Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service)[2021] QIRC 120

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service)[2021] QIRC 120

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors [2021] QIRC 120

PARTIES:

Rolfe, Melanie

(Applicant)

v

State of Queensland (Children's Health Queensland Hospital and Health Service)

(First Respondent)

and

Frank Tracey

(Second Respondent)

and

Roslyn Henney

(Third Respondent)

CASE NO:

AD/2019/91

PROCEEDING:

Application to dismiss

DELIVERED ON:

08 April 2021

HEARD AT:

Brisbane

HEARING DATE:

17 April 2020

MEMBER:

Hartigan IC

ORDER:

  1. The application is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – INDUSTRIAL LAW – where the respondent has brought an application to dismiss the appeal – whether the Commission has jurisdiction to hear the proceeding – whether further proceedings are not necessary or desirable in the public interest.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 136, s 138, s 141, s 143, s 164A, s 174B, s 174C, s 175, s 177, s 178

Industrial Relations Act 2016 (Qld)

CASES:

Bond v Multicap Limited [2020] QIRC 051

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Carey v Department of Justice and Attorney-General and Others [2006] QADT 3

Hopper v Mt Isa Mines Ltd [1999] 2 Qd R 496

Simpson v Welch and Queensland Police Service [2002] QACT 17

APPEARANCES:

Ms M. Rolfe, the Applicant.

Ms A. Freeman of counsel for the First Respondent, instructed by Crown Law.

Reasons for the Decision

Introduction

  1. [1]
    On 31 May 2019, Ms Rolfe lodged a complaint with the Queensland Human Rights Commission (“QHRC”) complaining that her former employer, the Children's Health Queensland Hospital and Health Service (Lady Salento/Queensland Children's Hospital) ("First Respondent"), Ms Roslyn Henney ("Second Respondent"), Mr Frank Tracey ("Third Respondent") and Ms Elle Ekland ("Fourth Respondent") discriminated against her on the basis of her relationship status, pregnancy and parental status, including by not renewing her contract of employment in June 2018 in contravention of the Anti-Discrimination Act 1991 (Qld) (“the AD Act”).
  1. [2]
    Ms Rolfe's complaint was referred to this tribunal[1] by the QHRC. The respondents apply to have the proceedings before this tribunal dismissed. The orders sought by the respondents relevantly include:
  1. (a)
    an order pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld) ("IR Act"), striking out or dismissing in its entirety the application in matter AD/2019/91, on the basis of lack of jurisdiction of the tribunal to hear and determine matters to be decided, or in the alternative, the lack of jurisdiction to make the orders sought by Ms Rolfe;
  1. (b)
    alternatively, an order pursuant to s 541(b)(ii) of the IR Act, striking out or dismissing the application in its entirety on the basis the proceedings are not necessary or desirable in the public interest.
  1. [3]
    Consequently, the issues I am required to determine is whether I should exercise my discretion to:
  1. (a)
    strike out or dismiss the entirety of the proceeding on the basis of lack of jurisdiction to her the matter or make the orders sought; or
  1. (b)
    dismiss the proceedings as further proceedings are not necessary or desirable in the public interest.
  1. [4]
    In part, the respondents contend that the Commission does not have jurisdiction to hear the matter or to make the orders sought by Ms Rolfe because the referral of the matter from the QHRC to the tribunal was not a valid referral from the QHRC pursuant to s 166 of the AD Act.

History of the complaint

  1. [5]
    In order for me to determine whether the Commission has jurisdiction to hear the matter, including whether the referral of the matter by the QHRC was valid, I must consider the history of the complaint.
  1. [6]
    On 31 May 2019, Ms Rolfe filed her complaint with the QHRC.
  1. [7]
    The complaint form contains a question "did discrimination, sexual harassment, public vilification or victimisation included within this complaint occur within the last 12 months". Ms Rolfe responded "yes, contract was ended June 3 2018".
  1. [8]
    In response to the question "did discrimination, sexual harassment, public vilification or victimisation included in this complaint occur within the last 12 months", Ms Rolfe has ticked both the yes and no box and stated the following:

Some of the issues were in the lead up to the end of my contract, however, I was unable to put into a complaint until the contract ended on June 3 2018 as I have been told that I wouldn't know until then if I was getting another contract. Between then and now I have been preoccupied with having a baby and did attempt to write down the event several times, however was thwarted due to the emotions still involved in recalling the event.

  1. [9]
    On or about 27 June 2019, the delegate of the Anti-Discrimination Commission Queensland, Brisbane office, wrote to the respondent parties advising that Ms Rolfe's complaint had been accepted under s 141 of the AD Act against the respondents named within the complaint.
  1. [10]
    The correspondence of 27 June 2019 relevantly stated:

The decision to accept the complaint does not indicate whether the complaint has merit. It simply means that at least one allegation contained in the complaint is about conduct which may be in breach of the Act (s 136) and so the Anti-Discrimination Commission (the Commission) must try to resolve the complaint.

  1. [11]
    The parties were directed to participate in a conciliation conference on 1 August 2019.
  1. [12]
    On 27 August 2019, Ms Rolfe requested that the QHRC refer her complaint to the tribunal.
  1. [13]
    On 30 August 2019, a referral of the matter was received by the tribunal from the QHRC. Relevantly, schedule 1 of the referral was in the following terms:

The complaint and related documents:

No. DateDescription

  1. 03.06.2019Email with Complaint Form and attachment
  1. 27.06.2019Notification Letters to Respondents
  1. 30.07.2019Response from Respondents
  1. 27.08.2019Referral Request

Special comments:

This complaint was accepted under sections 136 and 141 of the Anti-Discrimination Act 1991 ("the Act") because it sets out reasonably sufficient details to indicate an alleged contravention of the Act.

The complaint relates to or includes work or the work-related area and has been referred to the Queensland Industrial Relations Commission ("the QIRC") pursuant to s 166(1)(a) of the Act.

The Queensland Human Rights Commission ("the QHRC") treated the complaint as alleging:

Sex discrimination and Pregnancy discrimination in the area of work – sections 7(a), 7(c), 10, 11, 15.

The QIRC and the parties to the complaint are not bound by the QHRC characterisation of the complaint.

The complaint is accepted as a whole, except where a decision under section 138 of the Act is made not to accept out-of-time allegations. There are no out of time allegations in this complaint. All parties participated in a conciliation conference.

  1. [14]
    Following receipt of the referral, the tribunal issued directions in respect to the case management of the proceeding, which included the provision of the complainant’s Statement of Facts and Contentions and the respondent’s Response to the Statement of Facts and Contentions. The complainant filed her Statement of Facts and Contentions on 15 November 2019.
  1. [15]
    On 27 November 2019 the respondents filed the application to dismiss. Directions were issued regarding the filing of submissions with respect to the application and the hearing of the application was listed for 14 February 2020.
  1. [16]
    On 13 February 2020, correspondence was received from the delegate of the QHRC to the Registrar of the tribunal which was in the following terms:[2]

It has come to my attention that an administrative error was made in the above complaint by referring the complaint to the Queensland Industrial Relations Commission prior to the Commission considering whether good cause had been shown pursuant to section 138 of the Anti-Discrimination Act 1991, with respect to the out of time allegations.

Due to this administrative error, the Commission now intends to consider good cause, including seeking submissions from the parties.

  1. [17]
    Consequently, the hearing of the application was adjourned on 14 February 2020. Instead of the hearing, the tribunal requested the parties attend a mention following which a direction was issued that the parties provide written submissions, addressing, amongst other things, what power, if any, did the tribunal have to return a referred complaint back to the QHRC.
  1. [18]
    By way of correspondence addressed to Crown Law, solicitors for the respondents, dated 25 February 2020, the Director, Complaints Management, QHRC advised,[3] as follows:

The complaint was lodged with the Commission on 31 May 2019. Therefore, alleged conduct that occurred before 31 May 2018 is outside the one year time limit for making a complaint in section 138 of the Anti-Discrimination Act 1991 (the Act).

The complaint relates to the complainant's employment with the Children's Health Queensland Hospital and Health Service, which ended on 3 June 2018, and includes both in-time and out-of-time allegations.

Since March 2018 it has been the practice of the Commission to take complaints that include both in-time and out-of-time allegations to conciliation before deciding whether to accept the out-of-time component under section 138(2) of the Act. Unfortunately that did not occur in this case, and the error was discovered after referral to the QIRC.

The Commission considers that it is the in-time part of the complaint that has been referred to the QIRC, and the Commission will now consider the out-of-time part of the complaint under section 138(2) of the Act.

  1. [19]
    Following further communication between the tribunal and the QHRC[4] the QHRC indicated that as the matter was before the tribunal it would not take any further steps in the matter.

Relevant statutory scheme

  1. [20]
    Chapter 7, part 1, Division 1 of the AD Act provides for the complaint process.
  1. [21]
    Section 134 identifies who may make a complaint. Section 135 provides that the complaint may allege more than one contravention of the AD Act.
  1. [22]
    Relevantly, s 136 provides for the making of the complaint, as follows:

136 Making a complaint

A complaint must—

  1. (a)
    be in writing; and
  1. (b)
    set out reasonably sufficient details to indicate an alleged contravention of the Act; and
  1. (c)
    state the complainant’s address for service; and
  1. (d)
    be lodged with, or sent by post to, the commissioner.
  1. [23]
    Section 138 provides for the time limit on making complaints, as follows:

138 Time limit on making complaints

  1. (1)
    Subject to subsection (2), a person is only entitled to make a complaint within 1 year of the alleged contravention of the Act.
  1. (2)
    The commissioner has a discretion to accept a complaint after 1 year has expired if the complainant shows good cause.
  1. [24]
    Section 141[5] provides that the Commissioner must accept or reject a complaint within the following time limit:

141 Time limit on acceptance or rejection of complaints

  1. (1)
    The commissioner must decide whether to accept or reject a complaint within 28 days of receiving the complaint.
  1. (2)
    The commissioner must promptly notify the complainant of the decision.
  1. [25]
    Section 142 provides that if a complaint is rejected, the complainant may within 28 days of receiving notice of the rejection, ask the Commissioner for written reasons, as follows:

142 Reasons for rejected complaints

  1. (1)
    If a complaint is rejected, it lapses and the complainant is not entitled to make a further complaint relating to the act or omission that was the subject of the complaint.
  1. (2)
    If a complaint is rejected, the complainant may, within 28 days of receiving notice of the rejection, ask the commissioner for written reasons.
  1. (3)
    If requested, the commissioner must promptly give the complainant written reasons for the rejection.
  1. [26]
    Section 143 provides that a respondent is to be notified of an accepted complaint, as follows:

143 Respondent is to be notified of accepted complaint

  1. (1)
    If a complaint is accepted, the commissioner must promptly notify the respondent in writing of the substance of the complaint.
  1. (2)
    The notice to the respondent must also state the following—
  1. (a)
    the complainant’s address for service;
  1. (b)
    that the respondent must advise the commissioner of the respondent’s address for service;
  1. (c)
    that the respondent may give a written response to the allegations included in the complaint;
  1. (d)
    that within 28 days after the respondent receives the notice, the respondent must, if giving a written response—
  1. (i)
    give the written response to the commissioner; and
  1. (ii)
    give a copy of the written response to the complainant and any other respondent;
  1. (e)
    that the respondent must include, with the written response given to the commissioner, advice as to whether it has been given to the complainant and any other respondent;
  1. (f)
    that the respondent may ask the commissioner for an early conciliation conference whether or not the respondent gives a written response;
  1. (g)
    that if the respondent does not, within the 28 days mentioned in paragraph (d), give the commissioner a written response or ask the commission to arrange for an early conciliation conference, a conciliation conference will be held on a date stated in the notice.

  1. [27]
    Section 164A provides that a complainant may seek referral to a tribunal after the conciliation conference if the matter remains unresolved, as follows:

164A Right of complainant to seek referral to tribunal after conciliation conference

  1. (1)
    This section applies if—
  1. (a)
    a conciliation conference has been held under division 3 in relation to a complaint; and
  1. (b)
    the complaint has not been resolved by conciliation.
  1. (2)
    The complainant may give the commissioner a written notice requiring the commissioner to refer the complaint to—
  1. (a)
    if the complaint is or includes a work-related matter— the industrial relations commission; or
  1. (b)
    otherwise—QCAT.

Note— If the complaint includes a work-related matter and a matter other than a work-related matter, the complaint must be referred to the industrial relations commission. However, the commission may transfer the complaint to QCAT under section 193A.

  1. (3)
    The commissioner must promptly—
  1. (a)
    refer the complaint to the tribunal; and
  1. (b)
    give the respondent a copy of the complaint.
  1. (4)
    However the commissioner is not required to act under subsection (3) if the commissioner decides to act under section 168 in relation to the complaint.
  1. (5)
    If the complainant acts under subsection (2), sections 165 to 167 stop applying in relation to the complaint.
  1. (6)
    The complainant is the applicant for the purposes of the relevant tribunal Act.
  1. [28]
    Chapter 7, Pt. 2 provides for what the tribunal may do, pursuant to the AD Act. Chapter 7, Pt. 2, Div. 1A prescribes the functions and powers of the tribunal. Section 174B relevantly provides, as follows:

174B Functions of industrial relations commission

The industrial relations commission has the following functions—

  1. (a)
    in relation to complaints about contraventions of this Act that are referred, or to be referred, to the commission under this Act—
  1. (i)
    to make orders under section 144 before the complaints are referred to the tribunal; and
  1. (ii)
    to review decisions of the commissioner under section 169 about lapsing of the complaints; and
  1. (iii)
    to enforce agreements for resolution of the complaints by conciliation; and
  1. (iv)
    to hear and decide the complaints;
  1. (b)
    to grant exemptions from this Act in relation to work-related matters;
  1. (c)
    to provide opinions about the application of this Act in relation to work-related matters;
  1. (d)
    any other function conferred on the commission by this Act;
  1. (e)
    to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d).
  1. [29]
    Section 174C provides that powers of the tribunal under the relevant tribunal Act may be conferred, as follows:

174C Powers of tribunal under relevant tribunal Act

  1. (1)
    If this Act confers jurisdiction on the tribunal in relation to a complaint or other matter, the tribunal may exercise the powers conferred on it under this Act or the relevant tribunal Act.

  1. (2)
    Nothing in this Act limits the industrial relations commission’s powers under the IR Act, section 539.
  1. [30]
    Chapter 7, Pt. 2, Div. 1B provides for the prehearing process in the tribunal. Section 175 provides for how the tribunal may deal with a time limit on referred complaints, as follows:

175 Time limit on referred complaints

  1. (1)
    The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to commissioner more than 1 year after the alleged contravention of the Act.
  1. (2)
    If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.
  1. [31]
    Section 177 of the AD Act provides that the tribunal may join a person as a party to the proceeding as follows:

177 Tribunal may join a person as a party

  1. (1)
    The tribunal may join a person as a party to a proceeding whether or not the person was a complainant for, or respondent to, the complaint to which the proceeding relates.

  1. (2)
    This section does not limit a provision of the relevant tribunal Act about joining a party to a proceeding.
  1. [32]
    Section 178 of the AD Act permits the tribunal to allow a complainant to amend a complaint as follows:

178 Complaints may be amended

  1. (1)
    The tribunal may allow a complainant to amend a complaint.

  1. (2)
    Subsection (1) applies even if the amendment concerns matters not included in the complaint.

Does the tribunal have jurisdiction to hear the referred complaint?

  1. [33]
    The respondent’s primary position is that the referral from the QHRC under s 166 of the AD Act was not valid.[6] The basis of this submission arises from the correspondence of the QHRC wherein it states that:

Since March 2018 it has been the practice of the Commission to take complaints that include both in-time and out-of-time allegations to conciliation before deciding whether to accept the out-of-time component under section 138(2) of the Act. Unfortunately that did not occur in this case, and the error was discovered after the referral to the QIRC.

The Commission considers that it is the in-time part of the complaint that has been referred to the QIRC, and the Commission will now consider the out-of-time part of the complaint under section 138(2) of the Act.

  1. [34]
    The respondents argue that because the QHRC contends that it did not exercise its discretion to consider out-of-time matters pursuant to s 138(2) the acceptance of the claim by the QHRC on 27 June 2019 (and as notified in the referral to the tribunal) was not valid.
  1. [35]
    It is relevant to note that this is not a proceeding in which Ms Rolfe seeks to include additional complaints that were not the subject of the complaint she filed. As noted, in the correspondence of the QHRC, all of Ms Rolfe’s complaint was conciliated before the QHRC including any in and out-of-time allegations. The issue arises because the QHRC contends that when it referred the complaint to the tribunal it did so in the absence of considering whether to accept any out-of-time components of the complaint under s 138 of the AD Act.
  1. [36]
    There is a line of authorities that have considered what amounts to a valid complaint.
  1. [37]
    In Hopper v Mt Isa Mines Ltd[7] (“Hopper”) Moynihan J considered an appeal from the tribunal under the AD Act. Relevantly, one of the issues on appeal was whether the tribunal made and acted on findings of contraventions not the subject of the points of claim or (more importantly) the complaint and in respect of which there was no complaint within a year and misapplied s 175 of the AD Act.
  1. [38]
    In terms of dealing with a complaint out-of-time Moynihan J relevantly held:[8]

Section 175 provides that the Tribunal must accept a complaint referred by the Commissioner unless the complaint was made to the Commissioner more than one year after the alleged contravention of the Act but that the Tribunal may deal with the complaint made more than one year after the alleged contravention it if considers:

“… that, on the balance of fairness between the parties, it would be reasonable to do so.”

  1. [39]
    Further, Moynihan J referred to the “effect of s 136” in terms of the tribunal’s jurisdiction to hear a complaint as follows:[9]

As I have already indicated, in my view, the effect of s 136 ( a complaint must be in writing, set out reasonably sufficient details to indicate an alleged contravention and be lodged with the Commissioner), s. 166 (a complainant is entitled to require the Commissioner to refer a complaint to the Tribunal) and s. 175 (the Tribunal must accept a complaint referred to it by the Commissioner), is that the Tribunal’s jurisdiction is conditioned on there being a complaint in terms of s 136, subject of course to the Tribunal’s power to allow a complainant to amend a complaint; s. 178…

…the Tribunal’s jurisdiction in in my view founded on a complaint complying with s 136(b). Findings of contraventions not satisfying that requirement therefore cannot stand because there is no jurisdiction to make them…”

  1. [40]
    In Simpson v Welch and Queensland Police Service[10] (“Simpson”) the then president of the tribunal relied on the reasoning in Hopper to conclude that the basis of the tribunal’s jurisdiction to grant interim relief was based on the existence of a valid complaint as follows:

The jurisdiction of the Tribunal to grant interim relief under s. 144 depends upon the applicant being a “complainant”. The expression “complainant” is defined in s. 4 of the Act to mean, relevantly the person making a complaint. Such a complaint must of course, be a valid complaint. As Moynihan SJA pointed out in MIM & Ors v. Hopper (1998) QSC, the jurisdiction of the Tribunal depends upon the existence of a valid complaint.

  1. [41]
    In Hopper and Simpson the jurisdiction of the tribunal rested in the referral of a complaint, being a complaint that complied with s 136 of the AD Act. The acceptance of that complaint by the QHRC was not considered a necessary basis for the tribunal’s jurisdiction. The reasoning in Hopper and Simpson is consistent with the reasoning contained in several other matters determined by the tribunal.[11]
  1. [42]
    In support of its position, the respondent’s rely, inter alia, on Carey v Department of Justice and Attorney-General and Others[12] (“Carey”). In Carey, an application was brought to strike out various parts of the complainant’s points of claim on the grounds that the matters therein did not form part of the complaint made by the complainant or accepted by the Anti-Discrimination Commission Queensland. It was submitted that if no complaint was made or accepted in relation to the matters pleaded in these paragraphs, the matters pleaded could not have been referred by the Commission to the tribunal pursuant to s 166 of the AD Act and therefore the tribunal lacks jurisdiction to hear and determine the issues.
  1. [43]
    The respondent relied on the following passage from Carey:

But that submission ignores the operation of s. 136 and s. 138. A complainant is simply not entitled to make a complaint more than one year after the alleged contravention unless the Commissioner exercises the discretion to accept the complaint under s. 138(2). It is common for complainants to include in their complaint a range of historical material and factual assertions which extend beyond the one year specified in s. 138(1). If portions of the complaint extend beyond the one year period, the Commissioner will proceed to determine whether to exercise the discretion to accept that complaint. But until the discretion is exercised, no complaint in respect of the out of time portion of the complaint has been made and no complaint can be referred to the Tribunal pursuant to s. 166.

  1. [44]
    Unlike in Carey, the QHRC in this matter, did exercise its discretion to accept the complaint. That is known because the QHRC advised in both the correspondence of 27June 2019 and in the referral to the tribunal that the complaint had been accepted. The correspondence of 27 June 2019 states that the complaint was accepted in accordance with s 141 of the AD Act and the referral notice states that the complaint was accepted in accordance with s 136 and s 141 of the AD Act.
  1. [45]
    Further, at the time the conciliation conference took place, the complaint had already been accepted by the QHRC as confirmed by it in the 27 June 2019 correspondence. It follows, that all of the complaint (unlike in Carey) was before the parties during the conciliation conference.
  1. [46]
    The QHRC states it was its practice, as at 18 March 2019, to take complaints that include both in and out-of-time complaints to conciliation before deciding whether to accept the out-of-time component under s 138(2) of the AD Act. The QHRC does not explain how it is able to defer making a decision to accept the complaint given the language of s 141 of the AD Act.[13]
  1. [47]
    A further issue that arises is that when the QHRC accepted the complaint and provided notification to the parties of the acceptance in accordance with ss 141 and 143 of the AD Act the QHRC did not advise in the notification that the acceptance was conditional upon the QHRC exercising its discretion at some later date following conciliation to consider whether it would accept the out-of-time components. Indeed, given the mandatory language used in s 141 of the AD Act, (that the Commission must decide whether to accept or reject a complaint within 28 days of receiving it), I do not consider that there was power to defer a decision in relation to s 138(2) beyond the time referred to in s 141 of the AD Act[14] in any event.
  1. [48]
    Secondly, having already exercised the discretion to accept the complaint, I consider that the terms of the acceptance related to the whole of the complaint.
  1. [49]
    Section 164A provides that if a conciliation conference has been held and the complaint has not been resolved by conciliation, then the complainant may give the Commission a written notice requiring the Commission to refer the complaint to the tribunal.
  1. [50]
    Section 164A of the AD Act does not insert the words "valid" or "accepted" before the word "complaint".
  1. [51]
    The conciliation conference before the QHRC did not resolve the complaint. Ms Rolfe subsequently requested that the complaint be referred.
  1. [52]
    Section 175(1) of the AD Act requires the tribunal to accept a complaint that is referred to it by the Commission unless the complaint is made more than one year after the alleged contravention of the AD Act. Again, the complaint is not defined by being a "valid complaint" or an "accepted complaint", but rather a complaint referred to the tribunal by the Commission. In this matter, the QHRC referred the complaint to the tribunal.
  1. [53]
    Moynihan SJA in Hopper dealt directly with the issue in respect of the function of the tribunal and determined that "the tribunals' jurisdiction is conditioned on there being a complaint in terms of s 136". There is no dispute here that the complaint is made pursuant to s 136. Accordingly, consistent with the reasoning in Hopper, the tribunal has the jurisdiction to accept the complaint (subject to any out-of-time issues).
  1. [54]
    Further, it could only be said on the respondent's case that the referral is deficient to the extent that it includes out-time complaints that were not considered pursuant to s 138(2) of the AD Act.
  1. [55]
    The respondents contend that there are no in-time components to the complaint that would enliven the tribunals jurisdiction pursuant to s 175 to hear any out-of-time complaints pursuant to s 175(2).
  1. [56]
    The respondents submit that the relevant timeframe when considering what amounts to in and out-of-time complaints is the period 31 May 2018 to 31 May 2019.
  1. [57]
    The respondents argue that there are no factual allegations said to have occurred between 31 May 2018 and 3 June 2018 (when the employment came to an end) that would amount to a valid complaint about a contravention of the AD Act.
  1. [58]
    The respondents submitted:[15]

The only thing that actually happens in that period is the contract comes to an end on the 3rd of June 2018, but that, in and of itself, we say, is not enough to mount an allegation of a contravention of the Anti-Discrimination Act, particularly in light of the fact that it seems that the allegations made by Ms Rolfe are that that decision to not renew her contract from the 3rd of June occurred much earlier in the timeline.

  1. [59]
    Whereas Ms Rolfe submits that the cessation of her employment on 3 June 2019 was a discriminatory act in contravention of the AD Act. Ms Rolfe, relevantly submitted:[16]

If there was any room for doubt about whether that was part of the complaint, it’s been clarified in my response submissions. And I’d also like to note that in the file that I submitted with the original complaint that I titled Evidence, there is an email from HR which directly stated that I wouldn’t – that Roslyn hadn’t made a decision and that I wouldn’t know if I was getting extended until the words are “late May/early June”. So that, effectively, made me – I couldn’t possibly have put in a complaint while I was still there, because they would have just said, “She hasn’t decided”, because I didn’t have that in writing from her.

My second point is that the time limit runs from the date of contravention which, in this case, of direct discrimination is the date of the less favourable treatment, not the date that the decision was made to treat me less favourably. The non-pregnant comparative terms we would have continued to be employed after the date in June 2018 when my contract ended. Then that’s the date of contravention which needs to be considered. And the complaint was put in within 12 months of that. And I would also point to the fact that the Human Rights Commission, in their correspondence, have referred to in-time components. And I would say that that is the – at a minimum, that is the in-time component. And as the respondent just stated, there needs to be something in time to enliven the QIRC’s jurisdiction, and there is.

  1. [60]
    A review of the complaint form included with the referral confirms that Ms Rolfe sought to rely on the contract ending on 3 June 2018 as a discriminatory act included in the complaint that occurred within the last 12 months.[17] In the complaint form Ms Rolfe identified both in and out-of-time complaints and nominated the ending of her contract on 3 June 2018 as occurring within time.
  1. [61]
    Based on this material, I am satisfied that the complaint included complaints of discrimination occurring within time, relevantly, the termination of the contract on 3 June 2018.
  1. [62]
    It follows from that conclusion that I find that the tribunal does have jurisdiction to hear the complaint and that I must accept the referred complaint and consider any out-of-time components to it pursuant to s 175(2) of the AD Act.
  1. [63]
    For these reasons, I refuse to strike out or dismiss the entirety of proceedings on the basis of lack of jurisdiction to hear the matter or make the orders sought.

Consideration of dismissal as further proceedings are not in the public interest

  1. [64]
    The respondents have, in the alternative, sought orders dismissing the proceedings as further proceedings are not desirable or in the public interest[18] pursuant to s 541(b)(ii) of the IR Act.
  1. [65]
    The alternative relief, however, is predicated on the tribunal not having jurisdiction to hear the complaint. Whilst I accept the proposition that the continuation of a proceeding in which jurisdiction is lacking would be contrary to the public interest, for the reasons referred to above, I do not consider that the tribunal lacks jurisdiction to accept the complaint subject to the operation of s 175(2) of the AD Act.

Conclusion

  1. [66]
    I have concluded that the tribunal does have jurisdiction to hear the complaint. Relevantly, the complaint complied with s 136 of the AD Act and was accepted by the QHRC pursuant to s 141 of the AD Act. I consider the subject matter of the complaint referred by the QHRC contains some in-time complaints. Consequently, the tribunal must accept the complaint subject to the operation of ss 175(1) and (2) of the AD Act.
  1. [67]
    Accordingly, I dismiss the application to dismiss the proceedings.

Order

  1. [68]
    I make the following order:

1. The application is dismissed.

Footnotes

[1]A reference to the “tribunal” in this decision is a reference to the Queensland Industrial Relations Commission when acting within its powers and discharging its functions as the tribunal in accordance with the AD Act.

[2]Exhibit 1.

[3]Exhibit 2.

[4]Exhibit 3 and Exhibit 4.

[5]This provision has subsequently been amended on 25 May 2020.

[6]T1-4, line 16-20.

[7][1999] 2 Qd R 496.

[8]Ibid, 509.

[9]Ibid, 510.

[10][2002] QACT 17 per President Walter Sofronoff QC.

[11]See also Brackenreg v Queensland University of Technology [1999] QADT and Transport Workers Union of Australia, Boss and Wood v Boral Resources (Qld) Limited [2006] QADT 10.

[12][2006] QADT 3.

[13]Section 141 of the Anti-Discrimination Act 1991 (Qld) has now been amended to permit such a deferral to occur.

[14]As at that time.

[15]T1-11, line 27-31.

[16]T1-17, line 21-29.

[17]Complaint Form, Part E Additional Details page 6 of 11.

[18]See Campbell v State of Queensland (Department of Justice and Attorney-General [2019] ICQ 18 (29 November 2019) per Martin J, [24] and [28] – [29] as to a discussion as to what amounts to "in the public interest".

Close

Editorial Notes

  • Published Case Name:

    Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors

  • Shortened Case Name:

    Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service)

  • MNC:

    [2021] QIRC 120

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    08 Apr 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.