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Juriansz v Queensland QIRC 30
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Juriansz v State of Queensland (Department of Housing and Public Works)  QIRC 030
State of Queensland (Department of Housing and Public Works)
Notice of Industrial Dispute
6 April 2017
21 October 2016
Industrial Commissioner Black
INDUSTRIAL DISPUTE – APPLICATION TO DISMISS PROCEEDING – notice of industrial dispute – order sought to strike out or dismiss proceedings pursuant to s 331(b)(ii) or on jurisdictional grounds – non-compliance with directions – whether dispute constitutes an industrial matter - whether particular provisions of the Public Service Act 2008 are inconsistent with the Commission's powers under s 230 of the Industrial Relations Act 1999, whether provisions of the Industrial Relations Act 2016 are available.
Industrial Relations Act 1999, s 230, s 274(2), s 331(b)(ii); Industrial Relations Act 2016, s 273, s 275, s 1023; Public Service Act 2008, s 133.
Mr M. Juriansz, Applicant, in person
Mr G. Wallace, Representative for the Respondent
- Mr Juriansz lodged a dispute notification with the Industrial Registry on 13 May 2016. The dispute was subsequently referred to arbitration when it became clear that the subject matter of the dispute would not be resolved through conciliation.
- At all relevant times, Mr Juriansz was employed by the respondent as a Senior Housing Officer at the Capalaba Housing Service Centre. In his dispute Mr Juriansz alleged that the respondent had breached its duty of care by permitting the area manager of the Capalaba housing centre to return to work at Capalaba following the finalisation of an external investigation commissioned to investigate allegations of bullying and harassment. The resolution of the dispute from Mr Juriansz's perspective involved the removal of the area manager from the Capalaba centre.
- A preliminary hearing of the matter was scheduled by the Commission as currently constituted on 21 October 2016. During the preliminary hearing a number of threshold considerations were canvassed including questions of jurisdiction:
- (i)The resolution of the precise question to be answered in the arbitration. In this regard it was agreed that the question to be determined in the arbitral proceedings was whether the area manager of the Capalaba Housing Service Centre should be transferred or redeployed from Capalaba to another workplace;
- (ii)Whether the Commission had the power to substitute itself for the decision maker under the province of the Public Service Act 2008 (PS Act), and to order that the area manager be transferred or redeployed to another location;
- (iii)Whether the Commission should interfere in the management prerogative to manage its business in the manner it considers appropriate;
- (iv)Directions for the further hearing and determination of the matter.
- The preliminary hearing resulted in directions being set for the lodgement of submissions about jurisdiction only. In this regard it was determined that the respondent would file its submissions on or before 4 November 2016, Mr Juriansz would file his submissions on or before 18 November 2016, and the respondent’s reply submissions would be filed on or before 25 November 2016. It was foreshadowed that a jurisdictional hearing would take place soon after 25 November 2016. It was subsequently determined that this hearing would take place on 2 December 2016.
- In its submission dated 4 November 2016 the respondent challenged the jurisdiction of the Commission to grant the remedy sought by Mr Juriansz and raised public interest considerations. At the same time the respondent also filed an application to dismiss proceedings pursuant to either s 331(b)(ii) or s 274(2) of the Industrial Relations Act 1999 (IR Act 1999).
- In its application, the respondent proposed that Mr Juriansz’s dispute should be struck out either on the basis of a lack of jurisdiction, or because further proceedings associated with the dispute were neither necessary nor desirable in the public interest. In its submissions, the respondent argued that the Commission does not have jurisdiction to hear and determine Mr Juriansz’s dispute and/or to make the order sought by Mr Juriansz on the basis that the dispute does not constitute an industrial matter, that the Commission did not have the power to direct the transfer of a public service officer, and that the Commission should not intervene in the decision making processes of the employer in circumstances where the decisions taken involved the reasonable and fair exercise of the employer's managerial prerogative.
- The jurisdiction hearing scheduled for 2 December 2016 did not proceed. Mr Juriansz had emailed the Industrial Registry on 17 November 2016, the day before his written submissions were due, to inform the registry that he was unwell and to request an extension of time for the filing of his written submissions. In response, my associate emailed Mr Juriansz on 18 November 2016 and informed him to the effect that if the jurisdictional hearing had to be adjourned he may not get the matter relisted until February 2017. Mr Juriansz did not respond to this email.
- On 18 November 2016, Crown Law representing the employer, informed my associate that it wished to be heard in connection with any request by Mr Juriansz for an extension of time.
- In the week commencing 21 November 2016, my associate telephoned Mr Juriansz on a number of occasions and left voicemail messages asking that he return her call. When he did not respond, further calls were made to his mobile phone on 28 and 29 November 2016. When Mr Juriansz did not respond to these calls, I caused an email to be sent to him and Crown Law informing them that the hearing scheduled for 29 November 2016 would be adjourned. Both parties were also advised that no decision had been made in response to Mr Juriansz's request for an extension of time, and that such decision would be made when Mr Juriansz became available and had provided submissions in support of his request for an extension of time.
- The following day (30 November 2016) I caused a further email to be sent to the parties. In this email the parties were informed that the matter would not be relisted until both parties had the opportunity to make submissions about the extension of time issue. Mr Juriansz was requested to provide submissions on the extension of time issue no later than 23 December 2016, while Crown Law was asked to provide submissions on the same matter no later than 20 January 2017.
- When Mr Juriansz did not file his submissions by the due date, my associate attempted to contact him by telephone and email on 4 January 2017, but without success. Mr Juriansz eventually made contact on 18 January 2017 when he telephoned my associate and claimed that he was not aware that he had to provide the Commission with a copy of his submissions and that they would be provided. However no such material was received by the Commission, nor was it received by the Department.
- In an email directed to the Department on 18 January 2017 Mr Juriansz informed the Department that he was unable to return to work due to an exacerbation of a medical condition and that his illness was preventing him from preparing submissions for the Commission.
- Subsequent to the receipt of Mr Juriansz's email, Crown Law informed the Commission that it was its intention to make submissions to the effect that Mr Juriansz's application for an extension of time should be rejected. These submissions were filed in the Industrial Registry on 3 February 2017.
- In its submission the respondent argued that Mr Juriansz had not provided the Commission with sufficient medical or other evidence to justify an extension of time. In terms of medical evidence, it was submitted that while Mr Juriansz had claimed that the delay in complying with directions was caused by illness, he had not provided any evidence demonstrating that he was currently not medically fit to prepare submissions.
- The respondent argued in effect that the Commission should attach little weight to the email received from Mr Juriansz on 18 January 2017. This notification was considered deficient in that no medical certificate was provided nor did the email specify when Mr Juriansz would be medically fit to complete and file his submissions. In these circumstances it was said that the application for an extension would have the effect of staying the proceedings indefinitely.
- The respondent submitted that in light of the indefinite duration of Mr Juriansz's requested extension of time, and the fact that the employer's application to dismiss proceedings had been filed almost three months earlier, the granting of the requested extension:
- (i)would be inconsistent with rule 6 the Industrial Relations (Tribunals) Rules 2011, which provides that the purpose of the rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense; and
- (ii)would prejudice the respondent's position in respect of its 4 November 2016 application, as the extension would deny the respondent the opportunity to have the application determined expeditiously and within a reasonable timeframe.
- When I had not received by 10 February 2017, any adequate explanation from Mr Juriansz for why his submission on jurisdiction, which was due on 18 November 2017, has not yet been lodged, I elected to issue an interim decision in an attempt to bring finality to the interlocutory matters. This decision included the following observations:
"It can be accepted that Mr Juriansz should be granted some latitude given that he has attributed his failure to comply with directions to illness. But no latitude is extended to Mr Juriansz for consistently failing to comply with directions, failing to respond to requests by the Commission to explain his circumstances, and failing to justify the delays that he is causing in the resolution of his dispute notification.
The respondent is entitled to expect that proceedings directed at the resolution of industrial disputes should be commenced and finished expeditiously. Delays in the resolution of workplace disputes can predictably cause further discontent and disharmony. The arbitration powers of the Commission in the context of industrial disputes are intended to be used to facilitate an early resolution of differences. This is evident in s 230(3) of the IR Act which provides that the commission may "take the steps it considers appropriate for the prevention or prompt settlement of the dispute".
As at today's date, I have yet to receive an adequate explanation from Mr Juriansz for why his submission on jurisdiction, which was due on 18 November 2017, has not yet been lodged. His commitment to pursuing his dispute notification to its resolution is questioned. In the circumstances it is open to me to decline, pursuant to s 331(b)(ii) of the IR Act to continue hearing his dispute, in the public interest.
Reluctantly however, I will provide Mr Juriansz with a final opportunity to lodge a submission addressing reasons supporting a conclusion that jurisdiction is available to hear and determine his dispute.
It is ordered that Mr Juriansz lodge with the Industrial Registry by close of business on Friday 3 March 2017, any submission that he wishes to make that addresses the jurisdictional barriers advanced by the respondent in its 4 November 2016 submission.
If Mr Juriansz fails to comply with this Order, I will decline to continue hearing his dispute and strike the matter out."
- Mr Juriansz responded to my decision dated 10 February 2017 by providing the following submission by email on 3 March 2017:
"The Commission has the jurisdiction to hear and determine an order to stop bullying by The Area Manager, Capalaba Housing Service Centre, Department of Housing and Public Works under Chapter 7, section 275 of The Industrial Relations Act 2016.
The order sought is for The Area Manager to be transferred to another service area of The Department other than The Capalaba Housing Service Centre as originally stated by The Executive Director in charge of the workplace harassment claim.
The application is made under Section 273 of the IRA 2016 for jurisdictional purposes of the QIRC.
I have exhausted all internal and external avenues for the matter to be resolved inclusive of a mandatory conference through the QIRC.
I respectfully request the Commission consider all previous reports relevant to the matter and to draw upon past and present employees who were originally requested to be interviewed and were not provided the opportunity to supply the evidentiary proof to determine recurrent workplace harassment by The Area Manager and the risk of continued harassment and punitive action taken against the complainant has continued (refer to PSA/2016/60-unreasonable grounds to transfer an employee) and Senior Executive Service staff of Department of Housing and Public Works (DH&PW) have not supplied a duty of care commensurate to supplying a safe working environment for staff at the Capalaba Office.
Therefore the Commission does have the capacity to hear and determine appropriate action to be taken as per order sought under the IRA 2016, Chapter 7, Section 275 with the application made under Section 273 of the same Act."
- The respondent filed a further submission on 14 March 2017 in response to Mr Juriansz's submission. In this submission the respondent addressed matters raised in Mr Juriansz's submission, and reiterated earlier submissions in support of its application that Mr Juriansz's dispute notification should be dismissed. The submissions included the following propositions:
- (i)Mr Juriansz's purported application for a bullying order under s 275 of the Industrial Relations Act 2016 (IR Act 2016) could not survive;
- (ii)Section 1023 of the IR Act 2016 prevented access to that Act in respect to proceedings which were ongoing at the time of commencement of operation of the new Act (1 March 2017);
- (iii)Section 1023 of the IR Act 2016 therefore precluded Mr Juriansz from accessing the newly conferred bullying jurisdiction as part of the resolution of his ongoing industrial dispute;
- (iv)The Commission does not have the jurisdiction to make orders under s 275 of the IR Act 2016 in resolution of proceedings associated with an industrial dispute notified on 13 May 2016.
- Pursuant to s 1023 of the IR Act 2016, the proceedings brought by Mr Juriansz must be determined in accordance with the provisions of the IR Act 1999. In my decision dated 10 February 2017, I directed Mr Juriansz to address the jurisdictional issues raised in the respondent's submissions dated 4 November 2016.
- While Mr Juriansz did not address the jurisdictional matters raised by the respondent, he did maintain that the Commission had jurisdiction to make the orders sought by him. In this regard he sought to advance the following propositions:
- (i)That a determination should be made to the effect that the Area Manager Capalaba Housing Service Centre continued to engage in workplace harassment and that there is a continuing risk of harassment and punitive action being taken against him;
- (ii)That such a determination supported the issue of bullying orders pursuant to the provisions of the IR Act 2016;
- (iii)That the bullying orders sought should provide that the Area Manager Capalaba Housing Service Centre be directed to stop bullying, and provide that the Area Manager be transferred to a location other than Capalaba.
- I accept that if the arbitration of Mr Juriansz's dispute were to progress it would be necessary to hear evidence and make determinations about the facts and circumstances which he alleges would support the remedy that he proposed in the hearing on 21 October 2016. However there is an arguable case brought by the respondent to the effect that jurisdictional barriers or public interest considerations should bring the proceedings to an end before inquiries of the nature proposed by Mr Juriansz could be pursued. These issues have to be resolved in the first instance. Mr Juriansz's submission does not address these matters despite the fact that he has been on notice of this requirement since 4 November 2016. His failure to comply with directions supports the respondent's application to bring the proceedings to an end pursuant to s 331 of the IR Act 1999.
- It is also a substantial problem for Mr Juriansz that he now seeks the exercise of a jurisdiction conferred under the IR Act 2016. As the respondent has pointed out, Mr Juriansz's dispute proceedings were commenced well before the operation of the bullying provisions of the IR Act 2016 on 1 March 2017. These proceedings must be concluded pursuant to the provisions of the IR Act 1999.
- In Quaedvlieg v Boral Resources (Qld) Pty Ltd, Hall P in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows:
"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."
- In the end result I am left with a state of affairs where Mr Juriansz has consistently failed to comply with directions and has now proposed a remedy which is not available to him in the settlement of his industrial dispute. There is a public interest in ensuring the expeditious resolution of industrial dispute proceedings. I am not satisfied that given the level of non-compliance thus far and the unavailability of the course proposed by Mr Juriansz going forward, that a public interest would be served by continuing to hear the industrial dispute. There is no reasonable expectation that Mr Jurinasz is likely to progress the matter to a conclusion within a time frame which is fair to the respondent and meets any test of efficiency in so far as the use of public resources is concerned.
- Pursuant to s 331(b)(ii) of the IR Act 1999, I have concluded that further proceedings associated with Mr Juriansz's dispute notification are not necessary or desirable in the public interest. Consequently, Mr Juriansz’s dispute notification is dismissed.
 Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209.
- Published Case Name:
Mark Juriansz v State of Queensland (Department of Housing and Public Works)
- Shortened Case Name:
Juriansz v Queensland
 QIRC 30
06 Apr 2017