Wanninayake v State of Queensland (Department of Natural Resources and Mines)
[2015] QIRC 84
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Wanninayake v State of Queensland (Department of Natural Resources and Mines)[2015] QIRC 84
- Add to List
Wanninayake v State of Queensland (Department of Natural Resources and Mines)[2015] QIRC 84
Wanninayake v State of Queensland (Department of Natural Resources and Mines)[2015] QIRC 84
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] QIRC 084 |
PARTIES: | Wanninayake, Dushanthi v State of Queensland (Department of Natural Resources and Mines) |
CASE NO: | C/2015/3 |
PROCEEDING: | Application for Leave to Appeal to a Full Bench of the Commission |
DELIVERED ON: | 14 May 2015 |
HEARING DATE: | 20 February 2015 |
MEMBER: | Vice President Linnane Industrial Commissioner Fisher Industrial Commissioner Thompson |
ORDERS: | 1.Application for leave to appeal to a Full Bench of the Commission is dismissed. 2.Application to Appeal in C/2015/2 is also dismissed. |
CATCHWORDS: | INDUSTRIAL LAW - Application for leave to appeal to a Full Bench of the Commission pursuant to s 342(3) of the Industrial Relations Act 1999 - Deputy President dismissed application for reinstatement - Whether the matter is important enough, in the public interest, to give leave - No public interest identified which would warrant leave to appeal being granted - Application for leave to appeal dismissed - Application to Appeal also dismissed. |
CASES: | Industrial Relations Act 1999, s 342(2). Dibb v AVCO Financial Services Limited (1997) 156 QGIG 103. Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123. Queensland Nurses' Union of Employees v BlueCare and Others [2004] 175 QGIG 827. United Firefighters' Union of Australia, Union of Employees, Queensland v Department of Emergency Services (on behalf of the Queensland Fire and Rescue Service) [2008] 189 QGIG 617. Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079. Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2013] QIRC 215. |
APPEARANCES: | Mr T. Christie of Christie Lawyers for the Applicant. Mr J. Merrell, Counsel instructed by Crown Law, for the Respondent. |
Decision
[1] Dushanthi Wanninayake (Applicant) seeks to appeal to a Full Bench of the Queensland Industrial Relations Commission (Commission) against a decision of a Deputy President of the Commission given in matter TD/2013/109: see Wanninayake v State of Queensland (Department of Natural Resources and Mines).[1] The grounds identified in her Application to Appeal in C/2015/2 allege both errors of fact and errors of law. Thus the Applicant must seek the leave of the Full Bench to appeal and it is this Application that is the subject of this decision: see s 342(2) of the Industrial Relations Act 1999 (Act).
[2] The decision of the Deputy President in TD/2013/109 was in respect of an unfair dismissal application lodged by the Applicant wherein she alleged that her dismissal from employment as a Senior Chemist (Classification Level PO4) in the Occupational Health, Environment and Chemical Centre of the Safety in Mines Testing and Research Station in the Department of Natural Resources and Mines (Respondent) was harsh, unjust or unreasonable and sought relief by way of reinstatement. That unfair dismissal application was made pursuant to s 74 of the Act.
Legislation
[3] Section 342 of the Act relevantly provides as follows:
"342 Appeal from commission, magistrate or registrar
- (1)A person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) may appeal against the decision to the full bench, with the full bench's leave, on a ground other than-
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- (2)However, if a person wants to appeal against a decision of the commission both on a ground mentioned in section 341(1) and on a ground mentioned in subsection (1), the person may only appeal against the decision to the full bench, with the full bench's leave.
- (3)The full bench must, and may only, give leave for subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave."
Issues in the Unfair Dismissal Hearing
[4] The Applicant was dismissed from her employment with the Respondent under s 187(1)(c) and (d) of the Public Service Act 2008 in reliance on two grounds. The first ground was that the Applicant contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person. The second ground relied upon was that the Applicant was absent from duty without approval and without reasonable excuse. The Deputy President dismissed the Applicant's unfair dismissal application on both grounds.
[5] Failure to Follow Directions: The Deputy President found that the Applicant did unreasonably fail to comply with lawful and reasonable directions from her supervisor, Matthew Winter. At the relevant time Mr Winter was the Director of Occupational Hygiene, Environment and Chemistry Centre. The Applicant had failed to provide a progress report on her Project to Mr Winter despite many requests to do so. Whilst the Applicant had provided Mr Winter with information over a period of time she had not provided him with the information that he sought.
[6] The Deputy President found that Mr Winter sought progress report information about two specific matters i.e. what matters remained outstanding in relation to the Project and when was the Applicant going to finish those outstanding matters. The Applicant had been providing Mr Winter with progress reports containing raw data only and had failed to provide him with the information that he had sought.
[7] Absences from the workplace without authorisation: The sequence of events in relation to this ground is summarised is paragraphs [8] – [19] below.
[8] On Friday 16 August 2013, the Applicant met with a number of the Respondent's employees, including Mr Winter. At this meeting there was discussion about placing the Applicant on a Performance Improvement Plan. At this meeting the Applicant was directed to attend a meeting on 20 August 2013 to participate in the development of the Performance Improvement Plan.
[9] The Applicant did not turn up for work on Monday 19 August 2013.
[10] On 19 August 2013, the Applicant e-mailed Estrella Hortle, the Respondent's Business Support Manager of the Safety in Mines Testing and Research Station (SIMTARS) advising her that she was requesting permission to work from home until a number of matters concerning her employment were resolved. In addition to that request the Applicant stated as follows:
"I am unable to attend duties under current circumstances as it is not safe and therefore I require Simtars managements [sic] careful attention especially in following key areas;
- Withdraw all the accusations made against me in the letter dated 23 July 2013 as per my reply to the letter dated 25 July 2013.
- The work place has to be free from unnecessary/unacceptable interruptions in order to perform duties professionally, safely, efficiently and cost effectively with dignity and respect.
- Withdraw all the accusations and allegations made against me in relation to the Simtars financial losses.
As a responsible citizen I wish to work from home until confirmation for [sic] the above requests is received."
[11] On 19 August 2013, Mr Winter e-mailed the Applicant and informed her that he had yet to consider her request to Ms Hortle to work from home.
[12] On 20 August 2013, Ms Hortle forwarded an e-mail to the Applicant advising her as follows:
"I have no additional information to provide you at this stage apart from the fact Matt cannot approve you working from home as your job involves the use of instruments.
Tilman has informed me that as Matt is your Director, that all communication in relation to your absence from work should be directed to Matt Winter either by phone or email. Therefore, if you are not well to come in tomorrow, please communicate this to Matt and ensure you obtain a medical certificate to provide for any absences of 3 days or greater. If you do come in the plan is to arrange a meeting to finalise the Performance Improvement Plan."
[13] On 20 August 2013 Ms Hortle had a further telephone conversation with the Appellant wherein she was informed as follows:
- that if approval to work from home was not provided then the Applicant would be away sick;
- the Applicant would not return to the office as she does not feel safe especially with the allegations made against her;
- the Applicant has a need for the allegations contained in her e-mail to be retracted before she is able to return to work;
- the Applicant would not participate in a Performance Improvement Plan as no one has the capability to improve her performance; and
- the Applicant would only sign an agreement with Paul Harrison.
[14] No approval for the Applicant to work from home was forthcoming from Mr Winter and the Applicant continued to be absent from work having been advised on 20 August 2013 that this was not approved as her job involved the use of instruments.
[15] The Applicant was absent from work without approval during the period 19 August 2013 to 30 August 2013. During this time the Applicant made no contact whatsoever with Mr Winter.
[16] It was not contested that the Applicant worked from home during this period. The Deputy President found that the Applicant was capable of performing, and did perform, at least part of her normal duties during the period that she was absent from work without leave.
[17] The Applicant commenced a period of pre-approved leave on 2 September 2013 and returned to work on 18 September 2013. At this time she made application for sick leave for the period 19 August 2013 to 2 September 2013.
[18] The Deputy President found that the retrospective application for sick leave did not convert the unapproved leave into approved leave, inferring that the Applicant took umbrage at the attempted imposition of the Performance Improvement Plan and decided that she would work from home until she received an outcome that was satisfactory to her.
[19] It was on this basis that the Deputy President found that the Respondent's allegation that the Applicant was absent from her workplace without approval from Monday 19 August 2013 until Friday 30 August 2013 was made out.
[20] Findings on Credit: It is also a relevant consideration in this Application that the Deputy President made the following findings in his decision at paragraphs [7] - [9] and [13]:
"[7]That the applicant was a very difficult person with whom to deal and to manage is further confirmed by Mr Harrison at paragraphs 36 to 45 of his affidavit where he details the lengths he had to go to in order to have the applicant work on an existing project involving developing methods of analysis of chemicals in the air. The manner in which the applicant quibbles with the department's characterization of this event is demonstrated at paragraph 4 of her chronology.
[8]Mr Harrison described this project as a one person project which did not require a project manager or assistants. The applicant did not accept this was the case and had sought assistance for the performance of menial tasks.
[9]The applicant's comments in her chronology and indeed in her evidence, are replete with self-justification and nit-picking, which behaviour appears to me to be consistent with the general tenor of her behaviour as described by the witnesses for the department. Having regard to the manner in which the applicant gave her evidence in chief and responded to questions in cross-examination, as well as from me, I am satisfied that the applicant's behavioural issues, of which the Department complained, are generally well founded.
…
[13] In his affidavit Mr Winter detailed his concerns with the progress of the project, as well as his attempts to help obtain the relevant details from the applicant. I find Mr Winter to be a witness of credit and accept his version of the events. Where his evidence conflicts with that of the appellant [sic] I prefer Mr Winter's evidence. I generally prefer the evidence of the witnesses for the respondent where it is in conflict with that of the applicant, whom I consider to be manipulative and disingenuous. In her written submissions the applicant states that there are relatively few matters where there is a direct conflict between her evidence and the evidence of the department's witnesses. She suggests that it is a case of different interpretation of events. I do not agree. The events related by Mr Winter to which I have referred above do not suggest that the characterization of the conduct of the applicant was open to a different interpretation to that of Mr Winter. The applicant's analysis of Mr Winter's evidence to support her submission that her evidence should be believed over his, exemplifies her inability to separate the minutiae from the substance."
Public Interest
[21] As noted earlier, for leave to be granted the Full Bench must be of the opinion that the matter is "important enough, in the public interest, to give leave". A number of the authorities on s 342(3) of the Industrial Relations Act 1999 were summarised by a Full Bench of the Commission in Keir v Simon Blackwood (Workers' Compensation Regulator)[2] where it was stated:
"[26] The authorities on s 342(3) of the Industrial Relations Act 1999 have outlined a number of relevant considerations in determining such applications. In Dibb v AVCO Financial Services Ltd de Jersey P (as His Honour then was), in refusing leave to appeal, said:
'It is an application for leave to appeal which I am statutorily prohibited from granting unless I consider the matter 'is of sufficient importance that an appeal should be brought in the public interest'. I have reached the view that this is essentially a factual contest between the parties without wider potential public ramification.'
[27] In Doyles Construction Lawyers v Carmela Serratore it was held by the Full Bench, dismissing the application for leave to appeal, that:
'The concept of "the public interest" is of the widest import, compare Bennio v Australian Broadcasting Corporation (1995-6) 185 CLR 183 at 193 per Brennan CJ (dissenting). There is no justification for limiting the concept in its present context. In particular, there is no justification for limiting the cases in which leave to appeal will be granted to those in which a precedent will be set. The public interest may demand that leave be granted notwithstanding that only the individuals involved in the proposed appeal are concerned: compare Sinclair v Maryborough Mining Warden (1975) 132 CLR 437 at 487 where, in quite a different context, Jacobs J observed "it may … be in the public interest that the interests of an individual be not overborne".
…
We consider that there is scope for the balancing of interests. There is a public interest in the finality of litigation. The scarcity of re-trials on the papers and the tendency to limit appeals by way of hearing de novo to cases in which there is no "full hearing'" or record of the hearing at first instance are indications that public policy does not favour second chance hearings…'
[28] In Julie Stanton v QM Technologies Pty Ltd the Full Bench, in dismissing an application under s 342(3) of the Act stated that:
'By s. 342(3) such leave may be granted only if this Full Bench "considers the matter is important enough, in the public interest, to give leave". We adhere to the view expressed in Doyles Construction Lawyers v Serratore (2002) 169 QGIG 196 at 197 that:
"There is no justification and no utility in seeking to enhance, to limit or to define the test enunciated by the legislature."
In particular, we accept that the grant of leave should not be restricted to cases in which it is contended that a Commissioner sitting alone has departed from guidelines set by a Full Bench in a statement of policy and/or to cases which might set a precedent on a matter of industrial principle. There may be cases in which leave will be granted though only the interests of individuals are concerned; see Sinclair v Maryborough Mining Warden (1975) 132 CLR 437 at 487 where, in quite a different context, Jacobs J observed, "[I]t may … be in the public interest that the interests of an individual be not overborne".
There must, however, be a balancing of interests. There is a public interest in the finality of litigation. In cases about unfair dismissals there is the additional consideration that there is a public interest in ensuring that the cost of the process is not out of all proportion to the value of the subject matter.
Here, a perusal of the decision at first instance reveals neither apparent error nor apparent injustice. No error is particularised by the application for leave to appeal …'
[29] In Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers the Full Bench held that notwithstanding that the power exercised by the Commissioner was discretionary and allows some measure of latitude in judgment, it considered that the applicant had satisfied the 'stringent requirements of s 342(3) of the Act', and leave to appeal was granted.
[30] In the majority decision refusing an application for leave to appeal in Australian Liquor, Hospitality and Miscellaneous Workers' Union, Queensland Branch, Union of Employees and Or v Australian Workers' Union of Employees and Or it was stated that:
'… an appeal by way of leave is available only on grounds other than error of law or excess, or want, of jurisdiction, s. 342(1). There is much to be said to the view that all issues raised in this matter were alleged 'errors of law'. Even the issue about reference to a Full Bench, raising as it did a matter giving [sic] to the exercise of discretion, appears to raise an error of law in the sense explained in the House v King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. The contention that the exercise of discretion might be reviewed on very much broader grounds under s. 342 seems to us to ignore the proposition that one would not interfere with an exercise of discretion unless satisfied that the exercise of discretion was wrong, compare Coat and Allied Operations Pty Ltd v The Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at para 14 per Gleeson CJ, Gaudron and Hayne JJ'." (References omitted).
[22] Mr Merrell, Counsel for the Respondent, submitted that two other principles were also relevant to a determination of this matter. Firstly, that the purpose of s 342 of the Act (like s 341 of the Act involving appeals on errors of law to the Industrial Court of Queensland) is for the correction of error by the Commission: see United Firefighters' Union of Australia, Union of Employees, Queensland v Department of Emergency Services (on behalf of the Queensland Fire and Rescue Service).[3]
[23] Secondly, the decision in Queensland Nurses' Union of Employees v BlueCare and Others[4] held that where the Commissioner applied the correct principles, made no mistake about the facts, did not ignore relevant material, did not have regard to irrelevant material and did not reach a result which was clearly unjust then leave to appeal to a Full Bench would not be granted. These are then relevant considerations as to whether leave to appeal should be granted.
Identification of Public Interest by the Applicant
[24] In the present case, the Applicant identified a number of public interest grounds which are summarised in paragraphs [25] - [37] below.
[25] Reasonableness of Performance Management of an Employee where there is an inability to fairly gauge their performance: The Appellant contended that it was in the public interest for the Full Bench to examine the reasonableness of performance management of an employee when there was an inability of the employer to fairly gauge the employee's performance. In this regard the Applicant raised a number of issues, which are set out below, together with our consideration:
- the reasonableness of the direction by Mr Winter for the Applicant to provide an update in light of the circumstances existing at the time i.e. the finalisation of the Project.
The difficulty with this contention is that the timeframes for completion of the Project had been extended on a number of occasions prior to the direction to provide a progress report (progress report number 26). Further, the Deputy President found that many requests had been made of the Applicant to provide the progress report to Mr Winter and these were outlined in detail in the show cause issued to the Applicant on 30 August 2013. There appears to be nothing unreasonable in Mr Winter's request for the Appellant to provide him with an update on the Project (progress report number 26) i.e. what matters remained outstanding in the Project and when the Applicant was going to finish those outstanding matters;
- the reasonableness of issuing a Performance Improvement Plan to the Applicant due to management's identification of perceived failures on the part of the Applicant.
The Applicant was informed at a meeting on 16 August 2013 that a Performance Improvement Plan was to be implemented as a result of her failure to follow Mr Winter's directions in relation to the provision of a progress report. The Performance Improvement Plan was to be developed at a meeting scheduled for 20 August 2013. This meeting never occurred given that the Applicant was absent from the workplace without leave on that day. The Performance Improvement Plan was never issued to the Applicant. The examination of a Performance Improvement Plan that was never issued to the Applicant is not important enough, in the public interest, to warrant the granting of leave to appeal;
- the reasonableness of the Respondent in allowing the Applicant to commence and all but finalise the Project without the need for Project updates.
It is apparent that it was update number 26 that was the subject of the direction from Mr Winter. There apparently had been 25 updates prior to that time. Once again this does not warrant leave being granted to the Applicant to appeal the decision of the Deputy President; and
- the reasonableness of instituting performance management when a true understanding of the substantive tasks and basis for employment of the Applicant was not fully realised by the Respondent.
There was no evidence adduced at the hearing of the unfair dismissal application to the effect that the Respondent did not have a true understanding of the substantive task that the Applicant was required to perform and nor was there any evidence that the Respondent did not understand the basis of the Applicant's employment. The finding of the Deputy President in preferring the evidence of Mr Winter to that of the Applicant where it conflicted does not assist the Applicant in this contention. It is not a ground warranting the granting of leave to appeal.
[26] Reasonableness of the performance management of a unique project: The Applicant further submitted that it was in the public interest for the Full Bench to further examine the reasonableness of the performance management of a unique project. Once again the Applicant did not participate in a Performance Improvement Plan. She was simply asked by her supervisor for a progress report which identified certain issues. A manager does not need to have the skills and expertise of an employee undertaking a project in order to performance manage an employee on that project.
[27] Disciplinary action not commenced in accordance with s 187(1)(c) of the Public Service Act 2008: The Applicant submitted that there was a public interest element to the fact that the Respondent did not comply with s 187(1)(c) of the Public Service Act 2008 in that the disciplinary action against the Applicant was not commenced by her Chief Executive Officer. This issue was not raised by the Applicant in the course of the hearing before the Deputy President. An application for leave to appeal to a Full Bench is not an opportunity to raise a new matter that was not argued before the Deputy President. It is not apparent from a perusal of the Applicant's Application to Appeal in C/2015/2 that this alleged error of law is raised as a ground of appeal.
[28] Genuine opportunity to respond to a Show Cause Notice: The Applicant further alleged that she was simply given an opportunity to "go through the motions of providing a response" to the show cause. It was thus argued that it was in the public interest to examine whether a genuine opportunity to respond to a show cause notice should be provided to an employee. The Deputy President found that the show cause letter of 30 August 2013 "set out with significant particularity the allegations against her and provided her with an opportunity to respond to them". The Applicant responded to those allegations in a substantial document dated 4 October 2013 which apparently was e-mailed on 8 October 2013.
[29] No particulars of the lack of a genuine opportunity to respond to the show cause were identified during the hearing of this Application. The Applicant provided a substantial response to the show cause in a document dated 4 October 2013 which was attached to her unfair dismissal application. It should also be noted that, at the unfair dismissal hearing, the Applicant chose not to cross-examine Paul Harrison (the Acting Deputy Director-General of the Respondent), who was the decision maker in relation to the disciplinary action being taken against the Applicant.
[30] Medical unfitness or otherwise to attend the workplace: The Applicant contended that it was in the public interest for the Full Bench to examine what constitutes being deemed medically unfit to attend the workplace. The Applicant argued that her general medical practitioner provided her with a medical certificate for the period of absence from work. In those circumstances the Full Bench should consider that her absenteeism was a temporary absence due to medical reasons. An examination of the material before the Deputy President in paragraphs [15] - [21] of his decision sets out his reasons for holding that the Applicant's retrospective application for sick leave did not convert the unapproved leave into approved leave. The Deputy President inferred that the Applicant took umbrage at the attempted imposition of a Performance Improvement Plan and, as she indicated to Ms Hortle, she decided that she would work from home until she received an outcome that was satisfactory to her.
[31] The Applicant had been advised on 20 August 2013 that if she was unable to attend work on the following day she should communicate with Mr Winter, and further, if her absence on sick leave extended beyond three days she should obtain a medical certificate. At no time did she advise Mr Winter, prior to 19 September 2013, that she had a medical certificate or that she was off work sick. The Applicant appears to have been her own worst enemy in not communicating with Mr Winter.
[32] On 19 August 2013 the Applicant placed demands on the Respondent and then stated that "[a]s a responsible citizen I wish to work from home until confirmation from [sic] the above requests is received. Waiting for your reply…" The Applicant was advised that she should speak with Mr Winter, her immediate supervisor, about working from home. The Applicant at no time spoke with Mr Winter. Further, on 20 August 2013 the Applicant advised Ms Hortle that, if working from home was not approved, she would be away sick and that she would not return to the office as she felt unsafe, that she wanted the allegations against her retracted before she would return to work and that she would not participate in the Performance Improvement Plan as no one had the capacity to improve her performance.
[33] At no time did the Applicant receive approval to work from home. She received an e-mail from Ms Hortle on 20 August 2013 wherein the Applicant was advised that Mr Winter had not approved her working from home as her job involved the use of instruments. Further, the Applicant was also informed via e-mail on 20 August 2013 by Mr Gollan, Principal Consultant, Employee Relations Unit, that she was absent from work without approval and that she needed to contact her manager urgently. It was not until 19 September 2013, when the Applicant applied for retrospective sick leave, that she provided the medical certificate dated 19 August 2013 to the Respondent.
[34] The Applicant contended that there was clear evidence to lead at the Appeal that the Applicant informed the Respondent that she was sick and that the delivery of this message from the Applicant to the Respondent was taken wholly out of context. The Deputy President clearly preferred the evidence of Ms Hortle to that of the Applicant. The Applicant at all times had it within her power to speak with Mr Winter and provide him with the medical certificate on either 19 or 20 August 2013. She chose not to do so.
[35] At the hearing before the Deputy President, the Applicant did not call her general medical practitioner who issued the medical certificate. In Wanninayake v State of Queensland (Department of Natural Resources and Mines)[5] the Respondent in this Application sought to be legally represented in the hearing of the Applicant's unfair dismissal application. The Applicant opposed the granting of leave to the Respondent to be legally represented. Commissioner Neate in his decision of 8 May 2014 outlined the following:
"The Applicant for reinstatement contended, in summary:
- first, that she is confident enough to represent herself at the hearing, thus minimizing the cost and improving the efficiency and cost effectiveness to both the parties, potentially shortening the proceedings from the allocated five days;
- second, that she has already clearly and concisely addressed the two issues raised against her in relation to the termination of her employment which she described as 'simple and straightforward'; and
- third, as she will not be represented by a lawyer and will have no witnesses other than herself, she does not see any relevance for legal representation for the employer respondent."
[36] Commissioner Neate went on to point out to the parties that there was a "lot at stake" for the Applicant in the unfair dismissal proceeding. The Commissioner ultimately concluded that "having regard to the matter the proceedings relate to, there are special circumstances that make it desirable for the respondent employer to be legally represented". The Commissioner then granted the Respondent's application to be legally represented at the hearing before the Deputy President.
[37] Had the Applicant been legally represented at the hearing before the Deputy President her general medical practitioner may have been called as a witness. Whether that would have made any difference to the outcome of the unfair dismissal proceeding is unknown.
Additional matters raised by the Respondent in Response to Applicant's identification of Public Interest
[38] In November 2011 the Applicant was assigned the task of finalising an existing project, namely a project involving developing methods of analysing chemicals in the air such as Benzene, Toluene, Ethyl benzene, Xylene and other Volatile Organic Compounds (VOX-BTEX Project). The Applicant was assigned this Project by Mr Harrison, the then Executive Director of SIMTARS. As and from March 2013 the Applicant's immediate supervisor was Mr Winter. As and from April 2013 the Applicant had consistently failed to comply with directions given to her, principally from Mr Winter, to provide progress reports about the outstanding tasks needed to be completed in the VOX-BTEX Project.
[39] The Deputy President found at paragraphs [11] to [14] of his decision, that a number of meetings and correspondences between the Applicant and Managers of SIMTARS, including Mr Winter, had occurred about the Applicant's failure to provide progress reports that contained the information sought by the Department about the Project. The Deputy President concluded that the Applicant unreasonably failed to comply with lawful and reasonable directions from her supervisors such that the first ground of termination had been made out.
[40] In paragraph [15] to [21] of the Deputy President's decision, he summarised the evidence that led to the Applicant, from 19 August 2013 for a period of two weeks, working on the Project from her home without any prior approval from the Respondent. The Respondent further referred to the demands placed on the Respondent by the Applicant in her e-mail of 19 August 2013 to Ms Hortle.
[41] The Respondent contended that any alleged errors identified by the Appellant concern simply the dispute between the Applicant and the Respondent. The Respondent submitted that the Applicant's case before the Deputy President was a straightforward case i.e. she alleged that her dismissal was harsh, unjust or unreasonable or was for an invalid reason because she was absent for a two week period from 19 August 2013 as she was sick. Both these matters were decided, on the facts, adversely to the Applicant.
[42] The Respondent further submitted that it was apparent from the decision of the Deputy President that he, in part, decided the case in favour of the Respondent due to his assessment of credit and the lack of credit worthiness of the Applicant as a witness. The factual conclusions arrived at by the Deputy President were not conclusions reached that were glaringly improbable or contrary to compelling inferences.
Conclusion
[43] The Applicant has failed to satisfy us that the issues identified are important enough, in the public interest, to grant leave. This Full Bench must, and may only, grant leave to appeal to a Full Bench of the Commission where it considers the matter is important enough, in the public interest, to give leave.
[44] The Applicant has alleged errors on the part of the Deputy President which raise issues only concerning disputed facts between the Applicant and the Respondent. The alleged errors raised by the Applicant have no wider public ramification than that referred to by de Jersey P in Dibb v AVCO Financial Services Limited.[6]
[45] It is also apparent from the Deputy President's decision that he decided the matter before him in part on his assessment of the creditworthiness of the respective witnesses. The Deputy President favoured the evidence of the Respondent's witnesses in preference to the evidence of the Applicant where the evidence conflicted.
[46] Further, the Applicant has failed to identify any relevant considerations that the Deputy President failed to take account of in coming to his conclusion that the Applicant's dismissal was not harsh, unjust or unreasonable or for an invalid reason: see paragraphs [22] to [29] of the Deputy President's decision. We have also not been able to identify any mistake of factual matters in the Deputy President's decision and nor have we identified any incorrect application of principles in the Deputy President's decision.
[47] Subsequent to the hearing of this Application, the Applicant herself forwarded various pieces of correspondence to the Industrial Registry. The Applicant was legally represented at the hearing of this Application and it is the written submissions and the oral submission presented by her legal representative that this Full Bench has considered in this Application.
[48] The Applicant's application for leave to appeal is thus dismissed. Consequent upon our decision in this Application, the Application for Appeal in matter number C/2015/2 is also dismissed.
[49] Order accordingly.
Footnotes
[1] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2013] QIRC 215.
[2] Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123.
[3] United Firefighters' Union of Australia, Union of Employees, Queensland v Department of Emergency Services (on behalf of the Queensland Fire and Rescue Service) [2008] 189 QGIG 617.
[4] Queensland Nurses' Union of Employees v BlueCare and Others [2004] 175 QGIG 827.
[5] Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079.
[6] Dibb v AVCO Financial Services Limited (1997) 156 QGIG 103.