearing from the parties as to the best way to go in relation to resolving the whole dispute between Ms Robertson and the department. And that was whether we'd hear the jurisdictional objections separately or whether we'd just hear everything, Ms Robertson's substantive application on the jurisdictional objections, altogether.
That's the purpose of today's hearing, just to see how we propose to go in that regard. So Ms Robertson, I'll hear from you first. You've obviously had served upon you the two applications in an existing proceedings that had been filed by the State of Queensland; is that correct?
MS ROBERTSON: Yes, I have.
DEPUTY PRESIDENT: All right. So look, in terms of - I understand from your affidavit that you want the matter to proceed to hearing. What's your position in relation to the resolution of this matter? Do you think all matter - do you think the State's two applications - every application should be heard together on the one day, or the State's applications heard first?
MS ROBERTSON: I don't have a view on that, your Honour.
DEPUTY PRESIDENT: Yes. All right.
MS ROBERTSON: I guess my concern today is to hear a determination from you as to whether I am within the timeframe to have the whole matter proceed. So I'm not sure if you're in a position to make that decision today.
DEPUTY PRESIDENT: No, that was never the intention of today's - - -
MS ROBERTSON: Okay.
DEPUTY PRESIDENT: - - - hearing. I'll have to make a determination about that in light of the two applications that have been made by the - - -
MS ROBERTSON: Yeah.
DEPUTY PRESIDENT: - - - State of Queensland, but I'd only do that after I've given you a full opportunity to be heard in relation to that and also I've given the State of Queensland a full opportunity to be heard in relation to that. So you don't have a - you don't really have a view one way or the other at the moment?
MS ROBERTSON: No, I don't think I have a view, your Honour.
- After then hearing from the Department, and canvassing with the parties as to whether further conciliation would have any practical benefit, I made the decision to set down for hearing and determination the applications made by the State of Queensland in relation to the out of time application on the basis that it was a narrow point and could be resolved in a very efficient way, having regard to the circumstances of the matter.
- I then asked Ms Robertson, in relation to the out of time issue, if she thought there be any further evidence from her in response to which Ms Robertson stated, commencing at page 2-10, between lines 6 and 46:
MS ROBERTSON: I think I've provided my counterargument to the department's application in my most recent affidavit - - -
DEPUTY PRESIDENT: Yes.
MS ROBERTSON: - - - filed a couple of days ago.
DEPUTY PRESIDENT: Yes.
MS ROBERTSON: So I think that's probably a good summation of my position in regards to the potential out of time.
DEPUTY PRESIDENT: Yes.
MS ROBERTSON: And I think I have responded to the arguments put forward by the department in a fairly comprehensive way - - -
DEPUTY PRESIDENT: Yes.
MS ROBERTSON: - - - and offered them explanations as to my reasoning around why I believe I'm actually not out of time.
DEPUTY PRESIDENT: Yes.
MS ROBERTSON: So I don't believe I would need to file any further material - - -
DEPUTY PRESIDENT: No. Thank you very much for that. That's very helpful. So perhaps if I set the matter down just to consider the out-of-time aspect of the application in existing proceedings made by the department. If I set that down for a day, what I would expect would happen, Ms Robertson, would be that you'd come to the Commission, where I would hear from you in terms of any submissions that you wanted to make.
MS ROBERTSON: Yes.
- I then canvassed which days of the week would suit Ms Robertson for the hearing,
- I subsequently made further directions on 24 June 2019 for the hearing and determination of the out of time issue namely, that:
- first, the Department to file and serve its outline of argument with regards to the out of time issue by 4.00 pm today;
- secondly, Ms Robertson to file and serve an outline of argument with regards to the out of time issue by 4.00 pm on Friday, 9 August 2019;
- thirdly, the Department file and serve an outline of argument in reply with regards to the out of time issue by 4.00 pm on Friday, 16 August 2019; and
- the matter be heard on Wednesday, 18 September 2019.
- Ms Robertson has not appealed that Directions Order I made on 24 June 2019 to the Industrial Court of Queensland.
- What then occurred was that on 19 July 2019, Ms Robertson filed applications in proceedings in relation to both matter numbers B/2018/46 and B/2018/47.
- In respect of both applications, the decision sought by Ms Robertson is that both the out of time and the substantive matters be heard together at the hearing on 18 September 2019, notwithstanding the decision I made on 21 June 2019.
- In her affidavit accompanying the applications, Ms Robertson states at paragraphs 2 and 3:
- At the last mention on Friday, 21 June 2019, Commissioner Merrell asked me what my view was about having the two matters heard separately or together. I had misunderstood the purpose of the mention that day and had thought (as I stated verbally) that the out of time matter was to be determined at that mention. Therefore, when the question was asked of me, I was unprepared and responded that I did not have view.
- I have since reflected on this and obtained some legal advice. I am now requesting that the two matters be heard at the same time as they are closely linked. It is my view that if the out of time matter is heard on its own, with no opportunity for the merits of the substantive argument to be considered, this will be contrary to the interests of justice in that the limitations issue cannot be properly considered without determining some aspects the merits case. Further, fragmentation of the case will often result in a greater use of court time, which I shall submit is also not in the best interests of the administration of justice.
- At the hearing today, Ms Robertson further submitted that:
- firstly, a substantial part of her claim, namely her claim for the incentive payment, was made within time;
- secondly, any decision to grant an extension of time requires the merits to be considered or the substantial merits to be considered, at least in part, therefore it is more efficient to hear both the out of time issue and the substantive matters both at the same time;
- thirdly, the date from which time ran cannot be determined until the substantive claim is determined; and
- finally, there would be prejudice to her if the limitation issue is determined in isolation.
- At today's hearing, the Department submitted that:
- first, Ms Robertson should have appealed the decision, or the Directions Orders made on 24 June 2019 if she thought they were wrong, and she should not have, as she has done, applied to have the issue of the Directions Orders made on 24 June 2019 to be re-determined;
- secondly, Ms Robertson, on 21 June 2019, was given procedural fairness in that she was given an opportunity to be heard about whether the out-of-time issue should be heard on its own or together with her substantive application;
- thirdly, there was no acceptance by the Department that a substantial part of Ms Robertson's claim was within time;
- fourthly, there is no cause to examine the merits of her claim as the Act, in respect of the claims Ms Robertson makes for unpaid wages, does not confer a discretion on the Commission to extend time;
- fifthly, there is no doubt about when the time runs for the purposes of her claims; and
- finally, there is no need to determine the merits of her claims which are out of time and, as a consequence, there is no prejudice to Ms Robertson.
- The question for my determination, arising out of the two applications in existing proceedings filed by Ms Robertson on 19 July 2019, is whether I should amend the Directions Order I made on 24 June 2019 in the manner sought by Ms Robertson.
- As I have mentioned, Ms Robertson did not appeal the directions I made on 24 June 2019 to the Industrial Court of Queensland.
- In any event, in my view, Ms Robertson's present applications, namely, the ones filed on 19 June 2019, should not be granted.
- There are a number of reasons for this.
- First, at the mention on 10 May 2019, I made it very clear, on two separate occasions, that at the further mention to be held after the Department filed its applications in existing proceedings, I would make a determination on whether the Department's applications in existing proceedings would be heard at their own, or whether those applications would be heard with Ms Robertson's substantive applications, or whether I ought to direct the parties for further conciliation, and that before I made any such decision, I would give both parties the opportunity be to be heard on the matter.
- At no stage, on 10 May 2019, did I say or indicate that at the next mention, I would hear and determine on that day whether Ms Robertson's claims in her substantive applications were out of time or were within time.
- I cannot understand how Ms Robertson could state, either on 21 June 2019 or subsequently, that she misunderstood the purpose of the mention on 21 June 2019.
- Secondly, at the commencement of the mention on 21 June 2019, I summarised for the parties what had occurred on 10 May 2019, including that, on that day, namely, 21 June 2019, I would make a determination as to whether I would hear the Department's jurisdictional objections on their own or whether I would hear the Department's applications together with Ms Robertson's substantive applications.
- Thirdly, on 21 June 2019, on two occasions, I gave Ms Robertson the opportunity to tell me her position relation to that issue.
- Fourthly, if Ms Robertson was confused, or did not understand what was happening on 21 June 2019, she could have sought a brief adjournment of the matter so she could consider the issue. Ms Robertson did not seek any such adjournment.
- Fifthly, when I asked Ms Robertson if she needed to file any further evidence in relation to me hearing and determining the out of time issue, Ms Robertson gave a very clear response, namely given the affidavit material she had already filed on 18 June 2019, she did not believe she needed to file any further material.
- For these reasons, I am not persuaded that the events of 21 June 2019 or the Directions Order I made on 24 June 2019 have resulted in any unfairness to Ms Robertson.
- Furthermore, given that, on the Department's case, all but three days of Ms Robertson's claims for unpaid wages are out of time, I am not prepared to depart from the conclusion I came to at the mention on 21 June 2019. That conclusion was that the out of time issue raised by the Department is a fairly narrow issue that could be resolved in an efficient way, particularly given that Ms Robertson stated that she would not be filing any further evidence in response to the Department's claims that her applications for unpaid wages are substantively out of time.
- Further to that, there is no capacity to extend time by the Commission for Ms Robertson to make her claims and, therefore, the consideration of the merits of her claim on any basis is not of assistance to her. In my view, the issue of whether Ms Robertson's claims are within or out of time do not require a determination, even a basic determination, of the merits of her substantive claim.
- Ms Robertson, who knew that the hearing of her applications in the existing proceedings were to be heard and determined today, was unable to refer me to any authority to the contrary.
- For these reasons, I dismiss the application in existing proceedings filed by Ms Robertson in matter B/2018/46, and for the same reasons I also dismiss the application in existing proceedings filed by Ms Robertson in matter B/2018/47.
- Published Case Name:
Clare Robertson v State of Queensland (Department of Communities, Disability Services and Seniors)
- Shortened Case Name:
Robertson v State of Queensland (Department of Communities, Disability Services and Seniors)
 QIRC 113
26 Jul 2019