Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Thornton v State of Queensland (Queensland Health) - [2022] QIRC 393

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

Thornton v State of Queensland (Queensland Health)[2022] QIRC 393

Thornton v State of Queensland (Queensland Health)[2022] QIRC 393

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thornton v State of Queensland (Queensland Health) [2022] QIRC 393

PARTIES:

Thornton, Jenny

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

GP/2020/17

PROCEEDING:

General Protections - Application to dismiss proceedings  

DELIVERED ON:

13 October 2022

MEMBER

Hartigan IC

HEARD AT:

On the papers 

ORDERS:

The application commencing proceedings GP/2020/17 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL – application to dismiss proceedings – where the applicant filed application for general protections order 36 days outside of time limit prescribed in s 310 of the Industrial Relations Act 2016 – reasons for delay – action taken by person to dispute the dismissal – whether claim is not justiciable due to the operation of s 75(3) of the Hospital and Health Boards Act 2011 (Qld) – where there are likely jurisdiction limitations on the Commission hearing the proceedings – application dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 310, s 449 and s 541

Hospital and Health Boards Act 2011 (Qld) s 75

Human Rights Act 2019 (Qld) s 9(4)(b)

CASES:

Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

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

Kyvelos v Champion Socks Pty Ltd, Print T2421(unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) 

Dickson v Mornington Shire Council [2020] QIRC 106

Project Bluesky Inc v Australian Broadcasting Authority [1998] HCA 28; 72 ALJR 841

Cody v JH Nelson Pty Ltd [1947] HCA 17; 74 CLR 629

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

State of Queensland v Lockhart [2014] ICQ 6

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245

Reasons for Decision

Introduction

  1. [1]
    The Respondent, the State of Queensland, Queensland Health, Cairns Hospital and Health Service, ("the Respondent") seeks an order pursuant to ss 310, 449 and 541 of the Industrial Relations Act 2016 ("IR Act"), dismissing the application filed by Ms Thornton ("the claim"), on the basis that:
  1. (a)
    the claim was not made within 21 days after the applicant's dismissal took effect and there are no exceptional circumstances justifying an extension of that time limit;
  2. (b)
    the claim, in any event, is not justiciable due to the operation of s 75(3) of the Hospital and Health Boards Act 2011 (Qld) ("HHB Act"); and
  3. (c)
    further proceedings are not necessary or desirable in the public interest.
  1. [2]
    Ms Thornton commenced the claim, pursuant to ch 8, pt 1 of the IR Act, alleging that the Respondent took adverse action, within the meaning of s 282 of the IR Act, against her. Ms Thornton seeks various orders including, inter alia, that she be reinstated to her former position and/or be paid an amount for loss of remuneration arising out of the dismissal.
  1. [3]
    Ms Thornton also seeks an order pursuant to s 310(1)(b) of the IR Act, that the time in which the application may be made, be extended to the date of the filing of the claim.
  1. [4]
    Section 310(1)(a) and (b) of the IR Act provides that an application in relation to a dismissal, must be made within 21 days after the dismissal took effect, or, if the Commission allows, a further period.
  1. [5]
    Section 310(2) provides that the Commission may allow a further period, if the Commission is satisfied there are exceptional circumstances, taking into account the following matters:
  1. (a)
    the reason for the delay; and
  2. (b)
    any action taken by the person to dispute the dismissal; and
  3. (c)
    prejudice to the employer (including prejudice caused by the delay); and
  4. (d)
    the merits of the application; and
  5. (e)
    fairness as between the person and other persons in a similar position.
  1. [6]
    Ms Thornton was notified in writing on 21 May 2020, that her employment was to be terminated effective 22 June 2020.[1] The claim was filed on 18 August 2020, some thirty-six (36) days after the time prescribed in s 310 of the IR Act. Accordingly, the Commission must determine whether there are exceptional circumstances, taking into account the matters referred to in s 310(2) of the IR Act with respect to this matter.

Relevant general background

  1. [7]
    On or about 24 September 2018,[2] Ms Thornton commenced a three-year contract with the Respondent as the Executive Director, Human Resources and Engagement, Cairns and Hinterland Hospital and Health Service.
  1. [8]
    A contract of employment was signed by the parties on 21 September 2018. The contract of employment[3] contains the following relevant terms:
  1. Details of appointment are –
  1. (a)
    Type of health executive

Health Executive in the Cairns and Hinterland Hospital and Health Service

  1. (b)
    Title of the role:

Executive Director, Human Resources and Engagement

  1. (c)
    Classification level:

HES 2(H)

  1. (d)
    Duties of the role:

As stated in the approved Role Description for the role and, where applicable in the Hospital and Health Boards Act 2011

  1. (e)
    City, Town or Centre in which the role is located:

Cairns

  1. (f)
    Commencement date:

24 September 2018

  1. (g)
    Completion date (must not exceed 5 years from the Commencement Date)

…

23 September 2021

  1. [9]
    The role description for Ms Thornton's position identified that the accountabilities for the role included, among other things, to develop and deliver strategic workforce plans to align human resource service delivery with the strategy, business plan and service agreement with the Respondent; to develop and implement strategies relating to the workforce so that the Respondent has the necessary skills and capabilities to meet current and future health service needs, and so that the organisational culture and management of people issues contributes to optimal employee engagement and productivity.
  1. [10]
    It follows, and I accept that, as Executive Director, Human Resources and Engagement, that the role Ms Thornton performed was a very senior level human resources role for the Respondent and a high level of skill and expertise was associated with such a role.
  1. [11]
    Ms Thornton deposes,[4] that in or about October 2019, she received an email from a staff member alleging corrupt conduct, by the then Chief Executive (CEO), relating to the hiring of consultants, the payment and expenses of consultants, and the length of employment of the consultants.
  1. [12]
    In or about October or November 2019, Ms Thornton also formally informed the Crime and Corruption Commission ("CCC") of the allegations on behalf of the Respondent.
  1. [13]
    Following this, an external investigation into the procurement process was conducted. Ms Thornton played a role in this investigation and provided documentation to the board and liaised with the Acting CEO, Ms Chinery, in relation to the allegations and investigations surrounding the former CEO.
  1. [14]
    Ms Thornton complains that during this period, she was subjected to bullying and harassment by Ms Chinery, which culminated in Ms Chinery threatening Ms Thornton's employment when Ms Chinery advised the board that she had lost trust in Ms Thornton.
  1. [15]
    Ms Thornton further states that during March 2020, the board took steps to exclude her from performing delegated responsibilities for her role.
  1. [16]
    Ms Thornton says she brought her concerns in relation to this to the attention of Queensland Health, including its ethics departments but no response was received from them.
  1. [17]
    In or about April 2020, Ms Thornton states that she was informed by Ms Chinery that the board had lost confidence in her, however, she states that Ms Chinery refused to provide the basis upon which it was said the board had lost confidence in Ms Thornton.
  1. [18]
    On 21 May 2020, Ms Thornton received correspondence from Ms Chinery advising that her employment would be terminated, as follows:

Clause 7(2)(a) of your contract provides for your employment to be terminated by the authority [Health Service Chief Executive] prior to the contract completion dated 23 September 2021 by notice given to you not less than one month before the termination date. Clause 7(2)(b) provides that no reason need be given for the termination of your employment.

Pursuant to clause 7(2)(a) and clause 7(2)(b) of your contract I wish to formally advise your employment with the Cairns and Hinterland Hospital and Health Service is to be terminated, effective from 22 June 2020.

Pursuant to clause 7(2)(c) of your contract you may, within seven days after receipt of this letter, submit reasons to me why you believe your employment should not be terminated. If you do provide a submission pursuant to this clause, I will consider it and advise you of my final decision. Unless I advise you that this notice is revoked, your employment will terminate on 22 June 2020.

  1. [19]
    On 26 May 2020, Ms Thornton responded to Ms Chinery's letter of termination dated 21 May 2020. In that correspondence, Ms Thornton conveyed that she was shocked, and surprised by the receipt of the termination letter with no explanation provided as to why she had been terminated. Ms Thornton detailed the positive working relationship she had had with previous Chief Executives and identified that she had transformed the people and engagement directorate, to one of added value to the business, increasing the support and engagement for all levels of staff from the HR specialist teams. She also identified that on her arrival, the budget was $400,000.00 in the red but within her first financial year, she was able to give back to the central fund, over $1,000,000.00. Ms Thornton details further matters which she considered achievements during the course of her role. Ms Thornton sought that termination of her employment be reconsidered.
  1. [20]
    On 28 May 2020, Ms Chinery responded to Ms Thornton's correspondence and advised that:

I have carefully considered the submission provided by you and advise my decision, under clause 7(2)(a) of your contract, to terminate your employment has not changed. I confirm your employment with the Cairns and Hinterland Hospital and Health Service will cease on 22 June 2020. I draw again your attention to clause 7(2)(b) of your contract, which provides that no reason need be given for the termination of your employment.

  1. [21]
    Accordingly, by this correspondence, Ms Chinery confirmed that Ms Thornton's employment would be terminated on 22 June 2020.
  1. [22]
    In addition to corresponding with Ms Chinery, Ms Thornton states that, on 22 May 2020, she wrote to the Respondent, requesting that she be reinstated, that the status quo be maintained and that she be placed on a Public Interest Disclosure ("PID") for protection from further reprisal.
  1. [23]
    Further, Ms Thornton states that on 26 May 2020, that Chief People Officer, Queensland Health and Acting Director of Ethics Unit called her to discuss her concerns and her requests to be placed on a PID.
  1. [24]
    In early June 2020, Ms Thornton states that she was informed by the Respondent that the matter had been referred to the CCC and reminded her to keep the matter confidential whilst it was being investigated.
  1. [25]
    On 22 June 2020, Ms Thornton's employment was terminated.
  1. [26]
    On 23 June 2020,[5] Ms Thornton emailed Dr John Wakefield, Director General, to inquire as to the progress of her PID application, the response from the CCC, whether a PID assessment had been completed and her termination reversed.
  1. [27]
    On 5 July 2020, Ms Thornton states she received a response from Dr Wakefield that the matter was progressing, and he could not give her any further details.
  1. [28]
    On 14 July 2020, Ms Thornton received correspondence from Ms Jess Byrne, Acting Director, Ethical Standards Unit, wherein she was advised that the CCC had assessed the complaint and provided Queensland Health with an assessment decision. The summary of the advice received from the CCC was:
  • the 'alleged cover up' of complaints does not constitute corrupt conduct, as there is no proper basis to consider the alleged conduct would, if proven, be a criminal offence or a disciplinary breach providing reasonable grounds for termination; and
  • in relation to the alleged intimidation by Ms Chinery as a result of following up and asking questions about the handling of a previous complaint, the CCC determined based on the information provided there was insufficient evidence to raise a reasonable suspicion that corrupt conduct had occurred.
  1. [29]
    Ms Thornton was advised that the CCC had returned the allegations to Queensland Health, advising that no further action was required by Queensland Health.
  1. [30]
    Ms Thornton was further advised that on the basis of the CCC's determination, Queensland Health was able to finalise the PID assessment pursuant to the Public Interest Disclosure Act 2010 (Qld) ("PID Act") and determined that the information provided by Ms Thornton does not tend to show that Ms Thornton had raised public interest information as a public officer, as defined in s 13 of the PID Act. Relevantly it was stated that:
  • the information provided does not tend to show the conduct being disclosed raises a reasonable suspicion of corrupt conduct (based on the CCC assessment);
  • the information does not tend to show the conduct being disclosed amounts to maladministration, as there is no indication that the administrative action (ie termination of employment) was taken contrary to law; was unreasonable; taken for an improper purpose, on irrelevant grounds, or having regard to irrelevant considerations; was a mistake of law or wrong. There was also no requirement to provide reasons for termination as per the terms and conditions of the contract; and
  • the information provided does not tend to show the conduct is reprisal connected to a previous PID on the basis: 
    • no evidence was provided that you had raised concerns that would amount to a PID with the Health Service prior to your termination;
    • the only information you provided was that you 'wanted to make a complaint' however you provided no indication you had in fact done so and had not indicated to anyone you would be doing so;
    • you only raised your concerns with the Director-General after you had received your termination letter, therefore I do not consider there is a causal connection that would indicate your termination was connected to a PID or an intention to make a PID.
  1. [31]
    The correspondence concluded that Queensland Health had determined that Ms Thornton had not made a Public Interest Disclosure pursuant to the PID Act.
  1. [32]
    Following receipt of the correspondence dated 14 July 2020, Ms Thornton sought to appeal the PID assessment on 26 July 2020.
  1. [33]
    Ms Thornton also sought legal advice on or about 26 July 2020. She states that it was at that time she was advised of her ability to make a general protection claim and the 21 day time limit.
  1. [34]
    The submissions made on Ms Thornton's behalf state that Ms Thornton executed the application and affidavit in this matter on 9 August 2020 which was sent to the Industrial Registry for filing by way of correspondence from Ms Thornton's representatives on 11 August 2020.
  1. [35]
    As noted above, the application in this proceeding was filed in the Industrial Registry on 18 August 2020.

Application made out of time

  1. [36]
    Ms Thornton seeks an order pursuant to the exercise of the Commission's discretion, to extend the time limit provided for in s 310(1)(b) of the IR Act for a further period of time, being thirty-six (36) days from the date beyond the prescribed time limit of 13 July 2020.
  1. [37]
    The Respondent opposes that application and seeks that the application be dismissed on the basis that it is outside of time.
  1. [38]
    In exercising its discretion to allow for a further period, the Commission may do so if it is satisfied there are exceptional circumstances, taking into account the matters listed in s 310(2)(a)-(e).
  1. [39]
    Exceptional circumstances must be "out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare".[6]
  1. [40]
    In Nulty v Blue Star Group Pty Ltd [2011] FWAFB ("Nulty"), the Full Bench of Fair Work Australia considered the term "exceptional circumstances", as follows:

[13]  In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

  1. [41]
    However, it is noted that even where exceptional circumstances are found to exist, the discretion to refuse an extension remains.[7]

Section 310(2)(a) – Reason for delay

  1. [42]
    Ms Thornton contends that the delay came about because she was following alternative avenues of redress for the termination. It is stated on her behalf, that upon being advised of the requirements for a general protection claim and the time limit associated with that, the Applicant took steps to lodge the substantive application in this proceeding, notwithstanding that the Applicant's alternative avenues were not yet concluded.
  1. [43]
    The alternative avenues referred to by Ms Thornton, include the fact that she had sought, on 22 May 2020, that the proposed termination be reviewed and her request that she be reinstated, that the status quo be maintained and that she be placed on a PID for protection from further reprisal whilst Queensland Health was investigating the matter ("the PID request").
  1. [44]
    The PID request made by Ms Thornton was separate to her request of the decision-maker to review a proposed decision to terminate her employment contract. As noted above, the review of the termination was conducted by Ms Chinery on 28 May 2020, who confirmed that the termination would remain and that the effective date of the termination was 22 June 2020.
  1. [45]
    Accordingly, following the review by Ms Chinery, the termination of Ms Thornton's employment remained on foot as of 28 May 2020. There could be no confusion with respect to this as Ms Thornton was advised of this by Ms Chinery.
  1. [46]
    In addition to this, Ms Thornton continued to correspond with Queensland Health with respect to the PID request. 
  1. [47]
    Queensland Health advised in response, that it was investigating the matter but at no time did it identify that the status quo had been maintained and/or that is was considering reinstating Ms Thornton's employment in any meaningful way.
  1. [48]
    The Respondent submits that the steps taken under the PID Act were not, as the Applicant has characterised them, an "internal appeal of the termination decision". The Respondent contends that whilst the PID Act prohibits reprisal action, it does not provide an avenue of appeal against a termination decision.
  1. [49]
    It is further contended by the Respondent that there was no reason that the Applicant could not have pursued the claim within time and further, it is submitted that ignorance of a statutory time limit is not an exceptional circumstance.
  1. [50]
    I consider that the steps undertaken by Ms Thornton in relation to the PID request to be separate and independent to any relief that she might pursue under the IR Act or any other relevant Act with respect to the decision to terminate her employment and the associated alleged adverse action.
  1. [51]
    I consider that the information provided to Ms Thornton by Ms Chinery on 28 May 2020, confirmed that the termination of her employment stood and the effective termination date was 22 June 2020.
  1. [52]
    Whilst Ms Thornton had made the PID request and sought, as part of that request, that her employment be reinstated, the application was made prior to Ms Chinery conducting her review and advising her that the termination was to proceed. From 28 May 2020, I consider that Ms Thornton was put on notice that the employment was to be terminated on 22 June 2020.
  1. [53]
    Given the senior human resource position Ms Thornton held, I consider that Ms Thornton was aware that her employment was terminated on 22 June 2020 and the consequences of that.
  1. [54]
    Relevantly, I note that Ms Thornton's correspondence on 23 June 2020 to Dr Wakefield refers to her employment status, inter alia, as follows:

…As of today, I am unemployed with no job prospects in Cairns and with a perception by many that I have been dismissed (sacked) from CHHHS…

  1. [55]
    I consider it highly improbable that someone who held such a senior human resource position with the Respondent was unaware, or at least, unaware of the means of obtaining, the relevant time frame to commence the application in this matter and once advised that her employment had been terminated was unaware of the appropriate steps to take to protect her interests by filing the relevant application. In any event, ignorance of a statutory time limit does not amount to an exceptional circumstance.
  1. [56]
    Further, whilst Ms Thornton continued to correspond with Queensland Health following the termination of her employment with respect to her PID request, I do not consider that the correspondence amounts to an adequate explanation for delaying the filing of the application in this matter.
  1. [57]
    Relevantly, the Respondent did not provide advice or make representations about a favourable outcome with respect to Ms Thornton's PID request, let alone the outcome she was seeking from making the request.
  1. [58]
    In these circumstances, I do not consider that Ms Thornton has provided a reasonable explanation for the delay.

Section 310(2)(b) – Action taken by the person to dispute the dismissal 

  1. [59]
    Ms Thornton submits that she took steps to dispute the dismissal. In this regard, Ms Thornton again refers to the steps she took in relation to the PID request.
  1. [60]
    It is further stated on behalf of Ms Thornton, that on 22 May 2020, Ms Thornton took steps to preserve her employment, overturn the decision to terminate and obtain protection from reprisal.
  1. [61]
    I accept that Ms Thornton sought to have the decision to terminate her employment reviewed by forwarding correspondence to Ms Chinery, seeking such consideration on 22 May 2020.
  1. [62]
    As noted above, this was responded to by Ms Chinery on 28 May 2020, who confirmed that the decision remained the same and that Ms Thornton's employment would cease effective 22 June 2020.
  1. [63]
    As noted above, whilst it is accepted that Ms Thornton made the PID request, such a request does not amount to an action taken to dispute the dismissal. The PID request is not an alternative avenue as contended by Ms Thornton. Ms Thornton's misapprehension with respect to the PID process was of her own making. It was Ms Thornton's choice to engage in correspondence with respect to the PID as opposed to taking steps to commence this application.
  1. [64]
    However, it can be inferred that the Respondent was on notice that Ms Thornton had concerns as outlined in her PID request.
  1. [65]
    I do not consider Ms Thornton's action in making the PID request weighs in her favour in terms of the exercise of the discretion. However, I also consider that by Ms Thornton's actions, the Respondent was on notice that Ms Thornton has concerns as outlined in her PID request. Consequently, I will treat this factor as a neutral consideration in the exercise of my discretion.

Section 310(2)(c) – Prejudice to the employer

  1. [66]
    Ms Thornton submits that no evidence has been tendered by the Respondent of prejudice. It is submitted that the Respondent was aware that Ms Thornton was disputing the dismissal both through the Respondent, the referral to the CCC and Queensland Health.
  1. [67]
    Ms Thornton refers to the authority of Brisbane South Regional Authority v Taylor (1996) 186 CLR 541, that held that the relevant test in the exercise of a court's discretion is to balance the right of an applicant to bring an action and have their claim heard against the prejudice to the Respondent to have a fair trial as a result of any delay.
  1. [68]
    Having referred to a passage of the majority decision in the court below in that matter, Toohey and Gummow JJ at [12]:

With respect to their Honours, that passage does not truly reflect the meaning and operation of s 31(2). The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd: "It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice."

(Citations omitted)

  1. [69]
    The Respondent's submissions relied on the prejudice arising out from having benefit of the limitation denied. Relevantly, the Respondent submitted that even if the prejudice in the present case goes no further than the presumptive prejudice, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension.
  1. [70]
    Section 310(2)(c) of the IR Act requires consideration of the prejudice to the employer if an extension were granted. I accept that the employer would lose the benefit of the limitation period if leave were granted although I place it no higher than a neutral consideration.

Section 310(2)(d) – Merits of the application

  1. [71]
    The parties both agree that:
  1. (a)
    the Commission should not embark on a detailed submission of the substantive case as both parties are yet to file their evidence;[8]
  2. (b)
    that in order for there to be weight given by the Commission, there must be some merit in the substantive application; and
  3. (c)
    however, a party should not be required to potentially run the entirety of their evidentiary case twice.[9]
  1. [72]
    Ms Thornton identifies that an obligation is placed upon her to satisfy the following three elements:
  1. 1.that the Respondent took adverse action against her;
  2. 2.the objective facts necessary to establish circumstances relied on as the prohibited reason – in this case, that Ms Thornton had workplace rights within the meaning of s 284(1)(a) or s 284(1)(c)(ii) and exercised or proposed to exercise those rights; and
  3. 3.the Respondent took the adverse action for the relevant prohibited reason – in this case, because of the exercise or proposed exercise of workplace rights under s 284(1)(a) or s 284(1)(c)(ii).
  1. [73]
    Ms Thornton submits that the adverse action in the claim includes her termination from the employment; her position being changed to her detriment, following Ms Thornton's investigation into the previous Chief Executive by the removal of her delegated responsibilities, failing to provide information and/or documents relating to work performance and Ms Thornton's entitlement by statute to take prompt and appropriate action to address matters with staff and manage work performance, to comply with the Code of Conduct.
  1. [74]
    It is submitted that in general protection matters, merits can be evaluated where an applicant can demonstrate the necessary element of the workplace right and adverse action within the meaning of the IR Act. Ms Thornton submits that if an applicant can demonstrate these elements, then a prima facie claim will be made out.[10]
  1. [75]
    The Respondent submits that there are three basis upon which the claim is without merit, including as follows:
  1. 1.the claim is not justiciable because of the operation of s 75 of the HHB Act;
  2. 2.even if the applicant could pursue the claim and establish a relevant workplace right or protection, her dismissal was not in any event "adverse action" because of the operation of s 282(6) of the IR Act in so far as:
  1. (a)
    s 282(6) provides that adverse action does not include action that is authorised under this Act or any other law of the State or a law of the Commonwealth;
  2. (b)
    the applicant was a Health Executive within the meaning of the HHB Act which provides that at s 74(4)(a), a Health Executive's appointment and contract of employment may be terminated by written notice given to the Health Executive, at least one month before it is to take effect, by (a) for a Health Executive employed by the Service, the Health Service Chief Executive;
  3. (c)
    section 74(4)(a) authorised the applicant's dismissal upon one month's notice, as occurred here;
  1. [76]
    The Respondent further submits that even if the forgoing hurdles were surmounted and the applicant succeeded on the claim, no compensation or other relief out to flow, as a matter of discretion, in circumstances where: (a) the applicant's contract of employment expressly provides for one month's notice without reason and (b) the payment was made; and,
  1. (c)
    the contract of employment provides that the payment is:
  1. (i)
    the whole of the entitlement the applicant under the contract;
  2. (ii)
    liquidated damages, which each party acknowledges is a realistic assessment of any detriment which the applicant may suffer following a termination of the contract; and
  3. (iii)
    the amount to which the applicant is limited as an entitlement, if the court or tribunal determines the determination to be unlawful.
  1. [77]
    I will consider the Respondent's contention that the Commission does not have jurisdiction to hear the proceedings as a preliminary consideration.

Claim concerns "excluded matter" and is not justiciable

  1. [78]
    The Respondent contends that by the operation of s 75 of the HHB Act, the claim is an excluded matter and is not justiciable.
  1. [79]
    Section 75 of the HHB Act excludes certain matters from challenge including, as follows:
  1. 75.
    Exclusion of certain matters from review under other Acts
  1. (1)
    An excluded matter, or a matter affecting or relating to an excluded matter, is not an industrial matter for the Industrial Relations Act 2016.
  2. (2)
    Without limiting subsection (1), industrial instruments do not apply to a health executive.
  3. (3)
    A decision about an excluded matter can not be challenged, appealed against, reviewed, quashed, set aside, or called in question in another way, under the Judicial Review Act 1991.
  4. (4)
    In this section—

excluded matter means—

  1. (a)
    a decision to appoint, or not to appoint, a person as a health executive; or
  2. (b)
    the contract of employment of, or the application of this part or a provision of this part to, a health executive
  1. [80]
    Ms Thornton was employed as a "Health Executive" within the meaning of the HHB Act. It is submitted that the definition of "excluded matter" at s 75(4) of the HHB Act is relevant, and in particular, the words "the application of this part or a provision of this part to … a health executive" covers the provisions of s 74(4)(a) pursuant to which the employment was terminated.
  1. [81]
    Section 75(1) provides that an "excluded matter" or a matter effecting to or relating to an "excluded matter" is not an industrial matter for the IR Act.
  1. [82]
    It is further submitted by the Respondent, that s 75(3) provides a general shield for decisions about an "excluded matter" being challenged or appealed against, included in the matter in which the Applicant seeks to do so with the claim.
  1. [83]
    The Respondent submits that it accepts that upon an initial reading, s 75(3) may appear to shield only against challenges under the Judicial Review Act 1991 ("JR Act"), however it submits, properly interpreted, it is not so restrictive.
  1. [84]
    The Respondent further submits that when regard is had to every word of s 75(3), the only construction permitted is one that provides a general shield as opposed to shield against the JR Act only. It is submitted that this derives from the fact that the JR Act provides only a narrow avenue of relief by the means of the process of judicial review of certain administrative decision and actions. It is submitted that the JR Act provides for a decision to be "reviewed". Under the JR Act, a court can, inter alia, order a decision be quashed or set aside. The JR Act, does not, however, relevantly provide for a decision to be challenged or appealed against. It is submitted that each of the words "challenged" and "appealed against" are words of wide significance. Where general words are used, they should be understood in their primary or natural signification unless there are significant indications of some other meaning.[11]
  1. [85]
    The Respondent's argument is that were s 75(3) confined to excluded review under the JR Act only, as opposed to providing more general shield, there would be no work for those words to do. In particular, it is submitted that to make sense of s 75(3) the words "challenged" and "appealed against" ought not be read as being qualified by the later words under the JR Act. Contrastingly, the words "reviewed", "quashed", "set aside" and "called in question in another way" can be read as qualified by the later words under the JR Act. The Respondent submits that if the Legislature had intended to exclude review under the JR Act, it need only have referred to the words "reviewed", "quashed", "set aside" or "called in question in another way" and omitted the words "challenged" and "appealed against".
  1. [86]
    The Respondent submits that the words and context of s 75 reveal a clear intention to limit avenues of challenge to certain decisions pertaining to Health Executives and Senior Health Service employees. It is submitted that that limitation provides to the State the benefit of increased certainty and finality in respect of such decisions. That benefit is consistent with, and serves, the greater purpose of the HHB Act. In this regard, the Respondent relied on s 5 which provides for the objects of the HHB Act, including, as follows:
  1. 5.
    Object
  1. (1)
    The object of this Act is to establish a public sector health system that delivers high quality hospital and other health services to persons in Queensland having regard to the principles and objectives of the national health system.
  2. (2)
    The object is mainly achieved by—
  1. (a)
    strengthening local decision-making and accountability, local consumer and community engagement, and local clinician engagement; and
  2. (b)
    providing for Statewide health system management including health system planning, coordination and standard setting; and
  3. (c)
    balancing the benefits of the local and system-wide approaches.
  1. [87]
    The Respondent concludes its submissions by stating that the Commission is required to make a "constructional choice" in reading s 75(3). In making that choice, it is submitted that nothing simpler or more sophisticated in attempting, sympathetically determine which construction of the contested statutory text better fits the context of the statutory scheme of which the text forms part.
  1. [88]
    Ms Thornton responds to the Respondent's argument with respect to the application of s  75(3) of the HHB Act. It is submitted that the JR Act provides an avenue for a person aggrieved by an administrative decision to seek judicial review in the Supreme Court. It is an Act relating to the review on questions of law of certain administrative decisions and reform of procedures relating to judicial review, law and for other purposes.
  1. [89]
    Ms Thornton submits that however, the right of a person to make an application for review of a decision and the power of the court to make orders depends on the existence of "a decision to which the JR Act applies" and an expression comprising three elements. First there must be a decision, secondly the decision must be of an administrative character and, third the decision must have been made, proposed or required to be made under an enactment.
  1. [90]
    Ms Thornton submits that ss 20, 21 and 23 of the JR Act specify the grounds on which the statutory order of review may be made in respect of decisions and conduct leading to decisions. It is submitted by Ms Thornton that s 19 clearly defines that reference to the JR jurisdiction is the Supreme Court of Queensland and powers for orders of review as follows "[t]he court has jurisdiction to hear and determine applications made to it under this Act."
  1. [91]
    Ms Thornton submits that s 3 of the JR Act provides the definition of court to mean the "Supreme Court".
  1. [92]
    Ms Thornton submits that the claim is made under the general protection provisions of the IR Act and is not a judicial review application in the Supreme Court of Queensland. It is submitted that the intent of the Parliament of the JR Act is in relation to applications which are for judicial review and for which are made to the Supreme Court and do not fall within the jurisdiction of the Queensland Industrial Relations Commission.
  1. [93]
    It is further submitted by Ms Thornton that had the Parliament intended for s 75 of the HHB Act to exclude all forms of claim not made under the JR Act, then it would have used wording similar to that as provided in s 273C of the HHB Act.
  1. [94]
    Ms Thornton submits that the intention of the words "under the Judicial Review Act 1991" in s 75(3) is with respect to its plain meaning clearly provides that the reference is to challenge, appealed against, reviewed, quashed, set aside or called in question under the JR Act, to prevent applications being made under the JR Act to the Supreme Court. It is submitted that if the Commission were to accept the Respondent's interpretation, that effectively any and all claims are barred, the decision to preclude a general protections claim on the basis of the Respondent's argument would be far reaching and would prevent parties from exercising their statutory right to make claims, for example, to protect their human rights through avenues such as the Anti-Discrimination Act 1991 (Qld).
  1. [95]
    Ms Thornton submits that the intention of s 75 of the HHB Act is to limit application under the JR Act to the Supreme Court for administrative decisions. It is further submitted that the Applicant's employment contract specifically states that the Applicant is entitled to bring a statutory application.
  1. [96]
    Relevantly, Ms Thornton's contract of employment provides that:
  1. 9.
    Payments to be Final
  1. (1)
    This clause does not apply to the health executive if:
  1. (a)
    the provisions in this contract for the payments to be made to the health executive constitute the whole of the entitlement of the health executive under this contract;
  2. (b)
    the health executive must not, except where the health executive has an express statutory right to do so, institute any proceedings for compensation for loss of office, injunctive relief, reinstatement or appeals;
  3. (c)
    payments paid under clause 8 are deemed to be liquidated damages which each party acknowledges are a realistic assessment of any detriment which the health executive may suffer following a termination of this contract; and
  4. (d)
    payments due by way of statutory entitlement are to be calculated, where relevant, by reference to the superannauble salary at the termination date.
  1. (2)
    Should termination of this contract be determined by a court or a tribunal to be unlawful, any entitlement the health executive may have is limited to the amount of payments paid under clause 8 as liquidated damages, as if the termination had been lawful.
  2. (3)
    Nothing in this clause shall be deemed or construed as a release in respect of any action, personal injury or death of the health executive, that the health executive or anyone claiming by, through or under the health executive, may have.

Does s 75 of the HHB Act operate to exclude the Commission's jurisdiction to hear this matter?

  1. [97]
    Whilst the parties' submissions have focused somewhat on s 75(3) of the HHB Act, regard must also be had to the operation of s 75(1) of the HHB Act.
  1. [98]
    The starting point for the ascertainment of the meaning for a statutory provision is the text of the statute while, at the same time, regard is to be had to its context and purpose. It is submitted that a court construing a statutory provision must strive to give meaning to every word of the provision, such that no word prove superfluous, void or insignificant, if by any other construct, they may be more useful and pertinent.[12]
  1. [99]
    Section 448 of the IR Act sets out the Commission's jurisdiction to include[13] all questions:
  1. (a)
    arising out of an industrial matter;[14] or
  2. (b)
    involving deciding the rights and duties of a person in relation to an industrial matter;[15] or
  3. (c)
    it considers expedient to hear and decide about an industrial matter.
  1. [100]
    'Industrial matter' is defined in s 9 of the IR Act as follows:
  1. 9
    What is an industrial matter
  1. (1)
    An industrial matter is a matter that affects or relates to –
  1. (a)
    Work done or to be done; or
  2. (b)
    the privileges, rights or functions of –
  1. (i)
    employer or employees; or
  2. (ii)
    persons who have been, or propose to be, or who may become, employers or employees; or
  1. (c)
    a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
  1. (2)
    However, a matter is not an industrial matter if it is the subject of a proceeding for –
  1. (a)
    an indictable offence; or
  2. (b)
    a public service appeal.

…

  1. [101]
    The proceedings are a proceedings in which the Commission holds jurisdiction pursuant to s 448 of the IR Act. However, there are limits to the Commission's jurisdiction.
  1. [102]
    Section 449 of the IR Act identifies the limitation on the jurisdiction of the Commission as follows:
  1. 449
    Limits on jurisdiction

The commission does not have jurisdiction to hear and decide a matter which another Act excludes –

  1. (a)
    The jurisdiction of the commission about the matter; or
  2. (b)
    The application of a decision under this Act about the matter.

…

  1. [103]
    Accordingly, ss 448 and 449 of the IR Act operate to identify the jurisdiction of the QIRC to exist with respect to industrial matters except those that are excluded by s 449 of the IR Act.
  1. [104]
    Section 75(1) of the HHB Act provides that an excluded matter, or a matter affecting or related to an excluded matter, is not an industrial matter for the IR Act.
  1. [105]
    Section 75(4) of the HHB Act defines an excluded matter as follows:
  1. (4)
    In this section –

excluded matters means –

  1. (a)
    a decision to appoint, or not to appoint, a person as a health executive; or
  2. (b)
    the contract of employment of, or the application of this part of provision of this part to, a health executive.

…

  1. [106]
    In this matter, Ms Thornton alleges adverse action on the basis of the termination of her contract of employment because she exercised a workplace right. Ms Thornton also alleges that she was injured during the course of her employment by having her employment threatened, by being treated differently and by being singled out and having her position altered.
  1. [107]
    Whilst Ms Thornton's material[16] did not specifically contend that the alleged acts of injury to her employment were adverse action, I consider they are capable, if made out, of constituting adverse action.
  1. [108]
    I am satisfied that Ms Thornton's allegations fall within the meaning of an excluded matter or are a matter affecting or related to an excluded matter.
  1. [109]
    Further, I also consider such allegations fall within the meaning of an "industrial matter".  The termination of the contract of employment and how Ms Thornton was treated by her employer during the course of the employment fall within the definition of "industrial matter" as referred to above.
  1. [110]
    Further, s 309(1) and (2) of the IR Act operate to provide a person with an avenue to the Commission to deal with a dispute if a person has been dismissed or has been affected by another contravention of this part. Such a dispute is a dispute about an industrial matter.
  1. [111]
    Consequently, I consider s 75(1) of the HHB Act operates to exclude the Commission from hearing the allegations made by Ms Thornton.  It follows that I consider the merits of the application to be poor.

Section 310(2)(e) – Fairness as between the person and other persons in a similar position

  1. [112]
    Both parties in this matter consider that this element does not arise and that the factor should be regarded as neutral in the circumstances of this matter.

Section 310(2) – Conclusion

  1. [113]
    I am conscious that a refusal to grant the extension of time will extinguish Ms Thornton's opportunity to seek the remedy sought.
  1. [114]
    Ultimately however, I am not satisfied that Ms Thornton has established that exceptional circumstances exist. I have determined, having regard to all relevant factors that the absence of a reasonable explanation for the delay and the significant difficulties Ms Thornton will face with respect to the merits of the application outweigh any factors that may fall in Ms Thornton's favour.
  1. [115]
    In all of these circumstances, I refuse the application to extend time.

Other Matters

Further proceedings are not necessary or desirable in the public interest

  1. [116]
    The Respondent raises a matter that goes beyond s 310 of the IR Act. The Respondent submits that further proceedings are not necessary or desirable in the public interest and that the public interest would be best served by the dismissal of the claim. I take this argument to be an alternative argument in circumstances where the Commissions finds that exceptional circumstances do exist.
  1. [117]
    In this regard, the Respondent submits that the ascertainment in any particular case of where the public interest lies involves a balancing of interests and is a question of fact and degree.[17] While the power in s 541 is to be exercised with due circumspection, on a proper consideration of relevant materials,[18] the value judgment incorporated in s 541(b)(ii) is a broad one.[19]
  1. [118]
    The Respondent submits, that s 310 of the IR Act provides the Commission with the ability to provide or to exercise a discretion to extend time. It is submitted that this power supports the main purpose of the Act, which includes supporting social justice for Queenslanders.
  1. [119]
    Ms Thornton refers to the consideration of "the public interest" in State of Queensland v Lockhart [2014] ICQ 6 as per DP O'Connor (as he was then) at [21], as follows:

[21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression "in the public interest". Their Honours wrote:

"Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view."

(Citations omitted)

  1. [120]
    As already noted, I have determined, having regard to the matters in s 310(2) of the IR Act that exceptional circumstances do not exist and consequently I do not allow a further period for Ms Thornton to file her application.
  1. [121]
    Further, given the likely jurisdictional limitations on the Commission hearing the proceedings I do not consider, in any event, that it is in the public interest to grant an extension of time.

Application of the Human Rights Act 2019 (Qld)

  1. [122]
    Ms Thornton submits that the Commission is a public entity under the Human Rights Act 2019 (Qld) ("HR Act") and is obliged, pursuant to s 58 of the HR Act, to act and make decision which are compatible with human rights and to give proper consideration to relevant human rights when making decisions. Ms Thornton further submits that the Respondent's interpretation of s 75(3) of the HHB Act should also consider the HR Act. No further particulars are provided as to the basis upon which such a consideration might occur.
  1. [123]
    The Respondent submits that the HR Act does not apply. Relevantly, it is submitted that a court or tribunal, including the Commission, is not a public entity within the meaning of the HR Act, except when acting in an "administrative" capacity.[20] It is submitted by the Respondent that when determining the proper construction of s 75(3), this Commission would be acting not in an administrative capacity but rather, in its judicial or adjudicative capacity, making "… an authoritative determination by means of the judicial method, that is, an enforceable decision reached by applying the relevant principles of law to the facts as found."[21]
  1. [124]
    The HR Act does not apply to my consideration of the application to extend time the basis that the Commission is not acting in an administrative capacity.

Conclusion

  1. [125]
    Consequently, I will issue orders that the application commencing proceedings GP/2020/17 be dismissed.

Order

  1. [126]
    I make the following order:

The application commencing proceedings GP/2020/17 is dismissed.

Footnotes

[1] This was further confirmed in writing by the Respondent.

[2] Prior to that, Ms Thornton had been engaged on a temporary contract.

[3] Affidavit of Jenny Thornton, filed 18 August 2020, Annexure B.

[4] See Affidavit of Jenny Thornton filed 18 August 2020, [7].

[5] One day after the termination of Ms Thornton's employment.

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB, [13].

[7] Ibid, [15].

[8] Kyvelos v Champion Socks Pty Ltd, Print T2421(unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

[9] Dixon v Mornington Shire Council [2020] QIRC 106, [63].

[10] Dixon v Mornington Shire Council [2020] QIRC 106, [63].

[11] Cody v JH Nelson Pty Ltd [1947] HCA 17; 74 CLR 629, 647 (Dixon J).

[12] Project Bluesky Inc v Australian Broadcasting Authority [1998] HCA 28; 72 ALJR 841 at [71] (McHugh, Gummow, Kirby and Hayne JJ).

[13] Industrial Relations Act 2016 (Qld) s 448(1)(b)(i).

[14] Ibid s 448(1)(b)(i).

[15] Ibid s 448(1)(b)(ii).

[16] Affidavit of 18 August 2020 at [49].

[17] Campbell v State of Queensland (Department of Justice and Attorney General) [2019] ICQ 18, [21]-[22].

[18] Ibid [29].

[19] Ibid [32].

[20] Human Rights Act 2019 (Qld) s 9(4)(b).

[21] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245, 258 (Mason CJ, Brennan and Toohey JJ).

Close

Editorial Notes

  • Published Case Name:

    Thornton v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Thornton v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 393

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    13 Oct 2022

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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
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
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Cody v J H Nelson Pty Ltd [1947] HCA 17
2 citations
Jump To
Cite 1 - [1947] HCA 17
Cite 2 - [1947] HCA 17
Dickson v Mornington Shire Council [2020] QIRC 106
3 citations
Jump To
Cite 1 - [2020] QIRC 106
Cite 2 - [2020] QIRC 106
Cite 3 - [2020] QIRC 106
Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
1 citation
Jump To
Cite 1 - [2011] FWAFB 975
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
State of Queensland v Lockhart [2014] ICQ 6
2 citations
Jump To
Cite 1 - [2014] ICQ 6
Cite 2 - [2014] ICQ 6

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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.