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  4. Chen v State of Queensland (Queensland Health) - [2022] ICQ 15

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Chen v State of Queensland (Queensland Health)[2022] ICQ 15

Chen v State of Queensland (Queensland Health)[2022] ICQ 15

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Chen v State of Queensland (Queensland Health) [2022] ICQ 15

PARTIES:

Chen, Victor

Appellant

v

State of Queensland (Queensland Health)

Respondent

CASE NO:

C/2021/26

PROCEEDING:

Appeal pursuant to s 557 of the Industrial Relations Act 2016 (Qld)

DELIVERED ON:

13 May 2022

HEARING DATE:

23 February 2022

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDERS:

  1. 1.The appeal is allowed;
  2. 2.The decision in Chen v State of Queensland (Queensland Health) [2021] QIRC 369 be set aside; and
  3. 3.That matter PSA/2020/449 be adjourned to the Industrial Registry pending the hearing and determination of GP/2020/27 and TD/2021/20.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEAL – PUBLIC SERVICE APPEAL – APPEAL TO INDUSTRIAL COURT – where public service appeals dismissed at first instance – where relevant legislative amendments enacted between filing of two appeals – where applicant has concurrent general protections and unfair dismissal applications filed with the Commission – whether extant provisions of the Public Service Act 2008 (Qld) and amending legislation allow Commission to dismiss appeals – whether repeal of s 207 allows appeals to remain on foot after employment relationship ceased – whether the learned Commissioner erred in dismissing the appeal pursuant to s 562A of the IR Act

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 447, s 562A

Public Service Act 2008 (Qld) s 193, s 194, s 196

Public Service Act 2008 (Qld), as at 31 August 2020 s 207

Public Service and Other Legislation Amendment Act 2020 (Qld)

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 154

Chen v Gold Coast Health and Hospital Service [2021] QIRC 235

Chen v State of Queensland (Queensland Health) [2021] QIRC 369

Coco v R (1994) 179 CLR 427

Coulton v Holcombe (1986) 162 CLR 1

Deal v Father Pius Kodakkathanath (2016) 258 CLR 281

George v Rocket (1990) 170 CLR 104

House v The King (1936) 55 CLR 499

Prange v Brisbane City Council [2012] ICQ 2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Boulton Ex Parte Beane (1987) 162 CLR 514

Re Media Entertainment and Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd (1993) 112 ALR 193

Tamas v Victorian Civil and Administrative Tribunal (2003) 9 VR 154

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

APPEARANCES:

Mr C Massy of counsel instructed by K&L Gates for the Appellant.

Mr P Zielinski of counsel instructed by Minter Ellison for the Respondent.

Reasons for Decision

  1. [1]
    This appeal arises out of the decision of the Commission to dismiss two public service appeals (PSA/2020/225 and PSA/2022/449) brought by Dr Victor Chen.[1]
  2. [2]
    Dr Chen is a cardiologist, and at the relevant time was employed on a casual basis with the Gold Coast Health and Hospital Service ('GCHHS') as a visiting medical officer.[2]
  3. [3]
    Through GCHHS' internal procedures Dr Chen applied to have his casual employment converted on 30 January 2019. That request was refused, and the decision to refuse was the subject of PSA/2019/157 ('PSA 157').
  4. [4]
    PSA 157 was successful, and the Commission ordered that the decision not to convert
    Dr Chen's employment be sent back to decision maker for reconsideration.
  5. [5]
    It is from that order that two subsequent public service appeals (PSA/2020/225 and PSA/2020/449) were filed.
  6. [6]
    Dr Chen alleged that there was a significant delay in re-assessing his application, and therefore filed PSA/2020/225 in response. PSA/2020/449 also relates to the refusal to convert his employment.
  7. [7]
    The procedural background to this matter is complicated by the fact that concurrent unfair dismissal and general protections applications were filed by the Applicant while the two PSA appeals were on foot.
  8. [8]
    The legislative amendments introduced by the Public Service and Other Legislation Amendment Act 2020 (Qld) also engender an additional level of complexity. The timeline below provides a concise summary of relevant dates and events:

12 March 2020

PSA/2019/157 ('PSA 157') in which Dr Chen sought to challenge the Respondent's decision not to convert his employment is successful. The Commission orders the matter back to the original decision maker for re-consideration.

11 September

2020

Dr Chen files PSA/2020/225 ('PSA 225'), seeking to challenge the delay in the Respondent reconsidering his conversion request as required by the orders of 12 March 2020.

14 September

2020

The Public Service and Other Legislation Amendment Act 2020 comes into force. This act, inter alia, removes s 207 of the Public Service Act 2008 (Qld).

17 September

2020

PSA/2020/225 returns to the Commission for a conciliation conference. As a result, the Respondent undertakes to re-assess the application for conversion.

5 November 2020

The Respondent confirms it will not convert Dr Chen's employment.

23 December 2020

Dr Chen files a general protections application (GP/2020/27) alleging he's been removed from the Cardiology roster due to the filing of PSA/2020/225.

24 December 2020

Dr Chen files a notice of appeal (PSA/2020/449) ('PSA 449') to appeal the decision of 5 November 2020.

10 March 2021

The claimed date of constructive dismissal, in which it is alleged shifts were permanently given away.

12 March 2021

Dr Chen files and unfair dismissal application with the Industrial Registry (TD/2021/20).

The Decision at First Instance

  1. [9]
    At the time of filing PSA/2020/225, s 207 of the Public Service Act 2008 (Qld),[3] was still in force. The now repealed s 207 relevantly reads:

207 Lapse of appeal

An appeal lapses if the appellant stops being–

  1. (a)
    A public service employee; or
  2. (b)
    A person who may appeal against the decision the subject of the appeal.

Note–

This section has no relevant to an appeal against a disciplinary declaration.

  1. [10]
    It was not in contention before the Court that the Commissioner was correct to dismiss PSA 225, as s 207 applied to this appeal because it was in force at the time the appeal was filed.
  2. [11]
    The same cannot be said for PSA/2020/449. This appeal was filed after the repeal of s 207 but before Dr Chen's dismissal took effect.
  3. [12]
    At first instance the Commissioner held that notwithstanding the repeal of s 207 it was still open to dismiss PSA 449 on two grounds. The first was pursuant to s 196(e) which reads:

196 Who may appeal

The following persons may appeal against the following decisions—

…

  1. (e)
    for a conversion decision—the employee the subject of the decision;
  1. [13]
    The Commissioner concluded that as Dr Chen was no longer working for the Respondent, it was not open to conclude he was an employee under s 196(e) and thus had no standing to maintain his appeal.[4]
  2. [14]
    Further, the Commissioner concluded that there were compelling reasons to decline to hear the appeal in PSA/2020/449 pursuant to s 562A(3)(b)(iii) of the IR Act.  

Grounds of Appeal

  1. [15]
    The grounds of appeal are as follows:
  1. 1.The Commissioner erred in law by finding at [56] that by virtue of s 196(e) of the Public Service Act 2008 (Qld) ('the PS Act') it was not open for the Commissioner to hear conversion appeals from persons who are no longer employed when the Commission should have found that the termination of the Appellant's employment, in circumstances where proceedings had been commenced seeking reinstatement, did not affect the validity of matter PSA/2020/449.
  2. 2.The Commissioner erred as a matter of law and/or committed jurisdictional error at [63] in forming the belief that there were compelling reasons to decline to hear the appeal in PSA/2020/449, within the meaning of s. 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) ('the IR Act') as such a belief was not objectively reasonable in circumstances where the appellant had commenced unfair dismissal proceedings and had sought reinstatement.
  3. 3.Further and/or alternatively, the exercise of the Commission's discretion, pursuant to s 562A(3) of the IR Act miscarried because:
  1. (a)
    The Commissioner failed to take into account a relevant consideration being the matter PSA/2020/449 could be adjourned to the Registry, pending the outcome of GP/2020/27 and TD/2021/20; and/or
  2. (b)
    Further or alternatively, the conclusion that matter PSA/2020/449 should be permanently dismissed in those circumstances was unreasonable or plainly unjust and this Court may infer that there has been a failure to properly exercise the jurisdiction.
  1. [16]
    The Appellant correctly submitted that in order for an appeal to succeed, the Court must find in favour of the Appellant on each substantive ground of appeal.[5]

Ground 1

  1. [17]
    The question raised by ground 1 of the appeal is whether the PS Act brings an appeal to an end when the person bringing the appeal ceases to be a public service employee.
  2. [18]
    At first instance, the Commission found that on the proper construction of the PS Act, the Third Conversion Appeal (PSA 449) was no longer competent because the Appellant’s employment had ceased. The Commissioner's reasons were as follows:
  1. [44]
    The same cannot be said for PSA/2020/449 which was not filed until 24 December 2020, well after the amendments commenced.
  2. [45]
    Despite this, GCHHS argues the PS Act can only be construed to give the Commission jurisdiction to hear conversion appeals in respect of current public service employees. Conversely Dr Chen maintains:

The effect of repeal of s207 and amendment s 196(e) combining temporary and casual employees under one clause, indicates mindful legislative intent [that] appellants continue to hold standing in circumstances [where] they are no longer public service employees...

  1. [46]
    The review of Dr Chen's employment, which is the subject of PSA/2020/449, was undertaken on or before 5 November 2020. In correspondence of the same date, Ms Karlene Willcocks confirmed that Directive 08/20 was considered for the purposes of undertaking the review.
  2. [47]
    In my view, it is the amended PS Act which is relevant for the purposes of determining whether Dr Chen has standing to bring his appeal.
  3. [48]
    Section 193 of the PS Act provides that a person may appeal against a decision if an appeal may be made against the decision under s 194, and the person is entitled to appeal against the decision under s 196.
  4. [49]
    It is not in contention Dr Chen was seeking to have his casual employment status converted to permanent, having completed more than two years of service at GCHHS. Relevantly, on 5 November 2020, GCHHC determined Dr Chen was not eligible for conversion from casual to permanent status.
  5. [50]
    Decisions listed within s 194 against which appeals may be made, include a decision under s 149B not to convert the basis of employment for an employee with two or more years' service.
  6. [51]
    Separately, s 196 sets out who may appeal against particular types of decisions, that is, a person who has standing to bring or maintain an appeal. In the case of a conversion decision, s 196(e) provides: 'for a conversion decision – the employee the subject of the decision' (my emphasis).
  7. [52]
    Schedule 4 (Dictionary) of the amended PS Act does not include a definition for 'employee', however the ordinary meaning of 'employee' taken from the Macquarie Dictionary is 'a person working for another person or a business firm for pay'.23 Similarly, the Oxford Dictionary defines an employee as 'a person who works for an employer; spec. a person employed for wages or a salary under an employment contract, esp. at non-executive level'.24
  8. [53]
    Here, Dr Chen is no longer working for GCHHS and, in my view, could not be considered to be an employee for the purposes of s 196(e), in the context of determining who has standing to bring an appeal.
  9. [54]
    In any event, the meaning of a word in a provision must be determined by reference to the language of the statute viewed as a whole. In that respect, it is helpful to consider s 196(b) of the PS Act, which specifically provides for an appeal to be brought by a 'former public service employee'. Although the provision relates to a disciplinary decision, it is notable that s 196(e) has not, in the same way, explicitly provided for a circumstance where a former employee could bring an appeal against a conversion decision.
  10. [55]
    In circumstances where it is a requirement that a person be employed, either on a casual or fixed term basis, in order to be 'converted', the decision by the Parliament not to include 'former employees' alongside 'employees' as a category of persons who may appeal conversion decisions is entirely logical.
  11. [56]
    Having considered the plain and ordinary meaning of s 196(e), the manner in which the amended PS Act specifically provides appeal rights for former public service employees in so far as it relates to some decisions but not others – including conversion, and the legislative intent underpinning conversion rights, I am satisfied it is not open to the Commission to hear conversion appeals from persons who are no longer employed by the public service.
  1. [19]
    For the reasons expressed above, the Commissioner ultimately found that it was not open to her to continue hearing the Third Conversion Appeal. The Appellant contends that the decision is erroneous for three reasons.
  2. [20]
    First, it is submitted that s 196 of the PSA identifies who may appeal. Section 196 must be read considering s 194, which identifies the types of decisions against which an appeal may be made. The three types of decisions against which an appeal may be made all involve the Appellant being an employee at the time the appeal arises.
  3. [21]
    In respect of s 196(e), it is argued that the person who has standing to appeal is 'the employee'. The Appellant contends that the use of the phrase 'the employee' is designed to indicate that the person who has standing to appeal is the same person to whom the conversion decision relates.
  4. [22]
    With respect to the question of statutory construction, Mr Massy submitted that where there are two possible readings of the legislation, that which gives a provision 'work to do', ought to be preferred to the reading which sees a provision devoid of any operative function.[6]
  5. [23]
    It was the Appellant's contention that the wording of 196(e) should be read as a provision which stipulates identity of the proposed Appellant, and not one of 'ongoing qualifications' required to maintain an appeal.[7]
  6. [24]
    In this regard, reference was made to the use of the definite article 'the' to indicate the thing which the legislature had talked about previously.[8] As was observed by Callaway JA in Tamas v Victorian Civil and Administrative Tribunal,[9] 'it is a natural and correct use of English to employ the definite article when one is referring to a person or thing already identified expressly or by implication'.
  7. [25]
    The repeal of s 207 evinced, in the Appellant's submission, a clear intention by the legislature that appeals would not automatically lapse once an employee ceases to be employed. Reference was made to the simultaneous enactment of s 562A of the Industrial Relations Act 2016 (Qld) ('the IR Act'). The implication to be drawn from the simultaneous repeal of s 207 and enactment of s 562A was consistent with the view that appeals would not automatically lapse.
  8. [26]
    The Appellant submitted that the clearest of words would be required to evince a legislative intention to see an appeal lapse once it has commenced. On the Appellant's submission no such wording can be found in the Public Service Act 2008 (Qld) in its current form.
  9. [27]
    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[10] the High Court discussed the approach to be taken in finding the meaning of the text:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[11]

  1. [28]
    The High Court has warned of approaching the task of statutory construction by reference to what a judge might regard as desirable policy, imputing that to the legislation and then characterising that as the purpose of the legislation.[12]
  2. [29]
    Under s 193 of the PS Act, a person may appeal against a decision if: (a) an appeal may be made against the decision, under s194; and (b) the person is entitled to appeal against the decision under s196.
  3. [30]
    What cannot be disputed is that at the time of filing the appeal in the Industrial Registry the applicant had a right to bring an appeal to the Commission. It was an appeal concerning a conversion decision. Section 196(e) has the effect of identifying the person who has the capacity to bring the appeal and not to limit or qualify the rights of appeal to existing employees. The Appellant was the employee the subject of the decision. Secondly, the nature of the appeal was of a kind which could be brought to the Commission under s 194.
  4. [31]
    Any attempt to limit or exclude the appeal rights of employees would, in my view, need to be in the clearest of language. As was observed in Coco v The Queen,[13] where Mason CJ, Brennan, Gaudron and McHugh JJ said:

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.  The courts should not impute to the legislature an intention to interfere with fundamental rights.  Such an intention must be clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.[14]

  1. [32]
    I do not accept the argument that the legislative history suggests that by the time of its repeal, s 207 was merely a clarifying provision.[15] The only conclusion which can be properly drawn from the exclusion of s. 207 of the PS Act is that a validly commenced appeal does not, upon the proper construction of ss. 194 and 196, lapse when the Appellant ceased to be an employee of the Respondent. Accordingly, ground 1 of the appeal must succeed.

Grounds 2 and 3

  1. [33]
    Appeal Grounds 2 and 3 concern the Commission’s finding that, notwithstanding the conclusion concerning s 196(e) of the PS Act, there were compelling reasons to no longer hear the Third Conversion Appeal. The Commission’s reasoning in this respect is set out at [57] to [63] of the Primary Decision:
  1. [57]
    Even if I was to be wrong on that point, I consider there would be little practical utility in hearing the appeal, given Dr Chen is no longer an employee of GCHHS.
  2. [58]
    In deciding this appeal, s 562C(1) of the amended IR Act provides that I may:

confirm the decision appealed against; or

set the decision aside and substitute another decision; or

set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

  1. [59]
    Now that Dr Chen is no longer employed by GCHHS, I am limited in any decision which I may substitute in lieu of the decision not to convert. In this respect, notwithstanding Dr Chen's submissions in relation to the substantive aspects of PSA/2020/449, I note it is beyond the remit of this Commission to order that a person be re-employed in a proceeding of this kind.
  2. [60]
    I also consider there would be little utility in requiring GCHHS to undertake a fresh review where Dr Chen's employment has been terminated, and where that is a basis on which it may refuse to convert him in any event.
  3. [61]
    The primary relief sought by Dr Chen, being conversion to permanent employment status, is no longer available to him. Dr Chen is no longer an employee of the State of Queensland, therefore there is an absence of an extant employment relationship of a temporary nature upon which conversion could be predicated.
  4. [62]
    Given the above, I am not persuaded that an order under s 562C allowing the appeal in favour of Dr Chen is reasonably open to be made.
  5. [63]
    For all the reasons set out above, I therefore consider there are compelling reasons to decline to hear the appeal in PSA/2020/449 pursuant to s 562A(3)(b)(iii) of the IR Act.
  1. [34]
    It was argued at first instance that the Commission should not hear and determine the Appellant's PSA appeals as his dismissal on 21 May 2021 is a compelling reason not to hear the matter.
  2. [35]
    However, it was argued before me that the conclusion at first instance was not objectively reasonable in circumstances where there were two other proceedings on foot challenging the validity of the termination of the Appellant’s employment. This is particularly so in circumstances where proceedings were on foot seeking relief which would have reinstated the Appellant to his employment, there was no compelling reason to dismiss the appeal.
  3. [36]
    Rather, it was contended, the appropriate course ought to have been to adjourn the Third Conversion Appeal, pending the resolution of the GP application and the Unfair Dismissal Application. If the relief sought in those proceedings, namely reinstatement, had been granted, there would have been no bar to the Third Conversion Appeal being determined according to law.
  4. [37]
    The second alleged error concerns the exercise of the Commissioners discretion more generally. It is contended that the discretion miscarried because the Commissioner failed to take into account that her concerns about utility could be addressed by having the proceeding adjourned to the Registry.
  5. [38]
    With respect to s 562A and the 'public interest' ground of appeal, the Appellant framed its submissions in light of s 447(2)(b) of the IR Act. Section 447(2)(b) relevantly reads:

447 Commission's functions

…

  1. (2)
    The commission must perform its functions in a way that—

…

  1. (b)
    avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
  1. [39]
    The Appellant emphasised that the obligation to facilitate the 'fair and practical conduct of proceedings' was an overriding obligation upon the Commission, and that s 562A is influenced by s 447.[16]
  2. [40]
    Similarly, section 562A reads:
  1. 562A
    Commission may decide not to hear particular public service appeals

…

  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—
  1. (a)
    the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
  2. (b)
    the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
  1. (i)
    is frivolous or vexatious; or
  2. (ii)
    is misconceived or lacks substance; or
  3. (iii)
    should not be heard for another compelling reason.
  1. [41]
    The Appellant argued that the word 'reasonably' in subs 3(b) imports the obligation of an objective assessment.[17]
  2. [42]
    On the Appellant's submission, public service appeals may only be dismissed under
    s 562A where there is 'an objectively reasonable basis for believing that there was a compelling reason not to hear the matter'.[18]
  3. [43]
    Applying those principles, the Appellant submitted that the Commissioner erred in this respect, arguing that the appropriate course of action was to adjourn the Third Conversion Appeal (PSA 449) to the registry pending the outcome of the general protections and unfair dismissal applications that were on foot.
  4. [44]
    The power in s 562A(3)(b)(iii) not to hear a public service appeal against a decision for some compelling reason is a discretionary one. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene.[19]
  5. [45]
    In House v The King, 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.[20]

  1. [46]
    An exercise by the Commission of the power conferred in s562A (3) can prevent a party from pursuing relief otherwise available under the PS Act and the IR Act. As such, the power should be exercised with due circumspection on a proper consideration of relevant matters.[21]
  2. [47]
    At the time of the dismissal of the Third Conversion Appeal, two other proceedings were before the Commission challenging the validity of the termination of the Appellant’s employment and seeking relief which would, if successful, have reinstated the Appellant to his employment.
  3. [48]
    If the tribunal acts upon a wrong principle or allows extraneous or irrelevant matters to guide or affect the decision-making, or if the facts are mistaken, or if some material consideration is not taken into account, then an appellate court might intervene. In my view, the exercise of the discretion miscarried in this case because of a failure to have proper regard for the GP and the unfair dismissal applications.
  4. [49]
    The appropriate course, in my view, ought to have been for the Commissioner to have adjourned the Third Conversion Appeal, pending the resolution of the GP application and the Unfair Dismissal Application. If the relief sought in those proceedings, namely reinstatement, is granted, then there would be no bar to the Third Conversion Appeal being determined according to law.
  5. [50]
    In coming to that conclusion, I cannot accept the argument of the Respondent that should the Appellant succeed in establishing that the GCHHS unlawfully removed him from the roster, and prejudiced his conversion rights, there is no impediment to the Commission exercising its broad discretion under s 314 of the IR Act to make good Dr Chen's loss through the grant of compensation.
  6. [51]
    The course suggested by the Respondent would require the Commission to attempt to conduct, in some abstract way, an assessment of the Appellant's conversion rights in circumstances where there is already a statutory mechanism for doing so.   
  7. [52]
    The Respondent contends that the right of former employees to continue to pursue, or to bring, conversion appeals was not part of the 'mischief' sought to be cured by the 2020 Amending Act.
  8. [53]
    The amendments to the PS Act and the IR Act were reflective of the policy objectives of maximising employment security and establishing permanent employment as the default basis for public sector employment. Non-permanent forms of employment, including casual employment, should only be used when ongoing employment is not viable or appropriate.[22]
  9. [54]
    It was raised in argument against the Appellant that he should not be entitled to the relief sought because it is opposite of what was pressed at first instance. The Respondent contends that the order to convert from casual to permanent employment was sought on an urgent basis and without reference to the GP or UD proceedings. It is further asserted that it was the GCHHS which first sought to adjourn the Second and Third Conversion appeals pending the progress of the GP and UD proceedings. This course, it was submitted, was opposed by the Appellant.
  10. [55]
    In reply, the Appellant submits that as at 4 May 2021 the Respondent maintained the position that the Appellant had not been dismissed and that he was still employed by the GCHHS.
  11. [56]
    In circumstances where the Respondent maintained that the Appellant was still employed, it was reasonable for him to reject the contention that the PS Act appeals be stayed.
  12. [57]
    It was not until 8 June 2021 that the Respondent changed its position and agreed that the Appellant had been terminated.
  13. [58]
    Following the mention on 18 June 2021 the Respondent's position became clearer. In the ex-tempore decision of the Commission in Chen v Gold Coast Health and Hospital Service,[23] delivered on 22 June 2021, the following was said:
  1. [8]
    At a mention of this matter on 18 June 2021, the respondent abandoned the first two grounds of the interlocutory application. It has now been acknowledged that Dr Chen’s employment has been ‘concluded’, though the precise date and circumstances of the termination of the employment are as yet unclear. The termination has occurred some time between 10 December 2020 and 8 June 2021, which is the date upon which Dr Chen received an email from the respondent’s solicitors, confirming his employment had been concluded.[24]
  1. [59]
    During the summary judgment application, the Appellant, who appeared on his own behalf, did not contend that the PS Act appeals should be adjourned. Rather, it is submitted that the Appellant merely answered the Respondent's submissions in respect of the substantive merits of the question of whether his dismissal automatically brought the PS Act appeals to an end.
  2. [60]
    The inability of a party in an appeal to change the ground rules upon which the primary decision was given was summarised in University of Wollongong v Metwally (No 2),[25] the High Court said:
  1. [7]
    It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[26]
  1. [61]
    It cannot be reasonably said that the Appellant is now attempting to raise an argument before the Court which, whether deliberately or by inadvertence, he failed to do so before the Commission.
  2. [62]
    As Mr Massy rightly points out, the argument advanced before the Commission at first instance was very much reflective of the circumstances as they existed at the time. What is now before the Court is a question of law.[27]

Conclusion

  1. [63]
    For the reasons set out above, I have concluded that the appeal should be allowed. Accordingly, I make the following orders:
  1. 1.The appeal is allowed;
  2. 2.The decision in Chen v State of Queensland (Queensland Health) [2021] QIRC 369 be set aside; and
  3. 3.That matter PSA/2020/449 be adjourned to the Industrial Registry pending the hearing and determination of GP/2020/27 and TD/2021/20.

Footnotes

[1]Chen v State of Queensland (Queensland Health) [2021] QIRC 369 ('Chen').

[2]  Ibid [1].

[3]  As at 31 August 2020.

[4] Chen (n 1) [54]-[55].

[5]  Appellant's outline of submissions filed 8 December 2021 [3]. 

[6] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71]; Re Boulton Ex Parte Beane (1987) 162 CLR 514, 518.

[7]  TR 1-5, LL 23-25.

[8] Central Queensland Services v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 154,
161-2 [30]-[31].

[9]  (2003) 9 VR 154.

[10]  (2009) 239 CLR 27.

[11]  Ibid 46-7.

[12] Deal v Father Pius Kodakkathanath (2016) 258 CLR 281, 295.

[13]  (1994) 179 CLR 427.

[14]  Ibid 437.

[15]  Submissions of the Respondent filed 22 December 2021, [11].

[16] Industrial Relations Act 2016 (Qld) s 447(2)(b).

[17]  Appellant's outline of submissions filed 8 December 2021 [20] citing George v Rocket (1990) 170 CLR 104, 112.

[18]  Ibid [21].

[19] Prange v Brisbane City Council [2012] ICQ 2 [3] (Hall P).

[20]  (1936) 55 CLR 499, 504-6.

[21] Re Media, Entertainment and Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd (1993) 112 ALR 193, 194.

[22]  Explanatory Memorandum, Public Service and Other Legislation Amendment Bill 2020 (Qld). 

[23]  [2021] QIRC 235.

[24]  Ibid [8].

[25]  (1985) 59 ALJR 481.

[26]  Ibid 483.

[27] Coulton v Holcombe (1986) 162 CLR 1, 7.

Close

Editorial Notes

  • Published Case Name:

    Chen v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Chen v State of Queensland (Queensland Health)

  • MNC:

    [2022] ICQ 15

  • Court:

    ICQ

  • Judge(s):

    Member O'Connor VP

  • Date:

    13 May 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QIRC 36928 Oct 2021Public service appeals to compel employer to reconsider application for conversion from casual to permanent employment, and against employer's subsequent refusal of that application; appeals dismissed: Knight IC.
Primary Judgment[2022] ICQ 1513 May 2022Appeal against decision below to dismiss appeal against refusal of application for conversion to permanent employment; appeal allowed; matter adjourned to registry pending outcome of other pending proceedings: O'Connor VP.
Primary Judgment[2023] ICQ 2129 Sep 2023Appellant's application for costs of appeal dismissed; order appellant pay respondent's costs of costs application on indemnity basis: O'Connor VP.
Appeal Determined (QCA)[2024] QCA 4226 Mar 2024Appeal against costs orders below dismissed: Dalton JA (Morrison JA and Burns J agreeing).
Appeal Determined (QCA)[2024] QCA 6323 Apr 2024Costs of appeal to be paid by appellant to respondent on indemnity basis: Dalton JA (Morrison JA and Burns J agreeing).
Application for Special Leave (HCA)File Number: B26/202407 May 2024Application for special leave to appeal filed.
Special Leave Refused (HCA)[2024] HCASL 17408 Aug 2024Special leave to appeal refused: Edelman and Jagot JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
3 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Cite 3 - (2009) 239 CLR 27
Central Queensland Services v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 154
2 citations
Jump To
Cite 1 - (2017) 249 FCR 154
Cite 2 - (2017) 249 FCR 154
Chen v Gold Coast Hospital and Health Service [2021] QIRC 235
3 citations
Jump To
Cite 1 - [2021] QIRC 235
Cite 2 - [2021] QIRC 235
Cite 3 - [2021] QIRC 235
Chen v State of Queensland (Queensland Health) [2021] QIRC 369
6 citations
Jump To
Cite 1 - [2021] QIRC 369
Cite 2 - [2021] QIRC 369
Cite 3 - [2021] QIRC 369
Cite 4 - [2021] QIRC 369
Cite 5 - [2021] QIRC 369
Cite 6 - [2021] QIRC 369
Coco v The Queen (1994) 179 CLR 427
3 citations
Jump To
Cite 1 - (1994) 179 CLR 427
Cite 2 - (1994) 179 CLR 427
Cite 3 - (1994) 179 CLR 427
Coulton v Holcombe (1986) 162 CLR 1
2 citations
Jump To
Cite 1 - (1986) 162 CLR 1
Cite 2 - (1986) 162 CLR 1
Deal v Father Pius Kodakkathanath (2016) 258 CLR 281
2 citations
Jump To
Cite 1 - (2016) 258 CLR 281
Cite 2 - (2016) 258 CLR 281
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Prange v Brisbane City Council [2012] ICQ 2
2 citations
Jump To
Cite 1 - [2012] ICQ 2
Cite 2 - [2012] ICQ 2
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Re Bolton & Anor; Ex parte Bean (1987) 162 CLR 514
2 citations
Jump To
Cite 1 - (1987) 162 CLR 514
Cite 2 - (1987) 162 CLR 514
Re MEAA; ex parte Hoyts Corporation Pty Ltd (1993) 112 ALR 193
2 citations
Jump To
Cite 1 - (1993) 112 ALR 193
Cite 2 - (1993) 112 ALR 193
Tamas v Victorian Civil and Administrative Tribunal (2003) 9 VR 154
2 citations
Jump To
Cite 1 - (2003) 9 VR 154
Cite 2 - (2003) 9 VR 154
University of Wollongong v Metwally (1985) 59 ALJR 481
3 citations
Jump To
Cite 1 - (1985) 59 ALJR 481
Cite 2 - (1985) 59 ALJR 481
Cite 3 - (1985) 59 ALJR 481

Cases Citing

Case NameFull CitationFrequency
Chen v Gold Coast Hospital and Health Service [2024] QCA 2411 citation
Chen v Gold Coast Hospital and Health Service [2024] ICQ 12 citations
Chen v Gold Coast Hospital and Health Service [2023] QIRC 121 citation
Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 1282 citations
Chen v Queensland Health [2024] QCA 421 citation
Chen v Queensland Health [No 2] [2024] QCA 631 citation
Chen v State of Queensland (Queensland Health) (No 2) [2023] ICQ 212 citations
Smith v State of Queensland (Department of Education) [2022] QIRC 3452 citations
Smith v State of Queensland (Department of Education) (No. 2) [2022] QIRC 3982 citations
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4002 citations
1

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