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  4. Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) (No 2) - [2021] QIRC 324

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Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) (No 2)[2021] QIRC 324

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) (No 2)[2021] QIRC 324

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors (No 2)[2021] QIRC 324

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:

Anti-discrimination complaint

DELIVERED ON:

20 September 2021

HEARD AT:

Brisbane

HEARING DATE:

On the papers

MEMBER:

Hartigan IC

ORDER:

  1. Pursuant to s 175(2) of the Anti-Discrimination Act 1991 (Qld), I permit the matters referred to in the claim between January 2018 and 30 May 2018 to be included within the claim.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – where parts of the complaint brought out of time – application for order dismissing the out of time parts of the complaint  – where the Tribunal has discretion under s 175 of the Anti-Discrimination Act 1991 (Qld) to hear out of time complaints – length of delay – reason for delay – prejudice – merit of complaint – reasonable for the Tribunal to deal with the out of time parts of the complaint – application refused

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 138, s 175, s 177

CASES:

Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Donchi v Broadhead and AMP Shopping Centres Pty Ltd [2001] QADT 14

Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4

Wong v Medical Board of Queensland & Ors [2006] QADT 41

Reasons for the Decision

Introduction

  1. [1]
    On 31 May 2019, Ms Melanie Lee Rolfe ("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 ("CHQHHS") ("First Respondent"), Mr Frank Tracey ("Second Respondent") and Ms Roslyn Henney ("Third 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]
    The complaint, insofar as it concerns incidents alleged to have occurred before 3 June 2018, was lodged outside the one-year time limit for making a complaint imposed under ss 138(1) and 175(1) of the AD Act.
  1. [3]
    The Respondents have sought an order dismissing the complaint to the extent that it concerns incidents alleged to have occurred before 3 June 2018.
  1. [4]
    I have previously released a decision in these proceedings Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors [2021] QIRC 120, determining that the Commission (but referred to as the Tribunal herein) has jurisdiction under the AD Act to hear the complaint on the basis that the application included an "out of time" allegation.
  1. [5]
    The parties agree that this matter be heard on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) ("the IR Act").

The complaint

  1. [6]
    The complaint makes allegations of discrimination on the basis of Ms Rolfe's relationship status, pregnancy and parental status.  As noted above, Ms Rolfe was employed in the role of Project Officer with the First Respondent.  Ms Rolfe contends[1] that the position was "initially" focused on a consumer engagement and Community Organisation Project ("Community Connections Project"). Ms Rolfe states that this project was referred to in commencement emails as "the initial project Melanie will lead".
  1. [7]
    Ms Rolfe contends that in her discussions with the Respondents, including Ms Henney, at the time the position was offered, there was an indication that aspects of Ms Rolfe's workload would be ongoing.
  1. [8]
    Ms Rolfe submits that in support of the contention that there was an intention between the parties that the work would be ongoing towards the end of the Community Connections Project, Ms Rolfe and Ms Henney discussed what other work Ms Rolfe would be implementing in the future.  In this regard Ms Rolfe refers to a performance and development plan dated approximately November 2018.  Ms Rolfe contends that after speaking with HR she advised Ms Henney that she intended to take a period of paid maternity leave on the basis that her contract was to be extended until the end of 2018.  Ms Rolfe contends that the discriminatory conduct commenced after she indicated that she would like to take paid maternity leave.
  1. [9]
    Ms Rolfe details the nature of the alleged discriminatory conduct in her complaint as follows:

'After this conversation with HR I brought up with Roslyn Henney that if I was previously going to be extended to the end of 2018 at least, this should still happen (in line with company policy) and I was eligible for paid maternity leave. At this point I was, aggressively told by Roslyn Henney that I was only ever employed to undertake the Community Connections Project. The end date of my next contract was calculated by counting back 6 weeks from my daughter's due date. Upcoming work (the 'Archway Project' amongst others) was taken off me and Roslyn Henney made the public statement that I was unqualified for the work, which was untrue. The Archway Project was externally funded (through QUT) and the project manager had specifically requested that I do the work, and had seen my CV. Prior to my request for paid maternity leave, Roslyn had enthusiastically agreed to my doing the project with both the external funder and myself, reflected in my PDP. I believe also the ethics application for the project had already been started by the funder with my name as the investigator as my involvement had been officially approved by Roslyn Henney.

Evidence:

6) Minutes from team meeting 1/3/18 stating that the next project I was to work on ("Archway" Project – named in the PDP) will be recruited for

7) The final contract, with the end date being calculated by taking 6 weeks off my due date (due date was stated at 14th or 16th of July, I watched Roslyn Henney count back 6 weeks from the 15th during the PDP meeting on January 29, to decide on the end date). Also note this contract was amended by Roslyn Henny after I had signed it to state that it was for finishing up my project.

Subsequent to the issue of my employment being effected by my pregnancy, is the response i received from Children's Health Queensland when trying to have the issue and evidence looked at objectively

I pursued advice from Frank Tracey (Executive Director of Clinical Services within Children's Health Qld and Roslyn Henney's supervisor) in a meeting on February 26, 2018, and he then passed on my information to Elle Ackland within HR, who responded to me on email. It was clear that these conversations and associated emails were aimed at avoiding paying my maternity leave entitlement.

The only time I spoke to Elle Ackland was when she called my desk after she had mistakenly sent an email to me; her tone was aggressive and left me in tears (witness available). I spoke with Frank Tracey about the issue for less than 30 minutes and Roslyn Henney for less than 10 minutes, but Elle's email stated that I had plenty of time to discuss it with my superiors and I should get on with my job. No one would agree to sit down and talk about it all together and Roslyn deliberately avoided speaking or writing anywhere she could be held accountable. I was told that Roslyn hadn’t made a decision on whether I would get a contract after June 3, and the decision would be made later and dependent on the ongoing nature of the Community Connections Project, as that was all I was employed to do. No one would comment on the evidence that Roslyn had already been planning to extend me further, or acknowledge that since I had mentioned paid maternity leave, she had voiced her decision not to extend me. Roslyn would not email about it and specifically asked me not to also. During my meeting with Frank Tracey, he asked what line of work my husband is in and suggested I would rather find work from home after I have a baby anyway. I cant imagine a male discussing long service leave entitlements having to defend his position of wanting a job to return to or pay whilst away. My understanding is that the emails from Elle Ackland were under advice from Frank Tracey.

Evidence:

8) Email from Elle Ackland stating that I was not employed into the period where  was eligible for maternity leave, completely avoiding the issue I brought up, which was that I was going to be employed into that period before I announced by pregnancy and the next contract, I had been offered was unfair, with its end date being calculated by my due date.

9) Email from Elle Ackland stating that she wouldn't speak to me about the issue and that I wouldn't know if I was getting a further contract until 'Early June'. My last day of work was June 1. This prevented me from pursuing the issue while I was working and meant the stress was unnecessarily protracted.

Further to our disagreement about my maternity leave entitlements, Roslyn Henney acted unprofessionally cold towards me once I had brought up paid maternity leave, pretending that I hadn't spoken to her on several occasions and not speaking to  me (e.g. greeting people next to me as she came in but not me) for several days, and being needlessly negative about my suggestions in meetings. In a meeting with myself and a senior staff member who was mentoring me through the process of journal publication., Roslyn Henney stated my work was sub-par and that my project work may not be accepted., despite previously being happy with it, causing embarrassment and damaging my reputation. A scheduled one-hour meeting about my project recommendations lasted 10 minutes, and she didn’t look at the project changes I had made since our previous meeting. She returned a write up which I required urgent feedback on for submissions, having half-read it with the comment that it was 'Too boring to finish'. Other senior professionals had remarked upon the high level of interest it generated.

The issue that I had had with HR and Frank Tracey prevented me from seeking support and these combined issues contributed to a great deal of stress and lost sleep in the final months of my pregnancy, and I believe complications with my delivery. Research suggests this stress could  have long term consequences for my daughter's health which may not be evident for years to come.

Evidence:

10) Doctor's notes from GP visit specifically concerned with the impacts of work stress on my pregnancy

11) Emails, notes and text messages expressing distress caused by the bullying behaviour (available at request)'

  1. [10]
    An analysis of the terms of the complaint, identify that Ms Rolfe's contention is that she was subjected to the discriminatory conduct from the point in time when she advised the Respondents of her intention to take paid maternity leave and until her contract was not renewed on 3 June 2018.
  1. [11]
    Included in Ms Rolfe's complaint in January 2018, is an explanation as to why there was a delay in filing the complaint.  Relevantly, Ms Rolfe provides the following information under Part E of the complaint:

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) (No 2) [2021] QIRC 324

  1. [12]
    The Respondents contend that all allegations in the complaint predating 31 May 2018 fall outside the one-year time limitation period under s 175 of the AD Act.  It submits that the following allegations are "out of time":
  1. (a)
    Ms Henney's and the CHQHHS's alleged decision in January 2018 to nominate 3 June 2018 as the end date of Ms Rolfe's temporary employment contract, which Ms Rolfe claims unfairly caused her contract to end early;
  1. (b)
    the CHQHHS's and Ms Henney's alleged refusal to permit Ms Rolfe to access paid maternity leave, by nominating 3 June 2018 as the end date of Ms Rolfe's contract and subsequently deciding in May 2018 not to enter into a further employment contract with her;
  1. (c)
    Mr Tracey's alleged inappropriate comments to Ms Rolfe in February 2018 regarding Ms Rolfe's husband's employment and her intentions of working after having a baby in July 2018; and
  1. (d)
    the Respondents alleged subjection of Ms Rolfe to detrimental treatment, by allegedly denying her work opportunities, criticising her work and failing to offer her support regarding the forthcoming cessation of her employment contract after Ms Rolfe's above discussion with Mr Tracey and before
    Ms Rolfe's completion of her other work project in mid May 2018.
  1. [13]
    As submitted by the Respondents, the allegations referred to above, taking into consideration that the complaint was filed by Ms Rolfe in the QHRC on 31 May 2019, are at least some several weeks out of time and with some allegations up to five months out of time.

The discretion pursuant to s 175 of the AD Act

  1. [14]
    The Tribunal also has a discretion, separate and independent from the discretion exercised by the Human Rights Commissioner,[2] to deal with a complaint made more than one-year after an alleged contravention of the AD Act.  In this regard, s 175 of the AD Act provides 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.
  2. (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. [15]
    Once the issue of the complaint being out of time is raised, the onus of proof is on the complainant, as the party needing an extension of time, to satisfy the Tribunal that on the balance of fairness it is reasonable that the Tribunal deal with the complaint.[3]  In determining whether grounds exist to exercise the discretion pursuant to s 175(2) of the AD Act, it is relevant to consider:
  1. (a)
    the length of the delay;
  1. (b)
    any explanation by the complainant for the delay;
  1. (c)
    any prejudice to the respondent should the discretion be exercised in the complainant's favour;
  1. (d)
    any prejudice to the complainant should the discretion not be exercised in the complainant's favour; and
  1. (e)
    whether there is  a lack of merit in the complaint.[4]

Length of delay and explanation for the delay

  1. [16]
    The out of time allegations in the complaint are between approximately several weeks and five months outside the one-year time limit imposed by s 175(1) of the AD Act.
  1. [17]
    The Respondents submit that the statutory time limit was by enactment of parliament and that due weight needs to be placed on parliament's clear intention to preserve the limitation period (with the exception of very limited circumstances) when the Tribunal is asked to exercise its discretion to accept a complaint under s 175(2) of the AD Act.
  1. [18]
    In its submission, the Respondents referred to the decision of Brisbane South Regional Health Authority v Taylor[5] as follows:

'29.  The High Court has noted the importance of preserving statutory limitation periods, given the substantial risk that an unfair trial will occur after the limitation period has expired. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J held:

A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.'

  1. [19]
    The Respondents further submit that the length of time by which the application is out of time is not insignificant.  In this regard it submits that in circumstances where it is considered that the statutory time limits must be respected even if the delay in lodging a complaint is only one day, it is submitted that the delay of some weeks and potentially up to five months ought to be considered significant and ought not be accepted by the Tribunal
  1. [20]
    The Respondents further submits that Ms Rolfe's delay is even more significant in the context of her evidence that she received advice from Together Queensland ("TQ") about the circumstances of her complaint and potential avenues for redress on 8 March 2018, prior to the statutory time limit elapsing. 
  1. [21]
    The Respondents submission in this regard stems from Ms Rolfe's submission that the behaviour of the Respondents, during the relevant period in which Ms Rolfe seeks the extension, impacted upon her ability to make a complaint earlier, because of the manner in which she was being treated through the process. 
  1. [22]
    In addition to this,  Ms Rolfe argues that in the 12 months following the cessation of her employment with the First Respondent, she gave birth and cared for a newborn baby which created practical barriers for her lodging the complaint within time. 
  1. [23]
    Finally, Ms Rolfe attached to her submission written advice from TQ, which was to the effect that she would be unable to lodge a complaint until after the cessation of her employment or after she had been advised formally by her employer that her employment would cease at the cessation of her contract.  Ms Rolfe states that she was not provided any timeframes in this advice with respect to the filing of a complaint and that she was subsequently unaware of how to lodge a complaint with the QHRC, or any time limits prescribed to this process.
  1. [24]
    With respect to the length of the delay, at the upmost, some of the acts complained of are five months out of time.  On the other hand, some of the acts are only out of time by a matter of weeks. 
  1. [25]
    With respect to the explanation for the delay, Ms Rolfe has maintained a consistent position since the time she filed the complaint as to the reason why the complaint was lodged out of time.
  1. [26]
    Ms Rolfe's position and understanding of her options to lodge a complaint was informed by the information and advice Ms Rolfe had received from TQ.
  1. [27]
    A further explanation for the delay is that Ms Rolfe contends she was subjected to discriminatory conduct from the time she advised of her intention to seek paid maternity leave (which was contingent on her contract being extended) until 3 June 2018 when the contract expired.  During that period of time, Ms Rolfe states that she was attempting to seek redress.
  1. [28]
    In addition to these matters, Ms Rolfe states that following the birth of her child, she was required to care for her newborn and was unable to attend legal appointments during this period.
  1. [29]
    Having regard to the length of the delay and the explanation for the delay, I do not consider these matters weigh against Ms Rolfe being permitted to prosecute the matters relating to the period of January 2018 to 30 May 2018

Prejudice

  1. [30]
    In determining whether to accept the out of time component of the complaint under s 175(2) of the AD Act, it is accepted that there is a presumption that some prejudice will be occasioned if leave is granted by reason of the fact the Respondents will be denied the freedom from liability which the statutory time limit otherwise affords.  Similarly, prejudice will be suffered by Ms Rolfe insofar as if the decision is adverse to her, she will lose her ability to prosecute a significant part of her claim.[6]
  1. [31]
    The Respondents submit that the length of delay itself gives rise to a general presumption of prejudice.  In addition to this, it submits that there is a real and substantial risk of prejudice to the Respondents if the out of time part of the application is accepted.
  1. [32]
    The Respondents identify the following factors in support of its submission with respect to prejudice:

'43.  The following factors support the respondents’ position:

  1. The delay is likely to pose difficulties for the respondents’ witnesses who would be required to provide evidence and recall events and conversations that occurred potentially more than three years ago. In those circumstances, there is a tangible risk that the witnesses’ memories of events will have faded, and certain important details could be forgotten. Witness recollection may therefore lack accuracy and detail which may have a considerable impact on the ability of the respondents to defend the application and to properly and completely identify the relevant evidence that relates to the application. This is particularly so given that much of the ’out of time’ component of the complaint is based on alleged verbal interactions.
  1. This prejudice in particular affects the individual respondents – the allegations concerning Mr Tracey and Ms Henney fall well outside the 12-month limitation period and will likely prejudice their defence to the allegations whereby they are now in a position where they will have to provide evidence and recall events and conversations that occurred more than three years ago.
  1. Given the delay, some relevant witnesses may no longer work for the CHQHHS and be uncontactable. The respondents’ inability to produce evidence from those witnesses could also significantly prejudice the respondents’ position.
  1. Documentation relevant to the application may, over the passage of time, have inadvertently been misplaced. Again, this factor could adversely affect the respondents’ ability to produce relevant evidence and defend the application.'
  1. [33]
    The Respondents contend that the complaint is without merit because the allegations are not supported by evidence, or, alternatively, the conduct could not amount to a contravention of the AD Act.   Whilst I accept the possibility of the matters raised by the Respondents, I do not consider that there is direct evidence of the matters referred to in the Respondents' submissions having crystalised.
  1. [34]
    It is relevant to the question of prejudice that Ms Rolfe raised the matters the subject of the complaint with the Respondents during the relevant period.  To this extent, the Respondents were on notice with respect to Ms Rolfe's alleged complaint.
  1. [35]
    In addition to this, the exclusion of the acts in the complaint between January 2018 and 30 May 2018 would not necessarily preclude the Respondents from having to give evidence about those matters.  Any discrimination or conduct relating to the termination of the contract on 3 June 2018 may be considered relevant to the determination of the matter.
  1. [36]
    Having considered the material put forward by the parties, I do not consider that the circumstances of this matter will give rise to actual prejudice, should the discretion be exercised in favour of Ms Rolfe.

Merit

  1. [37]
    As noted in the case of Marijanovic v Chalmers:[7]

'The position under s. 175(2) is different. Section 215A(1) is analogous to s. 139 and allows the Tribunal to dismiss a complaint if it is satisfied that the complaint is frivolous, trivial, vexatious, misconceived or lacking [sic] in substance. That power may be exercised “at any stage of a proceeding”. The power under s. 215A is not divorced from the exercise if the discretion under s. 175(2) in the way that s. 139 appears to be isolated from s. 138(1).'[8]

  1. [38]
    I am unable to determine on the material before me that the complaint is frivolous, trivial, vexatious, misconceived or lacking in substance.  Further, the matters raised by the Respondents going to merit are only matters that are able to be determined after a hearing of the matter.

Conclusion

  1. [39]
    For the reasons referred to above, I consider, on the balance of fairness, that it would be reasonable to permit the matters between January 2018 and 30 May 2018 to be included in the claim.

Order

  1. Pursuant to s 175(2) of the Anti-Discrimination Act 1991 (Qld), I permit the matters referred to in the claim between January 2018 and 30 May 2018 to be included within the claim.

Footnotes

[1] In the complaint.

[2] Pursuant to s 138 of the AD Act.

[3] Donchi v Broadhead and AMP Shopping Centres Pty Ltd [2001] QADT 14 per President Sofronoff QC [1]; Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4 [12].

[4] Wong v Medical Board of Queensland & Ors [2006] QADT 41 per Boddice SC.

[5] (1996) 186 CLR 541 per McHugh J.

[6] Donchi v Broadhead and AMP Shopping Centres Pty Ltd [2001] QADT 14 per President Sofronoff QC, [25].

[7] [2008] QADT 4.

[8] Ibid [38].

Close

Editorial Notes

  • Published Case Name:

    Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors (No 2)

  • Shortened Case Name:

    Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) (No 2)

  • MNC:

    [2021] QIRC 324

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    20 Sep 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
1 citation
Jump To
Cite 1 - [1996] HCA 25
Donchi v Broadhead & AMP Shopping Centres Pty Ltd [2001] QADT 14
3 citations
Jump To
Cite 1 - [2001] QADT 14
Cite 2 - [2001] QADT 14
Cite 3 - [2001] QADT 14
Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4
4 citations
Jump To
Cite 1 - [2008] QADT 4
Cite 2 - [2008] QADT 4
Cite 3 - [2008] QADT 4
Cite 4 - [2008] QADT 4
Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) [2021] QIRC 120
1 citation
Jump To
Cite 1 - [2021] QIRC 120
Wong v Medical Board of Queensland & Ors [2006] QADT 41
2 citations
Jump To
Cite 1 - [2006] QADT 41
Cite 2 - [2006] QADT 41

Cases Citing

Case NameFull CitationFrequency
Khattabi v QANTAS Airways Limited [2025] QIRC 1732 citations
1

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