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State of Queensland v Janes QIRC 38
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
State of Queensland v Janes  QIRC 038
State of Queensland
Janes, Hayley Marie
Application to dismiss
4 March 2019
On the papers
1. The application to dismiss is granted.
2. The substantive application viz., the complaint referred to the Queensland Industrial Relations Commission on 9 February 2018, pursuant to the Anti-Discrimination Act 1991, is dismissed.
ANTI-DISCRIMINATION - APPLICATION TO DISMISS - Failure to comply with directions - Respondent given ample opportunity to advance her complaint - Application to dismiss granted - Substantive matter dismissed - No order as to costs.
Anti-Discrimination Act 1991, s 164(A)(2), s 166.
Industrial Relations (Tribunals) Rules 2011, r 41, r 45.
Reasons for Decision
- Ms Hayley Marie Janes (the Respondent) lodged a complaint with the Anti‑Discrimination Commission Queensland on 22 September 2017, alleging discrimination on the basis of pregnancy in the work area, in contravention of the Anti‑Discrimination Act 1991 (the AD Act).
- That matter was referred by the Anti-Discrimination Commission Queensland to the Queensland Industrial Relations Commission (the Commission) on 9 February 2018 in accordance with s 164A and s 166 of the AD Act.
- State of Queensland (the Applicant), submits that the Respondent's application should be dismissed pursuant to s 541 of the Industrial Relations Act 2016 (Act) and/or r 45 of the Industrial Relations (Tribunals) Rules 2011.
The History of the Matter before the Queensland Industrial Relations Commission
- On 13 February 2018, the Applicant and Respondent received a directions order issued by the Industrial Registrar.
- Direction 1 of that Order required any parties seeking leave to be legally represented to file and serve an application for that leave, by 26 February 2018.
- Direction 2 required the Respondent to file in the Industrial Registry and serve on the Respondent(s) a statement of facts and contentions by 5 March 2018.
- On 26 February 2018, the Applicant filed and served an application for leave to be legally represented in the Commission.
- Direction 8 of the directions order required that the parties advise the Industrial Registrar, in writing, if a conference was sought prior to the hearing of the matter before the Commission.
- The Applicant was not served with the Respondent's statement of facts and contentions by the specific date of 5 March 2018, nor at any time.
- On 5 March 2018, the Applicant wrote to the Commission (with a copy to the Respondent) requesting that:
- Directions 2 to 8 of the directions order dated 13 February be vacated;
- that the matter be listed for a directions hearing; and
- a conciliation conference be conducted.
- The Commission confirmed on 23 March 2018, that the matter would be set down for a conciliation conference and communicated with the parties regarding dates upon which they were available.
- In the course of organising the conference, on 23 April 2018, the Respondent, via email, advised the Commission that she wished to now withdraw her application.
- In communication with the Respondent concerning her wish to withdraw her application, the Respondent said that she had only done so because she had felt pressured to withdraw her application.
- The Commission advised the Respondent on 2 August 2018 that if she wished to proceed with her application, dates would be set aside by the Commission to accommodate that request. The dates nominated for her consideration were 17, 20 and 21 August 2018. In addition to providing these dates, the Commission further added:
If you are not available, please provide an alternative date[s] and/or time[s] for the Deputy President and Respondents to consider.
- On 8 August 2018, the Respondent emailed the Commission asking whether the Commission had dates which were "… further out than a couple of weeks".
- The Commission, on 10 August 2018 requested that the Respondent nominate which dates would suit her, as was directed for her to do so in correspondence of 2 August 2018. The Respondent was given a timeframe in which to provide her availability viz., by 4:00 pm, 14 August 2018. There was no response from the Respondent to that request.
- On 4 September 2018, the Applicant filed an application to dismiss (the subject matter of this decision) with the Industrial Registry and provided to the Respondent.
- As a consequence of that application, a further directions order was issued by the Commission on 14 September 2018, directing the parties to provide written submissions in relation to the application to dismiss.
- On 14 September 2018, the Respondent emailed the Commission stating:
Hi there. What exactly is it that I am supposed to do, this was being dismissed because your office was unable to provide a suitable date? Could you please explain.
- In response to that email, the Commission wrote to the Respondent on 21 September 2018 as follows:
Dear Ms Janes
Further to your email below, I wish to bring to your attention the attached emails, dated 2 and 10 August 2018, in which you were requested to provide your availability for a conference.
The request to set down a conference was to provide you with an opportunity to advise the Commission on the status of your application. The email of 2 August 2018 outlined Deputy President Swan’s availability at that time for your consideration, in addition to providing you with an opportunity to advise of any other suitable dates by Wednesday 8 August 2018. On 10 August 2018, you were again given an opportunity to provide suitable dates by 14 August 2018.
Unfortunately, neither the Registry nor Deputy President’s chambers have received any communication from you regarding these requests. Consequently, the respondent filed an application on 14 September 2018 to dismiss your matter.
The respondent’s application resulted in a further directions order being issued by Deputy President Swan dated 14 September 2018, directing you to file in the Industrial Registry and serve on the respondent written submissions in relation to the application to dismiss.
The further directions orders issued by Deputy President Swan provides you with an opportunity to make written submissions in regards to the application to dismiss. It is ultimately up to you as to whether you comply with this direction, however, failure to comply with a direction order may/can have negative consequences.
- In accordance with Direction 1 of the further directions order, the Applicant's written submissions were received by the Industrial Registry (and provided to the Respondent) on 24 September 2018. In accordance with Direction 2 of the further directions order, the Respondent was to provide her response to the application to dismiss by 8 October 2018.
- There has been no response to that application formally or informally, nor any further communication by the Respondent to-date.
- In determining this matter, I have taken into account the lengthy steps taken by the Commission to accommodate the Respondent and ensure that she had her application heard and determined.
Consideration of applicable legislation and Conclusion.
- Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (the rules) concerns, amongst other things, directions orders and failure to comply with directions orders as follows:
45 Failure to attend or to comply with directions order
(1) This rule applies if -
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b) the party fails to attend the hearing or conference.
(2) This rule also applies if -
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(b) the party fails to comply with the order.
(3) The court, commission or registrar may -
(a) dismiss the proceeding; or
(b) make a further directions order;
(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
(d) make orders under paragraphs (b) and (c)
- The chronology of events showed that there was no utility in the Commission continuing to attempt to facilitate the Respondent's concerns, given her failure to respond to directions orders.
- In this case, the Respondent has received notification of directions orders and has failed to comply with those orders (see r 45(2)(a) and (b) of the Rules). Failure to follow a directions order of the Commission constitutes grounds to dismiss the application.
- Accordingly, I grant the application to dismiss pursuant to r 45(3) of the Rules. It follows that the substantive matter viz., the complaint referred to the Commission on 9 February 2018, pursuant to the AD Act, is dismissed.
- I do not propose to order costs against the Respondent. This matter did not proceed beyond the initial states referenced in this Decision.
 The application to dismiss is granted.
 The substantive application viz., the complaint referred to the Queensland Industrial Relations Commission on 9 February 2018, pursuant to the Anti-Discrimination Act 1991, is dismissed.
- Published Case Name:
State of Queensland v Janes
- Shortened Case Name:
State of Queensland v Janes
 QIRC 38
04 Mar 2019