Keating v State of Queensland (Queensland Health)
[2024] QIRC 122
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- Unreported Judgment
- Keating v State of Queensland (Queensland Health)[2024] QIRC 122
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Keating v State of Queensland (Queensland Health)[2024] QIRC 122
Keating v State of Queensland (Queensland Health)[2024] QIRC 122
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Keating v State of Queensland (Queensland Health) [2024] QIRC 122 |
PARTIES: | Keating, Janine (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/165 |
PROCEEDING: | Public Sector Appeal – Appeal against a directive decision |
DELIVERED ON: | 20 May 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: | The Commission declines to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld). |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – consideration under s 562A of the Industrial Relations Act 2016 (Qld) whether to dismiss appeal – where appellant formerly employed by the respondent – where appellant lodged an individual employee grievance – where appellant brought appeal after employment ceased – whether the Commission should continue to hear the appeal – compelling reasons not to continue appeal – decision on appeal will have no practical effect on appellant’s employment – appeal dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A, s 562B, s 562C Public Sector Act 2022 (Qld) s 133 |
CASES: | Keating v State of Queensland (Queensland Health) [2024] QIRC 058 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 |
Reasons for Decision
- [1]This decision assumes familiarity with the decision in Keating v State of Queensland (Queensland Health) (‘the unfair dismissal proceedings’).[1] That decision sets out much of the factual background from which this matter arises as between Ms Keating and her former employer the State of Queensland (Queensland Health) (‘the respondent’).
- [2]On 15 August 2023, Ms Keating filed an Appeal Notice (‘the PSA’) challenging the internal review decision of Ms Pauline McGrath, Chief Operating Officer, Central Queensland Hospital and Health Service (‘CQHHS’) (‘the decision’). The decision concluded that Mr Jamie Spencer, General Manager, CQHHS, fairly and reasonably investigated and resolved a grievance lodged by Ms Keating in September 2022.
- [3]The PSA was filed at approximately the same time as the unfair dismissal proceedings. Both matters were allocated to the Commission as currently constituted for final determination.
- [4]Directions for the filing of submission in the PSA were made on 30 October 2023. Relevantly, the directions indicated the matter would be dealt with on the papers.
- [5]The parties filed submissions in the PSA matter in accordance with the directions. In particular, the respondent filed submissions on 27 November 2023 that included a submission that the Commission should decline to deal with the PSA pursuant to s 562A of the Industrial Relations Act 2016 (Qld) (‘IR Act’). Relevantly, the submissions of the respondent regarding s 562A of the IR Act included a submission that Ms Keating did not have standing to bring the PSA because, by virtue of her dismissal, she was not ‘a public sector employee’ within the meaning of s 133(b) of the Public Sector Act 2022 (Qld) (’PS Act’) (‘the jurisdictional challenge’).[2]
- [6]On 4 December 2023 the unfair dismissal proceedings were listed for mention. At that mention the parties settled on suitable dates for hearing in Gladstone in early 2024 and a listing notice was subsequently issued. The PSA was also discussed at this mention. The respondent’s jurisdictional challenge was raised with the parties. Given the Commission could not conclusively deal with the respondent’s submission about Ms Keating’s standing until the dismissal proceedings were resolved, it was ultimately determined by the Commission to vacate the directions issued in the PSA and place it in abeyance until the unfair dismissal proceedings had resolved.
- [7]Following an email to the Registry from Ms Keating on 20 December 2023, it became apparent that she was conflating the directions issued to her in the PSA with those issued in the unfair dismissal proceedings. In essence, concerns arose when Ms Keating enquired in her email as to whether she needed to attend the hearing in Gladstone, as she understood the matter was being dealt with on the papers.
- [8]Consequently, the unfair dismissal proceedings were listed for further mention on 9 January 2024 where Ms Keating was reminded that the PSA was now in abeyance pending conclusion of the unfair dismissal proceedings.
- [9]The hearing in the unfair dismissal proceedings took place on 20 and 21 February 2024. A decision dismissing Ms Keating’s application was delivered ex tempore on 21 February 2024. Ms Keating did not appeal that decision.
- [10]Following the lapse of the statutory period for appeal of the decision in the unfair dismissal proceedings, the PSA was listed for further mention on 2 April 2024. On that occasion, noting the submissions of the respondent pursuant to s 562A of the IR Act, Ms Keating was then advised the Commission was considering not dealing with the PSA. Ms Keating was directed to file submissions outlining why she had ‘an arguable case’.[3]
- [11]The matter for determination is whether the Commission should exercise its discretion to not hear the PSA.
The Commission’s discretion
- [12]Section 562A of the IR Act affords the Commission with a discretion not to hear particular public sector appeals. That section relevantly provides:
562A Commission may decide not to hear particular public service appeals
...
(3) The commission may decide it will not hear a public service appeal against a decision if –
(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
(b) 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 –
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
(Emphasis added)
Submissions
- [13]On 2 April 2024, a Directions Order was issued requesting submissions from the parties addressing whether Ms Keating has an arguable case pursuant to s 562A of the IR Act. The matter has been subsequently dealt with on the papers.[4]
- [14]These reasons will not extensively recount the submissions of the parties. This is particularly so in relation to the submissions of Ms Keating which are, with respect, entirely unhelpful. None of Ms Keating’s submissions speak to why she has an arguable case in this appeal. Instead, they canvas largely irrelevant material, and seek to re-agitate issues arising out of the (now concluded) dismissal proceedings and other matters currently before the Commission.[5]
- [15]As for the respondent’s submissions, their overarching themes are set out earlier in these reasons.
Consideration
- [16]With respect to the alternative submissions of the respondent, the Commission accepts that there is a compelling reason not to hear Ms Keating’s appeal.
- [17]In Venables v State of Queensland (Queensland Health) (‘Venables’),[6] Deputy President Merrell concluded as follows:
[20] Having considered the submissions of both Ms Venables and the Department, my view is that I should exercise my discretion and not hear Ms Venables ' appeal. This is for the compelling reason that given that Ms Venables is no longer an employee, there can be no practical effect from any decision I make in respect of her appeal.
[21] If I confirmed the decision appealed against, that decision can be of no effect on Ms Venables because her employment has been terminated.
[22] Similarly, if I set the decision appealed against aside and substituted a new decision, namely, that Ms Venables should have been granted an exemption under the Directive, that decision can have no practical effect on Ms Venables because she is no longer an employee.
[23] In my view, in general, the Commission's time should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee's continued employment. In Ms Venables' case, any decision I make will have no practical effect on her continued employment.
[24] This is a compelling reason not to hear Ms Venables' appeal.
(Emphasis added)
- [18]While the substance of the appeal in Venables is different to Ms Keating’s, both matters arise in circumstances where the appellant’s employment had been terminated in circumstances of misconduct. Certainly, in Ms Keating’s case, the validity of the termination of her employment has been finally determined.
- [19]In those circumstances, there is no utility in further considering Ms Keating’s PSA. Even if a finding was made that the decision under review was unfair and unreasonable, the only appropriate remedy available pursuant to the IR Act would be to return the matter to the decision maker for further consideration, in the form of a further internal review of Mr Spencer’s decision.[7]
- [20]Given Ms Keating’s employment ended in July 2023, any further consideration of her grievance could have no practical effect on her continued employment. Further, as the facts in the unfair dismissal proceedings reveal, Ms Keating’s overt antipathy towards the respondent and the serious nature of her misconduct make any prospect of reemployment highly improbable. Any further review of the grievance would therefore be an entirely pointless and improper use of public funds.
- [21]Having arrived at this conclusion, it is not necessary to deal with the respondent’s alternative submission about Ms Keating’s standing to bring her PSA.
Conclusion
- [22]For the reasons given above, there is a compelling reason to decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the IR Act.
Order
- [23]In all of the circumstances, I make the following order:
The Commission declines to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld).
Footnotes
[1] 2024 [QIRC] 058. In short, Ms Janine Keating is a former employee of the respondent. The respondent terminated Ms Keatings employment on 10 July 2023 on the grounds of misconduct. Ms Keating challenged her termination via the unfair dismissal proceedings, but her application was dismissed. Ms Keating did not appeal that decision.
[2] Alternatively, the respondent submits that there is a ‘compelling reason’ not to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) (‘IR Act’).
[3] IR Act (n 2) s 562A(3)(b)(iii).
[4] Ibid s 451(1).
[5] In addition to the unfair dismissal proceedings and the PSA, Ms Keating also has an appeal against a decision of the Workers Compensation Regulator currently awaiting determination by another member of the Commission.
[6] [2022] QIRC 137, [20]–[24].
[7] IR Act (n 2) s 562C. Note, an internal review of a decision dismissing a grievance is not a decision amendable to the Commission substituting its own decision.