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Nichols v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 182

Nichols v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 182

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182

PARTIES:

Nichols, Corina Danielle

(Applicant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO.:

GP/2022/13

PROCEEDING:

Application to allow a further period to apply to the Commission to deal with a dispute under ch 8, pt 1 of the Industrial Relations Act 2016

DELIVERED ON:

15 June 2023

HEARING DATE:

10 February 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

The Applicant's application for a further period to make an application to the Commission, for the Commission to deal with a dispute under ch 8, pt 1 of the Industrial Relations Act 2016, is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – GENERAL PROTECTIONS – Applicant was employed by the State of Queensland in the Department of Transport and Main Roads – Applicant employed on probation – employment terminated before expiry of probation period – Applicant made application to Commission for reinstatement – Applicant subsequently withdrew reinstatement application – Applicant then applied for relief under ch 8, pt 1 of the Industrial Relations Act 2016 – present application for relief under ch 8, pt 1 of the Industrial Relations Act 2016 made 62 days out of time – whether, having regard to s 310(2) of the Industrial Relations Act 2016, the Applicant should be allowed a further period of time to make application to the Commission to deal with the dispute – whether Commission satisfied exceptional circumstances exist within the meaning of s 310(2) of the Industrial Relations Act 2016 to enliven the Commission's discretion to allow a further period of time for Applicant to make application to the Commission to deal with the dispute – Commission not satisfied exceptional circumstances exist – application for a further period of time to make application to the Commission to deal with the dispute under ch 8, pt 1 of the Industrial Relations Act 2016 dismissed

LEGISLATION:

Acts Interpretation Act 1954, s 38

Industrial Relations Act 2016, s 284, s 285, s 295, s 306 and s 310

Fair Work Act 2009, s 340, s 341, s 361 and s 366

CASES:

Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301

Dickson v Mornington Shire Council [2020] QIRC 106

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677

Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1

Thornton v State of Queensland (Queensland Health) [2020] QIRC 393

Serpanos v Commonwealth of Australia [2022] FCA 1226

Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901; (2018) 273 IR 156

APPEARANCES:

The Applicant in person.

Mr L. Grant, Counsel, and Ms J. Scott of Crown

Law for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Corina Danielle Nichols commenced a period of employment with the State of Queensland on 12 January 2022. Ms Nichols was employed, on a full-time basis, in the Department of Transport and Main Roads in the position of Resource Manager, Brisbane Operations, South, classification AO7 ('the position'). Specifically, Ms Nichols was employed in a business unit of that Department called 'RoadTek'.
  1. [2]
    Ms Nichols' employment was subject to a probationary period of three months.[1] Ms Nichols' period of probation was to end on 12 April 2022 and was subject to a 'Probation Work Agreement' signed by Ms Nichols on 24 January 2022 ('the Probation Work Agreement').[2]
  1. [3]
    By letter dated 7 April 2022 from Ms Kym Murphy, General Manager (RoadTek), Ms Nichols was informed that her employment was terminated, effective immediately, and that she would be paid one week's pay in lieu of notice.
  1. [4]
    By application filed on 29 June 2022, Ms Nichols applied to this Commission to deal with a dispute concerning her dismissal. That application was made pursuant to ch 8, pt 1 of the Industrial Relations Act 2016 ('the Act') which deals with general protections ('Ms Nichols' general protections application').
  1. [5]
    By virtue of s 310(1)(a) of the Act, Ms Nichols had to make her general protections application within 21 days after the dismissal took effect. For reasons which will be referred to later, Ms Nichols did not make her general protections application within 21 days of her dismissal taking effect.
  1. [6]
    For Ms Nichols' general protections application to proceed, I must decide to allow her a further period to make her general protections application.
  1. [7]
    Whether or not I will allow Ms Nichols' general protections application to proceed involves the application of s 310(2) of the Act.
  1. [8]
    The questions for my determination are:
  • whether or not, having regard to the matters referred to in s 310(2) of the Act, my discretion to allow Ms Nichols a further period of time to make a general protections application is enlivened; and
  • if my discretion is enlivened, whether I will exercise that discretion in favour of Ms Nichols.

The relevant background facts

  1. [9]
    Having regard to the material that has been filed, including the State's response, the outlines of argument of both parties and the affidavit material, it seems to me that the following chronology of events is not in dispute:
  • probation meetings concerning Ms Nichols' employment, in the position, occurred on 16 February 2022,[3] 8 March 2022[4] and 28 March 2022;[5]
  • on 1 April 2022, Ms Nichols' Manager completed a probation report and briefing note recommending that Ms Nichols' employment be terminated;[6]
  • by letter from Ms Murphy dated 7 April 2022, Ms Nichols was informed that her employment was terminated with immediate effect;[7]
  • Ms Nichols, on 26 April 2022, pursuant to ch 8, pt 2 of the Act, made an application to the Commission for her reinstatement in which she alleged that her dismissal was harsh, unjust or unreasonable ('Ms Nichols' reinstatement application') and, in making that application, Ms Nichols noted that she was on a probation period;[8]
  • on 26 April 2022, the Industrial Registrar wrote to Ms Nichols and advised that:
  1. –Ms Nichols' reinstatement application was rejected because she was dismissed during a period of probation; and
  1. –asked Ms Nichols if she wished to proceed with her reinstatement application;[9]
  • Ms Nichols' reinstatement application was subsequently accepted for filing and a conference before Industrial Commissioner Power was scheduled for 10 June 2022;[10]
  • on 9 May 2022, the State made a formal jurisdictional objection to Ms Nichols' reinstatement application on the ground that she was dismissed during probation and, therefore, was precluded from making a valid application for reinstatement;[11]
  • by letter dated 10 June 2022 to the Commission and to the State, Ms Nichols requested that the conference scheduled for 10 June 2022:
  1. [B]e removed and replaced with an Adverse Action Claim in the general protection jurisdiction because on reflection the matter is actually and (sic) adverse action claim (as I exposed the Night Resource Manager Gavin Schultz (NRM) and the Operations Manager Gerson Ida (OM) re lack of attendance and lack of assistance provided to me in the workplace;[12]
  • by email sent on 12 June 2022 to the Commission and representatives of the State, Ms Nichols stated that she would '… be submitting further forms in relation to the matter re General Protection given how things have transpired';[13]
  • on 13 June 2022, Ms Nichols discontinued her reinstatement application and further advised the Registry, and a representative of the State, that '… I am preparing Form 20 and Form 21 in relation to Compensation';[14]
  • by letter dated 14 June 2022, Ms Nichols wrote directly to the State claiming compensation of '… 17 years of salary and superannuation' in relation to her dismissal;[15]
  • by email sent on 16 June 2022, the State responded to Ms Nichols advising that should Ms Nichols wish to contest the matters contained in her letter dated 14 June 2022, the appropriate jurisdiction was the Commission;[16] and
  • on 29 June 2022, Ms Nichols made her general protections application.
  1. [10]
    Section 310(1)(a) of the Act provides that Ms Nichols had to make her application within '… 21 days after the dismissal took effect.'
  1. [11]
    By virtue of s 38(1)(b) of the Acts Interpretation Act 1954, the 21 days ran from the date after Ms Nichols' dismissal took effect, namely, 7 April 2022. The 21 day period expired on 28 April 2022.
  1. [12]
    Ms Nichols' general protections application was made 62 days out of time.

Ms Nichols' general protections application

  1. [13]
    In her general protections application, Ms Nichols makes a number of allegations in relation to her dismissal.
  1. [14]
    These include allegations that:
  • her probation reports had missing data and that a digital signature was inappropriately placed on one probation meeting report;
  • the decision to dismiss her was made without speaking to her first;
  • the training provided to her was not satisfactory;
  • there was no leadership at her place of work;
  • she only had nine weeks of training, during her period of probation, as opposed to 12 weeks; and
  • her request for a transfer was ignored.
  1. [15]
    This is not an exhaustive list of all of the issues to which Ms Nichols refers in her general protections application.
  1. [16]
    Ms Nichols also makes the following allegations:
  1. 5.
    Dismissal only occurred because the Applicant exposed the Operations Manager and the Night Resource Manager for their deal re their own employment conditions and lack of support/coaching/mentoring/information/training, opportunity to discuss issues. The Night Resource Manager was on a deal "Agreement" to get additional money by working an evening shift not done by any other Resource Manager doing exactly the same role. They had also arranged this for an Administration staff member who was not going to job sites so therefore not technically entitled to all to [sic] the shift allowances. The Applicant spoke directly with Engineers on the job sites and asertained [sic] directly that the Night Resource Manager had not been attending job sites at all.

…

  1. I)
    The dismissal occurred because the Night Resource Manager and Operations Manager were operating a special agreement for extra income and allowances and attendance (lack of) in the workplace (Depots x2 Hemmant and Nathan and road construction sites. Once questions were asked of the other Resource Managers across the state re differences in remuneration there was lengthy discussion about the lack of mentoring. The Applicant being told she was being "white anted" and within days was rapidly dismissed. The Applicant was in shock. Many staff can attest to the Applicants [sic] abilities as a leader and manager however are worried about repercussions to themselves if they were to come forward. The culture of the Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182Hemmant Depot being such that vindictiveness is the expected outcome for issues raised.

The State's response

  1. [17]
    In summary, the State's response is that Ms Nichols' general protections application is misconceived because she seeks to rely upon her dissatisfaction of the probationary period process as opposed to demonstrating how she exercised a workplace right during her employment and that her dismissal by the State was because of the exercise of that right.[17]

The relevant provisions of the Act.

  1. [18]
    Section 310 of the Act relevantly provides:

310  Time for application

  1. (1)
    An application relating to dismissal must be made within-
  1. (a)
    21 days after the dismissal took effect; or
  1. (b)
    if the commission allows a further period under subsection (2) – the further period.
  1. (2)
    The commission may allow a further period if the commission is satisfied there are exceptional circumstances, taking into account –
  1. (a)
    the reason for the delay; and
  1. (b)
    any action taken by the person to dispute the dismissal; and
  1. (c)
    prejudice to the employer (including prejudice caused by the delay); and
  1. (d)
    the merits of the application; and
  1. (e)
    fairness as between the person and other persons in a similar position.[18]
  1. [19]
    Section 310(2) is almost identical to s 366(2) of the Fair Work Act 2009. That section deals with the circumstances which trigger the discretion of the Fair Work Commission to allow a dismissed employee a further period of time to apply to that Commission to deal with a dismissal dispute under the general protections provisions of the Fair Work Act 2009. Accordingly, the authorities regarding the construction of s 366(2) of the Fair Work Act 2009 are persuasive in respect of the construction of s 310(2) of the Act.[19]
  1. [20]
    In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters,[20] Ross J, Deputy President Biney and Commissioner Harper‑Greenwell, relevantly stated of s 366(2) of the Fair Work Act 2009.
  1. [15]
    The meaning of "exceptional circumstances" in s 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:
  1. [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. [14]
    Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance.
  1. (Emphasis added)
  1. [16]
    The Full Bench in Nulty relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295:
  1. 26.
    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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
  1. 27.
    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" in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.
  1. (Emphasis added)
  1. [17]
    Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[21]
  1. [21]
    The Commission must be satisfied there are exceptional circumstances, taking into account all the matters referred to in paragraphs (a) to (e) of s 310(2) of the Act.[22] The test of 'exceptional circumstances' establishes a high hurdle for an applicant for an extension.[23]
  1. [22]
    In Nulty v Blue Star Group Pty Ltd,[24] Vice President Lawler, Deputy President Sams and Commissioner Williams relevantly held:
  1. [15]
    A finding that there are "exceptional circumstances", taking into account the matters specified in s 366(2)(a)-(e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s 366(2)(a)-(e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[25]
  1. [23]
    Thus, for Ms Nichols' general protections application to proceed:
  • I must be persuaded, having regard to the matters referred to in s 310(2)(a) to (e) of the Act, that there are exceptional circumstances such that my discretion to allow her a further period of time to make an application for the Commission to deal with her dispute is enlivened; and
  • in all the circumstances, I should exercise my discretion in her favour.

Having regard to the matters referred to in s 310(2) of the Act, is the discretion to allow Ms Nichols a further period of time to make a general protections application enlivened?

  1. [24]
    In assessing this issue, I will consider the relevant material and the arguments referred to by both parties in respect of the matters referred to in s 310(2) of the Act.
  1. [25]
    In saying this, despite me, on two occasions,[26] informing Ms Nichols that in her material and submissions, she must address the matters referred to in s 310(2) of the Act Ms Nichols' submissions and material do not clearly and directly address those matters.

The reason for the delay

  1. [26]
    In her written submissions filed on 18 November 2022, Ms Nichols submitted:
  1. 18.
    There was no time delay in relation to the matter as after Court discussions paperwork was submitted as advised. There were exceptional circumstances in this matter due to the treatment received which was more aligned to Adverse Action than a simple requests via Form 12 for Reinstatement.
  1. [27]
    In further written submissions, Ms Nichols submitted that:
  • she was not functioning well after the shock of the dismissal;
  • the first forms she filed in relation to her dismissal were about her unfair dismissal;
  • she requested:

[A]t first Court date to convert to Adverse Action as upon reflection what had actually transpired whilst I was in the extremely shortened Probationary Period, it was nothing short of blatant and obvious "bastardisation" or "hazing" ; and

  • further:

My matter was lodged within the timeframe to the correct Jurisdiction however on the wrong form. As it should have been lodged under Adverse Action and not Unfair Dismissal from the beginning. And this was rectified as soon as possible upon Court advice at the first Court date. [27]

  1. [28]
    In written submissions, the State submitted that:
  • Ms Nichols' failure to give a credible explanation for any part of the delay, while not determinative, weighs against a finding of exceptional circumstances; and
  • Ms Nichols' reasons for delay appear to be that, as she has submitted, she '… realised Form 12 was not suitable at initial mention due to treatment received being more aligned to "adverse actions." '[28]
  1. [29]
    In oral submissions, Mr Grant, who appeared on behalf of the State, reiterated the State's written submissions that point out various unexplained gaps in the timeline between when Ms Nichols filed her reinstatement application, when she became aware that the Commission had no jurisdiction to hear and determine her reinstatement application, the various communications with the Industrial Registry and the State, and the date she finally made her general protections application.[29]
  1. [30]
    Mr Grant also submitted, in response to Ms Nichols' submissions about her mental state affecting her at the date of her dismissal, by reference to the decision of Industrial Commissioner Dwyer in Dickson v Mornington Shire Council,[30] that the aftermath of any dismissal is likely to cause an employee to feel distressed and anxious.
  1. [31]
    In my view, Ms Nichols has not given an acceptable explanation for the 62 day delay in making her general protections application.
  1. [32]
    There are a three reasons for this.
  1. [33]
    First, I accept that Ms Nichols made her reinstatement application within 21 days of the date of her dismissal, namely, on 26 April 2022. However, on 9 May 2022, after the State made its jurisdictional objection to Ms Nichols' reinstatement application (on the ground that she was dismissed during a period of probation) Ms Nichols, by letter dated 10 June 2022, requested that her application for reinstatement be replaced with a general protections claim because she 'exposed' the Night Resources Manager's and the Operations Manager's lack of attendance and lack of assistance provided to her. Despite the date of that letter, and the fact that on 13 June 2022, Ms Nichols formally discontinued her reinstatement application and advised the Registry and the State that she was preparing forms to seek compensation, Ms Nichols did not make a general protections application until 29 June 2022.
  1. [34]
    Ms Nichols has given no acceptable explanation for the delay between 9 May 2022, when the State put her on notice of its jurisdictional objection to her reinstatement application, and 29 June 2022, when she made her general protections application.
  1. [35]
    Secondly, in her written submissions, Ms Nichols stated that, on her version of events, she rectified the fact that she had filed the wrong form '… as soon as possible upon Court advice at the first Court date.'[31] It is reasonable to assume that the first court date to which Ms Nichols refers is the conciliation conference which took place before Industrial Commissioner Power on 10 June 2022 referred to in her correspondence, dated 10 June 2022, to the Industrial Registry and to representatives of the State.[32] Having regard to these facts, Ms Nichols has given no real explanation as to why she did not make her general protections application on or soon after 10 June 2022.
  1. [36]
    Further, while I accept that by letter dated 14 June 2022, Ms Nichols wrote directly to the State claiming 17 years' salary and superannuation as compensation in relation to her dismissal and, in response to that, by email dated 16 June 2022, the State informed Ms Nichols that if she wished to contest those matters, the appropriate jurisdiction was the Commission, Ms Nichols has not explained the delay between 16 June 2022 and 29 June 2022, being the date she made her general protections application.
  1. [37]
    Thirdly, while I have no doubt Ms Nichols felt distressed and anxious at the time of her dismissal, her mental state at that time did not prevent her from making her reinstatement application within the same limitation period, being 21 days. Ms Nichols did not lead any medical evidence that may tend to prove that her mental state caused her to be confused about, within that 21 day period, whether or not she should file an application for unfair dismissal or a general protections application.
  1. [38]
    As Mr Grant submitted,[33] after Ms Nichols realised, or was informed by the State, that the Commission did not have jurisdiction to hear and determine her unfair dismissal application because she was dismissed during a period of probation, Ms Nichols deliberately chose to continue with that application which is relevant to her delay in making her general protections application. On the evidence before me, my view is that this submission is meritorious and reflects the facts.
  1. [39]
    In respect of those facts, Ms Nichols has not provided an acceptable explanation for her delay between 9 May 2022, when the State put her on notice of its jurisdictional objection to her reinstatement application, and 29 June 2022.
  1. [40]
    Further, Ms Nichols has not provided an acceptable explanation for the delay between, at most, 10 June 2022, being the date of the conciliation conference before Industrial Commissioner Power and, at least, 16 June 2022, being the date of the State's response to her correspondence dated 14 June 2022, and the date she made her general protections application, being 29 June 2022.
  1. [41]
    For these reasons, I am not persuaded that Ms Nichols has provided an acceptable explanation for the delay.

Any action taken by Ms Nichols to dispute the dismissal

  1. [42]
    Again, I accept that Ms Nichols made her reinstatement application within 21 days of the date of her dismissal. Furthermore, in that application for reinstatement, I acknowledge that, in addition to stating the reasons as to why she contended her dismissal was harsh unjust or unreasonable, she also alleged that her dismissal came about because at a State-wide meeting she asked questions about agreements, namely:

[T]hat the Night RM and Office based Administration staff members were on (IMDSSA where they get paid additional penalty rates for evening work), and highlighting the fact that I had no on the ground mentoring/coaching as the existing Night RM supposed to be 3pm till 11pm not being in the workplace hardly at all and had complained when I initially started.

  1. [43]
    These are similar issues to those raised in Ms Nichols' general protections application referred to earlier.
  1. [44]
    In addition, I accept that by her correspondence to the State dated 14 June 2022, Ms Nichols' claim for compensation was in relation to allegations that her dismissal had not been lawful.
  1. [45]
    The State, in its written submissions, while accepting that Ms Nichols' made her application for reinstatement on 26 April 2022, submitted that that action was eclipsed by her decisions from that time until 29 June 2022 when a general protections application was finally made. The State submitted that, on those facts, this factor is of little weight in the overall test for exceptional circumstances.[34]
  1. [46]
    In my view, it was clearly the case that Ms Nichols took action within the 21 day timeframe to contest her dismissal, including on a ground she now contends gives rise to her general protections claim, namely, the failure to support, coach, mentor and train her.

Prejudice to the employer (including prejudice caused by the delay)

  1. [47]
    Ms Nichols did not expressly address this issue in her written submissions.
  1. [48]
    In written submissions, the State submitted that:
  • once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation;
  • weight must be given to the fact that the defendant's potential liability expired at the end of the enacted limitation period, and to extend the period may result in the imposition of a new legal liability on the defendant;
  • a defendant should not lightly be put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate;
  • even if the prejudice in the present case goes no further than that presumptive prejudice, the mere absence of prejudice to the State is an insufficient basis to grant an extension of time; and
  • this factor, if not accepted as weighing against a finding of exceptional circumstances, ought at worst be a neutral consideration.[35]
  1. [49]
    In my assessment, the prejudice to the State in the present case, is the ordinary prejudice of having to defend an application that has been made outside the relevant limitation period.
  1. [50]
    Apart from this, the State points to no other prejudice it would suffer if Ms Nichols was given a further period of time in which to make her general protections application.
  1. [51]
    There will be prejudice to Ms Nichols in that she would be prevented from pursuing a claim that her dismissal was contrary to ch 8, pt 1 of the Act.

The merits of the application

  1. [52]
    This is a difficult matter to assess on the material filed by Ms Nichols.
  1. [53]
    Ms Nichols, in her affidavit and submissions, makes a number of diverse claims about why her dismissal was wrong or unlawful, including:
  • discrimination in relation to the remuneration she received;
  • the training and induction she received;
  • that she was not allowed to home garage a State owned vehicle;
  • claims that she was the subject of entrapment;
  • that she was not provided a full 12 week period of probation; and
  • a range of other claims that she was treated differently to other employees.
  1. [54]
    In her principal written submissions, filed on 18 November 2022, under the heading of 'Summary', Ms Nichols stated:

No discussion at all from the Operations Manager (OM) Gerson Ida or Executive Director RoadTek South Christopher Lunson re dismissal or training issues they were aware of. The OM deliberately cutting short meetings/including Probation ones when issues were attempted to be raised. There was: lack of current organisation chart, lack of mentoring, lack of training in the direct office environment, and request for role delineation ignored. Nearly total absence accept [sic] three hours in a seven week period of the Night Resource Manager in the work environment or on job sites. And very limited sightings of the Operations Manager in the Hemmant Depot, leaving the Applicant as the sole Manager during the day for 211 staff. The Operations Manager not processing the Probation Forms for Probation meeting two. It was saved to USB, and he failed to print or get signatures from the Applicant and the Final having an electronic signature and date not provided by the Applicant. Inaction from Human Resources in relation to request for transfer away from the location given the lack of support on a daily basis, face to face at the Hemmant Depot.

  1. [55]
    In her further written submissions, Ms Nichol submitted that:
  • she was not provided support into the role when she was appointed;
  • she was denied an induction into the role when she was appointed;
  • she was denied training and mentoring into the actual role;
  • she was not remunerated at the same level as the other Resource Manager for the same work;
  • there was a deliberate attempt to entrap her by the Operations Manager in respect of a document he asked her to complete;
  • issues she raised with the Operations Manager and the Human Resources representative were ignored;
  • she applied for a transfer which was ignored; and
  • she was the only Manager present from 6.00 am to often after 6.00 pm, Monday to Friday, for the 215 staff at the Hemmant and Nathan depots.[36]
  1. [56]
    As to the length of her probation, and the real reason for her dismissal, Ms Nichol submitted:
  • Normally within government my experience as a manager has been that people are provided with the full 12 week probation period unless they have a horrendous incident in the workplace that is inexcusable, but as the OM and RM obviously did not want me in the role, the support was not there in any capacity. (My 8-9 week probation period also included an instruction to work from home for the first two weeks of this so my actual time in the workplace to build rapport, learn names of 215 persons, learn all the functions/activities by myself was 6 to 7 weeks and they took their action just as I was learning the key staff details more readily. It was abundantly clear the Operations Manager and Resource Manager did not get their preferred person in the role and so no effort was put into any normal introduction for a new employee for me. The OM and RM because of their lack of actions toward me as an "employee" and the botched Dismissal process re forms and deliberate lack of conversation has led me to the conclusion that they wanted me out of the workplace as fast as possible as I had readily created rapport and professional relationships with staff. I was participating in many things including social events outside of work and the state-wide Women's support group). And even had staff contacting me outside work hours telling me to watch my back and that staff were aware that I was only trying to help them.[37]
  1. [57]
    In written submissions, the State submitted that:
  • Ms Nichols must show there is some merit to her application for this factor to favour her;
  • the weight attributed to this factor, for Ms Nichols, then depends on the extent to which that merit appears and, there is no merit because there is no prima facie case; and
  • alternatively, there is little merit because there is evidence before the Commission that gives a plausible and legitimate explanation for the dismissal.
  1. [58]
    Specifically, the State submitted that:
  1. The Applicant identifies her dismissal as the adverse action (Element 1). But she has not identified a workplace right within the meaning of s 284 of the IR Act (Element 2) and accordingly, has not identified any link that she was dismissed because of the existence, exercise, or proposed exercise of a workplace rights (Element 3). There must be a link. Allegations of general protections contraventions are 'inherently serious' and the Respondent is entitled to know the case against it. On the current application there is not one clear allegation.
  1. Second, if the Applicant had established a prima facie case, there is documentary evidence before the Commission that provides a plausible, consistent, and legitimate explanation for the termination of the Applicant's employment - unacceptable work performance issues.[38]
  1. [59]
    In my view there is merit in the State's submissions.
  1. [60]
    Section 285(1)(a) of the Act relevantly provides that a person must not take adverse action against another person because the other person has a workplace right, or has exercised a workplace right.
  1. [61]
    Pursuant to s 306(1) of the Act, if, in an application in relation to a contravention of a provision of ch 8, pt 1, it is alleged that a person took action for a particular reason or with a particular intent and taking that action for that reason or with that intent would be a contravention of the provision, then, pursuant to s 306(2) of the Act, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise.
  1. [62]
    The effect of the equivalent provisions in the Fair Work Act 2009[39] were authoritatively summarised in Alam v National Australia Bank Limited ('Alam'),[40] where White, O'Callaghan and Colvin JJ relevantly stated:

[14] Several matters bearing upon the application of s 361 in relation to s 340 are settled:

  1. (a)
    in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute "adverse action" and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
  1. (b)
    the party making the allegation that adverse action was taken "because" of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];
  1. (c)
    an employer takes adverse action in contravention of s 340 if a proscribed reason is a "substantial and operative" reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).
  1. (d)
    the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision‑makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]‑[44];
  1. (e)
    the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19].
  1. [63]
    In addition, as best as I can make out, from her general protections application and from her submissions, the alleged workplace right exercised by Ms Nichols, in respect of which she said she was dismissed, is the kind referred to in s 284(1)(c)(ii) of the Act, namely, that she exercised a workplace right because she was able to make a complaint or inquiry in relation to her employment.
  1. [64]
    Again, as best as I can make out, this relates to her complaint about there being a lack of support, coaching, mentoring, and training of her by her immediate supervisors.
  1. [65]
    This is consistent with the relevant allegations made by Ms Nichols in her general protections application set out in paragraph [16] of these reasons.
  1. [66]
    The only reasonable way that this vague allegation may be relevantly characterised is that Ms Nichols is alleging she made a complaint about these matters, she was able to make that complaint, and that such a complaint was in relation to her employment within the meaning of s 284(1)(c)(ii) of the Act.

Did Ms Nichols make a complaint in relation to her employment within the meaning of s 284(1)(c)(ii) of the Act?

  1. [67]
    Again, having regard to the equivalent provision in the Fair Work Act 2009,[41] the Court in Alam held that:
  • the term 'complaint' connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved and it is more than a mere request for assistance and should state a particular grievance or finding of fault;
  • what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider it; and
  • the characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.[42]
  1. [68]
    The best evidence before me about this allegation is contained in Ms Nichols' affidavit sworn on 29 June 2022 (Exhibit 3) in which Ms Nichols states:
  1. 10.
    At the last Resource Managers state-wide monthly Skype meeting I participated in I asked a question about training and mentoring and discovered that they had not reached out to me at any point as they thought I had local support on the ground at Hemmant which of course was not the case. With Gavin Schults [sic] being absent 99% of the whole time from the office environment and not on site as I had been led to believe by the Operations Manager. During the conversation it was suggested by other RMs that I may be being "white-anted" locally which meant that that would explain the deliberate lack of support as I was not the preferred candidate for the role, however, was the most meritorious candidate. I was also advised that the previous incumbent Lotte Franks had the same issue re Gavin Schultz the Night RM not being in the office environment at all.

In the discussion I asked the other Resource Managers (all were on Skype from around the state whether they were on an Agreement known as IMDSSA and they all advised "No." So there was discussion around that including the fact that Hemmant has an Administration Officer Kirrily Edwards in the office on this Agreement also and she does not work on job-sites at all. Office environment only and collects shift allowances whilst others in the team at the same level are not offered the same agreement. Apparently that should not be the case at all as it enables an AO7 administration officer to receive shift allowance as well. The Night RM 1 not being sited [sic] in the work environment for nearly the entire time I was in the role. The Night RMs work vehicle not made available for staff as he was permitted to take to his home address. So not only was he not in the work environment, was continuously working from home and collecting shift allowances on top of an AO7 salary. An outcome of this meeting was the network advising me there were all there to assist and after consult with Kylie Robinson via phone, Peter Allie was suggested and selected as best candidate for me to work with re getting an actual understanding of the role. This did not transpire however was organised immediately after the meeting as within a [sic] I was dismissed from my role.

  1. [69]
    It seems to me that, in substance:
  • Ms Nichols did make a complaint in relation to her employment, being a complaint to other Resource Managers during this meeting, about the level of supervision she was receiving and that Ms Nichols was seeking consideration, redress or relief about that matter; and
  • Ms Nichols, at the Resource Managers State-wide monthly Skype meeting, did make an inquiry about the conditions of employment of other Resource Managers.
  1. [70]
    In her material, Ms Nichols did not particularise the date this meeting occurred and, therefore, did not particularise the date of her complaint and inquiry. During the hearing I asked Ms Nichols to specify this date. The best Ms Nichols could do was to say that it was within five working days of her dismissal[43] (which occurred on 7 April 2022). In its response, the State contended that the date was 31 March 2022.[44]

Was the complaint made by Ms Nichols one she was able to make within the meaning of s 284(1)(c)(ii) of the Act?

  1. [71]
    In Messenger v Commonwealth of Australia (Represented by the Department of Finance),[45] Snaden J reviewed the current state of the decisions of the Federal Court about the meaning of the phrase '… is able to make' in s 341(1)(c) of the Fair Work Act 2009.[46] In respect of that review, his Honour then held:
  1. 149
    I respectfully agree with his Honour's analysis. Section 341 does not invest employees with new rights. It merely characterises existing rights or entitlements as "workplace rights," the possession or exercise of which is the subject of protections located elsewhere in pt 3‑1 of the FW Act.
  1. 150
    I am bound in any event by what successive full courts have now made clear: in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.[47]
  1. [72]
    Upon my analysis of the material Ms Nichols has placed before me, I cannot readily see how a right or entitlement was conferred on Ms Nichols that she be supervised, coached, mentored and trained by her immediate supervisors. In her general protections application, Ms Nichols does not particularise how such a right or entitlement was conferred on her. In the course of the hearing I asked Ms Nichols to address me on this issue, but she was unable to particularise how such a right or entitlement was conferred on her. [48]
  1. [73]
    To be absolutely fair to Ms Nichols, who was self-represented, I will examine the material to see if there was, conferred on her, a right or entitlement that she be supervised, coached, mentored and trained by her immediate supervisors.
  1. [74]
    There is nothing about this specific issue in her letter of appointment or in the conditions of employment and entitlements document attached to that letter.
  1. [75]
    However, the Probation Work Agreement provides that the 'Formal and/or informal' training required for Ms Nichols was 'Relevant Financials, Procurement/Delegation Training, RoadTek Contract Management Training'[49] although it does not confer any specific entitlement on Ms Nichols about a particular level of supervision, coaching, mentoring or training to be provided to her by her immediate supervisors.
  1. [76]
    The report of the probation meeting held on 16 February 2022 stated that the training and development needs identified in the Probation Work Report had been partially completed because some of the training was still not available but all mandatory training had been completed.[50] The report of the probation meeting held on 8 March 2022 stated that mandatory training was completed and that the coaching and mentoring and been undertaken on that day and the previous week.[51] The report of the probation meeting held on 28 March 2022 stated that there was no formal training attached to the role because '… RoadTek uses the 70 20 10 model where most of training is done "on‑the‑job" with peers.'[52]
  1. [77]
    Having regard to the Probation Work Agreement and to the references to training, coaching and mentoring in the reports of the probation meetings, it seems to me that the complaint Ms Nichols did make at the Resource Managers meeting she refers to in Exhibit 3 was one she was able to make because the entitlement to be trained, coached and mentored was contained in the Probation Work Report.

Was the inquiry made by Ms Nichols one she was able to make and was it one in relation to her employment within the meaning of s 284(1)(c)(ii) of the Act?

  1. [78]
    I am not persuaded that Ms Nichols made an inquiry within the meaning of s 284(1)(c)(ii) of the Act.
  1. [79]
    An inquiry within the meaning of this section includes a request for information or the posing of a question by an employee in relation to his or her employment.[53]
  1. [80]
    An inquiry of this type, if made, must be in relation to the inquiring employee's employment. That is, the subject matter about which an inquiry is made must concern an aspect of that employment.[54]
  1. [81]
    Further, as with a complaint, the inquiry must be one the employee is able to make, namely, the employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise.[55]
  1. [82]
    Even if the questions Ms Nichols asked at the Resources Managers' meeting about their conditions of employment was an 'inquiry' within the meaning of s 284(1)(c)(ii) of the Act, I cannot see how that question concerned any aspect of Ms Nichols' employment, given her affidavit evidence that the inquiry was made concerning the conditions of employment of other employees, namely, the Night Resource Manager and an Administration Officer.
  1. [83]
    Similarly, there is no evidence that the questions Ms Nichols asked at the Resource Managers' meeting were ones she was able to ask. That is, there is no evidence that the questions asked by Ms Nichols were in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon her, whether instrumentally or otherwise.

Other matters

  1. [84]
    Ms Nichols makes a number of claims of discrimination. Pursuant to s 295(1) of the Act, an employer must not take adverse action against a person who is an employee because of an attribute of the person as specified in that section.
  1. [85]
    As best as I can make out, from her submissions and affidavit, Ms Nichols does not allege her dismissal was because she possessed one of the attributes specified in s 295(1) of the Act.

Was Ms Nichols dismissed because she made a complaint within the meaning of s 284(1)(c)(ii) of the Act?

  1. [86]
    On the evidence before me, there were three probation meetings between Ms Nichols and Mr Gerson Ida in which some aspects of Ms Nichols' performance were identified as requiring ongoing improvement.
  1. [87]
    In the last report dated 28 March 2022, it was stated by Mr Ida that there were still issues with Ms Nichols making mistakes due to her not checking/reviewing information prior to sending emails and making decisions.
  1. [88]
    In relation to Mr Ida's probation report dated 1 April 2022, the briefing note set out a number of reasons as to why he recommended the termination of Ms Nichols employment.
  1. [89]
    The briefing note sets out a timeline from 12 January 2022 to 8 March 2022 of the mentoring, coaching, training and instructions given to Ms Nichols by various employees, including, Mr Ida.[56]
  1. [90]
    The briefing note also, over six pages, particularises a number of issues and mistakes made by Ms Nichols during her period of probation.[57]
  1. [91]
    Mr Ida also stated:

I have also received multiple phone calls and requests for private conversations from other team members as they felt that they needed to let me know of the issues they are having in their dealings with Corina. They are from employees in various roles, both internal from Brisbane Operations unit and from other Operations Units who were expressing their concerns and the issues, including:

  • Lack of professionalism, behaviour not demonstrating respect to people, not present in the discussion; language used in emails not professional at times, vague content in emails that are needing decision
  • Difficulty in assimilating information when taught or shown a process or information
  • Lack of revision of procedures and information leading to repeated mistakes
  • Lack of managerial behaviour and skills to deal with difficult situations
  • Lack of initiative to ask questions when in doubt
  • Repeated mistakes even when shown how to do it.

…

I received advice after the recent RoadTek South Resource Manager Meeting on 31/03/2022 that Corina had on various occasions spoken openly to the group and those present about her experience to date with Brisbane Operations. These calls were from a couple of Resource Managers and support personnel that were present. Information they divulged was that Corina repeatedly said:

  • she has received no support or training
  • she is expected to learn on the job and that this was unrealistic
  • minimal information in handovers
  • she was only given a few hours of Gavin's time
  • no task list for an RM
  • not given info about meetings and org charts and support personnel
  • very unprofessional conduct in this setting
  • Gavin and myself were not there to defend ourselves so it was inappropriate to have the discussion at that meeting

The people that contact me said it made them feel uncomfortable and that this was not the forum to raise these matters.[58]

  1. [92]
    Relevantly, by way of conclusion, Mr Ida stated:

Although Corina is a nice and caring person, unfortunately she has not presented the desired performance and managerial behaviour expected for the role of Resource Manager.

After several discussions with Corina in relation to attention to detail, reading, reviewing and checking procedures, networking, the time spent by various parties with her on training and providing advice and support, there has been no improvement in the number of mistakes Corina is making. I am of the opinion that these issues won't be resolved we have provided Corina with relevant support and training to learn and develop into this role.

Considering Corina's performance to date and comparing this to what is needed in this highly demanding role of Resource Manager, I am recommending that Corina's employment be terminated in probation in the Probation Report (Attachment 26).[59]

  1. [93]
    In Ms Murphy's letter dated 7 April 2022, advising Ms Nichols of the termination of her employment, she stated:

I am in receipt of documentation outlining your performance history to date.

After undertaking a structured review of your performance in the role of Resource Manager (Attachment 2), I consider there to be unacceptable work performance issues particularly with respect to your ability to:

  • work autonomously and retain relevant knowledge previously provided
  • effectively liaise with your network of support to clarify understanding of the role
  • notify your supervisor when work deadlines were missed and report errors
  • follow correct business procedures
  • accurately review information prior to making decisions and taking actions

I also note that there have been ongoing conversations and emails between you and your supervisor regarding your performance during your probation period, and that relevant mentoring and support has been provided to you.[60]

  1. [94]
    There is a consistent theme in Mr Ida's assessment of Ms Nichols' performance during her probation, namely, her making mistakes due to her failure to check and revise her written work.
  1. [95]
    While I cannot finally assess the accuracy of these statements, the consistency of that theme is a matter that tends to indicate to me that the State has a plausible case in proving that the actual reason or reasons for Ms Nichols' dismissal was her work performance during her probation and not due to any exercise of a workplace right by her.
  1. [96]
    During the hearing, I asked Ms Nichols to articulate what she contended was the real reason for dismissal. Ms Nichols answered by stating that the Operations Manager and the Resource Manager did not want her in the position and that was the reason for her dismissal.[61]
  1. [97]
    Having regard to all the above matters, I assess the merits of Ms Nichols' general protections application as weak.
  1. [98]
    There are three reasons for this.
  1. [99]
    First, while it seems from my own analysis of the material, as opposed to any express claim by Ms Nichols, that her complaint about a lack of training, mentoring, coaching or supervision was one within the meaning of s 284(1)(c)(ii) of the Act, I am not persuaded that there is a reasonable case that Ms Nichols was dismissed because she made such a complaint.
  1. [100]
    Having regard to what Ms Nichols submitted to me and to Mr Ida's briefing note, there seems little doubt that the Resource Managers' meeting, in which Ms Nichols made her complaint, occurred on 31 March 2022. Certainly, having regard to Mr Ida's briefing note dated 1 April 2022, he had received reports of what Ms Nichols had stated about him and the Night Resource Manager (Mr Schultz) at that meeting concerning her criticisms of the level of training, mentoring, coaching and supervision provided to her.
  1. [101]
    However, in Mr Ida's probation meeting report of the meeting that took place on 28 March 2022, Mr Ida stated:

There are still issues with mistakes happening due to not checking/reviewing information prior to sending emails/making decisions. This are [sic] detailed in the attached document with the examples of those mistakes. This will be addressed in the probation report and forwarded to HR to be progressed.[62]

  1. [102]
    In that same report, in answer to the question: 'To date, have all the requirements identified for this probation period being met?,' Mr Ida ticked the 'No' box.[63]
  1. [103]
    Having regard to this timeline, it seems to me, consistently with the submissions made by Mr Grant, that Mr Ida had formed a negative view about Ms Nichols' work performance in her period of probation, such that he indicated that, as at 28 March 2022, all of the requirements identified for her probation period had not been met.
  1. [104]
    Mr Ida made the recommendation that Ms Nichols' employment be terminated, being a recommendation that was then acted upon by Ms Murphy, being the General Manager of RoadTek. However, on the material before me, Ms Nichols' (apparent) general protections case, that she was dismissed because she made a complaint about a lack of training, mentoring, coaching and supervision at the meeting on 31 March 2022, is weak. It seems to me that the State has a plausible case that the real reason for the termination of Ms Nichols' employment was the negative view taken of her work performance during a period of probation.
  1. [105]
    Secondly, taking her case at its highest, I am not persuaded the Ms Nichols' questions at the Resource Manager's State-wide monthly Skype meeting of other State Resource Managers about their conditions of employment was an '… inquiry in relation to her employment' within the meaning of s 284(1)(c)(ii) of the Act.
  1. [106]
    On Ms Nichols' own evidence, the questions asked by her were about shift allowance received by other employees, were not in relation to her employment and were about other employees. Indeed, in her general protections application she stated that she '… exposed the Operations Manager and the Night Resource Manager for their deal re their own employment conditions.' In addition, there is no evidence that the questions asked by Ms Nichols were in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon her, whether instrumentally or otherwise.
  1. [107]
    Thirdly, even though the State was unable to disprove Ms Nichols' allegation that the real reason for her dismissal was because the Operations Manager and the Resource Manager did not want her to be appointed to the vacant position, then that does not readily lead to a conclusion that Ms Nichols had been dismissed because she exercised a workplace right or because she was discriminated against within the meaning of the Act.

Fairness as between the person and other persons in a similar position

  1. [108]
    No party has been able to point to a case where a person in a similar position to Ms Nichols had or had not been given a further period to make a general protections application.

The circumstances are not exceptional

  1. [109]
    In my view, having regard to all the above matters, the circumstances concerning Ms Nichols' general protections application are not exceptional.
  1. [110]
    Ms Nichols has not provided an acceptable explanation for her delay in making her general protections application:
  • at most, as from the date the State advised her of its jurisdictional objection to her application for reinstatement on 9 May 2022; and
  • at least, as from 10 June 2022 when Ms Nichols informed the Industrial Registry and the State that she wanted her case to be a general protections case.
  1. [111]
    Further:
  • any case that Ms Nichols has made about a lack of supervision, coaching, mentoring and training by her immediate supervisors as being the real reason for her dismissal is weak and the State has a plausible case that the reason for her dismissal was her performance during her period of probation; and
  • I am not persuaded that Ms Nichols' questions at the Resource Manager's State‑wide monthly Skype meeting of other State Resource Managers about whether they were on an IMDSSA Agreement was an inquiry in relation to her employment that she was able to make.
  1. [112]
    For the reasons I have given earlier, I assess the prospects of success of Ms Nichols' general protections claim as weak.
  1. [113]
    I have no doubt that Ms Nichols was and is extremely aggrieved by the decision to dismiss her. Ms Nichols' distress, brought about by her dismissal, was palpable at the hearing of this application.
  1. [114]
    In my view, Ms Nichols' real claim is that her dismissal was unfair because she was not given sufficient or adequate training, mentoring, coaching and supervision. Ms Nichols made her claim as a general protections claim after it came to her attention that her unfair dismissal claim was misconceived. Indeed, by Ms Nichols' letter dated 10 June 2022 to the Industrial Registrar and to the State, she requested that the conference scheduled for 10 June 2022 be '… removed and replaced with an adverse action claim' because, on her reflection, the matter was an adverse action claim as she '… exposed the Night Resource Manager … and the Operations Manager … re lack of attendance and lack of assistance provided to me in the workplace.'[64]
  1. [115]
    In my opinion, the weakness of Ms Nichols' general protections claim is exposed by the fact that she is trying to mould or fit her real claim, that she was unfairly dismissed, into a general protections claim.

Conclusion

  1. [116]
    For these reasons, I am not satisfied that there are exceptional circumstances such that my discretion to allow Ms Nichols a further period of time, to make an application to the Commission to deal with a dispute under ch 8, pt 1 of the Act, is enlivened.

Order

  1. [117]
    I make the following Order:

The Applicant's application for a further period to make an application to the Commission, for the Commission to deal with a dispute under ch 8, pt 1 of the Industrial Relations Act 2016, is dismissed.

Footnotes

[1]The affidavit of Ms Adele Rogers filed on 12 January 2023 ('Exhibit 4'), exhibit 'AR 2', thirty seventh page.

[2]The response filed by the State of Queensland on 13 July 2022 ('Exhibit 5'), attachment 2a.

[3]Exhibit 5, attachment 2b.

[4]Exhibit 5, attachment 2c.

[5]Exhibit 5, attachment 2d.

[6]Exhibit 5, 3a. and 3b.

[7]The affidavit of Ms Corina Nichols filed on 23 November 2022 ('Exhibit 3'), exhibit 'F'.

[8]Exhibit 4, exhibit 'AR-1'.

[9]Exhibit 2, third and fourth pages.

[10]Exhibit 4, exhibit 'AR-1' and the further material filed by Ms Nichols on 23 November 2022 ('Exhibit 2').

[11]Exhibit 4, exhibit 'AR-2'.

[12]Exhibit 4, exhibit 'AR-3'

[13]Exhibit 4, exhibit 'AR-5'.

[14]Exhibit 4, exhibit 'AR-6'.

[15]Exhibit 4, exhibit 'AR-7'.

[16]Exhibit 4, exhibit 'AR-8'.

[17]Exhibit 5, para. 4.

[18]This section is almost the same as s 366(1) of the Fair Work Act 2009.

[19]See Thornton v State of Queensland (Queensland Health) [2020] QIRC 393 ('Thornton'), [39]-[40] (Industrial Commissioner Hartigan, as her Honour then was).

[20]Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901; (2018) 273 IR 156 ('Stogiannidis') (Ross J, Deputy President Biney and Commissioner Harper-Greenwell).

[21]Citations omitted.

[22]Stogiannidis (n 20), [18] (Ross J, Deputy President Biney and Commissioner Harper-Greenwell).

[23]Ibid [14].

[24][2011] FWAFB 975; (2011) 203 IR 1.

[25]See also Thornton (n 19), [41].

[26]At a mention on 28 September 2022, T 1-3, ll 19-29, T 1-5, l 13 to T 1-6, l 19 and T 1-11, ll1-13 and at a further mention on 18 November 2022, T 1-3, ll 11-18.

[27]Ms Nichols further written submissions filed on 10 February 2023 ('Ms Nichols' further submissions'), first page.

[28]The written submissions of the State of Queensland filed on 11 January 2023 ('the State's submissions'), paras. 17-18.

[29]The State's submissions, paras. 19-24.

[30][2020] QIRC 106, [27].

[31]Ms Nichols' further submissions, first page.

[32]Exhibit 4, exhibit 'AR-3'.

[33]T 1-50, l 27 to T 1-51, l 17.

[34]The State's submissions, paras. 25-26.

[35]The State's submissions, paras. 27-28.

[36]Ms Nichols' further submissions, pages 1-3.

[37]Ms Nichols' further submissions, page 3.

[38]Citations omitted.

[39]Fair Work Act 2009 s 340 and s 361.

[40][2021] FCAFC 178; (2021) 288 FCR 301 ('Alam').

[41]Fair Work Act 2009, s 340.

[42]Alam (n 40)[59].

[43]T 1-34, ll 41-43.

[44]Exhibit 5, page 3 of 9.

[45][2022] FCA 677 ('Messenger').

[46]Ibid [141]-[149].

[47]See also Serpanos v Commonwealth of Australia [2022] FCA 1226 ('Serpanos'), [90]-[91] (Snaden J).

[48]T 1-39, l 41 to T 1-40, l 20.

[49]Exhibit 5, attachment 2a.

[50]Exhibit 5, attachment 2b.

[51]Exhibit 5, attachment 2c.

[52]Exhibit 5, attachment 2d.

[53]Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75; (2022) 292 FCR 284, [75] (McElwaine J, Rangiah and Downes JJ at [37] agreeing).

[54]Serpanos (n 47), [87]-[88] (Snaden J).

[55]Messenger (n 45), [150] (Snaden J.)

[56]Exhibit 5, attachment 3 b., pages 1-4.

[57]Exhibit 5, attachment 3 b., pages 4-9.

[58]Exhibit 5, attachment 3b., page 7.

[59]Exhibit 5, attachment 3b., page 8.

[60]Exhibit 4, exhibit 'AR-2'.

[61]T 1-36, ll 11-39.

[62]Exhibit 5, attachment 2d., page 2.

[63]Exhibit 5, attachment 2d., page 2.

[64]Exhibit 4, exhibit 'AR-3'.

Close

Editorial Notes

  • Published Case Name:

    Nichols v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Nichols v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2023] QIRC 182

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 Jun 2023

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
Alam v National Australia Bank Limited [2021] FCAFC 178
2 citations
Jump To
Cite 1 - [2021] FCAFC 178
Cite 2 - [2021] FCAFC 178
Alam v National Australia Bank Limited (2021) 288 FCR 301
2 citations
Jump To
Cite 1 - (2021) 288 FCR 301
Cite 2 - (2021) 288 FCR 301
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
1 citation
Jump To
Cite 1 - [2018] FCAFC 83
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347
1 citation
Jump To
Cite 1 - (2018) 261 FCR 347
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
1 citation
Jump To
Cite 1 - (2014) 253 CLR 243
Dickson v Mornington Shire Council [2020] QIRC 106
2 citations
Jump To
Cite 1 - [2020] QIRC 106
Cite 2 - [2020] QIRC 106
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
2 citations
Jump To
Cite 1 - [2022] FCAFC 75
Cite 2 - [2022] FCAFC 75
Jess v Cooloola Milk Pty Ltd (2022) 292 FCR 284
2 citations
Jump To
Cite 1 - (2022) 292 FCR 284
Cite 2 - (2022) 292 FCR 284
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
2 citations
Jump To
Cite 1 - [2022] FCA 677
Cite 2 - [2022] FCA 677
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
1 citation
Jump To
Cite 1 - (2015) 238 FCR 273
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
1 citation
Jump To
Cite 1 - [2015] FCAFC 157
Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
1 citation
Jump To
Cite 1 - [2014] HCA 41
Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
2 citations
Jump To
Cite 1 - [2011] FWAFB 975
Cite 2 - [2011] FWAFB 975
Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
2 citations
Jump To
Cite 1 - (2011) 203 IR 1
Cite 2 - (2011) 203 IR 1
Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901
2 citations
Jump To
Cite 1 - [2018] FWCFB 901
Cite 2 - [2018] FWCFB 901
Serpanos v Commonwealth of Australia [2022] FCA 1226
2 citations
Jump To
Cite 1 - [2022] FCA 1226
Cite 2 - [2022] FCA 1226
Short v Ambulance Victoria [2015] FCAFC 55
1 citation
Jump To
Cite 1 - [2015] FCAFC 55
Short v Ambulance Victoria (2015) 249 IR 217
1 citation
Jump To
Cite 1 - (2015) 249 IR 217
Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) (2018) 273 IR 156
2 citations
Jump To
Cite 1 - (2018) 273 IR 156
Cite 2 - (2018) 273 IR 156
Tattsbet Ltd v Morrow (2015) 233 FCR 46
1 citation
Jump To
Cite 1 - (2015) 233 FCR 46
Tattsbet Ltd v Morrow [2015] FCAFC 63
1 citation
Jump To
Cite 1 - [2015] FCAFC 63
Thornton v State of Queensland (Queensland Health) [2020] QIRC 393
2 citations
Jump To
Cite 1 - [2020] QIRC 393
Cite 2 - [2020] QIRC 393

Cases Citing

Case NameFull CitationFrequency
Eicens v State of Queensland (Queensland Corrective Services) [2024] QIRC 2565 citations
Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 2402 citations
Naidoo v Scenic Rim Regional Council [2024] QIRC 1343 citations
1

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