Wanninayake v Queensland[2018] QIRC 133

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   On 8 August 2018 Ms Dushanthi Wanninayake filed an application (B/2018/33) to re‑open proceedings in Matter No TD/2013/109, being a decision of Deputy President Kaufman issued on 16 December 2014,^[1] to dismiss Ms Wanninayake's application for reinstatement with the State of Queensland (Department of Natural Resources and Mines).  The application to re-open sought the following outcomes (grammar as per original application):

"A. The Decision made by the Deputy President Kaufman for my Application for Reinstatement matter no TD/2013/109 to be reviewed;  then amend or revoke the decision, and issue a new decision with recommendations; and

B. My Employment records to have all documents relating to alleged contravention to be removed or withdrawn including subsequent termination and apology is required; and

C. Reinstatement or re-employment in a similar position without prejudice to my former conditions of employment and the remuneration lost between the date the dismissal took effect and the date of reinstatement/re-employment; or

D. Allow me to resign opposed to termination and issue a valid and professional Service Certificate with a valid and professional Reference letter; and

E. That the respondent pays an amount of compensation the Commission considers appropriate considering the damagers took effect; and

F. Other orders the Commission considers appropriate."

2. [2]
   The current application is the latest in a long list of applications lodged by Ms Wanninayake in the Queensland Industrial Relations Commission (the QIRC) and the Industrial Court of Queensland (the ICQ) through which she has attempted to have the decision of Deputy President Kaufman overturned and/or reviewed and/or varied.

3. [3]
   The earlier applications, their nature, and the outcomes are recorded below:

4. [4]
   In the course of his decision in Matter No C/2015/47 Martin J, President, said:

"[6] In the hearing before the Vice President, the Vice President was at pains to assist the appellant to understand the nature of an application to stay a decision and why such an application was inappropriate in circumstances where the original application for reinstatement had been dismissed. The Vice President extended the appellant considerable leeway in the mention that she heard on 30 June this year.  Her Honour explained to the appellant that the only way of appealing the decision of Deputy President Kaufman on a question of law was by way of appeal to this court.  The time limit for appeal, though, expired many months ago and she was not granted leave in the application before me for an extension of time.  Having explained to the appellant the insurmountable difficulties she faced with an application to stay a decision dismissing a reinstatement application and obtaining from the appellant what appears to be a sufficient indication that she understood that problem, the Vice President dismissed the application for a stay.

[13] It is completely obvious that Ms Wanninayake is distraught as a result of what has occurred to her.  Regrettably, a large part of what has occurred to her in the Commission and this court has been brought about by her own misunderstanding of the procedures and the orders that might be available to her . . .  The appeal was never going to succeed.  It was based on a misapprehension of the original application for a stay of the decision by Deputy President Kaufman.

[14] Neither the application for a stay, nor the appeal from the order dismissing that application could have succeeded.  . . .".

5. [5]
   In addition to the matters listed in paragraph [3], Ms Wanninayake also lodged an (unsuccessful) application for reinstatement in the Fair Work Commission and requested the intervention of the Queensland Ombudsman and the Minister for Education and Minister for Industrial Relations, the Honourable Grace Grace.

6. [6]
   On the hearing of the present application (B/2018/33) to re-open proceedings in TD/2013/109 it became readily apparent that Ms Wanninayake not only continued to be aggrieved about the outcome of her original application for reinstatement but also, aggrieved about, inter alia:

• the way the proceedings were conducted, in that the respondent was represented by Counsel, assisted by Solicitors from Crown Law and human resources staff from the employing department, while she was disadvantaged as a self-represented applicant whose first language was not English;
• the (alleged) further disadvantage she suffered as a result of her lack of understanding of legal terms, limited vocabulary and a requirement for additional time to construct her arguments effectively and appropriately;
• the (alleged) failure of the Deputy President to consider certain medical evidence she produced to explain a critical absence from work (19-30 August 2013, inclusive); and
• the Deputy President's decision to "always" give higher consideration to the respondent's evidence over her evidence where there was a conflict of evidence.

7. [7]
   In addition to the above concerns, Ms Wanninayake also said:

• there were various factual and circumstantial errors in the decision of the Deputy President as well as that of the Full Bench.  However, she had never been provided with an opportunity to address those errors;
• the Full Bench had refused her leave to appeal the Deputy President's decision based on (the lack of) public interest grounds.  However, she believed she now had "more new evidence to prove my arguments even under public interest"; and
• her "appeals" in B/2015/19, C/2015/27 and C/2015/29 were made without proper and appropriate legal advice as a result of which "I was significantly disadvantaged.  I had no opportunity to appeal the errors in any decision most importantly DP Kaufman's decision as I did not receive leave to appeal to the Full Bench.".

8. [8]
   Finally, Ms Wanninayake said:

 " … I make a statement that my sole purpose of all these attempts before the QIRC and the FWC are to clear my name from those wrong allegations and live rest of my life with dignity and respect and find a suitable employment to continue my career without disturbance.  I want to begin my life again as a normal human being and stand on my feet.  I have learnt many things throughout this long very difficult journey that I never expected.

 Considering all the above, I believe QIRC is the only tribunal that can fix the errors in its decisions and therefore I conclude my presentation as to why I made my application to re-open in the QIRC.  I highly respectfully seeking (sic) your honour to carefully consider this long standing ongoing employment dispute and come to a finality with suitable remedies and outcomes for my termination decision and for the decisions made by the State of Queensland for recruitment process.".

9. [9]
   Notwithstanding Ms Wanninayake's passionate submissions to the contrary, there is nothing contained within her application for re-opening, the multiple documents attached to it, or in her submissions, which could possibly justify the re-opening of proceedings which concluded 5 years ago, the outcome of which was challenged - albeit without success - before a Full Bench of the QIRC and in the Industrial Court of Queensland.  There is, for example, no new, vital and relevant material which was not available at the time of the original hearing which is available now.^[6]  The only difference now is that Ms Wanninayake, informed by hindsight, is seeking yet another opportunity to re-argue the case she originally ran in the hope she might be able to reverse the outcome.

10. [10]
    However, as desirous as she is of wanting to clear her name and regain employment, it is incumbent upon Ms Wanninayake to establish some clearly identifiable and important new information, not available to her at the time of the original proceedings, before any re-opening of the proceedings in TD/2013/109 could be considered, let alone granted.  That has not happened here.  Although Ms Wanninayake clearly believes otherwise, there is no new and important evidence which she has referred me to.  There are only fresh arguments about the evidence previously considered by Deputy President Kaufman.  However, a desire to present fresh arguments about evidence already considered is insufficient to underpin an application to re-open proceedings in any matter, let alone one with a history such as this.

11. [11]
    Ms Wanninayake asserts that an affidavit from Dr Galman supports her evidence before Deputy President Kaufman that she was not absent from the workplace without authorisation between 19 and 30 August 2013, as alleged in the original proceedings, in that she was ill at the time and was absent for that reason.  However, medical certificates dated 19 August 2013 (covering the period 19-23 August inclusive) and 26 August 2013 (covering the period 26 August-2 September 2013) were tendered in the proceedings and referred to by the Deputy President in his decision.  Notwithstanding these certificates - which were only given to the respondent on 18 September 2013 - his Honour still found, on the factual evidence before him, including emails and telephone conversations between the applicant and various staff members of the respondent, that Ms Wanninayake had absented herself from work without authority during the period in question.  The facts and factors leading to that finding are recorded in paragraphs [17] and [18] of his Honour's decision.  Anything which Dr Galman might have to say now, 5 years after the event, about Ms Wanninayake's attendances upon her in August 2013 would not, and could not, alter the facts as recorded in the two paragraphs referred to above.  In any event, it is not new or important evidence which was not available at the time.

12. [12]
    In terms of the matters canvassed immediately above, similar arguments were presented by Ms Wanninayake to the Full Bench in matter C/2015/3 during her unsuccessful request for leave to appeal the decision of Deputy President Kaufman.  Indeed, the Full Bench took particular effort to record Ms Wanninayake's arguments about her absence being due to medical reasons as well as the competing evidence in relation to that assertion provided by the respondent's witnesses (see paragraphs [30] to [34]) before observing that the Deputy President preferred the evidence of Ms Hortle to that of Ms Wanninayake.

13. [13]
    Further, the Full Bench also noted the decision of Commissioner Neate^[7] in a matter concerning the respondent's request to be allowed to be legally represented, where the learned Commissioner wrote:

"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.".

[* Note:  This submission is different to that which Ms Wanninayake now argues - see paragraph [6] above.]

14. [14]
    The Full Bench observations and comments (above) provide ample support for the accuracy of my observations at paragraphs [9] and [10] to the effect that Ms Wanninayake's application to re-open is nothing more than a further attempt to re‑litigate matters which have been argued, and rejected, previously.  Importantly, as the Full Bench noted in its decision (quoting from two other cases at paragraphs [27] and [28]) "(t)here is a public interest in the finality of litigation.".  Given the history of this matter Ms Wanninayake's current application had no prospects of success - a fact she should have appreciated before it was lodged.

15. [15]
    For the above reasons, as well as the reasons I provided to Ms Wanninayake during the hearing, her application to re-open proceedings in matter no TD/2013/109 is refused.  As such, application No B/2018/33 is dismissed.

16. [16]
    I determine and order accordingly.

Postscript:

Sadly, Ms Wanninayake seems to be of a mind not to accept the position that the public interest dictates that there must be finality in litigation.  Immediately after I announced on 18 October 2018 that I was dismissing her application to re-open proceedings she informed both Ms Butler, who appeared for the respondent, and myself that she was likely to now pursue her quest for an outcome suitable to her in the Human Rights Commission.  In addition, by way of email to my chambers on 22 October 2018, she has also advised of an intention to explore a general protections application.

As such, I must repeat my warning to Ms Wanninayake, given to her towards the conclusion of the hearing on 18 October 2018, that she runs the very real risk that a Supreme Court application will be lodged by the respondent to have her declared to be a vexatious litigant and/or that the respondent will seek to have costs awarded against her in any future proceedings on an indemnity basis.