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Pardal De Souza Dias v State of Queensland (Department of Environment and Science)[2024] QIRC 17

Pardal De Souza Dias v State of Queensland (Department of Environment and Science)[2024] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pardal De Souza Dias v State of Queensland (Department of Environment and Science) [2024] QIRC 17

PARTIES:

Pardal De Souza Dias, Francisco

(Applicant)

V

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO:

TD/2023/75

PROCEEDING:

Application for reinstatement

DELIVERED ON:

5 February 2024

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

The Respondent's application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – JURISDICTIONAL OBJECTION – where applicant applies for reinstatement – where employer submits jurisdictional objection – where applicant's temporary contract was ended before stipulated end date – whether the applicant was employed for a "specified period or task" – whether discretion to dismiss proceeding should be exercised – whether it is in the public interest to hear the matter – where proceedings not dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 315, s 317, s 531, s 541

Public Sector Act 2022 (Qld)

Public Service Act 2008 (Qld)

CASES:

State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057

Campbell v Queensland [2019] ICQ 18

Reasons for Decision

Introduction

  1. [1]
    Mr Fransisco Pardal De Souza Dias ('the Applicant') was employed by the State of Queensland, Department of Environment and Science ('the Department') in the position of Senior Scientist. The Applicant was employed on a fixed term temporary full-time basis. The letter of appointment dated 5 July 2022 states that the employment with the Department commenced on 25 July 2022 and that the employment would cease on 31 October 2023.  
  1. [2]
    By letter dated 12 May 2023, the Executive Director, Dr Paul Lawrence wrote to the Applicant advising him that due to operational requirements in the Department's future workforce, the Applicant's employment would cease on 16 June 2023, some four months before the stated end date of the contract of employment.
  1. [3]
    On 5 July 2023 the Applicant filed an application for reinstatement. The Applicant contends that the dismissal was harsh, unjust and unreasonable and relies on the following, as relevantly summarised, in support of his position:
  1. a)
    that there were "no operational changes" affecting the Applicant's position;
  2. b)
    that following the Applicant's dismissal, his former position still exists;
  3. c)
    that there was no "notification" or "consultation" provided to employees who were affected by the operational change;
  4. d)
    that the dismissal has caused "unnecessary emotional and financial strain" on the Applicant and his family;
  5. e)
    that because the Applicant's contract was extended until 30 June 2026, the Applicant "had a reasonable expectation of continuity of employment until 2026'';
  6. f)
    it is unclear how operational changes only "affected the temporary employment of some employees and not others"; and
  7. g)
    that the Applicant was advised by the Department on 14 June 2023 that he would be rehired in the same role following his dismissal, however on 15 June 2023 the Department advised that "no rehiring would take place anymore".
  1. [4]
    The Department raises a jurisdictional objection to the application and seeks to rely on s 315(1)(d) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). Relevantly, s 315(1)(d) of the IR Act provides that the unfair dismissal provisions of the IR Act do not apply to, inter alia, an employee engaged for a "specific period or task". In the alternative to the jurisdictional objection, the Department submits that it is not in the public interest to hear the application pursuant to s 531(5) and s 541of the IR Act.
  1. [5]
    The Commission issued directions for the parties to file written submissions with respect to the jurisdictional objection. Relevantly, the Applicant was also invited to respond, inter alia, in writing to the Department's submission that the Commission should exercise its discretion not to hear the application in the public interest. Both parties complied with the directions, with the final written submissions having been filed on 30 November 2023.
  1. [6]
    The questions for my determination are as follows:
  1. (a)
    is the Applicant excluded from making an application for reinstatement by the operation of s 315(1)(d) of the IR Act?; and/or
  2. (b)
    if the Applicant is not excluded from making an application for reinstatement, should the Commission exercise its discretion to not hear the application in the public interest?

Relevant statutory provisions

  1. [7]
    Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [8]
    Section 317(1) of the IR Act provides that if it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the Commission for the dismissal to be dealt with under this part.
  1. [9]
    Relevantly, s 315 of the IR Act identifies employees to whom the part does not apply as follows:

315 Employees to whom this part does not apply

  1. (1)
    Section 316 does not apply to any of the following –
  1. (a)
    an employee during the first 3 months of employment with an employer (the "probationary period"), unless the employee and employer agree in writing that the employee serve—
  1. (i)
    a period of probation that is shorter than the probationary period; or
  2. (ii)
    no period of probation; or
  1. (b)
    an employee serving a period of probation that is longer than the probationary period, if the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment;
  2. (c)
    a short term casual employee;
  3. (d)
    an employee engaged for a specific period or task, unless—
  1. (i)
    the main purpose of engaging the employee in that way is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under division 2; or
  2. (ii)
    the employee is participating in a labour market program and is dismissed before the period ends or the task is complete;
  1. (e)
    an employee—
  1. (i)
    who is not employed under an industrial instrument; and
  2. (ii)
    who is not a public service officer employed on tenure under the Public Sector Act 2022; and
  3. (iii)
    whose annual wages immediately before the dismissal are equal to or more than the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.
  1. [10]
    The Department alternatively argues that the Commission should exercise its discretion to dismiss the application pursuant to s 531(5) or s 541 of the IR Act.
  1. [11]
    Sections 531(5) of the IR Act relevantly states:

531 Decisions of the commission and magistrates

  1. (5)
    In making a decision, other than a decision made under chapter 4 , part 3 , division 2 , the commission must consider the public interest, and in doing so must consider—
  1. (a)
    the main purpose of this Act; and
  2. (b)
    the likely effects of the commission’s decision on the community, economy, industry, the particular industry concerned and industry generally.
  1. [12]
    Section 541 of the IR Act is also relevant to my consideration of the matters raised by the Department. Section 541(b) relevantly provides as follows:

541 Decisions generally

The court or commission may, in an industrial cause do any of the following—

  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1. (i)
    the cause is trivial; or
  2. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. [13]
    As noted above, the Applicant was invited to respond in writing to the Department's submission that is not in the public interest for the Commission to hear the application for reinstatement.

Jurisdictional objection

The Department's objection

  1. [14]
    The Department submits that the Applicant is excluded from utilising the unfair dismissal provisions outlined in Chapter 8 Part 2 of the IR Act and relies on the operation of s 315(1)(d) of the IR Act.
  1. [15]
    The Department submits that the Applicant should be excluded from applying for reinstatement. The first argument the Department relies on is that the Applicant is excluded from the provisions as he was employed for a "specific period".
  1. [16]
    The Department made further submissions with respect to the operation of the Public Service Act 2008 (Qld)[1] ('Public Service Act') as follows:
  1. [9]
    Section 148 of the superseded Public Service Act 2008 (under which the applicant was initially employed) defines "Engagement of Fixed Term Temporary Employees" and by subclause (1) states a Chief Executive "may employ a person (a fixed term temporary employee) for a fixed term…". That is the power under which the applicant was employed.
  2. [10]
    While the terminology between the two Acts is not identical, it would appear that a person employed for a fixed term under the Public Service Act 2008 is indeed a person engaged for a specific period under the Industrial Relations Act 2016.
  3. [11]
    The department therefore submits that the applicant is excluded from the operation of Chapter 8, Part 2 of the Industrial Relations Act 2016 by virtue of the basis of his employment.
  1. [17]
    Further, the Department submits that because of the terms of the contract they were able to terminate the Applicant's employment on notice. The Department relies on the letter of appointment which relevantly is in the following terms:

As a fixed term temporary employee you may leave us at any time with the appropriate notice. The same applies if circumstances change for us. The usual notice period is 2 weeks.

  1. [18]
    The Department's submissions with regard to the notice provisions are as follows:
  1. [12]
    If the Commission declines to accept that argument, we submit that due to the specific provisions of the employment arrangements, the department was able to terminate the applicant's employment with the required notice.
  2. [13]
    In this case, the applicant was in fact provides 5 weeks' notice of termination, more than double the requirement.
  3. [14]
    The contract under which the applicant was employed specifically provided that either party could end the employment arrangement with the requisite notice – i.e. two weeks. The Department advised the applicant on 12 May 2023 that his employment would end on 16 June 2023 – that is, five weeks later.
  1. [19]
    The Department further notes that if the Commission declines to accept the above submissions, it contends that the provisions of the employment arrangement enabled the Department to terminate the Applicant's employment with the required notice of two weeks. The Department submits that the Applicant was provided with five weeks' notice.
  1. [20]
    Further, the Department submits that although there is no requirement to provide reasons for the termination, the Executive Director did advise the Applicant that the termination was due to "operational requirements". The Department contends the Applicant's disagreement with the reasons for the termination does not give rise to a claim for unfair dismissal pursuant to s 316 of the IR Act.
  1. [21]
    In the alternative, the Department argues that it is not in the public interest to hear the proceeding. I will return to this submission further below.

Applicant's submissions

  1. [22]
    The Applicant submits that the applicability of s 531(5) of the IR Act would "imply" that the Applicant is "indeed" eligible to make an application for unfair dismissal pursuant to s 316 of the IR Act. The Applicant submits that despite the Department's position with respect to s 315(1)(d), consideration must be had to "the wider context of the legislation".
  1. [23]
    In his submissions, the Applicant refers to s 317(3)(a) of the IR Act and submits that an application can be made by "any employee". In support of his position the Applicant makes further reference to ss 9 and 148 of the Public Service Act.
  1. [24]
    The Applicant relies on cl 8 and cl 9 of the "General Employees Award" to submit that a contract cannot be terminated without notice by either party "at any time".[2] In his submissions, the Applicant describes the exclusions outlined in cl 9 of the "General Employees Award" to mean the following:

…The meaning of this exclusion is that notice of termination does not apply to employees employed for a specified period of time if the employment has terminated at the end of the period. The expression "for a specified period of time" can only be interpreted as a specified period of time that terminated at the end of the period.

  1. [25]
    Further, the Applicant submits that the expression "for a specified period of time" can only be interpreted as a "specified period of time that terminated at the end of that period".
  1. [26]
    It appears from the Applicant's submissions that he submits that an employee who is engaged for a specified period of time is unable to file an application for reinstatement if their employment ended through the effluxion of time upon the expiry of the employee's fixed term contract. The Applicant submits that in his circumstances his employment did not end through the effluxion of time, rather, he was terminated on the Department's initiative and was therefore dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth).
 
  1. [27]
    In his submissions, the Applicant submits that if the Department's interpretation of s 315(1)(d) of the IR Act is adopted, this would give rise to a "jurisdictional inconsistency" as it would "exclude all temporary employees" from applying for reinstatement and would as a result "create a disproportionate distribution of rights across Public Service Employees". The Applicant further provides the following in support of his position:

..If public service temporary employees in Queensland were to be excluded, it would represent an enormous imbalance where the state's legislator and largest employer abnegates fair work entitlements to its workforce, isolating Queensland temporary public service employees as jurisdictional orphans in Australia for the purpose of unfair dismissal legislation…

  1. [28]
    The Applicant also contends that the Department's interpretation of s 315(1)(d) gives rise to another jurisdictional inconsistency as s 196 of the Public Service Act "does not limit the rights of temporary employees in any way, and therefore there are no valid reasons to limit the rights of temporary employees elsewhere".
  1. [29]
    In his submissions, the Applicant makes reference to various cases[3] and notes that there has "never been an instance where a reinstatement application was dismissed due to the applicant being employed on a temporary contract, per se".
  1. [30]
    The Applicant "urges" the Commission to adopt the Fair Work Act 2009 (Cth) definition of "dismissed" and "decisively eliminate the ambiguous reading of s 315(1)(d)" of the IR Act.

Applicant's reply submissions

  1. [31]
    After considering the submissions filed by the Department, in particular the Department's submission that the Commission should exercise its discretion to not hear the matter on the basis of s 541 and s 531(5) of the IR Act, the Applicant was provided with a further opportunity to respond to the Department's submissions and further submissions in reply dated 1 September 2023 and 29 September 2023, respectively.
  1. [32]
    The Applicant filed submissions in reply on 20 November 2023. The Applicant's submissions and additional attachments equate to 200 pages, which include documents such as a 'timeline of events', numerous emails, information released by the Department to the Applicant under the Right to Information Act 2009 (Qld), as well as the service delivery statements of the Department of Environment and Science. A great deal of this information was simply not relevant to the current application.
 
  1. [33]
    The Applicant submits that the Commission's interpretation of s 315(1)(d) of the IR Act "has not fully contemplated its multiple uses across different legal instruments". The Applicant contends that the main purpose of the IR Act is primarily achieved, inter alia, by giving effect to Australia's international obligations such as the International Labour Organisation Convention no. 158 – Termination of employment ('ILO Convention – Termination of Employment'). The Applicant contends that the expression "employee engaged for a specific period of time" "emanates" from art 2 of the ILO Convention – Termination of Employment.
  1. [34]
    The Applicant contends that the Department's submissions with respect to s 541 and s 531(5) of the IR Act are "vague and unsubstantiated" and provides the following in support of his position:

35000 Queensland Government employees are engaged temporarily. 70% of which are women. The likely effect of a decision in my favour would be a better job security for public service employees and equal access to unfair dismissal application. There is a superior public interest in assessing the matter.

  1. [35]
    The Applicant submits that the Department "seems" to claim that all temporary employees can be "terminated at any time and for any reason". The Applicant contends that the Department does not have an "unqualified right" to terminate his contract of employment and submits that the Department may only terminate a fixed term temporary employee if "the circumstances change". The Applicant submits that the change in circumstances must be genuine and disclosed to the employee affected. The Applicant describes the Department's reason for his dismissal as "a poor one at best". The Applicant further asserts in his submissions that he did not "sign" a contract.
  1. [36]
    In his submissions, the Applicant contends that the total number of fixed term employees hired "was mismanaged, or at the very least unmanaged" because it resulted in the Applicant's dismissal as well as the dismissal of 15 other employees. The Applicant contends that the Department's inability to properly manage the number of employees it hires is a failure to comply with the management and employment principles, and work performance and personal conduct principles, outlined in ss 25 and 26 of the Public Service Act, respectively. In support of his position, the Applicant submits the following:

If dismissing temporary employees is to be considered a fair solution for managing FTE numbers, nothing is stopping this employer from repeating this practice in the future. In extremis, any government department’s chief executive is freed from the responsibility of managing employees, instead relying on firing excess employees just one fortnight before the end of the financial year to balance the books.

  1. [37]
    The Applicant submits the dismissal of himself, and the other employees as having the following impact on the workforce:

My dismissal left 4 direct reports without a team leader. My working group - Water Quality Monitoring & Investigations (WQI) - was reduced to two-thirds of its workforce. The scale and method with which the dismissals were executed brought unprecedented reputational damage to the Department, drastically affecting all the employees, including those not directly affected by the dismissals. It also affected the trust of the direct stakeholders of the Department, namely the Office of the Great Barrier Reef and their reliance on the WQI’s team to deliver contractual programmatic deliverables concerning the monitoring of water quality in the catchments flowing to the Great Barrier Reef.

  1. [38]
    The Applicant submits that the termination of his employment was harsh and unjust because the Department terminated his employment "without consultation, without notification of intent, and without clear and transparent criteria".  The Applicant also makes specific reference to the Department's obligations in ss 328, 329 and 330 of the IR Act. The Applicant contends that the termination of his employment was in direct contravention of Div 3, SubDiv 2 of the Industrial Relations Act 2016 (Qld) and art 13 of the ILO Convention – Termination of Employment. With respect to organisation change, the Applicant makes the following submissions:

The remaining circumstances of my employment did not change. The budget for the financial year of 2023/2024 was in place as expected, my salary was paid from externally sourced programmatic funding (Paddock to Reef Program) unaffected by decisions within the Science Division. There were no organisational changes, and the incumbent that I replaced is still on leave without pay.

  1. [39]
    The Applicant notes in his submissions that his employment with the Department does not "contribute to FTE accrual" for reporting purposes as he was hired to replace an employee who is currently on leave without pay. In these circumstances, the Applicant submits that although the Department is required to operate in line with fixed term employee allocations, this did not apply to his employment.
  1. [40]
    The Applicant submits that the Department advised him that they planned to re-employ the workforce via a labour hire agency however the "rehiring scheme eventually surfaced" as six positions advertised with the University of Queensland which would be funded by the same budget used to pay the Applicant's salary.
  1. [41]
    The Applicant emphasises in his submissions that the dismissal of himself and 15 other employees "was an arbitrary solution to solve a problem of gross negligence, if not incompetence" of the Department.

Department's further submissions in reply

  1. [42]
    The Department notes in its submissions that despite the Applicant being provided with the opportunity, he did not address any matters raised by the Department in its reply submissions. With respect to the Applicant's timeline of events which was provided as an attachment to his submissions, the Department submits that the timeline is not an accurate reflection of the events that occurred and may mislead the Commission if the Applicant's version of events are considered.
  2. [43]
    With respect to the Applicant's contention that previous decisions of this Commission have not fully contemplated the interpretation of s 315(1)(d) of the IR Act, the Department makes the following submissions:
  1. a.section 315(1)(d) operates to exclude a person from the operation of s 316 in circumstances where the employee is “engaged for a specific period or task”;
  2. b.sub-sections 315(1)(d)(i) and (ii) go on to limit the circumstances in which the exclusion under 315(1)(d) applies;
  3. c.of particular note is s 315(1)(d)(ii) – which provides that an exclusion on the basis of engagement for a specific period or task does not apply where “the employee is participating in a labour market program and is dismissed before the period ends or the task is complete” (emphasis added);
  4. d.the department respectfully submits that s 315(1)(d)(ii) is instructive in the interpretation of s 315(1)(d) – it specifically contemplates the possibility that a contract for a specific period or task may be terminated before the completion of such activities/time and excludes this termination from the operation of s 315(1)(d) only in circumstances where the person is involved in a labour market program;
  5. e.the department respectfully submits that it is open to the Commission to conclude that where an employee is dismissed prior to the completion of the specific period, provided the person is not participating in a labour market program, the employee remains excluded by s 315(1)(d).

(citations omitted).

  1. [44]
    The Department contends that, despite the Applicant's position that its arguments with respect to ss 531(5) and 541 of the IR Act are "vague and unsubstantiated", its submissions provide "cogent and detailed arguments" which address these provisions.
  2. [45]
    The Department submits that the issue to be considered by the Commission is whether it can or should hear the application for reinstatement rather than considering whether the application of the IR Act in matters of this nature "may impact specific cohorts in different ways".
  3. [46]
    With respect to the Applicant's position that the Department was only able to terminate the contract where "circumstances changed" and his views with respect to the management of fixed term employees, the Department makes the following submissions:
  1. a.the authority of the department to terminate the contract is not relevant to the issue of jurisdiction under s 315(1)(d)
  2. b.notwithstanding the above, should the Commission determine that s 315(1)(d) does not apply, the department refutes the Applicant’s characterisation of the circumstances, and in particular the Applicant’s assertion that because the person he was backfilling did not return from leave, there was no ‘change’. Organisational changes are more than just circumstances about the Applicant/the Applicant’s role directly
  3. c.like any public sector agency, the department is required to operate in line with budgetary and FTE allocations. Its decision to terminate the Applicant’s employment in accordance with the terms and conditions of employment (including providing additional notice) was an appropriate exercise of its responsibilities. In this regard the department notes its submissions in DES Reply at [7] – [8].
  1. [47]
    The Department submits that the Applicant's submission that he was terminated "without consultation, without notification of intent, and without clear and transparent criteria" in particular the Applicant's reference to s 328 of the IR Act, is subject to the exclusions outlined in s 315 of the IR Act.
  2. [48]
    The Department submits that the Applicant's assertion that his employment did not contribute to the accrual of fixed term employees is incorrect as "while the person on leave without pay does not contribute towards FTE[4] counts, the person being paid does".
  3. [49]
    With respect to the Department's partnerships with universities such as the University of Queensland, the Department makes the following submissions:
  1. a.the partnership arrangements it has with universities (or other entities) is not relevant to the determination of jurisdiction under s 315(1)(d)
  2. b.the department does not determine staffing arrangements for universities. The screenshot to which the Applicant refers are clearly positions advertised by the University of Queensland, four (4) months after his termination.

Is the Applicant excluded from making an application for reinstatement by the operation of s 315(1)(d) of the IR Act?

  1. [50]
    The parties raise a number of matters that go beyond my consideration of whether the Applicant is excluded from making an application for reinstatement by operation of s 315(1)(d) of the IR Act. I will confine my consideration to the matters relevant to the current application.
  1. [51]
    In order to determine the matter I must form a conclusion as to whether the Applicant was employed for a "specific period or task". The IR Act does not provide a meaning for the phrase "specific period or task".
  1. [52]
    A number of commonwealth authorities have considered the phrase "specified period of time" in the context of unfair dismissal proceedings in the Federal jurisdiction. Whilst the language between the jurisdictions is not identical, I consider it to be similar and the authorities to be of assistance in considering the phrase "specific period".
  1. [53]
    In State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057 Deputy President O'Connor (as his Honour then was) provided the following summaries:
  1. [24]
    The Commonwealth authorities adopt an approach to the interpretation of the words "specified period of time" which is at odds to that which has been adopted in this Commission. Whilst it must be acknowledged the wording differs from that contained in s 72 (1)(d) of the Act, I am not convinced much turns on that. In my view, the Commonwealth authorities, and their approach to the interpretation of "specified period of time", have much to commend them.
  2. [25]
    In Andersen v Umbakumba Community Council the applicant's employment with the respondent was terminated. Relief was sought under the provisions of Subdivisions B and C of Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) on the grounds that the termination was harsh, unjust and unreasonable. It was contended by the respondent that the applicant was excluded from the operation of the relevant provisions of the Act by reg 30B(1)(a) of the Industrial Relations Regulations (Cth). Regulation 30 relevantly provides:

"30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

  1. 1.subject to subregulation (2), employees engaged under a contract of employment for a specified period of time;

...

  1. 2.Paragraph (1)(a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act."
  1. [26]
    von Doussa J in determining the meaning of "specific period of time" held:

"In the present case cl. 3 and Schedule 1 of the Employment Agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl. 21(c) to bring the employment to an end on two weeks' notice, and the right of the employer under cl. 21(d) to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new Agreement is entered into pursuant to cl.29).

Within the period stated in Schedule 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.

It is significant that the rights to terminate the contract of employment arising under cl.21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified.

Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end.

In this case, however, the unqualified rights to terminate without reason under cl.21(c) and cl.21(d) make it clear, in my opinion, that the contract cannot be so characterised."

  1. [27]
    Northrop J in Cooper v Darwin Rugby League Incorporated ('Cooper') adopted a similar approach to von Doussa J in Andersen. Cooper concerned the employer terminated the employment of the applicant. The termination was not by agreement. The employment did not continue for the period of three years from 10 December 1992.
  2. [28]
    The contract of employment relevantly provided:

"Except in the case of misconduct, and in accordance with the clause relating to the Employment Period in this document, at least one calender (sic) month's notice by either party will terminate the employment."

  1. [29]
    Northrop J held:

"In the context, this must relate to notice given within the three year period. There is no reason to suggest that this clause is limited by implication to apply to any extension of the employment period after 10 December 1995. In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time within the meaning of paragraph 2 of Article 2 of the Termination of Employment convention and thus is not excluded, for the purpose of s 170CC of the Act, from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. (citations omitted).

  1. [54]
    Consequently, it is apparent that consideration must be had to the terms of the contract of employment and how and when the employment came to an end.
  1. [55]
    Relevantly, the terms of the Applicant's engagement were that he was engaged as a fixed term temporary full-time employee for a period commencing on 25 July 2022 and ending on 31 October 2023. Further, the conditions of employment and entitlement[5] provide that, "as a fixed term temporary employee you may leave us at any time with the appropriate notice. The same applied if circumstances change for us. The usual notice period is 2 weeks …" ('the notice provision').
  1. [56]
    I consider that the effect of the notice provision is that it allows for either party to end the contract, with notice, prior to the cessation date, causing the period of the contract of employment to be indeterminant. That is, the cessation date of 30 October 2023 recorded is the outer limit of a period beyond which the contract of employment could not run, but that within the period between 25 July 2022 and 20 October 2023, it could be terminated on notice at any time by either party. Relevantly, as was done in the circumstances of this matter when the Department ended the contract, after providing notice, prior to October 2023.
  1. [57]
    The Department asserts the Applicant was engaged as a fixed term temporary employee and that he was employed for a fixed term which is analogous to a "specific period". The Department relies on s 150 of the Public Sector Act 2022 (Qld) ('Public Sector Act'), which relevantly states:

150 Fixed Term Temporary Employees

  1. (1)
    The chief executive of a public service entity may employ a person on a temporary basis for a fixed term to perform work of a type ordinarily performed by—
  1. (a)
    an officer; or
  2. (b)
    a senior officer.
  1. (2)
    However, subsection (1) applies only if employment of a person on a permanent basis is not viable or appropriate, having regard to the planning of human resources carried out by the chief executive under section 177 (1) (f) .
  2. (3)
    The employment may be full-time or part-time.
  3. (4)
    A person employed under this section does not, only because of the employment, become a public service officer.
  1. [58]
    The difficulty for the Department with this contention is that, for the reasons outlined above, the Applicant was not employed for a specific period. Further, at the time the employment commenced, the Public Service Act 2008 (Qld) (now repealed) was in operation.
  1. [59]
    The Applicant's engagement letter relevantly states that the basis of employment is s 148 of the Public Service Act. Section 148 of the Public Service Act relevantly provides:

148 Employment of temporary employees

  1. (1)
    To meet temporary circumstances, a chief executive may employ a person as a temporary employee to perform work of a type ordinarily performed by a public service officer other than a chief executive or senior executive.
  2. (2)
    The employment may be—
  1. (a)
    on a temporary basis and full-time or part-time; or
  2. (b)
    on a casual basis.
  1. (3)
    A person employed under this section does not, only because of the employment, become a public service officer.
  2. (4)
    Subsections (1) and (2) are subject to any relevant directive about temporary employees.
  1. [60]
    As can be seen from the provision, s 148 of the Public Service Act makes no reference to a temporary employee as being one who is engaged for a "specific period". Further, and contrary to the Department's submission, s 315(1)(d)(ii) is not relevant to my consideration of s 315 of the IR Act as the Applicant was not participating in a labour market program.
  1. [61]
    Accordingly, as the contract of employment is not for a specific period, s 315 (1)(d) does not operate to exclude the Applicant from making an application pursuant to s 317 of the IR Act.

Should the Commission exercise its discretion not to hear the application?

  1. [62]
    In the alternative to the jurisdictional objection, the Department contends that it is not in the public interest to hear the application, and consequently that the Commission should decline to hear the application on the following basis:
  1. (a)
    the Commission is not able to make the orders sought by the Applicant; and
  2. (b)
    the Applicant commenced a new role with the State of Queensland on 28 August 2023.
  1. [63]
    In Campbell v Queensland [2019] ICQ 18 his Honour, Martin J considered the phrase "public interest" in the context of s 541 (b)(ii) of the IR Act as follows:
  1. [28]
    The process for consideration of an application under s 541 does not require that the respondent’s case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.
  2. [29]
    As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A “proper consideration” cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the “public interest” cannot be satisfied if an artificial inflation of the respondent’s case is applied. Indeed, to take a respondent’s case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case.

(citations omitted).

  1. [64]
    The matters raised by the Department go to the relief sought by the Applicant (as it is currently stated in the Application) and further the Department also relies on the fact that the Applicant secured new employment following the termination.
  1. [65]
    The first matter raised by the Department is the type of remedy that can be made by the Commission. The Commission, upon finding an employee has been unfairly dismissed, must consider reinstatement or re-employment pursuant to s 321 of the IR Act.
  1. [66]
    However, if the Commission considers that reinstatement or re-employment is impracticable it may order that the employer pay the employee an amount of compensation as decided by the Commission pursuant to s 322 of the IR Act.
  1. [67]
    The relief sought by the Applicant is reinstatement or re-employment, or further, in the alternative, if reinstatement of re-employment is impracticable, the Applicant seeks compensation. The Applicant also states that if reinstatement or re-employment was deemed possible, that he also still seeks compensation for loss of income allegedly arising from the 'denovation' of a novated lease.
  1. [68]
    In the Applicant's further reply he also seeks compensation for the period of time between the date of the dismissal and his re-employment.[6]
  1. [69]
    It can be gleaned from the Respondent's submissions that it will contend that reinstatement is not practicable as the outer limits of the contract has expired. However, such an argument, even if ultimately successful, does not preclude the alternative relief sought by the Applicant being considered by the Commission.
  1. [70]
    It follows, that the relief, or at least some components of the relief sought by the Applicant are remedies that the Commission has the power to order. Relevantly, the Commission has the power to issue orders reinstating or re-employing the Applicant, or in the alternative, ordering compensation pursuant to s 322 of the IR Act.
  1. [71]
    Accordingly, I cannot accept the Department's contention that the relief sought by the Applicant is not within the Commission's power. The Applicant clearly seeks remedies pursuant to s 321 and 322 of the IR Act. That is of course not to say that the Commission will exercise it powers to award such remedies in the circumstances of this matter (including the ancillary relief sought by the Applicant). That is a matter to be considered only if it were to be found that the Applicant was unfairly dismissed.
 
  1. [72]
    Further, the Department argues that it is not in the public interest to hear the application as the Applicant has found alternative employment with the State. There is an obligation on the Applicant to mitigate his loss by finding alternative employment. Obtaining alternative employment is not an impediment to an Applicant bringing an unfair dismissal proceeding. However, such a factor may well be relevant to any consideration of what is an appropriate remedy if it was determined that the Applicant was unfairly dismissed. Accordingly, I do not find the fact that the Applicant has obtained alternative employment as a factor relevant to the exercise of my discretion not to hear the application in the public interest.
  1. [73]
    As noted by his Honour, Martin J in Campbell[7], the exercise of the discretion pursuant to s 541 of the IR Act, should only be undertaken with due circumspection.
  1. [74]
    Ultimately, the matters raised by the Department as to why it is not in the public interest to hear the application are not matters that weigh in favour of the exercise of the discretion.

Conclusion

  1. [75]
    For the forgoing reasons, I have determined that the Applicant was not employed for a specific period.
  1. [76]
    Accordingly, s 315(1)(d) does not operate to prevent the Applicant from making an application pursuant to s 317 of the IR Act in the circumstances of this matter.
  1. [77]
    Further, I have determined that the circumstances of this matter do not warrant the exercise of the discretion pursuant to s 541 of the IR Act.
  1. [78]
    Accordingly, directions will be issued for the application to be listed for a conciliation conference pursuant to s 318 of the IR Act.

Orders

  1. [79]
    Consequently, I issue the following order:

The Respondent's application is dismissed.

Footnotes

[1] Now superseded.

[2] By email correspondence dated 3 October 2023, the Applicant advised that he incorrectly cited the "general employees award" instead of the Queensland Public Services Officers and Other Employees Award – State 2015. The Applicant notes that 'for the purpose of illustrating' his argument, cl 10.9(b) of this Award is analogous to the exclusions listed in cl 8 of the "general employees award".

[3] Lockhart v Queensland Health [2014] QIRC 012; State of Queensland (Cairns and Hinterland Hospital and Health Service) v Alghamdi [2016] QIRC 057; Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010; Lindquist v Redland City Council [2018] QIRC 141; Signoretto v State of Queensland (Metro South Hospital and Health Service) [2019] QIRC 025; O'Hara v State of Queensland (Department of Education) [2019] QIRC 155; Carey v Department of Justice and Attorney-General (No. B2054 of 2001).

[4] Fixed Term Employees.

[5] Respondent's submissions filed, 1 September 2023, Attachment 1 p. 2.

[6] The Applicant has claimed for other matters that are unnecessary to address at this juncture.

[7] Campbell v Queensland [2019] ICQ 18.

Close

Editorial Notes

  • Published Case Name:

    Pardal De Souza Dias v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    Pardal De Souza Dias v State of Queensland (Department of Environment and Science)

  • MNC:

    [2024] QIRC 17

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    05 Feb 2024

Appeal Status

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