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  • Unreported Judgment

Suzanne Rimland v Workers' Compensation Regulator & Ors QIRC

 

[2020] QIRC 175

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Suzanne Rimland v Workers' Compensation Regulator & Ors QIRC [2020] QIRC 175

PARTIES:

Suzanne Rimland

(Applicant)

v

Workers' Compensation Regulator

(First Respondent)

State of Queensland (Department of Communities, Disability Services and Seniors)

(Second Respondent)

CASE NO:

WC/2020/18 and TD/2019/60

PROCEEDING:

Application for joinder of proceedings

DELIVERED ON:

7 October 2020

HEARING DATE:

On the papers

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

  1. The application to join WC/2020/18 and TD/2019/60 is dismissed.

CATCHWORDS:

WORKERS' COMPENSATION – UNFAIR DISMISSAL - INDUSTRIAL LAW - APPLICATION FOR JOINDER - where Applicant seeks joinder of two applications - where Respondent resists the joinder.

PRACTICE AND PROCEDURE - application under Rule 98 of Industrial Relations (Tribunals) Rules 2011 - relevant factors in determining whether appropriate that proceedings be tried at same time. 

LEGISLATION:

Industrial Relations (Tribunal) Rules 2011 r 98

CASES:

Bishop v Bridgeland Securities (1990) 25 FCR 311

Brisbane City Council v Gillow and Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 124

Cameron v McBain [1948] VLR 245

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Reynolds v Workers' Compensation Regulator [2019] QIRC 140

Reasons for Decision

Introduction

  1. [1]
    Ms Suzanne Rimland has filed an unfair dismissal application (Matter No. TD/2019/60) and an appeal against a decision of the Worker's Compensation Regulator (Matter No. WC/2020/18).
  1. [2]
    On 8 June 2020, the applicant filed an application seeking an order that both matters be joined for hearing.
  1. [3]
    Both the first respondent, the Workers’ Compensation Regulator ('the Regulator'), and the second respondent State of Queensland (Department of Communities, Disability Services and Seniors) ('the Employer') oppose the application.

The workers' compensation appeal

  1. [4]
    The applicant's appeal was filed following the determination of the Workers’ Compensation Regulator to confirm a WorkCover decision rejecting Ms Rimland's application for workers' compensation in respect of a psychological injury. 

The unfair dismissal application

  1. [5]
    The unfair dismissal application has been brought in respect of Ms Rimland’s employment which was terminated on 21 June 2019 following her failure to attend an Independent Medical Examination (IME).

Statutory framework

  1. [6]
    Rule 98 of the Industrial Relations (Tribunal) Rules 2011 (Qld) provides an express power to join proceedings:
  1. (1)
    A party to a proceeding before the court of commission may apply to the court or commission for the proceeding to be joined with another proceeding.
  1. (2)
    The court or commission may order 2 or more proceedings to be joined if it considers -
  1. (a)
    substantially the same question is involved in the proceedings; or
  2. (b)
    the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
  3. (c)
    it is otherwise appropriate or desirable.
  1. (3)
    When joining proceedings, it is not necessary -
  1. (a)
    for a written order joining the proceedings to be made; or
  2. (b)
    for the parties to consent.
  1. (4)
    If a party claims to be adversely affected by the joining of proceedings, the party may apply to separate the proceedings by advising the registrar and any other affected party in writing before the hearing of the proceeding.

The Applicant's case for joinder

  1. [7]
    The applicant seeks to have the two matters joined on the following grounds:
  • Both matters are focused solely on whether management action was reasonable leading up to the dismissal, including the employer’s actions in proposing the dismissal.
  • Both matters focus on the same question.
  • In addition, an outcome in one proceeding will likely determine the outcome in the other proceeding.
  • The applicant is required to avoid wasting the time and other resources of the QIRC which will occur if the matters are not joined.
  • Hearing the matters separately will require the applicant to deal with the same question twice with the same evidence and same events relating to the employer’s conduct.
  • This will have an unnecessarily harmful effect on the applicant.
  • The applicant will not be calling witnesses on the basis that the documentary evidence is sufficient to make her case.

The first Respondent’s case opposing the joinder

  1. [8]
    The first respondent opposes the applicant's application on the following grounds:
  • The applications are made under separate pieces of legislation, being the Industrial Relations Act 2016 ('IR Act') and the Workers’ Compensation and Rehabilitation Act 2003 ('WCR Act'). 
  • The questions of law to be determined in each matter are not the same.
  • In the unfair dismissal application, the Commission is being asked to determine under s 320 of the Industrial Relations Act 2016 if the decision to terminate the employment was harsh, unjust or unreasonable.
  • In the appeal against the decision of the Regulator, the Commission is being asked to determine if the applicant suffered from an injury within the meaning of section 32 of the Workers’ Compensation and Rehabilitation Act 2003.
  • The applicant ceased work on 15 May 2019 due to illness and it is from at least this date (possibly earlier) that her claim for compensation arises. The applicant's employment was terminated on 21 June 2019. The termination of the applicant’s employment cannot be a consideration in her claim for compensation.
  • The Regulator has no right or capacity to be a party to the unfair dismissal application as they are not a party to the employment contract and therefore not a party to the termination of that employment contract.
  • The Regulator had no involvement in the decision to terminate the employment of the applicant and therefore can be of no assistance to the Commission in determining that matter.
  • The Employer was not a decision maker in the decision to reject the workers’ compensation claim of the applicant and cannot assist the Commission with the rationale for that decision. It is likely that employees of the Employer will be called to give evidence in the Appeal relevant to section 32 of the Workers’ Compensation and Rehabilitation Act 2003. This may include employees who are ‘instructing’ the representatives in the unfair dismissal matter.
  • The Employer has no right nor capacity to be a party to the workers’ compensation appeal. (Brisbane City Council v Gillow and Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 124 and the cases cited therein.
  • There is no consistency in the manner in which the two matters are to be conducted by the QIRC. Matter No. TD/2019/60 has been the subject of directions orders, which have already been complied with in relation to evidence in chief. This is consistent with the Industrial Relations (Tribunals) Rules 2011. The Uniform Civil Procedure Rules 1999 (UCPR) have no application to an application under the Industrial Relations Act 2016.
  • In contrast, WC/2020/18, in accordance with section 553 of the Workers’ Compensation and Rehabilitation Act 2003, will be subject to both the Uniform Civil Procedure Rules 1999 and the Industrial Relations (Tribunals) Rules 2011. A substantive difference arising from the application of the UCPR is that evidence in chief will be given orally in WC/2020/18 and in TD/2019/60 evidence in chief is by way of written statement. These witness statements, in accordance with the directions order, have already been exchanged by the parties in TD/2020/60.
  • Given the application of the UCPR to WC/2020/18 and not TD/2019/60 in relation to evidence in chief it is inconceivable that there can be compliance with both sets of rules in the one preceding.
  • Costs are not generally ordered in unfair dismissal applications, other than in exceptional circumstances. Costs, under section 560 of the Workers’ Compensation and Rehabilitation Act 2003 are usually ordered.
  • The only similarity between WC/2020/18 and TD/2019/60 is that some of the witnesses may be the same, albeit that they will be giving evidence in two different contexts.

The second Respondent’s case opposing the joinder

  1. [9]
    The Regulator opposes the joinder application on the following grounds -
  • The proceedings are completely different in terms of the nature of the proceedings - one being for damages for alleged unfair dismissal and the other an appeal by way of rehearing arising from a regulatory decision in relation to workers compensation.
  • There are some issues of fact that are common; however, there are no issues of law that are common.
  • It is likely that some lay witnesses in the WC/2020/18 proceeding relating to the management action taken by the Employer will be witnesses in TD/2019/60. However other lay witnesses in the TD/2019/60 proceeding will not be witnesses in the WC/2020/18 proceeding because their evidence is likely to relate to matters that are irrelevant to the WC/2020/18 proceedings, such as events that occurred after Ms Rimland sustained her personal injury. Further, the expert medical witnesses in WC/2020/18 proceeding will not be witnesses in the TD/2019/60 proceeding.
  • The proceedings and questions of law are completely different, so an appeal in one proceeding ought not affect the other or cause any substantial delay.
  • While some time may be saved by a limited number of factual witnesses giving evidence only once; the overall time taken to have two respondents present their cases; cross-examine the applicant’s witnesses; and deal with objections to evidence, is likely to be greater than if the proceedings are heard separately.
  • In the Regulators’ statement of facts and contentions, the Regulator has conceded certain matters that may not be conceded by the Employer as respondent to the TD/2019/60 proceeding.
  • The applicable law and principles to be applied in each proceeding is different; the parties are different; and the evidence will be of shorter compass in the WC/2020/18 matter because many of the material facts are not in dispute.
  • On Ms Rimland's own statement of facts and contentions filed in the WC/2020/18 proceeding, her injury arose prior to her dismissal by the Employer. As such, her dismissal - whether fair or otherwise - is entirely irrelevant to the questions for determination in the WC/2020/18 proceeding.
  • In the WC/2020/18 proceeding, the applicant carries the burden of providing that she has sustained an injury as defined in section 32 of the Workers’ Compensation and Rehabilitation Act 2003 including, relevantly, that the personal injury did not arise out of or in the course of reasonable management action taken in a reasonable way. Whereas in the TD/2019/60 proceeding, the applicant must establish that her dismissal by Employer was ‘harsh, unjust, or unreasonable’.
  • The Regulator accepts that some consideration of the management action taken by the Employer prior to the applicant sustaining her personal injury will occur, the questions to be determined in the TD/2019/60 proceeding are substantially wider and materially different to those in the WC/2020/18 proceeding.
  • The question of what constitutes reasonable management action and whether the applicant’s injury arose in the course of such reasonable management action or as a result of the applicant’s perception of reasonable management action under the Workers’ Compensation and Rehabilitation Act 2003 are separate and distinct legal issues considered by an entirely separate body of decided cases to those relevant to the TD/2019/60 proceeding.
  1. [10]
    The Regulator also submitted that the following procedural problems arise in relation to a joinder:
  • The ability of the respondent in the TD/2019/60 proceeding to be present in the hearing room during the evidence and the requirement in the WC matter for employer witnesses to remain out of the hearing room during earlier evidence.
  • The Employer, has no right of appearance in the WC/2020/18 proceeding and yet if a joinder is granted, the employer would be a party to the WC/2020/18 proceeding with full rights to participate in that matter. In Reynolds[1]the absence of a right of appearance by the employer was described O’Connor VP as a ‘fundamental difficulty’ in a joinder application relating to WC proceedings where the employer was an applicant on one appeal (and had a right of appearance) and on the other, where the worker was the applicant with the Regulator responding and the employer having no right of appearance.
  • The hearing of evidence will also be complicated by the need to distinguish between relevant and irrelevant evidence, given by the same witnesses, for the purposes of proceedings involving fundamentally different issues to be determined.
  • There are different costs provisions applicable to the proceedings under the Workers’ Compensation and Rehabilitation Act 2003 and Industrial Relations Act 2016. In circumstances where there is a presumption the parties will bear their own costs in the unfair dismissal proceeding, it is undesirable and not in the interests of justice for the TD/2019/60  proceeding to be protracted and thus increase the employer’s costs so that it can be heard together with the WC/2020/18 proceeding, where costs usually follow the event.

Consideration

  1. [11]
    Rule 98 of the Industrial Relations (Tribunal) Rules confers upon the Commission a broad and unfettered discretion to join matters in circumstances where -
  • substantially the same question is involved in the proceedings; or
  • the decision in one proceeding is likely to determine or seriously impact on the other proceedings; or
  • it is otherwise appropriate or desirable.
  1. [12]
    Herring CJ wrote in Cameron v McBain:

The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order.[2]

  1. [13]
    Wilcox J said in Bishop v Bridgeland Securities:

The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.[3]

  1. [14]
    In Brett Reynolds v Workers’ Compensation Regulator & Ors[4], Vice President O’Connor considered the principles applicable to an application for joinder as identified by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd, to assist in determining whether the discretion should be exercised:

The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows:

  1. Are the proceedings broadly of a similar nature?
  2. Are there issues of fact and law common to each proceeding?
  3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
  4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
  5. Is there a prospect of multiple appeals with substantial delays if the proceedings are tried at the same time, compared with each proceeding being tried separately?
  6. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
  7. Is one proceeding further advanced in terms of preparation for trial than the others?
  8. Are there parties to one or some only of the proceedings who will be inconvenienced if all the proceedings are tried at the same time?[5]
  1. [15]
    I will now consider each of the above factors in turn. I note that factor 4 has no direct relevance to the proceedings under consideration in the present case.

Are the proceedings broadly of a similar nature?

  1. [16]
    The proceedings are substantially different in nature. The TD/2019/60 proceeding is an application pursuant to the unfair dismissal provisions of the Industrial Relations Act 2016. The WC/2020/18 proceeding is an appeal by way of a re-hearing arising from a decision by the Workers’ Compensation Regulator in relation to workers compensation.
  1. [17]
    The applicant’s submission that both matters deal with the ‘same question, same evidence and same events’ is misconceived. The WC/2020/18 proceeding will determine whether the applicant sustained a compensable injury under the Workers’ Compensation and Rehabilitation Act 2003. The dismissal did not occur until at least a month after the injury is claimed to have arisen. The termination of employment can therefore not be considered as part of the WC/2020/18.  The TD/2019/60 proceeding will determine whether the dismissal was harsh, unjust or unreasonable pursuant to s 316 of the Industrial Relations Act 2016. The evidence will be different as the questions to be answered are fundamentally different.

Are there issues of fact and law common to each proceeding?

  1. [18]
    From my assessment of the two proceedings, there are no issues of law that are common. The TD/2019/60 proceeding relates to whether a decision to terminate the applicant’s employment due to her failure to attend an Independent Medical Examination (IME) was fair and reasonable. This decision was made by the employer and is governed by the Industrial Relations Act 2016. The WC/2020/18 proceeding relates to the applicant’s claim for workers compensation for a psychological injury. This decision was made by the insurer, confirmed by the Regulator, and is governed by the Workers’ Compensation and Rehabilitation Act 2003.

Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

  1. [19]
    The Regulator submits that it is likely that some witnesses in the WC/2020/18 proceeding relating to the management action taken by the employer may also be witnesses in the TD/2019/60 proceeding. I note that other lay witnesses in the TD/2019/60 proceeding will not be witnesses in the WC/2020/18 proceeding as their evidence will relate to events that occurred after the personal injury was sustained.
  1. [20]
    To my understanding, the medical expert witness in the WC/2020/18 proceeding will not be witnesses in the TD/2019/60 proceeding.

Is there a proposal of multiple appeals with substantial delays if the proceedings are not tried at the same time?

  1. [21]
    An appeal in one of the proceedings should not impact the other on the basis that the questions of law are entirely different. An appeal in one proceeding is therefore unlikely to affect an appeal in the other proceeding, and a delay in one hearing will have no impact on the timeframe for an appeal from the hearing in the other proceeding.

Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

  1. [22]
    The applicant has indicated that joining the proceedings will save time on the basis that both matters will address the same question. As outlined above, these matters address different questions. I note that there may be time saved by a number of lay witnesses giving evidence only once, however in my view the time saved for this reason will be lost due to the need for two respondents to present their cases and cross-examine these witnesses.
  1. [23]
    As submitted by the Regulator, concessions have been made in the Regulator’s statement of facts and contentions which may not be conceded by the employer in the TD/2019/60 proceeding. This would indicate that the evidence in the WC/2020/18 proceeding will be of shorter compass if tried separately.
  1. [24]
    The objections to evidence are likely to be more frequent given the differing procedures governing each proceeding. This may have the result of extending the hearing, resulting in an even longer process than allowing for two separate, procedurally straight forward proceedings.

Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

  1. [25]
    A joint hearing will result in significant difficulties in terms of trial management primarily due to the two matters being subject to different rules. The TD/2019/60 proceeding is subject to the Industrial Relations (Tribunals) Rules 2011, with the Uniform Civil Procedure Rules 1999 (UCPR) having no application in this matter.
  1. [26]
    The WC/2020/18 proceeding however will be subject to both s 553 of the Uniform Civil Procedure Rules 1999 and the Industrial Relations (Tribunals) Rules 2011. As a consequence, the evidence in chief will be given orally in the WC/2020/18 proceeding, however evidence in chief in the TD/2019/60 proceeding is by way of written statement.
  1. [27]
    There are a number of other procedural problems that would result from the proceedings being joined. Firstly, the ability of the employer in the TD/2019/60 proceeding to be present in the hearing room during the evidence is in conflict with the requirement in the WC/2020/18 proceeding for employer witnesses to remain out of the hearing room during earlier evidence.
  1. [28]
    The employer in the TD/2019/60 proceeding has no right of appearance in the WC/2020/18 proceeding.[6] The Regulator has no right or capacity to be a party to the TD/2019/60 proceeding as they were not a party to the termination of the applicant’s employment.
  1. [29]
    The hearing of evidence will create significant difficulties in managing a joint hearing of these matters. A hearing would be complicated by the need to distinguish between relevant and irrelevant evidence given by the same witnesses but for the purposes of proceedings involving different issues to be determined.
  1. [30]
    The issue of costs will also prove difficult in a joint hearing. Unfair dismissal matters proceed with a presumption the parties will bear their own costs. Consequently, the Employer in this matter will be prejudiced by the increased costs associated with having to participate in a longer hearing if joined with the WC/2020/18 proceeding. In workers' compensation appeals, costs usually follow the event. The unsuccessful party in the WC/2020/18 proceeding may be liable to bear the costs of a longer hearing than would otherwise be the case if the matter was heard separately.

Is one proceeding further advanced in terms of preparation for trial than the others?

  1. [31]
    The parties have filed statements of facts and contentions in the WC/2020/18 proceeding and directions have been issued for the filing of witness lists and exchange of outlines of evidence.
  1. [32]
    The TD/2019/60 proceeding has been the subject of directions orders which have been complied with in relation to evidence in chief. Witness statements in the TD/2019/60 proceeding have already been exchanged by the parties.

Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

  1. [33]
    The Respondents in both the WC/2020/18 and TD/2019/60 proceeding will be inconvenienced if the proceedings are heard at the same time due to the longer hearing time and considerable procedural difficulties in joining matters operating under different procedures, rules and legislation as outlined above.

Rule 98 - Industrial Relations (Tribunal) Rules 2011

  1. [34]
    Rule 98 Industrial Relations (Tribunal) Rules 2011 provides a power to join proceedings if the commission considers that -
  • Substantially the same question is involved in the proceedings; or
  • The decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or
  • It is otherwise appropriate or desirable.
  1. [35]
    As outlined above, the question involved in the proceedings are not substantially the same. The question in WC/2020/18 is whether the applicant sustained a compensable injury under the Workers’ Compensation and Rehabilitation Act, however the question in TD/2019/60 is whether the dismissal was harsh, unjust or unreasonable pursuant to the Industrial Relations Act. The decision in either proceeding is unlikely to determine or impact the other proceedings, as any findings will be in respect to different issues under different legislation. In consideration of these issues along with the procedural difficulties outlined above, I am persuaded that it is neither appropriate nor desirable to join the two proceedings.

Conclusion

  1. [36]
    After consideration of the relevant factors and the submissions of all parties to both proceedings, I have formed the view that the proceedings should not be joined.
  1. [37]
    The application to join the proceedings is dismissed.

Order

1. The application to join WC/2020/18 and TD/2019/60 is dismissed.

Footnotes

[1] Reynolds v Workers’ Compensation Regulator & Ors [2019] QIRC 140.

[2] [1948] VLR 245, 247.

[3] (1990) 25 FCE 311, 314.

[4] [2019] QIRC 140.

[5] [2009] FCA 699 [11].

[6] Brisbane City Council v Gillow and Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 124.

Close

Editorial Notes

  • Published Case Name:

    Suzanne Rimland v Workers' Compensation Regulator & Ors QIRC

  • Shortened Case Name:

    Suzanne Rimland v Workers' Compensation Regulator & Ors QIRC

  • MNC:

    [2020] QIRC 175

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    07 Oct 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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