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- Rossi v State of Queensland (Queensland Corrective Services)[2024] QIRC 106
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Rossi v State of Queensland (Queensland Corrective Services)[2024] QIRC 106
Rossi v State of Queensland (Queensland Corrective Services)[2024] QIRC 106
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rossi v State of Queensland (Queensland Corrective Services) [2024] QIRC 106 |
PARTIES: | Rossi, Maria (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO: | PSA/2023/166 |
PROCEEDING: | Public Sector Appeal |
DELIVERED ON: | 8 May 2024 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDERS: | That the appeal is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011. |
CATCHWORDS: | PUBLIC SECTOR APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where appellant failed to comply with directions orders – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – where appeal is dismissed |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 562A Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45 |
CASES: | Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144 Cooper v Hopgood & Ganim [1998] QCA 114 House v R (1936) 55 CLR 499 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200 Quinlan v Rothwell & Anor [2001] QCA 176 Seymour v Workers' Compensation Regulator [2017] QIRC 061 Smith v Workers' Compensation Regulator [2017] QIRC 070 Workers' Compensation Regulator v Varga [2019] QIRC 028 |
Reasons for Decision
Background
- [1]On 17 August 2023, Ms Maria Rossi (the Appellant) filed an Appeal of the decision of Assistant Commissioner Eloise Hamlett ACM, Central and Northen Region Command of Queensland Corrective Services (the Respondent), in relation to an Individual Employee Grievance (IEG) she submitted against the then Acting Business Service Manager, Mr Michael Czarnecki.
- [2]On 16 February 2023, in accordance with the Individual Employee Grievances Directive 11/20 (the Directive), the Appellant submitted an IEG to Chief Superintendent Ms Gabrielle Payne (the Decision Maker), outlining grievances she had with Mr Czarnecki.[1]
- [3]The Appellant outlined in her IEG that she was subjected to a consistent pattern of bullying and inappropriate behaviour by Mr Czarnecki and that she was adversely impacted in her career progression due to a misuse of authority and interference with Mr Czarnecki.[2]
- [4]On 24 May 2023, the Decision Maker provided an Employer's Response to the Appellant's IEG (the IEG Decision), advising that:
Following the actions taken to manage the grievance, my decision in respect to the allegations are as follows:
That the employee was subject to bullying and inappropriate behaviour by the subject officer is unsubstantiated.
That the employee was subject to unfair and bullying behaviour by the subject officer is unsubstantiated.
That the employee was adversely impacted in their career progression due to a misuse of authority and interference by the subject officer is unsubstantiated.[3]
- [5]On 6 June 2023, the Appellant submitted a Request for an Internal Review of the IEG Decision. The Appellant outlined several factors as to why the decision about her IEG was unfair and unreasonable. In summary, she outlined that:
- The delegation and review process were not undertaken in accordance with the Directive.
- She disputed the findings that bullying, unfair behaviour, and inappropriate behaviours were not able to be substantiated.
- She disputed the findings that her career progression was adversely impacted due to a misuse of authority and interference were not able to be substantiated.[4]
- [6]On 21 July 2023, Assistant Commissioner Eloise Hamlett ACM wrote to the Appellant with the findings that the IEG Decision met the requirements of the Directive and that all decisions made by the Decision Maker were fair and reasonable. That is the decision subject of this Appeal.
The Directions Order
- [7]On 22 August 2023, I issued a Directions Order to progress this Appeal in which I ordered the following:
- 1.That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than five pages in length and any relevant attachments) in further support of the Appeal Notice by 4.00 pm on 29 August 2023.
- 2.That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions (of no more than five pages in length and any relevant attachments) in response to the Appellant's submissions by 4.00 pm on 5 September 2023.
- 3.That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) in reply to the submissions of the Respondent, by 4.00 pm on 12 September 2023.
- 4.Unless any party files an application by 4:00pm on 13 September 2023 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld).
- [8]Pursuant to the 22 August 2023 Directions Order, the Appellant's submissions in support of her Appeal Notice were due by 29 August 2023. No submissions were filed with the Industrial Registry by that date, no explanation for the non-compliance was provided and no extension was sought.
- [9]On 30 August 2023, the Respondent emailed the Industrial Registry and advised the following:
I note the Directions Order below and advise that the Respondent is yet to be served the Appellant's filed submissions. If your office is in receipt of the Appellant’s filed submissions, may you please forward the submissions to this address.[5]
- [10]The Respondent copied the Appellant into that correspondence.
- [11]On 31 August 2023, the Industrial Registry responded by advising, "The Appellant has not filed any submissions in the Industrial Registry." The Industrial Registry copied the Appellant into that correspondence.
- [12]The Respondent wrote back to the Industrial Registry later that day, advising that "If the Commissioner intends to proceed with the matter without the Appellant's submissions, the Respondent respectfully requests further directions making appropriate adjustments to the filing dates to facilitate these submissions."[6]
- [13]On 5 September 2023, through the Industrial Registry, I amended the 22 August 2023 Directions Order and granted an extension of time for the Respondent to file and serve their written submissions by 12 September 2023. In that correspondence, I extended the timeframe for the subsequent Directions, including for the Appellant to file and serve her submissions in reply to those of the Respondent (the Amended Directions).[7]
- [14]In accordance with the Amended Directions, the Department filed and served its written submissions on 12 September 2023.
- [15]Pursuant to the Amended Directions, the Appellant's submissions in reply were due by 19 September 2023. No submissions were filed with the Industrial Registry by that date and no extension was sought.
- [16]In email correspondence dated 17 October 2023, I advised the parties through the Industrial Registry:
A Directions Order was issued on 22 August 2023 directing Ms Rossi to file submissions in support of her Appeal Notice. That direction has not been complied with. Further, no communication was received from Ms Rossi requesting an extension of time.
In accordance with the Directions Order, the Respondent filed their submissions within the required timeframe after seeking an extension of time to do so. I note that the date for Ms Rossi’s reply submissions to be filed has now passed. The two points of non-compliance with Directions combined with a lack of communication with the Industrial Registry seeking an extension of time would enliven the question as to why this appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).
Please find attached a Directions Order issued today at the hand of Industrial Commissioner McLennan. If Ms Rossi does not intend to proceed with the Appeal, a Form 27 Request to discontinue proceeding should be filed and can be accessed here: Forms | Queensland Industrial Relations (qirc.qld.gov.au).
- [17]Attached to that email correspondence, I issued a Directions Order dated 17 October 2023, requiring submissions as to why this Appeal ought not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Tribunal Rules).
Submissions
- [18]The Appellant filed submissions on 23 October 2023 in accordance with the Directions Order dated 17 October 2023.
- [19]The Respondent filed submissions on 27 October 2023 in accordance with the Directions Order dated 17 October 2023.
- [20]The Appellant filed submissions in reply on 31 October 2023 in accordance with the Directions Order dated 17 October 2023.
- [21]I have carefully considered the submissions made and have determined not to approach the writing of this decision by summarising the entirety of those submissions but will instead refer to the key arguments in my consideration.
Relevant Principles
- [22]Rule 45 of the Tribunal Rules:
45 Failure to attend or to comply with directions order
(1) This rule applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b) the party fails to attend the hearing or conference.
(2) This rule also applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(b) the party fails to comply with the order.
(3) The court, commission or registrar may—
(a) dismiss the proceeding; or
(b) make a further directions order; or
(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
(d) make orders under paragraphs (b) and (c).
Consideration
- [23]In the 17 October 2023 Directions Order, the parties were directed to make submissions with respect to r 45 of the Tribunal Rules.
- [24]I note that the non-compliance issue could also be considered under s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) (IR Act) which provides that "The commission may decide it will not hear a public service appeal against a decision if - the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal - should not be heard for another compelling reason." As r 45 of the Tribunal Rules specifically pertains to the issue of failing to comply with a directions order and is a clear rule for both parties to respond to, I will proceed on that basis.
- [25]The power under r 45(3)(a) of the Tribunal Rules involves an exercise of discretion. Foremost, discretionary powers must be "exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."[8] In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.[9]
- [26]In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[10] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunal Rules. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):
As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[11]
- [27]
- [28]The Appellant has certainly demonstrated a history of non-compliance, indicating an inability or unwillingness to co-operate with the Commission. On several occasions, the Appellant was issued correspondence from the Industrial Registry and copied into correspondence from the Respondent that ought to have served as a reminder of her obligations under the Directions Orders and a prompt to action the requirements.
- [29]The Appellant submitted that she did not receive the 22 August 2023 Directions Order, or other correspondence from the Commission or Respondent, as (emphasis added):
- 1.From the 16 August 2023 I left Australia for a 10-week holiday around Europe through a range of Countries. I confirm that I did not receive the directions as identified on my mobile device due to intermitted access whilst travelling through a variety of countries during this time. Some of these being Switzerland, France, Italy including Rome, Cascia, Villamanga and surrounding county towns, Bari, Casalduni, Naples, Riccione, Rimini, San Marino, Tuscany, Chianti, Sienna, Pisa, Cinque Terre, Treviso, Venice Verona and surrounding country towns. Many of these areas needing updated phone access for email communications via my Bigpond account internationally.
- 2.I confirm that I have received in my travel Internationally, two emails 18 August (confirmation of appeal filed 17 August) and the 12 September 2023 (when in Italy- Rome) which was documented as being the respondent’s submission in accordance with the direction of Commissioner McLennan via Senior Advisor, Employee Relations, People Capability Command – Liam Ross. This was received via international email through my Australia Bigpond account to my mobile device.[15]
- [30]I do not accept the Appellant's travel as a legitimate excuse for not complying with the Directions Order. At any point prior to or immediately after filing her Appeal Notice, the Appellant ought to have informed herself of the process of a Public Sector Appeal. This would have included advising the Commission of her overseas holiday and requesting to comply with Directions Orders at a time when she returned from the country. She was at all times capable of informing the Commission of her intended holiday and apparent inability to comply with any Directions while on it.
- [31]I am not satisfied by the submissions raised by the Appellant as to why this appeal ought to continue.
- [32]The Appellant submitted that her "work email is not accessible from outside of the organisation".[16] While I appreciate that the Appellant would not be checking her work emails while on a period of leave while overseas, the correspondence from the Commission included the Appellant's personal email address.
- [33]The Appellant claims during the period she was away that (emphasis added):
- 3.During this period, I have confirmed that I received two emails and correspondence for my appeal, though did not receive the direction notices in question hence the lack of communication or response and my awareness that I was offered the opportunity to provide a submission/response to the respondents claims.
- 4.It has now been identified that I had not been receiving all emails that were sent to my account whilst overseas and I was not aware of the direction affording me the opportunity to provide a submission in respect to the respondent’s submission and all reports that was provided within this.
…
- 6.On the 20 October I received a direction order dated 17 October 2023 which noted that I had not responded to a direction order from the 22 August requesting a response to “Why” my appeal should proceed. I had not received this direction as noted. I was shocked and upset that it appeared to Industrial Commissioner, R.D.H McLennan that I was not acting upon my appeal and responding to direction orders. I searched my emails on my mobile device, to no avail. I maintain my stance within my concerns of this appeal and would not jeopardise the appeal process by failing to comply with any orders if I was aware of these.
- 7.I immediately made contact on the 20 October with a family member still in Australia in my hometown (noting the large time difference) and requested that they review my home computer for the stated direction order of 22 August and any other correspondence in relevance to my appeal. This has been forwarded to me and includes the direction orders and correspondence of 5 September 2023. I received these on the 21 October 2023 for review.
- [34]Relevantly, the Appellant signed a statement at page four of the Appeal Notice confirming that she will "undertake to make myself available to progress the appeal." She did not do so.
- [35]There is no reason why the Appellant could not have ensured that her personal email remained monitored after filing her Appeal. When the Appellant received the email dated 17 October 2023 from the Industrial Registry requesting submissions as to why the Appeal should not be dismissed, she submitted that contacted a family member to access her emails at home and forward them to her. While still on holiday, the Appellant provided that after a family member forwarded the emails to her, she was able to review the Directions Orders and correspondence on 21 October 2023.[17] The Appellant acknowledged that she was in receipt of the email from the Industrial Registry dated 18 August 2023 confirming the filing of her Appeal notice, and the 12 September 2023 email from the Respondent which she referred to as the "Respondent's submission in accordance with the direction of Commissioner McLennan".[18] At the juncture of receiving the 12 September 2023 email, it would have been apparent to the Appellant that a Directions Order had been issued in her matter. Her failure to make enquiries about what the Directions Order contained, does not excuse her non-compliance. The Appellant should have made such enquiries to her family members at home to retrieve the Directions Order that she was apparently unaware of while overseas, or at least, enquired with the Industrial Registry about "what" the Directions Order contained.
- [36]The Appellant's failure to understand or inform herself of the Commission's processes is not a reasonable justification for the Appellant's inability to comply with the Directions Order. The Appellant was also aware of the email of the Registry email dated 18 August 2023, an email which provided a link to the Public Sector Appeal Guide and requested all parties to "ensure that you carefully read all emails and open all attachments sent from the Queensland Registry". It is apparent that the Appellant did not do so.
- [37]I am not convinced by the Appellant's argument that she was unaware that a Directions Order had been issued. It is apparent that the Appellant was aware by virtue of the 12 September 2023 email that a Directions Order was issued, and the Appellant demonstrated an unwillingness or inability to comply with the Directions Order.
- [38]The Appellant's default imposes an unacceptable burden on the Respondent. The Respondent has already filed their written submissions in response to the information provided on the Appeal Notice in accordance with the 22 August 2023 Directions Order (Amended on 5 September 2023). If the appeal were to continue, the Respondent would have to start afresh with its defence of the Appeal, having to review any submissions made by the Appellant and respond months after the initiation of the Appeal. The Appellant's non-cooperation with the Directions Order has already caused unnecessary expense, delay, and prejudice to the Respondent.
- [39]The Appellant's continuous disregard for timelines has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondent's detriment. For that reason, I am not convinced that giving further chances to explain and adhere to the Directions Orders is appropriate as the Appellant has already evinced disregard and an intention to proceed with the matter on her own terms. This approach leaves the Respondent in limbo with an appeal filed against them.
- [40]Noting that the Appellant has failed to comply with two sets of Directions Orders, the cumulative effect of her non-compliance is substantial enough to satisfy me that the Appellant is either unwilling to comply or unable to do so and as a result, the Respondent's case is prejudiced.
- [41]In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunal Rules, as set out in r 6:
- 6Purpose of rules
The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.
- [42]The terms 'just' and 'expeditious' may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (emphasis added):
There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.[19]
- [43]While his Honour was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions[20] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.
- [44]In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded:
The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings.[21]
- [45]Time limits are imposed to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with Directions is inconsistent with r 6 of the Tribunal Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter.
- [46]Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunal Rules to dismiss the Appellant's appeal.
Conclusion
- [47]Based on the reasons I have outlined above, these proceedings ought to be dismissed under r 45(3)(a) of the Tribunal Rules.
Order
- [48]I make the following order:
That the appeal is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.
Footnotes
[1] Appeal notice filed 17 August 2023, Attachment 'Lodging an Individual Employee Grievance – Form A'.
[2] Ibid 2.
[3] Ibid 'Employer's Response to an Individual Employee Grievance – Form B', 4.
[4] Ibid 'Request for internal review of a decision about an individual employee grievance – Form C'.
[5] Email from Mr L. Ross, Senior Advisor, Employee Relations, People and Capability Command, Queensland Corrective Services to the Industrial Registry (cc the Appellant), dated 30 August 2023.
[6] Email from Mr L. Ross, Senior Advisor, Employee Relations, People and Capability Command, Queensland Corrective Services to the Industrial Registry (cc the Appellant), dated 31 August 2023.
[7] Email from the Industrial Registry to all parties dated 5 September 2023.
[8] House v R (1936) 55 CLR 499, 503.
[9] Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.
[10] [1990] 98 ALR 200.
[11] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210.
[12] [2019] QIRC 028.
[13] [2017] QIRC 061.
[14] [2019] QIRC 144.
[15] Appellant's submissions filed 23 October 2023.
[16] Appellant's submissions in response filed 31 October 2023, [5].
[17] The Appellant provided in her email to the Industrial Registry containing her submissions dated 23 October 2023, that she would be returning to Australia on 28 October 2023.
[18] Appellant's submissions dated 23 October 2023, [2].
[19] Quinlan v Rothwell & Anor [2001] QCA 176, 8.
[20] See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.
[21] [2017] QIRC 070, [10].