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Sandhu v Wide Bay Hospital and Health Service[2019] QIRC 182

Sandhu v Wide Bay Hospital and Health Service[2019] QIRC 182

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182

PARTIES:

Rajdeep Singh Sandhu

(Applicant)

v

Wide Bay Hospital and Health Service

(Respondent)

CASE NO:

TD/2019/10 and

TD/2019/14

PROCEEDING:

Application for Reinstatement

Application for Extension of Time

DELIVERED ON:

22 November 2019

HEARING DATE:

18 November 2019

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. The applications for an extension of time in matters TD/2019/10 and TD/2019/14 are dismissed. 
  1. The application for reinstatement in matter TD/2019/10 is dismissed.
  1. The application for reinstatement in matter TD/2019/14 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – APPLICATION FOR EXTENSION OF TIME – application filed 40 days beyond statutory time limit – application filed 4 months beyond statutory time limit – factors informing discretion to extend time – whether a dismissal occurred.

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 3, s 317

CASES:

Achal v Electrolux Pty Ltd (1993) 50 IR 236

Anger v Small Business Development Corp (1990) 135 QGIG 751

Aon Risk Services Australia Limited v

Australian National University (2009) 239 CLR 175

Breust v QANTAS Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers (2010) 197 IR 403

Cook v CFP Management Pty Ltd [2006] QCA 215 Geoffrey John Erhardt v Goodman Fielder

Food Services Limited (1999) 163 QGIG 20

Hodges v Buderim Ginger Ltd (1995) 148 QGIG 644

House v The King (1936) 55 CLR 499

Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145

Lockhart v Queensland Health (2014) QIRC 012

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Munks v QUF Industries Ltd (1994) 147 QGIG 1381

Ngo v Link Printing Pty Ltd (1999) 94 IR 375

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Saville v Department of Corrective Services (2006) 183 QGIG 787

State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 034

State of Queensland v Lockhart [2014] ICQ 006

Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

Wantling v Department of Community Safety (Queensland Corrective Services) (2013) QIRC 43

APPEARANCES:

No appearance by Dr R S Sandhu, the applicant in person.

Mr A Herbert of counsel, instructed by McInnes Wilson Lawyers for the Respondent.

Reasons for Decision

Appeal Details

  1. [1]
    Dr Rajdeep Singh Sandhu (the Applicant) was employed as a Staff Specialist Psychiatrist at the Bundaberg Hospital, Wide Bay Hospital and Health Service (the Respondent) on two separate occasions.
  1. [2]
    On 4 September 2017, Dr Sandhu commenced employment at the Bundaberg Hospital in a permanent full-time capacity (First Engagement).  
  1. [3]
    Whilst the circumstances of Dr Sandhu’s cessation of employment on 13 September 2018 are disputed, he filed this first Application for Reinstatement, TD/2019/10 (First Application) on 4 February 2019.  
  2. [4]
    I note that Dr Sandhu’s First Application indicates that he ceased work on 14 September 2018.  However, I prefer the evidence of his email to Dr West dated 13 September 2018 at 1:36 pm, with regards to the precise date of cessation of employment so specified.
  1. [5]
    Section 317(2) of the Industrial Relations Act 2016 (Qld) (IR Act) requires the filing of an Application for Reinstatement within 21 days of the dismissal taking effect.
  1. [6]
    Using the 13 September 2018 date for the purposes of the calculation, the effect of this provision is that Dr Sandhu was required to file the First Application by 4 October 2018.  In fact, he filed the First Application four months out of time.
  1. [7]
    On 12 November 2018, Dr Sandhu was to have commenced a further employment contract at the Bundaberg Hospital, this time in a temporary full-time capacity (Second Engagement).  
  1. [8]
    This intended start date was then postponed to 19 November 2018, for disputed reasons between the parties.  A meeting between Dr Sandhu and Wide Bay Hospital and Health Service (WBHHS) personnel regarding an impending Queensland Police Service (QPS) investigation resulted in Dr Sandhu accessing a period of leave without pay.
  1. [9]
    Whilst the circumstances of Dr Sandhu’s next cessation of employment with the WBHHS on 12 December 2018 are also disputed, he filed this second Application for Reinstatement, TD/2019/14 (Second Application) on 11 February 2019.  
  1. [10]
    In this case, Dr Sandhu was required to file the Second Application by 2 January 2019.  In fact, he filed the Second Application 40 days out of time.
  1. [11]
    Two Applications for Reinstatement have been filed by Dr Sandhu.
  1. [12]
    However, before the substantive reinstatement applications can be heard, I am first required to address the superseding (and in this case determinative) jurisdictional issue of the two Applications being filed ‘out of time’.

Appeal filed out of time

  1. [13]
    The Respondent contends that Dr Sandhu ceased his First Engagement on 13 September 2018; whilst Dr Sandhu stated the date was 14 September 2018.  
  1. [14]
    It is uncontentious between the parties that Dr Sandhu filed the First Application in the Industrial Registry on 4 February 2019. 
  1. [15]
    It is uncontentious between the parties that Dr Sandhu left the Second Engagement on 12 December 2018; notwithstanding a dispute on the circumstances of the separation.
  1. [16]
    The Respondent suggests that Dr Sandhu filed the Second Application in the Industrial Registry on 6 February 2019.  I note though that it was filed on 11 February 2019.
  1. [17]
    Section 317(2) of the IR Act states:

The application must be made within – 

(a) 21 days after the dismissal takes effect; or

(b) if the commission allows a further period on an application made at any time – the further period.

  1. [18]
    Noting Dr Sandhu’s email to Dr West dated 13 September 2018 indicating he had resigned his position, I determine that to be the date of separation of employment for the First Engagement.  
  1. [19]
    Therefore, Dr Sandhu filed the First Application four months out of time.
  1. [20]
    Noting the date of the Industrial Registry stamp as ‘11 February 2019’ on the Second Application, I determine that Dr Sandhu filed that application 40 days out of time.
  1. [21]
    I am empowered by the IR Act to extend the time for allowing the applications, though only where the Applicant demonstrates to my satisfaction that there is a reasonable ground for that extension.
  1. [22]
    Whilst Dr Sandhu acknowledges that the two applications were filed out of time, he provides no substantive reasons and little relevant detail within his material to explain that delay. 
  1. [23]
    A Mention in these matters was held on 1 November 2019, in which I advised that a Hearing would first be held on this jurisdictional question.  However, Dr Sandhu declined to participate in this proceeding.  
  1. [24]
    A Hearing was held on 18 November 2019 to enable the parties to present their case on the jurisdictional question.  However, Dr Sandhu declined to attend this proceeding. 
  1. [25]
    In a generous interpretation of procedural fairness, Dr Sandhu was provided an additional opportunity to provide reasonable excuse for his non-attendance when he was telephoned by my Associate from the Hearing.  However, he declined to come to the telephone.
  1. [26]
    The scheduled Hearing was the parties’ opportunity to make submissions indicating precisely why (or why not) the matter should be heard out of time.  
  1. [27]
    The Respondent has submitted a written “Outline of argument in support of jurisdictional objections (out of time)” and several Affidavits in support of their case.
  1. [28]
    As Dr Sandhu has declined to attend the Hearing and has provided no reasonable excuse for his non-attendance, I will make the decision on the material before me.

Relevant considerations in the exercise of discretion

  1. [29]
    The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion.[1]  Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[2]  Several factors inform the exercise of my discretion. 
  1. [30]
    The Applicant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[3]   
  1. [31]
    In Breust v Qantas Airways Ltd,[4] Hall CIC (as he then was) set out the following considerations:
  1. The length of the delay; 
  2. The explanation for the delay;
  3. The prejudice to the Appellant if the extension of time is not granted;
  4. The prejudice to the Respondent if the extension of time is granted; and
  5. Any relevant conduct of the Respondent.
  1. [32]
    Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.[5] These were usefully summarised by Thompson IC in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services),[6] which is paraphrased below:
  1. The 21 day time limit must be respected and should not easily be dispensed with; and
  1. The Applicant’s prospects of success at a substantive hearing is always a relevant matter in that where it appears an Applicant has no, or very limited prospects of success, the Queensland Industrial Relations Commission (QIRC) would not normally grant an extension of time.
  1. [33]
    Those cases were considering section 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case; what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion.  
  1. [34]
    Additionally, my discretion is informed by the purposes of the IR Act, including providing an industrial relations framework that is fair and balanced.[7] In that regard, I am guided by the commentary of French CJ in Aon Risk Services

Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (for the exercise of discretion) made without adequate explanation or justification.[8]

Length of delay

  1. [35]
    The First Application was filed four months out of time, as set out in paragraphs 4 and 6 above.
  1. [36]
    The Second Application was filed 40 days out of time, as set out in paragraphs 9 and 10

above.

  1. [37]
    The 21 day application period has been determined by the legislature to be the appropriate period for a person to file an appeal.  Even a cursory review of the IR Act would have revealed that appeal period to the Applicant.[9] 
  1. [38]
    The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[10] It is true that in some cases delays of several weeks have been considered to be not excessive.[11] However, in such cases the delay is usually accompanied by a substantial explanation such as legal representative error, natural disasters or the like.12 That is not the case here.
  1. [39]
    The Respondent’s submissions draws attention to Lockhart v Queensland Health, in which Deputy President Kaufman found that 42 days beyond the statutory limit of 21 days was a significant delay.[12]
  1. [40]
    Given the additional circumstances surrounding the delay, prejudice and conduct of the parties outlined below, I have determined delays of both four months (First Application) and 40 days (Second Application) to be both significant and unreasonable in this case. 

Applicant submissions

  1. [41]
    With respect to the First Application for Reinstatement (TD/2019/10) filed with the QIRC on 4 February 2019, Dr Sandhu lists the reasons for his four month delay in filing to be:
  1. As a UK citizen, he has limited knowledge of Australian employment law and available remedies.
  1. His decision-making capacity and ability to function were affected by mental health issues, resulting from workplace stress and bullying.
  1. Whilst he had accepted re-employment with WBHHS on a fixed term contract basis in an effort to mitigate his loss, that attempted return to work failed on 12 December 2018 at the point where he preferred to resign rather than be terminated.
  1. “I had no access to my phone, computer, email and bank accounts due to difficult circumstances beyond my control, arising as a result of stress produced by the situation.”  Dr Sandhu further states that he did not have access to the information he required to file an application until 14 January 2019, at which time he regained access to his electronic devices and accounts.
  1. He was isolated in a small regional town, without support.
  1. Avenues of information were closed during the Christmas period.  He was only able to obtain legal advice on 30 January 2019.
  1. He feared that pursuing redress would lead to repercussions on his future career.
  1. He was experiencing constrained financial circumstances.
  1. Only at the time of filing has he discovered the relevant information and regained sufficient confidence and capacity to enable him to pursue the matter meaningfully.
  1. Whilst he filed an application for unfair dismissal with the Fair Work Commission (FWC) on 9 January 2019, it was not until 23 January 2019 that he was advised by that tribunal to instead file his application with the QIRC.
  1. [42]
    With respect to the First Application (TD/2019/10) filed with the QIRC, Dr Sandhu further elaborates on his reasons for filing out of time in ‘Exhibit O: Statement of workplace bullying, undermining and harassment’ contained in his Affidavit: 

Because I feared repercussions, I did not say that this was due to the above mentioned harassment, bullying and undermining, but instead attributed it to my wife’s health and problems with her UK Visa, both of which were actually in hand.

  1. [43]
    With respect to the Second Application for Reinstatement (TD/2019/14) and Affidavit filed with the QIRC on 11 February 2019, Dr Sandhu submits essentially the same material as to the reasons for his 40 day delay in filing.  
  1. [44]
    With respect to the Unfair Dismissal Application covering both matters and filed in the FWC on 9 January 2019, Dr Sandhu attributes his delay in filing to be:
  1. As a UK citizen, he was until now unaware of any protections or means of recourse available to him.
  1. His decision-making capacity and ability to function were affected by mental health issues, resulting from workplace stress and bullying.
  1. He had attempted to rescind his resignation but was instead offered reemployment on a fixed term basis, before being placed on unpaid leave on unfair grounds.  
  1. Dr Sandhu further stated that he “…presented to the QPS with a worry about potentially objectionable material on my phone, resulting in an investigation.”
  1. [45]
    In his FWC application, Dr Sandhu asserts that his first resignation was due to workplace bullying and because Dr West insisted that he only visit doctors that he recommended. 

He asserts that his decision making capacity at that time was also impaired.  With respect to his second resignation, Dr Sandhu asserts that he was coerced into resigning.  

  1. [46]
    On the QSuper Income Protection form dated 3 January 2019, Dr Sandhu states “Due to the hostile and intimidating environment created, I tendered my resignation.”  Adjustment disorder, anxiety and depression are claimed against a background of workplace stress, bullying and harassment.
  1. [47]
    On a WorkCover form dated 3 January 2019, Dr Tay indicates that Dr Sandhu “…only decided to pursue it through WorkCover on 12/12/2018.”  Dr Tay states that Dr Sandhu had an adjustment disorder with anxious mood, with the work-related stressors listed as “alleged workplace bullying and increased workload” and non-work stressors listed as “ongoing police case”.
  1. [48]
    The reasons provided for the cessation of Dr Sandhu’s employment with WBHHS on two occasions (as contained in paragraphs 45 – 47) are only ancillary to the ‘out of time’ question dealt with by this decision, as they relate to my consideration of ‘prospects of success’ criteria at any future substantive Hearing of the matter.

Respondent submissions

  1. [49]
    The Respondent was placed in the unenviable position of answering a case which had not been cogently put to them. 
  1. [50]
    With respect to the First Application for Reinstatement (TD/2019/10) filed with the QIRC on 4 February 2019, the Respondent asserts that:
  1. Dr Sandhu was not dismissed but resigned his position, as such section 317 of the IR Act does not apply.  The terms of Dr Sandhu’s email dated 13 September 2018 evidences his voluntary resignation, despite Dr West’s efforts to persuade him to first consider alternative options such as leave.
  1. Dr Sandhu filed his application out of time and has not provided either good or clear reasons to justify his delay.
  1. Dr Sandhu admits that his delay was due to his decision to pursue, and thence accept, re-employment with WBHHS on a fixed term contract; and that he did so approximately one month after the time limit to bring the First Application had already expired.  Further, that his re-employment was predicated on the assertion that he had recovered his mental health.
  1. In the period between resigning from his First Engagement and accepting the Second Engagement, Dr Sandhu had travelled to the UK, sought medical assistance, negotiated his re-employment.  On the face of it, all seemingly would have been beyond the reach of a person claiming to be defeated by their medical condition.
  1. Dr Sandhu admits that his delay was also due to his demotivation upon the cessation of that second engagement and his fear of repercussions on future career prospects.  
  1. A change of mind is not a good reason to be heard out of time.  Dr Sandhu elected not to commence an application for reinstatement during the 21 day time limit, in preference for alternative means to restore his employment.  
  1. “Despite his claimed lack of memory, the Applicant resigned in writing in the clearest of terms without any pressure of any kind imposed by the Respondent, and voluntarily left Australia for the UK.”
  1. “He has called no medical evidence to justify a claim that he resigned due to anxiety and depression or an adjustment disorder secondary to workplace stress and bullying.  The terms of his resignation letter and contemporaneous communication with colleagues totally contradict this confection.”
  1. [51]
    In considering the prospect of success criteria for the First Application, I note the resignation email from Dr Sandhu to Dr West dated 13 September 2018 which states: 

I would like to resign my current job due to family reasons.  Australia and Bundaberg have been wonderful but, as you know, my wife is unable to join me for a few years and it has led to a lot of stress both for her and me and is currently straining our relationship.  I feel my place is with her at the moment.  It is with a heavy heart that I have come to this decision.  I would be grateful if you would please accept my resignation and further grateful if I could have your support in shortening my notice period.

  1. [52]
    With respect to the Second Application for Reinstatement (TD/2019/14) filed with the QIRC on 11 February 2019, the Respondent asserts that:
  1. “(The Applicant) blandly states that on 12 December 2018 he was forced to choose between resignation or a formal termination procedure without being given time to think and without his notice period being honoured.  This innocuous sentence fails to mention that he had attended at the QPS, admitted to serious criminal offences that bore directly upon his capacity to be employed, repeated the substance of those admissions to the Respondent, and was fully advised by the Respondent that his proposed termination was based on those facts.”
  1. Dr Sandhu first decided in January to commence unfair dismissal proceedings because his re-employment failed due to his own admissions of criminal misconduct.
  1. The failure of Dr Sandhu’s re-employment with WBHHS due to his own actions and in such circumstances does not provide grounds for the Commission to grant an extension of time.
  1. [53]
    In considering the prospect of success criteria for the Second Application, I note the resignation letter from Dr Sandhu to Ms Robyn Bradley, Executive Director, Bundaberg Base Hospital dated 12 December 2018 which states: “In light of recent events in my personal life of which you are aware, I regrettably will be unable to fulfil my obligations to the contract.  I would therefore like to tender my resignation.”
  1. [54]
    The Respondent notes that the legislation requires an Applicant to make a decision about the intended avenue of redress within the specified time limit, rather than attempt to revive an expired option in the event that a successful outcome proves elusive.
  1. [55]
    Finally, the Respondent’s submission references a previous decision of Deputy President O'Connor (as he then was) that the reasons provided do not amount to ‘the most compelling of circumstances’ nor is an extension necessary in order to ‘ensure that justice is done between the parties’.[13]

Explanation for the delay

  1. [56]
    Dr Sandhu was afforded several opportunities to make submissions as to the source of the delay in filing his two Applications for Reinstatement.  
  1. [57]
    My intention to first decide the ‘out of time’ issue at a Hearing was stated at the Mention held on 1 November 2019, referred to in an email from my Associate to the parties sent subsequent to the Mention and further submissions on the jurisdictional question were also invited in the Further Directions Order issued the same day.
  1. [58]
    Despite that, Dr Sandhu’s explanation did not progress beyond pointing to the entire substance of his appeal.
  1. [59]
    Dr Sandhu’s implied intention that his filed material provided the explanation for his delay writ large is unhelpful.  A thorough perusal of his two Applications for Reinstatement, Affidavits and Attachments presents scant evidence of any significant reason(s) that would have justified the delay of four months (First Application) and 40 days (Second Application) in filing ‘out of time’.  
  1. [60]
    While a variety of reasons for the delay in filing his applications are peppered throughout Dr Sandhu’s materials, many of his statements are contradictory, lack credibility, significantly understate or omit key facts.  Further, I note that he has not taken steps to produce any witnesses who may support his various assertions to evidence the reasons for his delay.
  1. [61]
    As such, I find that Dr Sandhu has offered no adequate explanation or justification for the delay in making either of his two applications. 

Prejudice to the Applicant

  1. [62]
    Within Dr Sandhu’s filed material, he has indicated the prejudice he would suffer should his two applications be dismissed for filing out of time, beyond the obvious prejudice that he would lose the opportunity for a decision to be made on the substantive matters of his Applications for Reinstatement, and the subsequent potential to achieve the outcome sought. 
  1. [63]
    That outcome is of course not an insubstantial detriment to Dr Sandhu. 
  1. [64]
    In addition to the foundational issue above, the professional impact is described as being:
  1. Inability to complete the RANZCP pathway to fellowship;
  1. AHPRA investigation initiated;
  1. Cannot apply for other jobs;
  1. Visa being cancelled by 9 February 2019;
  1. Career gap on CV that will adversely affect future job prospects; and
  1. Need to return to the UK.
  1. [65]
    Whilst the personal impact is identified as follows:
  1. Significant stress and expense; and
  1. Reputational impact.

Prejudice to the Respondent

  1. [66]
    The Respondent has indicated specific prejudice it would suffer should the two applications be heard out of time, including the impossibility of re-employing Dr Sandhu in the WBHHS due to the criminal charges against him and suspension of his medical registration. 
  1. [67]
    It is noteworthy that the Applicant is a doctor.  Once the two application timeframes expired, the Respondent took steps to ensure that the community of Bundaberg and surrounding district could continue to be served by a replacement Staff Specialist Psychiatrist.  They took action that relied on the relative certainty of the application timeframe established by the IR Act.  As such, to hear these applications out of time would unfairly intrude on the alternative specialist staffing arrangements made by the Respondent and negatively impact the health services and supports for the local community. 
  1. [68]
    It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[14] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[15] 
  1. [69]
    The seeming impossibility of the combination of impediments to re-employment, as outlined in paragraph 89 below, are also relevant.
  1. [70]
    For those reasons, I find that the prejudice to be suffered by the Respondent, should I decide to exercise my discretion to hear the two applications out of time, would be both substantial and insupportable in the circumstances of Dr Sandhu’s own making. 

Conduct of the Respondent

  1. [71]
    Dr Sandhu does not contend that any actions of the Respondent caused or contributed to the delay in bringing these proceedings. 
  1. [72]
    Conversely, with respect to the First Application, the Respondent submits that Dr West encouraged Dr Sandhu not to make such a hasty decision as to resign his employment, but instead suggested that he access leave and consult a mental health professional in the first instance.  
  1. [73]
    In terms of the Second Application, the Respondent states that they were informed by the QPS of Dr Sandhu’s admission with respect to the child exploitation material in his possession; and it was his own actions that resulted in the frustration of the employment contract.
  1. [74]
    I find this certainly convincing to support the propositions that the length of the delay was unreasonable, and that the limited explanation for the delay provided by Dr Sandhu was manifestly insufficient.[16] 

Prospects of success

  1. [75]
    The Applicant’s prospects of success at a substantive Hearing are a relevant consideration.[17] However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added and citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[18]

  1. [76]
    Dr Sandhu’s two applications for reinstatement certainly contains obstacles that would be extremely challenging to overcome. 
  1. [77]
    In the first instance, Dr Sandhu would be required to demonstrate that there was indeed a dismissal.  
  1. [78]
    There is no definition of ‘dismissal’ or ‘constructive dismissal’ provided in the IR Act. However, this Commission is generally informed on that question by jurisprudence borne from both previous Queensland legislation and Federal legislation.[19] In that regard, a resignation is not a dismissal,[20] absent extenuating circumstances such as coercion,[21] or a prompt recanting of the resignation which may render the resignation a constructive dismissal.[22]
  1. [79]
    An employer is generally able to treat a clear and unambiguous resignation as a resignation.[23] The act of resigning, even in circumstances where one may decidedly regret doing so in hindsight, is not itself tantamount to dismissal.[24] While it has been said that an employee may recant a resignation, that must occur during a reasonable period post-resignation.[25] Precisely what constitutes a reasonable period is situational, though is generally a short period and not a matter of days or weeks.[26] 
  1. [80]
    The evidence of his resignation letter dated 13 September 2018, and the emails around that period between Dr Sandhu and WBHHS personnel, clearly demonstrate both his intent and the understanding of the parties at that time of the cessation of the First Engagement.  For example, the evidence before me is that Dr West actively attempted to dissuade Dr Sandhu from resigning.  
  1. [81]
    In considering this criterion as it applied to the First Application, I have thoroughly reviewed the materials before me and I conclude with the requisite level of confidence, namely on the balance of probabilities, that the First Application does not involve a dismissal but rather a resignation, and any attempt to recant that resignation was beyond the reasonable period to have done so. I find that those matters are quite ‘clear cut’ as described by the President above. 
  1. [82]
    I find Dr Sandhu’s very poor prospects of success to be a compelling reason as to why the First Application should not be heard out of time.
  1. [83]
    With respect to the Second Engagement, for Dr Sandhu to be successful in arguing that his tendered resignation was in fact a constructive dismissal, he would again be required to demonstrate some extenuating circumstances given the evidence of his second resignation letter.  
  1. [84]
    On the materials before me at this time, that is not apparent at all.
  1. [85]
    Dr Sandhu asserts that he was placed in the invidious position of needing to choose between termination or resignation.  He contends that while he asked for an opportunity to resign, rather than have his position terminated, the WBHHS was unprepared to wait longer than the end of the working day for him to make his decision.  Dr Sandhu argues that he was denied procedural fairness, by not being afforded an extended opportunity to reflect on his options.
  1. [86]
    The foundational question in the Second Application is whether the WBHHS requested Dr Sandhu’s resignation with a threat of dismissal if not complied with (which may meet the test for a constructive dismissal); or, in the alternate, whether the WBHHS had a valid reason to dismiss Dr Sandhu (such as frustration of contract, arising from a criminal investigation at that time) and in the process acceded to his request for an opportunity to resign.  In the latter case, the WBHHS would be under no obligation to keep such opportunity open for any period.  
  1. [87]
    While the various Affidavits and submissions before me favour the second scenario described in paragraph 85 above, the matter of the Second Application is less ‘clear cut’.
  1. [88]
    As such, this criterion has a neutral impact in informing the exercise of my discretion to hear the Second Application out of time. 
  1. [89]
    My finding on the prospects of success criterion with respect to the Second Application should not provide undue encouragement to Dr Sandhu.  For even in the event that it were possible for him to demonstrate that the Second Engagement resulted in a dismissal, and even in the event that he were able to demonstrate that dismissal was harsh, unjust or unreasonable, the barriers to his reinstatement or re-employment at WBHHS are seemingly insurmountable. 
  1. [90]
    Said barriers include: Dr Sandhu’s current detention and uncertainty as to his ongoing residency in Australia; his alleged admission to possessing child exploitation material and the ensuing criminal charges, with the possibility of conviction; and the suspension of his medical registration necessary to practice in Australia. These combine to present irrefutable and substantial difficulties in the Applicant’s case.  

Conclusion

  1. [91]
    Dr Sandhu filed each of his two Applications for Reinstatement out of time (four months and 40 days respectively) and seeks that I exercise my discretion under IR Act to extend the time for filing that appeal.[27] 
  1. [92]
    There exists a suite of relevant considerations in exercising such a discretion, but foremost I must be satisfied that the Applicant had a reasonable ground for extending the time.[28] 
  1. [93]
    A lack of familiarity with, or knowledge of the processes of, a particular jurisdiction may be an acceptable reason for some amount of delay in initiating proceedings.[29]  
  1. [94]
    However, I am satisfied that Dr Sandhu is a highly-educated person capable of independently identifying both the fundamental requirements of and the appropriate mechanism for filing applications for reinstatement.  
  1. [95]
    Dr Sandhu has demonstrated his ability to pursue redress through WorkCover (3 January 2019), income protection through QSuper (2 January 2019) and the FWC (9 January 2019) before turning his energies to remedy through the QIRC.  
  1. [96]
    In these various undertakings he has sought out several medical practitioners, at least two solicitors and the British Embassy.
  1. [97]
    Those exertions demonstrate the propositions that Dr Sandhu is capable of identifying potential mechanisms for remedy; navigating the process requirements for doing so; and is familiar with the concept of complying with deadlines for filing material.  I find that particularly persuasive in considering the reasonableness, or lack thereof, of the length of the delay in filing his applications with the QIRC.   
  1. [98]
    Dr Sandhu was certainly counselled by WBHHS representatives to seek independent legal advice at the point of the cessation of his Second Engagement, according to the Affidavit evidence tendered.  
  1. [99]
    Whilst I note Dr Sandhu’s submission as to one reason for his delay in filing was that “I was only able to obtain legal advice on 30 January 2019”, that is not borne out in the correspondence from his first solicitor to Ms Robyn Bradley dated 2 January 2019.
  1. [100]
    Dr Sandhu offers that a further reason for the delay in filing his application was that he had only “…regained access to my electronic devices and accounts on 14.1.19 which have information that I would need to be able to lodge an application.”  Leaving aside the serious criminal nature of the admissions made that resulted in his access to such devices and accounts being suspended, the fact of his FWC application dated 9 January 2019 renders this excuse incongruous.  
  1. [101]
    Simply put, if it were possible for Dr Sandhu to make an application for reinstatement to the FWC on 9 January 2019, before access to his electronic devices and accounts were restored on 14 January 2019, it would also have been possible for him to file in the QIRC.
  1. [102]
    Even considering the medical certificates submitted for the period immediately following the cessation of his First Engagement, there is no cogent and credible explanation as to why the First Application was submitted so much later than the required timeframe.
  1. [103]
    Dr Sandhu had ample opportunity to seek Affidavits from any one of his treating health professionals in preparation for the Hearing of this matter but did not.
  1. [104]
    Whilst Dr Sandhu has claimed workplace bullying and harassment in his submissions, the tone and content of his communications with WBHHS personnel do not support this contention; nor has Dr Sandhu produced any witnesses or other evidence to that effect.
  1. [105]
    I find that the delays in filing the two applications were significant and despite numerous opportunities to do so, Dr Sandhu has failed to provide adequate reason for his delay in either of the two circumstances.
  1. [106]
    Notwithstanding there are some discrepancies in the materials submitted by the parties as to the precise period that Dr Sandhu’s applications were out of time, the small differences are not material to my decision.
  1. [107]
    Foundationally, I am not minded to grant an extension of time to an Applicant where such a request is made without adequate explanation or justification.
  1. [108]
    Dr Sandhu will suffer some prejudice resulting from my decision to decline to hear the two applications out of time; namely, that he will lose the opportunity for a decision to be made on the substantive matters of his Applications for Reinstatement, and the subsequent potential to achieve the outcome sought.  
  1. [109]
    However, while the prejudice to Dr Sandhu cannot be ignored, it is substantially overshadowed by the likely prejudice to the Respondent.
  1. [110]
    Were I to hear the two applications out of time, the prejudice to the Respondent would be substantial given the alternative specialist staffing arrangements that have no doubt been made after the two application deadlines were reached.  I am also mindful of the potential negative impact to the health services and supports for the Bundaberg community, should further dislocation and disturbance to specialist staffing arrangements be required in the circumstances.
  1. [111]
    For the reasons above, I have decided not to exercise my discretion to extend time for Dr Sandhu to pursue either of his two applications for reinstatement.  Dr Sandhu has failed to make the case that there are reasonable grounds for doing so.  
  1. [112]
    Accordingly, I dismiss applications TD/2019/10 and TD/2019/14.

Orders

  1. The applications for an extension of time in matters TD/2019/10 and TD/2019/14 are dismissed.
  1. The application for reinstatement in matter TD/2019/10 is dismissed.
  1. The application for reinstatement in matter TD/2019/14 is dismissed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 317(2)(b).

[2] House v The King (1936) 55 CLR 499, [2].

[3] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547.

[4] Breust v QANTAS Airways Ltd (1995) 149 QGIG 777.

[5] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[6] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138.

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

[8] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, [30].

[9] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [32].

[10] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [40]; Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.

[11] Ibid. 12 Ibid.

[12] Lockhart v Queensland Health (2014) QIRC 012, [25] confirmed on appeal in State of Queensland v Lockhart [2014] ICQ 006.

[13] Wantling v Department of Community Safety (Queensland Corrective Services) (2013) QIRC 43.

[14] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[16] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [32].

[17] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[18] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35, [6].

[19] See, eg, State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 034 citing Cook v CFP Management Pty Ltd [2006] QCA 215 [17]-[19]; Saville v Department of Corrective Services (2006) 183 QGIG 787; Hodges v Buderim Ginger Ltd (1995) 148 QGIG 644.

[20] Munks v QUF Industries Ltd (1994) 147 QGIG 1381; State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 034.

[21] See, eg, Anger v Small Business Development Corp (1990) 135 QGIG 751.

[22] See, eg, Ngo v Link Printing Pty Ltd (1999) 94 IR 375.

[23] State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 034, [18] citing Ngo v Link Printing Pty Ltd (1999) 94 IR 375, [12].

[24] Ibid.

[25] State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 034, [19]; Achal v Electrolux Pty Ltd (1993) 50 IR 236.

[26] Ibid.

[27] Industrial Relations Act 2016 (Qld) s 317(2). 

[28] Ibid.

[29] Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145; Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers (2010) 197 IR 403, 406.

Close

Editorial Notes

  • Published Case Name:

    Sandhu v Wide Bay Hospital and Health Service

  • Shortened Case Name:

    Sandhu v Wide Bay Hospital and Health Service

  • MNC:

    [2019] QIRC 182

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    22 Nov 2019

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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