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Juriansz v Queensland[2017] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Juriansz, Mark v State of Queensland (Department of Housing and Public Works) [2017] QIRC 7

PARTIES: 

Mark Juriansz

(Applicant)

v

State of Queensland (Department of Housing and Public Works)

(Respondent)

CASE NO:

D/2016/36

PROCEEDING:

Notice of Industrial Dispute

DELIVERED ON:

HEARING DATE:

10 February 2017

21 October 2016

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDER:

  1. Mr Juriansz to file in the Industrial Registry no later than close of business on Friday 3 March 2017 his submissions establishing jurisdiction to deal with his dispute.

CATCHWORDS:

INDUSTRIAL DISPUTE – APPLICATION TO DISMISS PROCEEDING – notice of industrial dispute – order sought to strike out or dismiss proceedings – whether dispute constitutes an industrial matter – whether extension of time should be allowed despite non-compliance with directions – 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.

CASES:

Industrial Relations Act 1999, s 230, s 274(2), s 331(b)(ii), Public Service Act 2008, s 133

APPEARANCES:

Mr M. Juriansz, Applicant, in person

Mr G. Wallace, representative for the Respondent

Decision

Introduction

  1. [1]
    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.
  1. [2]
    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.
  1. [3]
    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:
  1. (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;
  1. (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;
  1. (iii)
    Whether the Commission should interfere in the management prerogative to manage its business in the manner it considers appropriate;
  1. (iv)
    Directions for the further hearing and determination of the matter.
  1. [4]
    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.
  1. [5]
    In the end result, and as of today’s date, the only direction that has been complied with is the requirement that the respondent lodge their submissions on 4 November 2016. In challenging jurisdiction and raising public interest considerations, in addition to lodging submissions, 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).
  2. [6]
    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.

Industrial Matter

  1. [7]
    It was submitted that for a dispute to constitute an industrial matter it must directly relate to the employment relationship between the parties to the dispute. In Mr Juriansz’s case it was submitted that the subject matter of his dispute does not concern his privileges, rights or functions as an employee of the employer within the meaning of s 7(1) of the IR Act. To the contrary his dispute relates to an investigation commenced by the employer in respect to the conduct of the area manager. The findings of this investigation did not relate to Mr Juriansz. Further the decision of the employer to return the area manager to work at Capalaba was specifically referable to the area manager and did not include any action taken in respect to Mr Juriansz.
  1. [8]
    It followed according to the respondent that the dispute sought to be arbitrated by Mr Juriansz did not constitute an industrial dispute within the meaning of Schedule 5 of the IR Act and consequently the Commission did not have jurisdiction to hear and determine the dispute.

  Public Service Act

  1. [9]
    The respondent also submitted that the Commission did not have the power to direct the employer to transfer the area manager to a location other than Capalaba.  It was asserted that the power of a chief executive to transfer a public service officer is derived from s 133 of the PS Act, and that the Commission does not have the jurisdiction to intervene in the exercise of a statutory power under the PS Act. The proposition advanced was that the chief executive's broad discretionary statutory power to transfer under s 133 of the PS Act is inconsistent with the Commission's general arbitral power regarding industrial disputes under s 230 of the IR Act.

Managerial Prerogative

  1. [10]
    The effect of the respondent's submission was that it was not in the public interest for the Commission to 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.
  1. [11]
    In this regard it was submitted that the evidence did not support a conclusion that the employer's decision to finalise an investigation and to permit the area manager to return to her substantive position at Capalaba, should be subject to any form of legal restraint.

  Jurisdiction Hearing

  1. [12]
    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.
  1. [13]
    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.
  1. [14]
    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 Jurinansz became available and had provided submissions in support of his request for an extension of time.
  1. [15]
    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.
  1. [16]
    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. He said that he had emailed his submissions to the Department and had asked, or expected them, to forward a copy to the Commission. Mr Juriansz also said that he had provided the Department with relevant medical reports. Mr Juriansz undertook to provide a copy of all the relevant material to the Commission.
  1. [17]
    Despite the undertaking, no material was received by the Commission. Further I was subsequently advised by the Department that the information claimed to have been sent to them by Mr Juriansz had never been received.
  1. [18]
    In a further contradictory twist, I later became aware that on the same day that Mr Juriansz had spoken to my associate and undertaken to provide a copy of his submission, he had sent an email to Mr Grant Wallace (Principal HR Advisor, Department of Housing and Public Works) which included the following:

“The Department is aware that I am unable to return to work due to an exacerbation of medical conditions verified by My psychiatrist Dr. Alargasamy. Unfortunately my illness is preventing me from writing submissions to Commissioner Black to consider as I am not in a fit and proper state whilst trialling new medication.”

  1. [19]
    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.
  1. [20]
    In support of 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.
  1. [21]
    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.
  1. [22]
    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:
  1. (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
  1. (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.
  1. [23]
    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.
  1. [24]
    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".
  1. [25]
    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 2016, has not yet been lodged.  His commitment to pursing 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.

Order

  1. [26]
    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.
  1. [27]
    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.
  1. [28]
    If Mr Juriansz fails to comply with this Order, I will decline to continue hearing his dispute and strike the matter out. 
Close

Editorial Notes

  • Published Case Name:

    Mark Juriansz v State of Queensland (Department of Housing and Public Works)

  • Shortened Case Name:

    Juriansz v Queensland

  • MNC:

    [2017] QIRC 7

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    10 Feb 2017

Appeal Status

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

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