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Mutonhori v Mount Isa City Council (No. 3)[2025] ICQ 18

Mutonhori v Mount Isa City Council (No. 3)[2025] ICQ 18

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Mutonhori v Mount Isa City Council (No. 3) [2025] ICQ 018

PARTIES:

Mutonhori, Simon

(Appellant)

v

Mount Isa City Council

(Respondent)

CASE NO:

C/2024/35

PROCEEDING:

Appeal 

DELIVERED ON:

5 September 2025 

HEARING DATE:

1 September 2025

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. The appeal is allowed.
  1. The decision in GP/2024/20 dated
    4 October 2024 is set aside and in lieu thereof is substituted with a decision granting the Appellant an extension of time to make an application relating to his dismissal in proceeding GP/2024/20 to
    24 May 2024.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHEN APPEAL LIES – where the appellant filed an appeal against a decision of the Queensland Industrial Relations Commission – where the Commission in the proceedings below dismissed the appellant's general protections application in part because the appellant filed outside of the time limit imposed by s 310 of the Industrial Relations Act 2016 (Qld) – where the appellant appealed that decision to the Industrial Court of Queensland – whether the Commission erred in law – whether the Commission failed to provide adequate reasons in relation to the decision – whether the Commission failed to consider relevant considerations – whether the Commission considered irrelevant considerations – the appeal is allowed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 310, s 424, s 557, s 558

CASES:

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23

DL v The Queen (2018) 266 CLR 1

Mutonhori v Mount Isa City Council (No. 2) [2024] QIRC 240

Mutonhori v Mount Isa City Council [2025] ICQ 1

Mutonhori v Mount Isa City Council [2025] QCA 66

Naidoo v Scenic Rim Regional Council [2024] QIRC 134

Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182

Queensland Teachers Union of Employees v State of Queensland (Department of Education (No 2) [2021] ICQ 3

APPEARANCES:

Mr S. Mutonhori appeared on his own behalf 

Mr B. Meredith of Preston Law on behalf of the Respondent

Reasons for Decision

Introduction

  1. [1]
    Mr Simon Mutonhori ('the Appellant') appeals a decision of the Queensland Industrial Relations Commission ('the Commission').[1]
  1. [2]
    The decision appealed against is a decision which, inter alia, dismissed the Appellant's application for an extension of time to file the part of the application that relates to the dismissal. The Commission relevantly issued the following orders:
  1. The application for an extension of time to file that part of the application that relates to dismissal is refused.
  1. That part of the application that relates to dismissal is dismissed.
  1. That part of the application that relates to suspension from duties may proceed to further directions.[2]
  1. [3]
    The decision appealed against is an interlocutory decision made in the course of
    the Appellant's substantive general protections proceedings. The effect of the decision is that it prevents the Appellant from seeking relief with respect to dismissal in his current general protections proceeding.
  1. [4]
    In making the decision, the Commission was required to consider the relevant factors to determine whether exceptional circumstances arose pursuant to s 310 of the Industrial Relations Act 2016 (Qld) ('IR Act').
  1. [5]
    The Appellant is seeking that the Primary Decision be set aside and replaced with one that finds that exceptional circumstances exist and allows an extension of time for the Appellant to file the general protections application outside of the prescribed timeframe.

The appeal to this Court

  1. [6]
    Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law, or excess or want of jurisdiction. Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the Court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act.
  1. [7]
    Mr Mutonhori has not sought leave to appeal on a ground other than those referred to in s 557(1) of the IR Act.
  1. [8]
    The Appellant contends that the Commission erred in law and fact on the following grounds: 
  1. Failing to give adequate reasons for his decision. The Commissioner relied on a generalised conclusion that allowing an extension time would disadvantage others in similar circumstances whose applications were declined in the past. Clearly, the Commission failed to examine this case on its own merit based on the relevant evidence provided. The two case laws he relied on couldn’t be more different.
  1. Failing to consider and give weight to contemporaneous and undisputed evidence of procedural unfairness in the disciplinary process. That the applicant was immediately suspended without a show cause notice after lodging his work place complaint; that his work place complaint was totally ignored in favour of the retaliatory allegations against him which expedited and eventually used to dismiss him; that the applicant was not privy to the investigation details and was not involved, etc.
  1. Failing to acknowledge and take into consideration work already dedicated into this case by 4 other Commissioners prior to him and given that none of the 4 Commissioners dismissed the applicant's case. The Commissioner barely mentioned these previous proceedings but rather brushed them aside as non-events. What a waste of time of the Commission, spending 7 months involving 4 Commissioners only to be dismissed by the 5th Commissioner with totally no regard or acknowledgement of the work already done by his colleagues.
  1. The Commissioner focused at length on wrong evidence claiming the applicant blamed late application on representation error. This was never raised by the applicant but the Commissioner dedicated a significant amount of time and effort on this irrelevant matter which weighs heavily in his mind when he formed his final conclusion. All of that led to the Commissioner being distracted and diverted from the facts relevant to this case in particular.
  1. [9]
    The Appellant has further expanded on his grounds of appeal in his submissions as follows:
  1. a)
    Failed to give adequate and sufficient reasons for the decision.
  1. b)
    Failed to consider and give weight to unequivocal and documented actions taken to dispute suspension and dismissal right from the start.
  1. c)
    Erred in having regard to evidence where no such evidence was produced regarding representative error and a claim that the applicant was ignorant of time restrictions to file this application as a mitigation for delay.
  1. d)
    Erred in placing emphasis on perceived Respondent's evidence which was not produced. The Commissioner surmised non-existent prejudice to the Respondent where the Respondent did not make any submission.
  1. e)
    Failed to acknowledge and consider extensive work and decisions of the other four Commissioners involved in this matter prior to him.
  1. f)
    Failed to consider the gravity of the allegations and the obvious public interest due to the serious and sensitive nature of the allegations involving illegal use of firearms and wanton killing of animals.
  1. g)
    Failed to consider significant hardships imposed on the applicant caused by the resultant professional reputational damage from the allegations. The Commissioner paid no attention to the plight of the applicant caused due inability to secure alternative employment for nearly a year now despite a concerted effort seeking alternative employment.
  1. [10]
    These expanded grounds were responded to by the Respondent in its written submissions and the Respondent does not contend that it will suffer prejudice if they are considered. To a large degree, the expanded grounds mirror the matters referred to in the grounds of appeal in the application and to that extent only will they be considered in this appeal.

Relevant background

The recusal decision

  1. [11]
    In the course of this appeal proceeding, and after the appeal had been listed for hearing, the Appellant filed an application for recusal seeking that I recuse myself from hearing the appeal.
  1. [12]
    The recusal application was listed to be heard immediately before this appeal. The parties were notified, both in writing by the Industrial Registry and at the commencement of the recusal application, that the appeal would remain listed and would proceed if the recusal application was dismissed. Conversely, if the recusal application was successful the appeal hearing would be adjourned.
  1. [13]
    After hearing from the parties, the recusal application was dismissed and the Court proceeded to hear the appeal.
  1. [14]
    The Appellant indicated that he wished to appeal the recusal application decision. The Appellant was advised that he was entitled to do so but that the appeal would proceed to be heard.
  1. [15]
    The Appellant, despite being given an opportunity to provide oral submissions, declined to do so. Oral submissions were made on behalf of the Respondent. The Court has had regard to the written submissions filed by the parties.

The Commission's decision

  1. [16]
    The proceedings below involve a general protections claim brought by the Appellant pursuant to ch 8 pt 1 of the IR Act against the Appellant's previous employer, Mount Isa City Council.
  1. [17]
    The Commission described the essence of the Appellant's claim as being that his suspension and dismissal contravened s 285(1)(a)(ii) of the IR Act carried out because of complaints he had made about being bullied with such complaints being in exercise of a workplace right.
  1. [18]
    Section 310(1)(a) of the IR Act provides that an application relating to dismissal must be filed within 21 days after the dismissal took effect.
  1. [19]
    The Appellant dismissal took effect on 20 December 2023 and his general protections application was filed on 24 May 2024. Accordingly, in order to comply with the prescribed time limit, the application should have been filed on or before 10 January 2024.
  1. [20]
    In these circumstances, the application was filed 134 days outside of the time limit prescribed by s 310(1)(a) of the IR Act.
  1. [21]
    The Commission relevantly identified that the issue that required determination was whether the time to file the proceedings should be extended pursuant to s 310(2) of the IR Act.
  1. [22]
    The Commission concluded that the determination to grant an extension of time only related to that part of the application that contended that the dismissal amounted to adverse action. The remaining part of the application that contended that the suspension amounted to adverse action was not subject to the time limit prescribed in s 310(1)(a) of the IR Act.[3] That determination by the Commission was plainly correct.
  1. [23]
    On dealing with the application for extension of time, the Commissioner referred to and directed himself to s 310 of the IR Act. That provides, at s 310(2) of the IR Act that the Commission may allow a further period to file an application relating to dismissal if satisfied there are exceptional circumstances by taking into account the following:
  1. the reason for the delay; and
  1. any action taken by the person to dispute the dismissal; and
  1. prejudice to the employer (including prejudice caused by the delay); and
  1. the merits of the application; and
  1. fairness as between the person and other persons in a similar position.
  1. [24]
    The Commissioner then directed himself to a number of authorities which considered the factors relevant to determining whether there were exceptional circumstances to allow or not allow an application for an extension of time.[4]
  1. [25]
    The Commissioner then proceeded to consider whether the Appellant had established exceptional circumstances to the satisfaction of the Commission by considering the relevant factors referred to in s 310(2) of the IR Act.
  1. [26]
    The approach adopted by the Commission was a conventional approach to the consideration of such an application. It is understood the Appellant does not complain about the approach adopted but rather complains that the Commission erred on the basis of the grounds of appeal which will now be considered below.

Ground one

  1. [27]
    The Appellant submits that "the Commissioner relied on a generalised conclusion that allowing an extension of time would disadvantage others in similar circumstances whose applications were declined in the past. Clearly, the Commission failed to examine this case on its own merit based on the relevant evidence provided".
  1. [28]
    The Appellant also seeks to distinguish his appeal from the authorities of Nichols v State of Queensland (Department of Transport and Main Roads) ('Nichols')[5] and Naidoo v Scenic Rim Regional Council ('Naidoo')[6] which were each referred to in the reasons of the Commission.
  1. [29]
    As noted above, s 310(2) of the IR Act identifies factors to be taken into account when determining if "exceptional circumstances" have been established. Section 310(2)(e) of the IR Act provides that the Commission may take into account fairness as between the person and other persons in a similar position.
  1. [30]
    The Commissioner considered this factor in the following terms:

I cannot accept the Applicant's submissions as to taking a holistic view of the fairness as between the Applicant and others in similar cases. The test to be applied is whether it would be unfair to persons in a similar position to the Applicant who have had their applications for extension of time refused. As the Respondent has pointed out, there are many instances where applicants have misunderstood which jurisdiction to file in, or not appreciated the time limitation period, or the nuances of the law around what they should allege and where they should file their claim. Those applicants had their applications for extra time refused in similar circumstances to the Applicant. It would be unfair to those applicants to allow extra time in this case where their applications were refused in similar circumstances. Accordingly, this part of the Applicant's submissions must be rejected.[7]

Consideration

  1. [31]
    It is on the basis outlined above that the Appellant contends that Commissioner provided inadequate reasons.
  1. [32]
    In Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services),[8] Martin J referred to relevant principles to be applied by courts and quasi-judicial tribunals in ensuring adequate reasons for decisions are provided. These principles include the following: 
  1. [15]
    I have, in other decisions, set out the principles relating to the requirement for reasons to be given which are adequate in the circumstances. Decisions of tribunals do not attract the same degree of scrutiny as those of the ordinary civil courts. But the general principles still apply even though they may not be enforced with the same degree of rigour. I will repeat some of them which are particularly relevant in this case:
  1. the content and detail of reasons will vary according to the nature of the jurisdiction which the court or tribunal is exercising and of the particular matter the subject of the decision,
  1. one reason for the obligation to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal,
  1. a tribunal member will ordinarily be expected to expose his or her reasoning on points which are critical to the contest between the parties – this applies both to evidence and to argument,
  1. where a party relies on relevant and cogent evidence which is rejected by the tribunal, then the tribunal should provide a reasoned explanation for the rejection of that evidence, and
  1. where parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for the preference of the tribunal of one set of evidence to the other.
  1. [16]
    Of particular relevance to this case is the observation by Nettle J in DL v R where he said:

" … in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law."[9]

  1. [33]
    In DL v The Queen,[10] the High Court relevantly observed:

At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."[11]

  1. [34]
    In the Commission below, the Appellant argued that "a holistic approach" to determining fairness should be undertaken[12] and that granting an extension would not create precedent or unfairness to employees in similar positions.
  1. [35]
    The reasons properly had regard to s 310(2)(e) of the IR Act and considered the Appellant's arguments with respect to it. In doing so, the Commission rejected the Appellant's contention that when considering s 310(2)(e) of the IR Act, the Commission should adopt a holistic approach to fairness as between the Appellant and others in similar cases.
  1. [36]
    Further, the Commission provided the basis for the rejection, that is, it was stated that "the test to be applied is whether it would be unfair to persons in a similar position to the Applicant who have had their applications for extensions of time refused."[13]
  1. [37]
    The Appellant does not contend that the Commission erred in stating the correct test to be applied.
  1. [38]
    The Commissioner then provided a basis, having regard to applicants in other cases, for his conclusion that it would be unfair to those applicants to allow extra time in the case where their applications were refused in similar circumstances.
  1. [39]
    The Appellant has not established that the Commission provided inadequate reasons when taking into account s 310(2)(e) of the IR Act. The approach adopted by the Commission in setting out the Appellant's argument, considering that argument and providing a basis for the ultimate conclusion with respect to s 310(2)(e) accords with the principles referred to above.
  1. [40]
    Additionally, the Appellant, in his submissions before the Court, submits that the Commission's reference to the decisions in Nichols and Naidoo, when considering the relevant principles to be applied, could not "be more different" from his case.
  1. [41]
    The Appellant then proceeds to identify the basis upon which his case differs from the facts in Nichols and Naidoo.
  1. [42]
    The Appellant made no reference to either of those decisions before the Commission.
  1. [43]
    The Commission appropriately had regard to those decisions when considering the principles to be applied in an application for an extension of time. The Appellant's piecemeal critique of the facts and reasons in those cases do not assist in his argument that the reasons were inadequate. 
  1. [44]
    Ground one is dismissed.

Failing to consider relevant considerations and taking into account irrelevant considerations 

  1. [45]
    Grounds two, three and four variously contend that the Commission either failed to consider a relevant consideration or, alternatively, took into account an irrelevant consideration.
  1. [46]
    In Queensland Teachers Union of Employees v State of Queensland (Department of Education (No 2),[14] his Honour, Davis J considered the concept of relevant and irrelevant considerations in the following terms:

The 'something more' requires reference to the dual concepts of 'relevant considerations' and 'taking into account'. The term 'relevant considerations' is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be 'mandatory consideration'. Further, a matter traditionally described as an 'irrelevant consideration' is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.[15]

Ground two

  1. [47]
    With respect to ground two, the Appellant contends the Commission failed "to consider and give weight to contemporaneous and undisputed evidence of procedural unfairness in the disciplinary process. That the applicant was immediately suspended without a show cause notice after lodging his work place complaint; that his work place complaint was totally ignored in favour of the retaliatory allegations against him which expedited and eventually used to dismiss him; that the applicant was not privy to the investigation details and was not involved, etc".
  1. [48]
    The Appellant contends that the Commission erred when it determined that it could not determine the merits of the case because of the contested evidence but that the Commissioner failed to particularise the disputed evidence. The Appellant contends that there is no disputed evidence in the case.
  1. [49]
    In order to be successful, the Appellant is required to establish that the Commission failed to take into account matters it was obliged to pursuant to s 310 of the IR Act or, in the alternative, the Commission had regard to prohibited matters having regard to the subject matter, scope and purpose of the power in s 310 of the IR Act being exercised.

Consideration

  1. [50]
    Relevantly, as noted above, s 310(2)(d) of the IR Act identifies that the Commission may take into account the merits of the application.
  1. [51]
    In the reasons at paragraphs 21 and 22 of the Primary Decision, the Commission considers the respective positions of the parties regarding the merit of the application.
  1. [52]
    The merit of the application was further dealt with in the reasons as follows:

As to merit, it is impossible from this early vantage point to form a view that the Applicant's case is so lacking in merit as the Respondent suggests that it is devoid of prospects. Certainly, if the Respondent's assertions come up to proof at trial, the application is doomed to fail. But that all rests on findings of fact. For example, it is a question of fact as to whether the real reason for the dismissal substantially included proscribed reasons and therefore contravened the general protections within the IR Act. Findings of the relevant facts can only occur after hearing all of the evidence. Only then can there be a determination as to whether the Respondent has discharged what is commonly referred to as the "reverse onus of proof" at section 306 of the IR Act. Not being able to form a view as to the matter's prospects, I find this to be a neutral consideration.[16]

  1. [53]
    Given the stage of the proceedings, the conclusion reached by the Commission with respect to merit was conventional and appropriate. In the circumstances of this matter, and in the absence of any suggestion of jurisdictional (apart from the current application) or other legal arguments, the assessment of merit at such a stage of the proceedings is premature. 
  1. [54]
    There was no error in the approach adopted by the Commission with respect to the assessment of merit. On this basis, ground two fails to establish an appellable error.

Ground three

  1. [55]
    The Appellant contends that the Commission erred by failing to "acknowledge and take into consideration work already dedicated into this case by four other Commissioners prior to him and given that none of the four Commissioners dismissed the applicant's case. The Commissioner barely mentioned these previous proceedings but rather brushed them aside as non-events. What a waste of time of the Commission, spending seven months involving four Commissioners only to be dismissed by the fifth Commissioner with totally no regard or acknowledgement of the work already done by his colleagues".
  1. [56]
    In the expanded grounds, the Appellant also contends that there was a failure to give weight to unequivocal and documented actions taken to dispute suspension and dismissal right from the start.
  1. [57]
    The Appellant refers in his written submissions to three proceedings being C/2023170, a proceeding commenced in the Fair Work Commission and, further, D/2023/114 and TD/2023/138 ('the unfair dismissal proceeding').
  1. [58]
    In his written submissions below, the Appellant attempted to give some context to the previous proceedings as follows:
  1. a)
    Soon after my suspension on 14th November 2023, I lodged an application for general protections with Fairwork Commission on 21st November 2023 and a file reference number C2023/7120 was allocated to Commissioner Hunt.
  1. b)
    Directions order was issued to attend a conciliatory conference and the respondent refused to attend citing jurisdiction objection.
  1. c)
    Commissioner Hunt referred the matter to QIRC in which I lodged another general protection application on 30th November 2023 and file reference number D/2023/114 was created and allocated to Commissioner Pidgeon.
  1. d)
    On 12th December 2023, Commissioner Pidgeon convened a telephone mention at which the Respondent was put on notice to speedy up the investigation process and he was given a deadline of 19 December 2023.
  1. e)
    Another telephone mention was held on 19 December 2023 at which the Respondent failed to provide valid reasons the prolonged delay.
  1. f)
    Without warning, late on the following day, 20th December 2023, the Respondent sent me a termination letter by email. He did not copy the Registry as required since the matter was already with QIRC.
  1. g)
    I took it upon myself to inform Commissioner Pidgeon  of  the  latest development by providing a copy of the termination letter to the existing case (D/2023/114) on 21st December 2023.
  1. h)
    On 22nd December 2023 the Registry acknowledged the updated information on termination, and they created a new file reference TD/2023/138.
  1. i)
    The Registry did not give reasons why a new file number had to be created and there was no explanation either on the fate of the existing file D/2023/114. This file is still open and pending with QIRC, it was never closed.
  1. j)
    The new file was allocated to Commissioner Power and a directions order was issued for the Respondent to file his response by 29th January 2024.
  1. k)
    On 12th January 2024, I lodged an application in existing proceedings for an interlocutory decision to deal with the urgent issue of interim reinstatement.
  1. l)
    The Respondent was given up to 26 January 2024 to res pond.
  1. m)
    In his submission, the Respondent objected on jurisdictional grounds.
  1. n)
    The Respondent also made a replica jurisdictional objection in the substantive matter on 29th January 2024.
  1. o)
    Commissioner Power released her interlocutory decision on 15th February.
  1. p)
    On 17th February 2024, Commissioner Power issued another Directions Order for me to provide a submission addressing  the  jurisdictional objection raised by the Respondent in the substantive matter.
  1. q)
    On 5th March 2024 I submitted a comprehensive submission addressing the jurisdictional objection as directed by Commissioner Power.
  1. r)
    The Respondent was given up to 18th March 2024 to file any further submission on the matter. The deadline was later extended to 26th March 2024, but the Respondent failed to respond to my comprehensive submission.
  1. s)
    On 13th April 2024, Commissioner Power noted the failure of the Respondent to respond to my substantive submission on jurisdiction objection.
  1. t)
    In the same mention, Commissioner Power advised that my contentions were more aligned with General Protections application than Unfair Dismissal.
  1. u)
    She then asked me to consider whether I wanted to proceed with the existing application or change my application and I took the advice to change .
  1. v)
    On the same day I lodged the General Protections application and  also applied to discontinue the existing application as advised.

…

  1. [59]
    It is apparent, from the above, that while the Appellant did file proceedings in another jurisdiction, he did also file an application (TD/2023/138)[17] relating to his dismissal with the Commission and within the 21-day time period.
  1. [60]
    Further, the Appellant states that during the course of a mention on 13 May 2024,[18] the Commission raised with him whether what he was really seeking was reinstatement on the basis of adverse action rather than on the basis of unfair dismissal.
  1. [61]
    The Appellant states that he advised the Commission that he would consequently file a general protections application.
  1. [62]
    Seemingly consistent with the Appellant's submissions, he sought to file a notice of discontinuance in TD/2023/138 and a general protections application on the same day that TD/2023/138 was mentioned before Commissioner Power.
  1. [63]
    Due to matters of procedure, the discontinuance in TD/2023/138 and the application which would become GP/2024/20 were not accepted for filing until 24 May 2024.
  1. [64]
    From the above, it is apparent that the Appellant filed an application relating to his dismissal with the Commission within the 21-day time period. The Respondent, accordingly was on notice from that time, at least, that the Appellant disputed the dismissal.
  1. [65]
    Further, when it was brought to the Appellant's attention by the Commission that his application relating to his dismissal was not a general protections matter claiming he was dismissed for adverse action but rather an application that he had been unfairly dismissed he acted in a timely manner to seek to file a notice of discontinuance in TD/2023/138 and to file a fresh application in GP/2024/20.
  1. [66]
    It is apparent from the above that in addition to seeking remedies in other jurisdictions, the Appellant sought to dispute his dismissal to seek, inter alia, reinstatement before the Commission prior to the expiration of the 21-day time limit. Further, it is apparent that he discontinued proceeding TD/2023/138 and sought to file GP/2024/20 immediately following a mention during which such a course was discussed.
  1. [67]
    It is not apparent from the reasons for the decision that the particulars of the Appellant's conduct in this regard was considered by the Commission. These matters provide an explanation for the reason for delay.
  1. [68]
    Further, they are matters that are a relevant consideration with respect to whether the discretion referred to in s 310(2)(a) of the IR Act should be exercised. They should have properly formed part of the Commission's consideration of the application.
  1. [69]
    Accordingly, ground three of the appeal is allowed.

Ground four

  1. [70]
    The Appellant contends, with respect to ground four that "the Commissioner focused at length on wrong evidence claiming the applicant blamed late application on representation error. This was never raised by the applicant but the Commissioner dedicated a significant amount of time and effort on this irrelevant matter which weighs heavily in his mind when he formed his final conclusion. All of that led to the Commissioner being distracted and diverted from the facts relevant to this case in particular".
  1. [71]
    Whilst the Appellant did not use the term "representational error" before the Commission, under the heading "S 310(2)(a) Reason for the delay" the Appellant relevantly submitted as follows:

Timely effort to seek legal advice.

  1. Immediately after my suspension, I approached a number of law firms to seek legal advice, but I could not afford their exorbitant fees as shown in the attachment C.
  2. I even reached out to Legal Aid, but the legal Aid lawyer wouldn't tell me anything other than encouraging me to contact his firm for private engagement.
  3. Despite the steepy [sic] costs of hiring a lawyer, combined with my impecuniousness., I paid $550.00 for  a 15-minute consultation with a lawyer in which he failed to give me any meaningful advice because he came unprepared (see attachment C).
  4. Unlike the Respondent with vast financial resources at his disposal, I can't afford the luxury of legal representation.[19]
  1. [72]
    From the above extract of the Appellant's submissions before the Commission, he sought to bring to the Commission's attention his attempts to seek legal advice and that upon seeking such advise he described the lawyer as failing to provide him with any "meaningful advice". These submissions were made in the context of being one of the matters he pointed to in providing an explanation for the delay.
  1. [73]
    On the basis that it was a relevant consideration, the Commissioner properly had regard to the Appellant's submissions regarding the failure of the lawyer to provide "meaningful advice". The Appellant has established no error in the approach taken by the Commission or the conclusions drawn. Consequently, ground four of the appeal does not establish an appellable error.

Disposition

  1. [74]
    For the reasons referred to above, grounds one, two and four are dismissed.
  1. [75]
    The Appellant succeeds with respect to ground three insofar as the Commission failed to have regard to a relevant consideration. Namely, the particulars of the Appellant's conduct and attempts within the Commission to dispute the dismissal.
  1. [76]
    The Appellant is entitled to have the application for extension of time considered having regard to all of the relevant considerations.
  1. [77]
    The right of appeal is bestowed to this Court by s 557 of the IR Act. Section 557 of the IR Act relevantly states:

557  Appeal from commission

  1. The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
  1. error of law; or
  2. excess, or want, of jurisdiction.
  1. Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. error of law; or
  2. excess, or want, of jurisdiction.
  1. However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the commission under chapter 4, part 3, division 2.
  1. If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  1. In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.

  1. [78]
    The failure to take into account a relevant consideration is an error of law. The error is significant insofar as it precludes the Appellant from seeking relief with respect to a cause of action in the proceeding. Consequently, the decision should not be permitted to stand.
  1. [79]
    Section 558 of the IR Act provides the powers of the Court on appeal as follows:

558  What court may do

  1. On an appeal under section 556 or 557, the court may—
  1. dismiss the appeal; or
  2. allow the appeal, set aside the decision and substitute another decision; or
  3. allow the appeal and amend the decision; or
  4. allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.
  1. Also, the court may direct an industrial magistrate to issue a warrant for the appellant’s arrest if—
  1. under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and
  2. the appellant was released from custody by a magistrate under the rules made under section 551; and
  3. after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment.
  1. The industrial magistrate must comply with the direction.
  1. When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced.
  1. [80]
    Consistent with the reasons above, I allow the appeal and set aside the decision of the Commission.
  1. [81]
    Given that the application was heard on the papers before the Commission, and that those papers appear in Exhibit 1, it is convenient for the Court to exercise the discretion afresh.
  1. [82]
    In doing so, and consistent with the reasons herein, it is not necessary to disturb the Commission's reasons and how it dealt with the factors referred to in s 310(2)(b)-(e) of the IR Act. Consequently, the Court adopts the Commission's reasons as they appear in the Primary Decision at paragraphs 24 and 26 to 29.
  1. [83]
    In considering the above matters, I am satisfied that there are exceptional circumstances associated with this matter that warrant an exercise of the discretion to grant an extension of time. I consider that the reasons for the delay are such that, despite the findings with respect to the other factors listed in s 310(2)(b)-(e) of the IR Act, they weigh in favour of the exercise of the discretion.
  1. [84]
    I regard the reasons for the delay as being out of the ordinary course, unusual or special insofar as the Appellant commenced an application in relation to the dismissal in the Commission within the 21-day time limit, further, at a mention with respect to that application it was discussed whether the Appellant should instead file a general protections application. Consistent with the Appellant's understanding of the matters raised at the mention the Appellant sought to discontinue TD/2023/138 and file a general protections application being GP/2024/20.
  1. [85]
    In forming this view, I have taken into account that the Respondent has been on notice within the 21-day time period that the Applicant sought to dispute the dismissal and further that the grant of the extension of time will result in the addition of a cause of action, relating to the dismissal, to an existing and ongoing general protections proceeding.
  1. [86]
    For the above reasons, the Court exercises its discretion to grant an extension of time which the Appellant may have to make an application relating to his dismissal in proceeding GP/2024/20 to 24 May 2024.

Orders

  1. [87]
    For the reasons set out above, I make the following orders:
  1. The appeal is allowed.
  1. The decision in GP/2024/20 dated 4 October 2024 is set aside and in lieu thereof is substituted with a decision granting the Appellant an extension of time to make an application relating to his dismissal in proceeding GP/2024/20 to 24 May 2024.

Footnotes

[1]Mutonhori v Mount Isa City Council (No. 2) [2024] QIRC 240 ('Primary Decision').

[2]Ibid 1.

[3]See Industrial Relations Act 2016 (Qld) s 310(3).

[4]Primary Decision (n 1) [12]-[16].

[5][2023] QIRC 182.

[6][2024] QIRC 134.

[7]Primary Decision (n 1) [29].

[8][2019] ICQ 23 ('Ball v QCS).

[9]Ball v QCS (n 8) [15]-[16].

[10](2018) 266 CLR 1.

[11]Ibid [33].

[12]Mount Isa City Council, 'Appeal Book', Exhibit 1 in Mutonhori v Mount Isa City Council, C/2024/35,
24 January 2025, 174 ('Exhibit 1').

[13]Primary Decision (n 1) [29].

[14][2021] ICQ 3.

[15]Ibid [95], citing Lo v Chief Commissioner of State Revenue [2013] NSWCA 180.

[16]Primary Decision (n 1) [28].

[17]As well as an earlier application.

[18]The Appellant erroneously refers to 13 April 2024 in his written submissions. 

[19]Exhibit 1 (n 12) 171-2.

Close

Editorial Notes

  • Published Case Name:

    Mutonhori v Mount Isa City Council (No. 3)

  • Shortened Case Name:

    Mutonhori v Mount Isa City Council (No. 3)

  • MNC:

    [2025] ICQ 18

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    05 Sep 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23
2 citations
Jump To
Cite 1 - [2019] ICQ 23
Cite 2 - [2019] ICQ 23
DL v R (2018) 266 CLR 1
2 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180
1 citation
Jump To
Cite 1 - [2013] NSWCA 180
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
1 citation
Jump To
Cite 1 - [1986] HCA 40
Mutonhori v Mount Isa City Council [2025] ICQ 1
1 citation
Jump To
Cite 1 - [2025] ICQ 1
Mutonhori v Mount Isa City Council [2025] QCA 66
1 citation
Jump To
Cite 1 - [2025] QCA 66
Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 240
2 citations
Jump To
Cite 1 - [2024] QIRC 240
Cite 2 - [2024] QIRC 240
Naidoo v Scenic Rim Regional Council [2024] QIRC 134
2 citations
Jump To
Cite 1 - [2024] QIRC 134
Cite 2 - [2024] QIRC 134
Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182
2 citations
Jump To
Cite 1 - [2023] QIRC 182
Cite 2 - [2023] QIRC 182
Queensland Teachers Union of Employees v State of Queensland (Department of Education) (No 2) [2021] ICQ 3
2 citations
Jump To
Cite 1 - [2021] ICQ 3
Cite 2 - [2021] ICQ 3

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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