McIntosh v Mantra Legends Hotel
[2024] QIRC 113
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- Unreported Judgment
- McIntosh v Mantra Legends Hotel[2024] QIRC 113
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McIntosh v Mantra Legends Hotel[2024] QIRC 113
McIntosh v Mantra Legends Hotel[2024] QIRC 113
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McIntosh v Mantra Legends Hotel [2024] QIRC 113 |
PARTIES: | McIntosh, Sean Robert (Applicant) v Mantra Legends Hotel (Respondent) |
CASE NO.: | B/2022/32 |
PROCEEDING: | Recovery of pro-rata long service leave |
DELIVERED ON: | 13 May 2024 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDERS: | That matter B/2022/32 is dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld). |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the complainant was directed to attend a conference and failed to do so – where the complainant failed to comply with directions – consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld), r 45 |
CASES: | Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59 Quinlan v Rothwell & Anor [2002] 1 Qd R 647 Scott v State of Queensland & Ors [2019] QIRC 115 Workers' Compensation Regulator v Varga [2019] QIRC 028 |
Reasons for Decision
- [1]Mr Sean Robert McIntosh ('the Applicant') filed an application ('the Application') in the Queensland Industrial Relations Commission ('the Commission') seeking proportionate payment of long service leave from his former employer, Mantra Legends Hotel ('the Respondent').
- [2]The Respondent filed a response to the Application, outlining the following:
…
- 24 August 2021, Mr Sean Roberts voluntarily resigned from Accor…;
- Attempts are made by managers, Mr Donald Murray, Ms Lynn Zhai to ask Mr Roberts to seek feedback regarding his resignation, however did not receive a response;
- Miss Hanah M'Kery from Human Resources also attempts to call and email Mr Roberts…, however without success of response.
- 05 September 2021 Mr Roberts resignation is processed and employment terminated, in line with last working day;
- 11 October 2021, Mr Roberts contacts Ms Zhai advising he had not received his Long Service Leave (LSL) payment;
- 18 October 2021, Miss M'Kery attempts to call and email Mr Roberts… and states under the Sunleisure Agreement… he is not eligible, as per Clause 5.4, however did not receive a response
- After 5 years' Service - Long Service Leave can be taken as leave however is not payable upon termination under QLD LSL legislation until completion of 10yrs continuous service, unless set criteria met.
- 2 November 2021, a letter was received by [sic] Mr Roberts…;
- Mrs Amy Watts, Vice President of Talent & Culture makes multiple attempts to contact via telephone however does not receive a response.
No further communications have been received from Mr Roberts until now. Mr Roberts has never provided the reason for his resignation or reasons why he would be eligible for payment of Long Service Leave under QLD LSL legislation.
…
- [3]Following the filing of the Application, a notice of listing was sent to parties scheduling a telephone conciliation conference ('the conference') for 8 June 2022.
- [4]On 8 June 2022, the Applicant did not attend the conference as directed on the notice of listing and was unable to be contacted. The Registry forwarded correspondence to the Applicant, advising that the Registry was unable to contact him on the contact details provided and requesting that he make contact with the Industrial Registry as a matter of urgency.
- [5]The Applicant subsequently sent a number of one-sentence emails to the Registry inquiring as to when his long service leave will be paid.
- [6]On the afternoon of 8 June 2022, the following email was sent to the Applicant by the Commission:
Dear Mr Mcintosh,
…
As you were aware, a telephone conference was listed… today 8 June 2022 at 12.00pm. However, the Commission was unsuccessful in making contact with you for the conference.
The Commission attempted to make contact with you on the following telephone numbers which were unsuccessful:
…
An email was subsequently sent to you shortly after, requesting for you to contact the Industrial Registry as a matter of urgency.
The purpose of the conference is for parties to present their position regarding the matter and to see whether the matter could be resolved without it proceeding to a hearing.
Can parties please provide their availability for a rescheduled conference for the following dates:
- Monday, 20 June 2022 at 10.00am; and
- Tuesday, 21 June 2022 at 2.00pm.
Please note that failure to participate in any further conference may lead to the application being dismissed.
…
- [7]No response was received from the Applicant and on 15 June 2022, the Commission sent the following email to the Applicant:
Dear Mr Mcintosh,
…
Further to the email of the Industrial Registry sent on 8 June 2022, the Commission again notes that:
- the Commission attempted to call you on … and … for the conference on 8 June 2022 at 12.00pm and were unsuccessful; and
- an email was sent to you shortly after, requesting for you to contact the Industrial Registry as a matter of urgency.
Can you please let the Commission know, by replying to this email or by calling the Industrial Registry on 1300 592 987, whether you would like to continue with this application.
Please note that failure to respond or make contact with the Industrial Registry may result in your application being dismissed.
- [8]On 15 June 2022, the Applicant informed the Commission that he would 'like to continue with the application' and on 16 June 2022, the Commission requested parties provide their availability for conference on either 28 or 29 July 2022.
- [9]The Respondent provided their availability as requested. The Applicant, however, provided his availability for a date not outlined in the email from the Registry. No further emails were received from the Applicant regarding his availability for conference on 28 and 29 July 2022.
- [10]On 28 and 29 June 2022, the Applicant sent further one-sentence emails to the Commission, asking that his long service to be paid.
- [11]On 30 June 2022, the Commission sent an email to the Applicant, requesting that he contact the Industrial Registry via telephone regarding the Application. The Applicant did not contact the Industrial Registry via telephone as requested and instead sent further emails to the Commission which were similar in nature to those as outlined above at [5] and [10].
- [12]Following the failure to comply with directions with respect to the Application, a Directions Order was issued on 11 July 2022 requiring both parties to provide written submissions on whether the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').
- [13]Neither parties filed submissions in accordance with the Directions Order.
Relevant legislative provision
- [14]Rule 45 of the Rules provides that the Commission may dismiss a proceeding in a number of circumstances including if a party fails to comply with directions made by the Commission:
45 Failure to attend or to comply with directions order
- This rule applies if—
- 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
- the party fails to attend the hearing or conference.
- This rule also applies if—
- a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
- the party fails to comply with the order.
- The court, commission or registrar may—
- dismiss the proceeding; or
- make a further directions order; or
- make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
- make orders under paragraphs (b) and (c).
Consideration
- [15]
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.
- [16]In the matter of Scott v State of Queensland & Ors,[3] Vice President O'Connor stated that although the matter in Quinlan related to the application of the Uniform Civil Procedure Rules 1999 (Qld), the reasoning of Thomas JA has equal application to the matter in those proceedings involving the application of r 45 of the Rules.
- [17]
…unconfined, except for the condition of non-compliance with a direction ... [b]ut 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 cooperate 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.
…
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 cooperate 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.
- [18]The Applicant did not attend the conference in accordance with the Directions Order and did not respond to attempts by the Commission to re-schedule the matter. Instead, the Applicant sent multiple one-line emails to the Commission, simply demanding that he be paid out his long service leave. Further, the Applicant made no submissions in accordance with the Directions Order regarding the potential dismissal of the matter.
- [19]The Applicant's non-compliance indicates an unwillingness or inability to engage with the Commission to progress the matter to either conciliation or hearing and determination. I am satisfied that the Applicant's failure to comply with the Directions Order provides appropriate grounds to dismiss the Application pursuant to r 45(3)(a) of the Rules.
Order
- [20]I make the following orders:
That matter B/2022/32 is dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld).