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  • Unreported Judgment

Gregory Hennessy v Gold Coast Hospital and Health Service

 

[2020] QIRC 81

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 081

PARTIES:

Hennessy, Gregory

(Applicant)

v

Gold Coast Hospital and Health Service

(Respondent)

CASE NO:

D/2019/95

PROCEEDING:

Industrial Dispute

DELIVERED ON:

8 June 2020

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

The Industrial Dispute is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – arbitration of a Notice of Industrial Dispute – relief sought pleaded in submissions – where parties to dispute are amended - whether a notice is an application or complaint – whether declarations are available in an industrial dispute – whether the matter has already been decided in an earlier proceeding – criteria to be considered in exercising public interest dismissal powers.

LEGISLATION:

Conciliation and Arbitration Act 1904 (Cth) s 41

Industrial Relations (Tribunals) Rules 2011 (Qld) r 4, r 8, r 72, r 76, r 180, r 181

Industrial Relations Act 1999 (Qld) s 331

Industrial Relations Act 2016 (Qld) s 261, s 443, s 448, s 452, s 454, s 456, s 463, s 464, s 475, s 539, s 541

CASES:

Ant Projects Pty Ltd v Brooks & Ors [2019] QCA 259

Australia Post v Russell & Anor [2002] ICQ 36

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Carlton v Blackwood [2017] ICQ 001

Department of Education and Training AND Nicolaas Hart (B/2010/31) – Decision,

Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200

Johnson v Gore Wood and Co [2002] 2 AC 1

Nicolaas Hart AND Department of Eduation and Training (C/2011/6)Decision,

Orchid Avenue Realty Pty Ltd v Percival [2003] QIC 160

Queensland Services, Industrial Union of Employees (for Leslie Rojas-Carranza) v Brisbane City Council [2018] QIRC 042

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1

Rogers v The Queen (1994) 181 CLR 251

Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations & Anor [2003] ICQ 33

State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28) – Decision (No. 2)

State of Queensland v Lockhart [2014] ICQ 006

Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28

APPEARANCES:

Mr G. Butler as agent for the Applicant

Mr K. Ryalls and Mr G. Brown for the Gold Coast Hospital and Health Service.

Reasons for Decision

  1. [1]
    Mr Gregory Hennessy (the Applicant) filed a Notice of Industrial Dispute with the Industrial Registry on 31 July 2019 (the Dispute Notice). The Respondent to that dispute is the Gold Coast Hospital and Health Service (GCHHS).
  1. [2]
    Mr Hennessy is employed by the Respondent as a diagnostic radiographer.
  1. [3]
    The Dispute Notice related to “the refusal and failure of the (GCHHS) to correct multiple errors found by the QIRC to have been made in Mr Hennessy’s classification level.” In that Dispute Notice, Mr Hennessy referred to a previous matter which related to his reclassification.[1] That matter was decided by Commissioner Black.
  1. [4]
    The history of the matter between the parties is lengthy. In short, Mr Hennessy’s reclassification was the subject of decisions by Commissioner Black and his Honour President Hall. He has since agitated for his employer to provide some additional remedies, which they have declined on the basis that the decision of Commissioner Black already determined the appropriate remedy.
  1. [5]
    Initially, I required the parties to provide submissions on the remedies sought, and the powers there may be in this jurisdiction to provide those remedies.
  1. [6]
    Mr Hennessy explained that he seeks a range of declarations.
  1. [7]
    The Respondent sought that the proceeding be dismissed under s 456 of the Industrial Relations Act 2016 (Qld).[2]
  1. [8]
    Having read the materials of the parties to that point, I required both parties to file submissions regarding whether the proceeding should be dismissed under s 456 and/or s 541 of the Act.
  1. [9]
    For the reasons that follow, I have concluded that this Industrial Dispute should be dismissed under s 541, as further proceedings are not necessary or desirable in the public interest.
  1. [10]
    As a preliminary problem, I was required to address the issue of identifying the parties to the Dispute.

Parties to the Dispute

  1. [11]
    Mr Hennessy initially named Mr Langdon and Ms Pierce as Respondents. He did so in their capacity as employees of the GCHHS. In subsequent materials, Mr Hennessy has referred to several other parties, including “The Director General Queensland Health” and “The Gold Coast Hospital and Health Service”.[3]
  1. [12]
    The Respondent contended that the GCHHS was the appropriate respondent, as they were Mr Hennessy’s employer while Mr Langdon and Ms Pierce only acted in their capacity as employees of the GCHHS.
  1. [13]
    This matter was filed as an Industrial Dispute. The Act at s 261 provides (emphasis added):

261     Notice must be given to registrar

  1. (1)
    Subsection (2) applies if an industrial dispute –
  1. (a)
    exists between –
  1. (i)
    an employer organisation or employer; and
  2. (ii)
    an employee organisation or employee; and
  1. (b)
    remains unresolved after the parties to the dispute have genuinely attempted to settle the dispute.
  1. (2)
    Each party to the dispute must immediately give the registrar written notice of the dispute.
  1. [14]
    Mr Hennessy takes umbrage with the actions of employees of the Respondent. However, there is no scope under that section for an Industrial Dispute to exist between an employee and other employees. In this instance, Mr Hennessy notifies the Dispute as an employee, and so the appropriate respondent is his employer.
  1. [15]
    Further, the only entity capable of granting Mr Hennessy any form of relief in dispute proceedings such as these would be the GCHHS, rather than Mr Langdon or Ms Pierce themselves.
  1. [16]
    As such, the Respondent in this matter was amended to the “Gold Coast Hospital and Health Service”.

Background

  1. [17]
    On 1 August 2012, Mr Hennessy filed an Industrial Dispute in this Commission regarding his reclassification. That occurred in the broader context of a change in enterprise bargaining agreements which covered Mr Hennessy. Many other persons covered by the new enterprise agreements were also engaged in reclassification disputes.
  1. [18]
    Queensland Health sought declarations from the Industrial Court regarding remedies available in those reclassification disputes. In particular, the declarations concerned the limitations for any potential back payment. Those proceedings are expounded upon further below. At this juncture, suffice to say that Queensland Health was largely successful, and President Hall made several declarations limiting the scope of backpay for certain reclassification disputes, including that which was brought by Mr Hennessy at that time.
  1. [19]
    Subsequently in 2014, Commissioner Black determined Mr Hennessy’s reclassification dispute. He found that Mr Hennessy had been incorrectly classified. Commissioner Black ordered that Mr Hennessy be reclassified and receive back payment to 1 August 2012. That remedy corresponded with the earlier declarations of President Hall.
  1. [20]
    Following Commissioner Black’s decision, Mr Hennessy has agitated for his employer to provide him additional remedies related to his reclassification, including back payment from 1 September 2007 to 31 July 2012.
  1. [21]
    On 31 July 2019, Mr Hennessy filed this Industrial Dispute. It was not clear at that stage precisely what remedies Mr Hennessy was seeking, and what powers the Commission might have to grant those remedies. The parties were directed to provide written submissions about those points.
  1. [22]
    Those submissions were lengthy and are dealt with in more detail below. Mr Hennessy submitted that he was seeking a wide variety of declarations, which inter alia regarded him being entitled to compensation as a result of the Respondent’s initial errored designation of his classification as HP3.
  1. [23]
    Both parties also addressed, unprompted, whether the issue of the remedies available from the reclassification dispute had already been considered. The Respondent made submissions asking that these proceeding be dismissed under s 456.
  1. [24]
    As such, having read the submissions of the parties, I required them to file written submissions addressing whether the matter should be dismissed under s 456 and/or s 541(b)(ii) of the Act.

Should this proceeding be dismissed under s 456 of the Act?

  1. [25]
    The Act provides as follows (emphasis added):

456 Commission may stay or dismiss applications in certain circumstances

  1. (1)
    The commission may stay or dismiss an application or complaint if the act or omission the subject of the application or complaint is being, or has been, dealt with by the commission in another proceeding.
  1. (2)
    This section applies despite a provision of this Act or another Act that requires the commission to deal with the application or complaint.
  1. (3)
    A time limit for doing anything under this Act or another Act in relation to the application or complaint does not run while the application or complaint is stayed.
  1. [26]
    In short, the Respondent’s submissions were that the acts and omissions the subject of the present Industrial Dispute were heard and determined by Commissioner Black. It is not necessary at this stage to consider that matter in further detail, because s 456 does not apply to the present proceeding.
  1. [27]
    This matter was commenced by filing a Form 10 Notice of Industrial Dispute. In reading s 261 of the Act, such a proceeding is commenced by filing and serving a “Notice”. In considering whether a notice is an application or complaint for the purposes of s 456, I take particular note of the Act and the Industrial Relations (Tribunals) Rules 2011 (Qld).[4]
  1. [28]
    The Rules provide as follows (emphasis added, notes removed):

4What a reference to application, application to appeal or applicant includes

  1. (1)
    A reference in part 2, other than rule 8, and in rules 229 to 231-
  1. (a)
    to an application includes a reference to-
  1. (i)
    a notice of appeal under an appeal Act; and
  2. (ii)
    a complaint referral; and
  1. (b)
    to an application includes a reference to an appellant to an appeal under an appeal Act.

8Starting proceedings

  1. (1)
    A proceeding must be started by an application in the approved form.
  1. (2)
    However, subrule (1) does not apply-

  1. (e)
    to a proceeding arising out of the giving of a notice of industrial dispute under section 261 of the Act; or
  1. (f)
    to a proceeding started by a complaint referral.
  1. [29]
    The Rules distinguish between an application, a complaint referral, and a notice.
  1. [30]
    The way an Industrial Dispute is to be filed and dealt with, and the form which it is to take, is set out in a different section of the Act and Rules to that of an application. The Act, at s 261 extracted above, sets out that an Industrial Dispute is initiated when each party to the Dispute immediately gives the Industrial Registrar written notice of the dispute. Further, r 180 provides for the form in which an Industrial Dispute is to be commenced, and r 181 provides for how mediation is to occur in an Industrial Dispute.
  1. [31]
    As such, an Industrial Dispute is not an application or complaint for the purposes of enlivening s 456. It follows that I will not dismiss this proceeding under s 456.

Should this proceeding be dismissed under s 541 of the Act?

  1. [32]
    For the reasons that follow, I will dismiss this proceeding under s 541.
  1. [33]
    The Act provides as follows (emphasis added):

541 Decisions generally

The court or commission may, in an industrial cause do any of the following—

  1. (a)
    make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1. (i)
    the cause is trivial; or
  2. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest.
  1. [34]
    Several decisions usefully summarise the relevant considerations in determining ‘the public interest’.
  1. [35]
    The decision of his Honour Deputy President O’Connor (as he then was) in State of Queensland v Lockhart provided (emphasis added, citations removed):[5]

In O’Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression ‘in the public interest’. Their Honours wrote:

‘Indeed, the expression, ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’

In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes ‘the public interest’ wrote:

‘Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

  1. [36]
    In Campbell v State of Queensland (Department of Justice and Attorney-General),[6] Justice Martin provided (emphasis added, citations removed):

Similarly, in Prange v Brisbane City Council, Hall P held at [3] that:

The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows:

“There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.”

  1. [37]
    In short, the provision involves a broad discretionary determination informed by the facts of the matter itself and by the objects of the Act. In that regard, some of the relevant sections of the Act are extracted below:

3      Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that—

  1. (a)
    is fair and balanced; and
  2. (b)
    supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.

531 Decisions of the commission and magistrates

 

  1. (3)
    Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of-
  1. (a)
    the persons immediately concerned; and
  2. (b)
    the community as a whole.
  1. [38]
    Before determining whether to exercise the power under s 541 in accordance with the purpose and scope of the Act, there are several circumstances in this matter which warrant initial consideration, including:
  • Has the matter already been dealt with in a previous proceeding?
  • Are declarations available in an Industrial Dispute?
  • Is the substance of the declarations recoverable in an Industrial Dispute?
  • What delay has there been in bringing this Industrial Dispute?

Has the matter already been dealt with in a previous proceeding?

  1. [39]
    The concept of finality in proceedings is that once a matter has been determined, it should not be re-determined outside of an appeal or application to re-open due to new evidence. It is noteworthy that this is not an application to reopen the proceedings before Commissioner Black. Indeed, in his material Mr Hennessy repeatedly says he does not contest that decision.[7] Instances where parties seek to subvert the principle of finality by re-filing matters under different matter types may be characterised as an abuse of process.
  1. [40]
    President Hall in Australia Post[8] contemplated the dismissal of a matter under the public interest provisions of the Industrial Relations Act 1999 (Qld), in circumstances akin to those which appear in this matter:

Although ss. 127A and 127B are silent upon the point it follows from the exercise of judicial power by a Court that the doctrine of res judicata will apply to prohibit successive applications. The doctrine of res judicata has no application to arbitral decisions of the Queensland Industrial Relations Commission. However, there seems no reason to doubt that the power of s. 331(b)(ii) of the Industrial Relations Act 1999 might be invoked to remedy any abuse arising from the making of successive applications.

  1. [41]
    S 331(b)(ii) of the Industrial Relations Act 1999 (Qld) is relatively indistinguishable from s 541(b)(ii) of the current Act.[9]
  1. [42]
    In Johnson v Gore Wood and Co,[10] Lord Bingham said:

The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.

  1. [43]
    In Ant Projects Pty Ltd v Brooks & Ors,[11] his Honour Justice of Appeal Morrison provided (emphasis added, citations omitted):

It is a fundamental tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. It applies to civil cases and in the context where issues have been litigated but one party later wished to have a chance to litigate another issue. In the civil context the principle is that there should be finality in litigation and a party should not be twice vexed in the same matter.

  1. [44]
    In Rogers v The Queen it was said that:[12]

From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against ‘the scandal of conflicting decisions’. Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind.

  1. [45]
    The majority in Tomlinson v Ramsey Food Processing Pty Limited held (emphasis added, citations omitted):[13]

An exercise of judicial power, it has been held, involves “as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons”. The rendering of a final judgment in that way “quells” the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they “merge” in that final judgment.

  1. [46]
    In Department of Education and Training AND Nicolaas Hart,[14] his Honour Deputy President Bloomfield considered a case where the Applicant had pursued unpaid wages and compensation for lost income. That matter was then withdrawn, and another attempt to recover monies was instigated. In that subsequent matter, his Honour found that the previous and present matters had the same substance but involved different legal arguments. His Honour determined that it would be an abuse of process for the matter to proceed. The matter was therefore dismissed under s 331(b)(ii). That decision was upheld on appeal.[15]
  1. [47]
    Mr Hennessy’s submissions on the question of whether the matter has been previously dealt with are lengthy and dispersed across several sets of submissions. Having considered those, they can be summarised as follows:
  • The matters at issue in these proceedings commenced after February 2015, following the decisions of Commissioner Black and President Hall.
  • Mr Hennessy does not oppose the decisions of Commissioner Black and President Hall.
  • The nature and scope of the matters in dispute are found in the Notice of Industrial Dispute filed in this matter.
  • The Industrial Dispute is about a range of industrial matters relating to the ongoing refusal of the Respondent to correct multiple errors found by Commissioner Black to have been made in Mr Hennessy’s classification level. The decision of Commissioner Black identified 6 errors of the Respondent in classifying Mr Hennessy.
  • Mr Hennessy continues to be treated unfairly and unjustly, due to the ongoing refusal of the Respondents to address the career and financial detriment and disadvantage suffered by Mr Hennessy in relation to his employment.
  • Mr Hennessy has been discriminated against by the Respondents, as the Respondents voluntarily back paid other persons beyond that which was ordered by Commissioner Black. That discrimination has not occurred on the basis of an attribute.
  • The Respondent told Mr Hennessy that if he was successful in his reclassification dispute, he would be back paid to 2007.
  • Mr Hennessy estimates his loss as exceeding $250,000 for “lost earnings” and $31,250 in “lost superannuation payments and interest entitlements”. Those, and various other claims, have been put to the Respondents and rejected. 
  • Materials of the Respondent also support the view that Mr Hennessy has suffered greater detriment than the back payment awarded by Commissioner Black.
  • There is no evidence before the Commission about whether the matter has been previously dealt with.
  • The decisions in Orchid Avenue[16] and Re Queensland Electricity Commission[17] support the view that the matter should proceed.
  • Commissioner Black, in hearing the reclassification dispute, was constrained in the remedies he could award and the matters he could determine. Reclassification disputes focused on whether an error had occurred in the appeal process. There was no scope to argue for an earlier date of back payment or other compensation.
  • Bearing in mind the definition of industrial matters in sch 1 ss 21 and 26, this Industrial Dispute is about whether the Respondent’s denial of further and alternative remedies to Mr Hennessy is unfair and unjust or discriminatory.
  1. [48]
    The Respondent’s submissions on the issue can be summarised as follows:
  • Despite his submissions to the contrary, Mr Hennessy in essence seeks new orders relating to the same disputed matters which were already decided by the Commission.
  • The error or errors identified by Commissioner Black in his decision have already been remedied by Commissioner Black’s Orders.
  1. [49]
    In determining whether the matter has been dealt with in previous proceedings, it is necessary to first consider the nature of the matters decided by Commissioner Black and President Hall, before considering the nature of this Industrial Dispute.
  1. [50]
    After Mr Hennessy and several other employees of the Respondent had filed their reclassification disputes, but before those disputes were determined, President Hall issued declarations regarding the scope for back payment. They are extracted below:[18]

 (A)  That the Queensland Industrial Relations Commission (the Commission) has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of the determination by the Commission of a "reclassification dispute" which is lodged with the Commission under the Health Practitioners (Queensland Health) Certified Agreement 2007 (HPEB1) before the commencement of the Health Practitioners (Queensland Health) Certified Agreement (No. 2) 2011 (HPEB2), so that such wage increase has effect from 1 September 2007;

 (B)  That the Commission has no power or jurisdiction to order or direct that Queensland Health pay any wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner in the course of determination by the Commission of a "reclassification dispute" which is lodged with the Commission after the commencement of HPEB2, so that such wage increase has effect from 1 September 2007;

 (C)  That a wage increase that may arise as a consequence of the reclassification of the position of a Health Practitioner by the Commission in the course of "classification dispute" under HPEB1 and/or HPEB2, is not a "wage increase" for the purposes of clause 18.1(b) of HPEB1 or HPEB2.

  1. [51]
    Certainly, the capacity for back payment to be awarded in response to an incorrect classification was canvassed by his Honour in that decision. His Honour made note that some scope for back payment existed for the period between the filing of the application and its conclusion, and that such a matter would be for determination by the Commission.[19]
  1. [52]
    Subsequently, the reclassification dispute was heard by Commissioner Black. The issue before Commissioner Black was whether Mr Hennessy had been improperly classified, and then the appropriate remedy. That involved considering the classification structure, and the internal review processes engaged in by the Respondent regarding Mr Hennessy.
  1. [53]
    The following is extracted from Mr Hennessy’s affidavit sworn 27 September 2013 in the proceedings before Commissioner Black:

… For the record, it should be noted that all other eligible and comparable colleagues I worked with at Robina Hospital (total of 5) who were employed by Queensland Health up to December, 2007 were all upgraded to HP4 clinicians.

My HP outcome is unique at Robina Hospital whereby despite reaching all comparable professional milestones before the cut-off date of May 2008, ahead of some work colleagues who were junior to me in terms of Professional Officer (PO) classification, length of service and experience prior to the implementation of the HP reform, my outcome resulted in significant detriment to me in both financial and career outcomes.

The ‘ripple effect’ of the inconsistent HP outcomes still impacts me in my daily employment. Whilst I have been locked into a HP3 position, I am considered a junior member of the department, which has left me feeling significantly undervalued, financially disadvantaged and overlooked for career advancement opportunities. Other colleagues who were upgraded to HP4 clinicians have been awarded senior positions in the department, based on their outcomes.

  1. [54]
    The professional and financial consequences of the misclassification were in evidence before Commissioner Black. Further, attention was drawn to the apparent differences in treatment and outcomes between Mr Hennessy and his colleagues. Those issues were alive in the matter before Commissioner Black.
  1. [55]
    Commissioner Black identified that the Respondent had erred in the classification processes. The Respondent had incorrectly assessed Mr Hennessy’s capabilities and training, particularly in comparison to his colleagues, and this had not occurred on the required date. It followed that they failed to correctly classify Mr Hennessy.
  1. [56]
    Commissioner Black then provided the following remedy to Mr Hennessy as a result of the reclassification dispute:
  1. Applicant reclassified to HP4
  2. Date of effect to be 1 August 2012
  1. [57]
    The present Industrial Dispute commenced by Notice of Industrial Dispute, filed 31 July 2019. That Notice contains a section titled ‘Subject matter of the dispute’. Under that heading, Mr Hennessy wrote:

The dispute is about an industrial matter relating to the refusal and failure of the Gold Coast Hospital and Health Service to correct multiple errors found by the QIRC to have been made in Mr Hennessy’s classification level.

See attached correspondence by Mr Hennessy to Mr Langdon and Ms Pierce and the reply from Mr Langdon.

Both Mr Langdon and Ms Pierce have refused to address the issue of the error in the classification level despite previous commitments and comments made by senior representatives of the predecessor entity of the Gold Coast Hospital and Health Service.

It should be noted that Mr Langdon has suggested that the matter is appropriately dealt with by the QIRC and is prepared to accept any direction or order made by the QIRC.

  1. [58]
    Further in the Notice of Industrial Dispute, Mr Hennessy went on to provide (emphasis added):

The details of the multiple errors made in relation to Mr Hennessy’s classification are set out in the decision made by Commissioner Black on 3 December 2014 as is the extensive history of the reclassification exercise.

  1. [59]
    In a letter attached to his Notice of Industrial Dispute, where Mr Hennessy writes to the Respondent warning of his intentions to commence these proceedings, he states (emphasis added):

I have requested and continue to seek recovery of back-pay and entitlements covering the period from 1st September 2007 to 1st August 2012, as a result of my Health Practitioner’s (HP) outcome.

  1. [60]
    Mr Hennessy is very clear in that letter that the errors he refers to have already been found by Commissioner Black. In effect, the letter argues that Commissioner Black identified errors in the classification process and that he seeks to be back paid to September 2007:

As you know Commissioner Black found multiple errors were made by (the Respondent), or its predecessor officers in assessing my application for HP reclassification. These errors were in the original assessment and the internal appeal process and were not of my making.

At this stage neither you nor any other (Respondent) representatives has attempted to explain or justify why, despite the significant financial costs and the detriment experienced by me as a direct consequence of those errors, why (sic) (the Respondent) has refused to accept responsibility for the errors and the detriment and agree to backdate my reclassification to HP4 to September 2007.

As previously advised, all the Industrial Court decision did was to confirm the QIRC’s limited jurisdiction given the provisions of the then enterprise agreement and the Act. In no way, shape or form did it provide a justification for (the Respondent) not acting to correct both the errors, nor did it condone or justify the different and unfair treatment that I have received and continue to be the subject of.

  1. [61]
    Mr Hennessy then went on in that letter to discuss how other employees in similar reclassification disputes had been back paid by the Respondent to an earlier date than he had.
  1. [62]
    The Notice of Industrial Dispute attached the decision of Commissioner Black.[20]
  1. [63]
    I required the parties to file submissions as to the remedies sought in this matter, and the powers this Commission may have to grant them.
  1. [64]
    In submissions filed 28 February 2020 and amended on 2 March 2020, Mr Hennessy provided:

To avoid any doubt or misrepresentation…the matters at issue in these proceedings commenced after February 2015 well after the conclusion of the two earlier cases were decided…

  1. [65]
    That submission is a significant shift in the scope of the Industrial Dispute. He then states:

The nature and scope of the matters in dispute are summarised in the Notice of Dispute lodged with the QIRC in July 2019 by the Applicant.

The essence of Mr. Hennessy’s complaint is that he continues to be treated unfairly and unjustly or alternatively in a way which is not fair or just due to the ongoing refusal to by (sic) the Respondents to address, correct or remedy the identified errors, the career and financial detriment and general disadvantage and unfair treatment disadvantage (sic) suffered by Mr. Hennessy in relation to his employment arising from the multiple uncorrected errors made by the (Respondent) and its predecessors in relation to Mr. Hennessy’s classification throughout the initial proposal evaluation and appeal stages … This is in direct conflict with the unequivocal findings of Commissioner Black in his decision of 3 December 2014.

  1. [66]
    Mr Hennessy goes on to say:

The Remedies that the Applicant seeks are a range of declarations from the Commission as currently constituted consistent with the following parameters or wording:

  1. the repeated and multiple refusals and failures of the Respondents to correct the financial, career and other detriment to Mr Hennessy that resulted from the submission of incorrect information and other errors identified by Commissioner Black in his decision of  3 December 2014 Hennessy v State of Queensland (Queensland Health 2014 QIRC 200 HP 2013/28 are not fair and just.  Mr Hennessy is entitled to compensation and payment by the Respondents of an amount at least equivalent to the updated value of the  original Ryalls 2016 Departmental estimate of $180000 for lost earnings resulting from the submission of incorrect information and the wrong cutoff date concerning Mr Hennessy’s qualifications duties and correct classification level for the period 1 September 2007 to  1 August 2012
  2. the refusal of the Respondents to correct the incorrect classification of Mr Hennessy to a date earlier than 1 August 2012 is not fair and just and Mr Hennessy should have been entitled to both accelerated incremental advancement and ongoing payment at the HP 4.4 increment point at 1 August 2012 and any consequential adjustments with effect from that date.
  3. the refusal of the Respondents to correct the errors in relation to Mr Hennessy’s correct classification is not fair and just and an adjustment to reflect the impact of what were his correct earnings including additional superannuation contributions of 12.75% of his accumulated correct earnings and resulting payments is warranted. Exact figure to be determined
  4. the overt discrimination in regard to Mr Hennessy’ employment, including in remuneration and other employment conditions when compared to successful internal Appellants who were voluntarily backpaid by the Respondents to 1 September 2007 is not fair and just nor is the deliberate and considered refusal to apply a similar outcome to Mr Hennessy. The Commission is requested to determine an appropriate compensatory payment Such a payment should reflect the considered and calculated efforts by the Respondents to not correct the errors and detriment they knew had occurred in relation to Mr Hennessy compared to both his peers at Gold Coast Hospital and Health Service and more generally throughout Queensland and Health (sic)
  5. the detriment imposed on Mr Hennessy’s career and progression including his inability to act in higher duties positions at the HP4 or HP5 level given his incorrect classification at HP3 for in excess of 7 years is not fair and just particularly given his mature age career entry to radiography and he is again entitled to be compensated for the detriment and restricted opportunities he has been subjected to. A figure which reflects the career progression and development of Mr Hennessy’s correctly classified qualification and age peers (there are at least two) at Gold Coast Hospital and Health Service can be estimated.
  6. the ongoing considered and deliberate efforts by the certain officers of the Respondents including Mr Ryalls, Ms Pierce and Mr Langdon to not disclose their knowledge of Mr Hennessy’s detriment and their refusal to intervene or correct the detriment and disadvantage inflicted on Mr Hennessy is not fair and just and all of them should be referred for appropriate conduct and disciplinary investigations. They have all gone out of their way to prolong the disadvantage and detriment experienced by Mr Hennessy. As with the conduct of one other Gold Coast Health and Hospital representative the extent of compliance by Mr Ryalls with the Commission Code of Conduct for Persons Appearing Before the Commission and the Code For Parties and Their Representatives should be assessed. This is particularly applicable to Mr Ryalls given his role as author of the various Ministerial briefs of 25 January 2016 and 2 February 2016 and the subsequent deletion of significant compelling comments concerning equity from the 25 January 2016 version (sic)

The actual wording of the determinations is of course a matter for comment and determination by the Commission.

  1. [67]
    Mr Hennessy also provides a range of calculations, and he submits that he has:

...lost earnings in excess of $250000 and lost superannuation payments and interest entitlements of in excess of $31250.

  1. [68]
    In determining the nature and scope of the present Industrial Dispute, I am mindful that there appears to be some inconsistency in Mr Hennessy’s submissions. On the one hand, he says that Commissioner Black has found that errors occurred in the classification process, and he seeks declarations to remedy those errors. On the other hand, he says that the issues commenced after February 2015. The Rules prescribe that a Notice of Industrial Dispute must state “the issues involved”.[21] In furtherance of that rule, the Notice contains a section titled “Subject matter of dispute”. Under that heading, in the first sentence, Mr Hennessy provided:

The dispute is about an industrial matter relating to the refusal and failure of the Gold Coast Hospital and Health Service to correct multiple errors found by the QIRC to have been made in Mr Hennessy’s classification level.

  1. [69]
    The matter before Commissioner Black regarding Mr Hennessy’s reclassification was decided in 2014. Mr Hennessy’s later submission that “the matters at issue in these proceedings commenced after February 2015” is incongruous with that scope. It is also not borne out by the other submissions in the matter regarding the declarations Mr Hennessy seeks.
  1. [70]
    Pleadings in this jurisdiction do not carry the same formality as in other civil jurisdictions. Even so, parties are bound by those materials. In that regard, Justice Martin said:[22]

The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument.

  1. [71]
    Mr Hennessy submits that there is no evidence upon which I could determine that the matter has already been decided. However, the nature of the question being decided determines the evidence which is relevant. In that regard, I have considered:
  • The decisions of Commissioner Black and President Hall;
  • Materials before Commissioner Black and President Hall;
  • The Dispute Notice filed in this matter; and
  • Various submissions of the parties filed in this matter.
  1. [72]
    Those materials are themselves evidence of whether the substance of this matter has already been dealt with.
  1. [73]
    Mr Hennessy submits that he is subjected to continuing unfair and unjust treatment because of career and financial detriment arising from the initial classification errors. It was those errors which Commissioner Black addressed when he provided Mr Hennessy with reclassification and back pay.
  1. [74]
    Mr Hennessy also submits that the Industrial Dispute relates to discrimination in employment. In his submissions, he provides:[23] 

The Applicant has not complained of unlawful discrimination on the basis of an attribute. He has complained of discrimination because the Respondents have unlike their treatment of other employees both at the Gold Coast Hospital and Health Service and elsewhere who were reclassified by the Respondents with a 1 September 2007 date of effect (sic).

  1. [75]
    First, I would note that those other back payments were not by Order of this Commission, but by agreement between the Respondent and individuals. Second, that issue of differential treatment between Mr Hennessy and his colleagues by the Respondent was before Commissioner Black, per Mr Hennessy’s affidavit tendered in those proceedings and extracted above. Third, what the Respondent may have agreed to do to resolve one reclassification does not necessarily have any bearing upon another person’s entitlements. President Hall very clearly explained the scope for an order for back payment arising from Mr Hennessy’s dispute. He did not appeal that decision, and instead proceeded with the reclassification dispute before Commissioner Black.
  1. [76]
    Regarding the claim of discrimination, I would also note the Act’s definition of discrimination at sch 5:

discrimination means discrimination –

  1. (a)
    that would contravene the Anti-Discrimination Act 1991; or
  2. (b)
    on the basis of sexual preference; or
  3. (c)
    on the basis of family responsibilities.
  1. [77]
    The Anti-Discrimination Act 1991 prohibits discrimination based on certain protected attributes. The other parts of the definition in the Act involve the attributes of sexual preference and family responsibilities. As such, given that Mr Hennessy specifically provides the allegation is not made on the basis of an attribute, the allegation of discrimination does not meet the definition of discrimination in the Act.
  1. [78]
    Further in that regard, Mr Hennessy also referred to s 454 of the Act, which provides that in exercising a power, the Commission must not allow discrimination in employment. As set out previously, Mr Hennessy explained that discrepancy in his material before Commissioner Black. Commissioner Black then provided a remedy including back payment to 2012. If Mr Hennessy believed Commissioner Black erred in exercising the power to award as he did, on the basis that it allowed for discrimination in employment, then it was open for him to appeal that decision. He did not do so.
  1. [79]
    Both parties make submissions about the potential scope of a reclassification dispute. The thrust of Mr Hennessy’s submissions in that regard is that the scope of remedies was limited in the matter before Commissioner Black, and so it was not open to Commissioner Black to consider the alternative remedies he now seeks.
  1. [80]
    In one sense, that is correct. Commissioner Black was confined in the remedies he could have provided to Mr Hennessy in that dispute. The remedy was constrained not only by the facts of the matter but by the jurisdiction in which the proceeding was brought. That is the nature of all remedies in civil proceedings. Those limits were made abundantly clear in the decision of President Hall. If Mr Hennessy did not agree with that decision, it was open to him to appeal. He elected to proceed with the reclassification dispute before Commissioner Black, and so was bound by this jurisdiction’s inherit limitations as to the remedy that may be obtained.
  1. [81]
    It does not follow that a person may subvert those jurisdictional limits and seek alternative remedies arising out of the same events by merely re-filing years later, ostensibly under a different matter type. In considering whether the matter has already been decided, it is a question of substance rather than form. The concept of finality in proceedings cannot be ‘worked-around’ by filing a subsequent proceeding under a different Act or section. Finality is concerned with whether a controversy between the parties has already been heard and determined. Here, that controversy was the remedy arising from the reclassification dispute.
  1. [82]
    Neither is it a question of whether Commissioner Black identified multiple errors in the process, or a singular error. The issue is that Mr Hennessy relies on the error or errors identified by Commissioner Black as a source of additional remedies, ignoring that Commissioner Black has already provided a remedy for them. The ongoing treatment being complained of is Mr Hennessy’s discontent with the remedy awarded to him in those proceedings and being denied further remedy by his employer. It is apparent that he continues to feel the remedy afforded does not address the full extent of his loss. However, that does not entitle him to some further remedy. As stated by his Honour Justice of Appeal Morrison in Ant Projects:[24] 

Awards of future financial loss are routinely based on assumptions about future matters and expectations which may later be found not to accord with what happens. Even so, the principle of finality prevents re-litigation of the issue.

  1. [83]
    Commissioner Black considered the reclassification dispute, identified inadequacies in the Respondent’s decisions, and awarded a remedy to Mr Hennessy. Mr Hennessy emphatically submits that he does not oppose that decision. Yet, he now seeks further and alternative remedies purportedly arising from the matters identified by Commissioner Black. In doing so, he is in fact opposing a critical component of that decision, namely the appropriate remedy arising from those facts.
  1. [84]
    Having read the parties’ submissions and the material filed to date, I find that the nature of the current Industrial Dispute is that Mr Hennessy seeks further and alternative remedies for the matters already decided in proceedings before Commissioner Black. As part of that decision, Commissioner Black determined the appropriate remedy arising from the reclassification dispute. It follows that, if this proceeding were to continue, it would contravene the concept of finality in proceedings which is contrary to the public interest.

Are declarations available in an Industrial Dispute?

  1. [85]
    In his submissions filed 28 February 2020 and 2 March 2020 regarding what remedy he seeks, Mr Hennessy provides as follows (emphasis added):

The Remedies that the Applicant seeks are a range of declarations from the Commission as currently constituted consistent with the following parameters or wording:

  1. [86]
    Regarding the powers this Commission may have to grant the remedy sought, Mr Hennessy’s submissions may be summarised as follows:
  • The declarations only relate to reclassification disputes about industrial instruments which have now ceased operation. As such, those declarations have no application to the Commission’s powers or jurisdiction, and do not prevent Mr Hennessy from attaining the remedy those declarations prevented.
  • The subject matter is an industrial matter, as defined in Sch 1 at points 21 and 26.
  • The Commission’s jurisdiction, functions and powers to deal with matters about what is fair and reasonable, provide the remedy sought, are set out in the objects of the Act and ss 448, 463 and s 464.
  • The Commission cannot allow discrimination in employment pursuant to s 454 of the Act.
  • The Commission’s general powers in s 451 including making orders irrespective of the relief sought by a party.
  • The Commission can begin an inquiry about an industrial matter per s 443 of the Act.
  • The Commission “has the necessary skills knowledge authority and powers to assess what is fair and just and should do so” (sic).
  1. [87]
    I agree with Mr Hennessy’s submission insofar as he says that this Commission is empowered to make declarations about industrial matters under s 463 of the Act. However, the particular words of that section warrant closer consideration (emphasis added):

463      Power to make declarations about industrial matters

  1. (1)
    The commission may, on application by an entity mentioned in s 464, make a declaration about an industrial matter.

     

  1. [88]
    The Rules at r 72 provide (emphasis added):

72       Application for declaration about industrial matter

An application for a declaration about an industrial matter under section 463 of the Act must be in the non-chapter 12 approved form and state

(a) the declaration sought; and

(b) the industrial matter about which the declaration is sought; and

(c) the facts relied on; and

(d) any consequential relief claimed if the declaration is made.

  1. [89]
    The initiating document in this proceeding was a Form 10 Notice of Industrial Dispute being filed in the Industrial Registry on 31 July 2019.
  1. [90]
    The appropriate form to seek declarations would be a Form 2 Application to Queensland Industrial Relations Commission – non-chapter 12 approved form.
  1. [91]
    Therefore, this Commission is not empowered to grant Mr Hennessy the remedy he seeks in the present proceeding.
  1. [92]
    The unavailability of the remedy sought by Mr Hennessy certainly indicates a lack of efficacy, and in turn public interest, in this proceeding continuing. In that regard, it is also relevant to consider an additional problem in the remedies sought in the Industrial Dispute.

 Is the substance of the declarations recoverable in an Industrial Dispute?

  1. [93]
    In Queensland Services, Industrial Union of Employees (for Leslie Rojas-Carranza) v Brisbane City Council [2018] QIRC 042, her Honour Vice President Linnane considered the limits of the Commission’s powers in an Industrial Dispute. In that case, her Honour was clear:

The Commission has no power to order recovery of wages unpaid in an arbitration of a Notice of Industrial Dispute application.

  1. [94]
    The Act at sch 5 defines wages to mean, inter alia, an amount payable to an employee for work performed, or to be performed, by the employee.
  1. [95]
    In the matter before her Honour Vice President Linnane, despite the Applicant in that matter suggesting that the Industrial Dispute related to industrial entitlements regarding sick leave, her Honour found that in substance the Industrial Dispute regarded the recovery of unpaid wages in the form of sick leave.
  1. [96]
    Here, Mr Hennessy has sought to style the Industrial Dispute as seeking a variety of declarations about detriment he suffered as a result of the initial misclassification. Yet many of the declarations sought by the Applicant regarding payment of monies would in effect involve the recovery of unpaid wages.
  1. [97]
    The Act provides for the recovery of unpaid wages by the Commission in s 475. However, that is to be commenced by application, in accordance with r 76 of the Rules. Unpaid wages are not recoverable in an Industrial Dispute in much the same way that declarations are not available in an Industrial Dispute. That is to say nothing of the time limitations imposed in the recovery of unpaid wages.
  1. [98]
    As such, in addition to declarations being unavailable in an Industrial Dispute, the remedies which would effectively involve the recovery of unpaid wages are also not available in an Industrial Dispute.

What delay has there been in bringing this Industrial Dispute?

  1. [99]
    Mr Hennessy’s Dispute Notice provides (emphasis added):

The dispute is about an industrial matter relating to the refusal and failure of the Gold Coast Hospital and Health Service to correct multiple errors found by the QIRC to have been made in Mr Hennessy’s classification level.

  1. [100]
    The finding referred to was the matter before Commissioner Black, HP/2013/28. That decision was released to the parties on 3 December 2014. This Industrial Dispute was filed 31 July 2019. That is a period of over four and a half years. Further, the original classification issue and some of the remedies sought in these proceedings relate to circumstances in 2007, some 12 years before this matter was filed.
  1. [101]
    The Act provides for the filing of Industrial Disputes as follows:

261 Notice must be given to registrar

  1. (1)
    Subsection (2) applies if an industrial dispute:
  1. (a)
    Exists between –
  1. (i)
    an employer organisation or employer; and
  2. (ii)
    an employee organisation or employee; and
  1. (b)
    remains unresolved after the parties to the dispute have genuinely attempted to settle the dispute.
  1. (2)
    Each party to the dispute must immediately give the registrar written notice of the dispute.
  1. (3)
    The notice –
  1. (a)
    may be given by letter, facsimile, email or other means of written communication; and
  2. (b)
    must state each of the following-
  1. (i)
    the names of the parties to the dispute;
  2. (ii)
    the place where the dispute exists;
  3. (iii)
    the subject matter of the dispute;
  4. (iv)
    anything else required by the rules.
  1. [102]
    In the Dispute Notice, under the heading “What attempts under any applicable dispute settling procedures have been undertaken to resolve the dispute?”, Mr Hennessy provided:

Repeated requests and correspondence from Mr Hennessy to both Ms Pierce and Mr Langdon and others to address the error in his classification and or to explain or justify the decision not to address the substance of his complaint, nor to ensure that the unfair and unjust treatment to which he has been subjected is corrected or remedied.

The details of the multiple errors made in relation to Mr Hennessy’s classification are set out in the decision made by Commissioner Black on 3 December 2014 as is the extensive history of the reclassification exercise.

  1. [103]
    Attached to that Dispute Notice is an emailed letter from Mr Hennessy to the Respondent dated 11 July 2019. That letter provides that he was “making contact with (GCHHS), as I have previously on two occasions in relation to the matter”.
  1. [104]
    Mr Hennessy also submits that that there is no time limit on his ability to bring this Industrial Dispute. That is incorrect. S 261(2) provides that written notice of the dispute “must” be given “immediately”, once the parties have “genuinely attempted to resolve the dispute”.
  1. [105]
    Of course, there is rarely, if ever, a definite point where the parties to an Industrial Dispute have genuinely attempted to resolve the matter and the matter remains unresolved. In some instances, that point may become evident when the dispute resolution procedures in an award or agreement have been exhausted. In this instance, there was a proceeding about Mr Hennessy’s reclassification that commenced in 2013 and ceased in 2014. Having received his remedy for that matter, it would have been immediately apparent to Mr Hennessy that he had not received all of the remedies he would like. Indeed, that would likely have been apparent to Mr Hennessy after President Hall imposed a limitation on back payment in his decision of 20 May 2013.
  1. [106]
    In his submissions, Mr Hennessy provides:

Mr Hennessy has been seeking to have his matters and concerns and the treatment addressed and resolved since February 2015. He has made multiple representations to the Respondents, relevant Ministers including the Premier, the Queensland Ombudsman the Crime and Corruption Commission and his local member of parliament (sic). Some seven years after his original successful decision from Commissioner Black in December 2014 the errors identified and the resulting unfair and unjust treatment and detriment continue. Perhaps as a precursor to the respondents (sic) conduct it took until June 2015 for the Respondents to actually implement the reclassification ordered by Commissioner Black December 2014 (sic) and it occurred after Mr Hennessy initiated contact with the Gold Coast Hospital and Health Service in February 2015.

  1. [107]
    Even taking the generous view that the attempts to settle the dispute continued for a period after Mr Hennessy was reclassified in June 2015, that does not account for more than 4 additional years until this Industrial Dispute was filed.
  1. [108]
    Mr Hennessy also refers to materials of the Respondent which discuss his financial loss as a result of the initial misclassification. He says that those materials have only recently become available to him. That does not explain the enormity of the delay in bringing these proceedings. Mr Hennessy would have been aware that he was not back paid back to 2007 from President Hall’s decision, and then from Commissioner Black’s decision in 2014. It is not contentious or enlightening to say that if Mr Hennessy were back paid to 2007, he would have received more money. That does not create any right to such an award. Further, those materials of the Respondent do not obviate the fact that Commissioner Black already determined the appropriate remedy arising from the dispute. This is not an application to reopen the proceedings before Commissioner Black.
  1. [109]
    Delay in bringing this Industrial Dispute closely relates to the principles of finality and the unfairness of reagitating issues previously determined.

Consideration of dismissal under s 541

  1. [110]
    Mr Hennessy’s submissions as to whether this proceeding should be dismissed under s 541 may be summarised as follows:
  • Exercising the power under s 541 requires considering the objects and purpose of the Act.
  • The Commission is required to consider and determine matters of fact and law before exercising its discretionary powers under s 541.
  • The Commission has had no opportunity to weigh and test the competing claims or hear evidence.
  • There has been no consideration of what is fair and just.
  • Mr Hennessy “is the only appellant with ongoing proceedings.” The cost of treating him fairly and his matter proceeding is not contrary to the public interest.
  • The decisions in Orchid Avenue Realty and Re Queensland Electrical Commission support the view that the matter should proceed.
  • Mr Hennessy has been constrained to a page limit in submissions.
  1. [111]
    Mr Hennessy is quite correct in saying that I am to consider the objects, scope and purpose of the Act in exercising my discretion under s 541.
  1. [112]
    There is certainly a requirement to consider and determine relevant matters of fact and law in considering the exercise of that discretion. In that regard, I have determined:
  • Mr Hennessy has already been afforded a remedy arising from the “errors” which he complains of;
  • The remedy now sought is not available in these proceedings; and
  • There has been an inordinate delay in bringing these proceedings.
  1. [113]
    In making those findings, I have considered the relevant evidence as to whether the substance of this matter has already been dealt with. Here, that has included:
  • The decisions of Commissioner Black and President Hall;
  • Materials before Commissioner Black and President Hall; and
  • The Dispute Notice and materials filed in this matter.
  1. [114]
    I have also considered the parties’ submissions in this matter.
  1. [115]
    Certainly, the Respondent bears the onus of demonstrating why I should exercise my powers under s 541. In sum, the Respondent submits that, in the circumstances of my findings above, it is not in the public interest that the matter continues.
  1. [116]
    The issue of whether this matter has already been determined was clearly an issue for the Respondent from the outset. In Mr Hennessy’s own submissions, he provides that the Respondent has refused to provide him with a further remedy, because they say the matter has already been dealt with by Commissioner Black. When I required the parties to file submissions about the remedies sought in these proceedings and the powers I may have to provide them, the Respondent made several submissions regarding the substance of this matter already having been dealt with by Commissioner Black. Indeed, they requested at that stage that the matter be dismissed.  
  1. [117]
    Further, s 452 of the Act specifically provides that the Commission may exercise its powers on its own initiative. That includes the power to dismiss this matter under s 541, which begins with the words “The court or commission may, in an industrial cause do any of the following-”. I was empowered to take submissions from the parties about that issue. Indeed, at the mention of this matter on 20 February 2020, I specifically alerted the parties to the fact that I may decide the matter on the papers.[25]
  1. [118]
    Mr Hennessy also submits that he:

…has been constrained to a maximum of 15 pages of submissions on matters determined by the Commission rather than having the opportunity to present its case and the Commission has had no opportunity to consider weigh or even test the competing claims let along hear evidence.

  1. [119]
    Mr Hennessy has essentially asserted that he has been unable to make his case and has instead been required to file submissions. The filing of submissions is itself an opportunity for a party to make their case. I am empowered by s 539 of the Act and by the Rules to hear and decide this matter in the way that appears best suited for the purpose, and to give directions to that effect. In this instance, I determined that the preliminary points regarding ss 541 and 456 were amenable to being decided on the papers. That is particularly pertinent where the evidence relevant to considering that question was inherently documentary.  
  1. [120]
    Further, Mr Hennessy has filed voluminous submissions in this matter, including numerous amendments and attachments. He has addressed the question of whether this matter should be dismissed throughout that material. The page limits were certainly adequate to allow the parties to address the finite preliminary points.
  1. [121]
    If Mr Hennessy required further pages to make submissions about the issue, he could have sought leave to do so. I note that he is represented in this matter. His complaint regarding being prevented from making his case is also not borne out in circumstances where a significant portion of those submissions were spent reproducing the Respondent’s submissions and my directions.
  1. [122]
    Throughout his material, Mr Hennessy relies on the decision of President Hall in Orchid Avenue to support his submission that the matter should not be dismissed under either s 456 or s 541. In particular, he relies upon the following passage from that decision (citations removed):

In Nugent v. Aromas Pty Ltd (1996) 153 QGIG 630 I accepted that in exercising the power at s. 331(b) (then the power at s. 90(1)(b) of the Industrial Relations Act 1990) respect should be given to the general principle enunciated by O’Connor J in Burton v. The President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92 that:

"Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.".

I continue to adhere to that view. I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ.

  1. [123]
    Yet, President Hall went on to say in the same decision (citations removed):

However, where a matter of construction is capable of finally resolving the matter, it seems to me that the exercise of construction should be undertaken notwithstanding that extensive argument may be necessary to demonstrate that the case of the applicant is so clearly untenable that it cannot possibly succeed, compare Queensland University of Technology v. Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 QdR 259 at 265 per Holmes J (with whom Davies JA and Mullins J agreed) and General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ. That is particularly so when the matter goes to jurisdiction, Stevenson v. Barham (1976-1977) 136 CLR 190 at 202 to 203 per Mason and Jacobs JJ.

  1. [124]
    Even in that decision, there is contemplation that in appropriate circumstances a matter may be dismissed before being heard in its entirety.
  1. [125]
    The decision at first instance in Orchid Avenue considered whether a termination dispute should be dismissed under s 331 of the previous Act on the basis that the employment contract was prohibited by statute. Commissioner Ashbury determined that the matter would proceed for a variety of reasons. Those reasons included that determining the contract’s illegality would require considering intent, which is generally a matter for viva voce evidence, and that the purported illegality of the contract would not necessarily prevent the applicant from accessing relief.
  1. [126]
    President Hall dismissed the appeal of that decision. Much of the decision turned on questions regarding the nature of illegal contracts, and indeed his Honour specifically stated (emphasis added):[26]

I accept the submission of counsel for the appellant that this is not a case which tests the boundaries of s 331(b).

  1. [127]
    The relevance of that appeal to the present case is limited. Certainly, Orchid Avenue includes a pertinent warning about the correct circumstances in which a matter may be dismissed summarily and sets out that the public interest provision should not be utilised to improperly deprive an applicant of the opportunity to have their case heard. That is patently correct. However, as President Hall specifically noted in that case, there are circumstances where a matter is amenable to being dismissed on the basis of the public interest. A person’s right to have matters of law and fact decided is not a licence to have them re-decided. The legislation affords the public interest dismissal power to this Commission, and indeed President Hall in Australia Post specifically contemplated the use of the public interest dismissal power in circumstances such as these.
  1. [128]
    The factual circumstances in Orchid Avenue can be materially distinguished from the current matter. Here, Mr Hennessy was already afforded the opportunity to have matters of fact and law determined, which resulted in the decisions of President Hall and Commissioner Black. A key component of those decisions was the appropriate remedy resulting from the reclassification dispute. Further, as stated previously in this decision, the nature of the evidence relevant to whether the subject of this dispute has already been decided is documentary and includes the Dispute Notice and the previous decisions.
  1. [129]
    As such, a decision to dismiss this matter under s 541, or indeed s 456, in circumstances where Mr Hennessy’s reclassification matter has already been determined and a remedy provided, is not inconsistent with the decision in Orchid Avenue.  
  1. [130]
    In his submissions, Mr Hennessy also relies upon the judgment of Justice Deane in Re Queensland Electricity Commission.
  1. [131]
    The history of that matter involved some complexity which is largely irrelevant to the current matter. In short, their Honours considered s 41(1) of the Conciliation and Arbitration Act 1904 (Cth), which provided:

41(1)The Commission may, in relation to an industrial dispute –

  1. (d)
    dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute if it appears –
  1. (i)
    that the dispute or part is trivial;
  2. (ii)
    that the dispute or part has been dealt with, or is being dealt with or is proper to be dealt with by a State Industrial Authority; or
  3. (iii)
    that further proceedings are not necessary or desirable in the public interest;
  1. [132]
    The Queensland Electricity Commission determined that the dispute was more properly to be decided by a State tribunal, and so did not hear the matter further as it was not in the public interest. 
  1. [133]
    On appeal, the majority of the High Court held that the Electricity Commission’s decision should not be disturbed. It was held that the Commission did consider the relevant competing public interest considerations.
  1. [134]
    In considering that decision, I note that matter involved a public interest dismissal on the basis that the proceeding would be more properly decided in another avenue. That contrasts with the facts of this matter, namely that the matter has already been decided in the present jurisdiction.
  1. [135]
    Further, Justice Deane’s judgment was in dissent, and is therefore limited in its precedential value.
  1. [136]
    Both Orchid Avenue and Re Queensland Electricity Commission contain pertinent cautions against dismissing a matter in the preliminary stages for an improper reason. However, neither of those matters suggests that a matter which has already been dealt with cannot be dismissed. Indeed, both President Hall in Australia Post and Justice Deane in Re Queensland Electricity Commission contemplate or acknowledge such a use of the power.  
  1. [137]
    Regarding the submission that Mr Hennessy is the only person amongst his colleagues still agitating classification remedy issues, that may well be true. Given that his reclassification dispute was concluded six years ago, and he was provided a remedy, that is hardly surprising.
  1. [138]
    I have carefully considered the prejudice to be suffered by Mr Hennessy if this matter were dismissed. The most pointed prejudice would be that Mr Hennessy would be unable to attain the remedy he seeks. However, that is outweighed by several factors.
  1. [139]
    First, Mr Hennessy has already been afforded an opportunity to have the reclassification controversy heard and decided by this Commission. He was provided a remedy in those proceedings.
  1. [140]
    Second, the remedy he now seeks, being a series of declarations, is not available in the present proceeding.
  1. [141]
    Third, the nature of many of those declarations, being back payments for unpaid wages, renders them largely unavailable in an Industrial Dispute.
  1. [142]
    Fourth, there has been an inordinate delay between the facts in question and the bringing of this Industrial Dispute.
  1. [143]
    Fifth, there is a distinct prejudice to be suffered by the Respondent in this proceeding continuing. The Respondent, as with all members of the community, is entitled to rely on the finality of proceedings. To allow this proceeding to continue would invite a decision which conflicts with the decision of Commissioner Black in a key sense; the appropriate remedy arising from the reclassification dispute. It is also relevant that the Respondent will be put to the cost of re-litigating the matter.
  1. [144]
    Sixth, the substantial merits of this case are limited in circumstances where the remedy sought is unavailable, both in form and indeed largely in substance.
  1. [145]
    In reaching my decision, the purposes of the Act and Rules are front of mind. Achieving fairness and balance in industrial relations requires that parties are entitled to have their Industrial Disputes conciliated, heard and determined. It is significant to dismiss any proceeding before it has reached its conclusion, and not a course to be undertaken lightly or with undue haste. However, it is patently unfair and unbalanced to allow a party, many years after the fact, to re-agitate an issue and seek a new or additional remedy. Such a process has been described in some decisions as an abuse of process. Equity and good conscience are not best served by allowing such a proceeding to continue.
  1. [146]
    Having considered the entirety of the present matter, I have determined that the purposes of the Act, and in turn the public interest, are best served by dismissing this Industrial Dispute. Further proceedings are not necessary or desirable in that respect.

Summary of Findings

  1. [147]
    Mr Hennessy was the applicant in a reclassification dispute, HP/2013/28. That matter was determined by Commissioner Black on 3 December 2014.
  1. [148]
    Mr Hennessy filed this Industrial Dispute on 31 July 2019. In doing so, he sought to address “the refusal and failure of the (GCHHS) to correct multiple errors found by the QIRC to have been made in Mr Hennessy’s classification level.”
  1. [149]
    When required to file submissions about the remedies sought in this matter, Mr Hennessy explained that he sought a series of declarations, largely related to back payments.
  1. [150]
    The parties subsequently addressed me on whether this proceeding should be dismissed under s 456 and/or s 541.
  1. [151]
    For the reasons above, I have determined to dismiss this matter under s 541, as further proceedings are not necessary or desirable in the public interest.
  1. [152]
    I order accordingly.

Orders:

The Industrial Dispute is dismissed.

Footnotes

[1] Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200.

[2] ‘the Act’.

[3] Applicant submissions filed 28 February 2020, page 1.

[4] ‘the Rules’.

[5] State of Queensland v Lockhart [2014] ICQ 006, followed in Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [24].

[6] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [23]-[26]. (“Campbell”)

[7] Applicant Submissions filed 2 March 2020, page 3.

[8] Australia Post v Russell & Anor [2002] ICQ 36. (“Australia Post”)

[9] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [23].

[10] Johnson v Gore Wood and Co [2002] 2 AC 1, 31.

[11] Ant Projects Pty Ltd v Brooks & Ors [2019] QCA 259, [69]-[70].

[12] Rogers v The Queen (1994) 181 CLR 251, 273-274, cited in Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Minister for Industrial Relations & Anor [2003] ICQ 33.

[13] Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28.

[14] Department of Education and Training AND Nicolaas Hart (B/2010/31) – Decision, .

[15] Nicolaas Hart AND Department of Eduation and Training (C/2011/6) – Decision, .

[16] Orchid Avenue Realty Pty Ltd v Percival [2003] QIC 160. (“Orchid Avenue”)

[17] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1. (“Re Queensland Electricity Commission”).

[18] State of Queensland (Queensland Health) AND Together Queensland, Industrial Union of Employees and Others (C/2012/28) – Decision (No. 2) , [26].

[19] Ibid, [25].

[20] Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200.

[21] Industrial Relations (Tribunals) Rules 2011 (Qld), r 180.

[22] Carlton v Blackwood [2017] ICQ 001, [18].

[23] Applicant submissions filed 24 March 2020, page 6.

[24] Ant Projects Pty Ltd v Brooks & Ors [2019] QCA 259, [69]-[70].

[25] T1.4.15-25.

[26] Orchid Avenue, [2].

Close

Editorial Notes

  • Published Case Name:

    Gregory Hennessy v Gold Coast Hospital and Health Service

  • Shortened Case Name:

    Gregory Hennessy v Gold Coast Hospital and Health Service

  • MNC:

    [2020] QIRC 81

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    08 Jun 2020

Appeal Status

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