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Pegg v Gumdale State School P&C Association[2024] QIRC 295

Pegg v Gumdale State School P&C Association[2024] QIRC 295

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pegg v Gumdale State School P&C Association & Anor [2024] QIRC 295

PARTIES:

Pegg, Shaunesy Andrea

Applicant

v

Gumdale State School P&C Association

First Respondent

And

Madsen, Steven

Second Respondent

CASE NO:

GP/2024/1

PROCEEDING:

Interlocutory application

DELIVERED ON:

13 December 2024

MEMBER:

HEARD AT:

Pratt IC

On the papers

ORDER:

  1. The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – where Respondents seek dismissal of the matter – consideration of the applicant's attempt to rescind her resignation – consideration of heat of the moment resignations – where the Respondents' refusal to accommodate the rescission does not amount to a dismissal – consideration of special circumstances – consideration of  'prospective employment' – where no prospective employment relationship exists between the parties – whether causes of action are deficient  – whether the application should be dismissed pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) – because further proceedings are not necessary or desirable in the public interest – consideration of 'desirable in the public interest' – consideration of the weight of not-for-profit entities on the public interest test – where it is held that the Applicant's case is misconceived – where the application is dismissed

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 38

Fair Work Act 2009 (Cth) s 342

Industrial Relations Act 2016 (Qld) ss 282, 284, 285, 310, 541(b)

Uniform Civil Procedure Rules 1999 (Qld) rr 292, 293

CASES:

Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500

Allison v Bega Valley Council [1995] NSWIRComm 175

Birrell v Australian National Airlines Commission (1984) 5 FCR 447

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Cook v CFP Management Pty Ltd [2006] QCA 215

GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266

Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183

McMahon v Mount Isa City Council [2023] QIRC 346

Minato v Palmer Corporation Ltd (1995) 63 IR 357

Ngo v Link Printing Pty Ltd (1999) 94 IR 375

O'Sullivan v Farrer (1989) 168 CLR 210

Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59; (2005) 180 QGIG 1209

Quinlan v Rothwell [2002] 1 Qd R 647

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182

Sovereign House Security Services Ltd v Savage [1989] IRLR 115

State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 34

State of Queensland v Lockhart [2014] ICQ 6

Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12

Reasons for Decision

  1. [1]
    Ms Shaunesy Pegg ('Applicant') filed an application on 2 January 2024 seeking remedies for alleged breaches of the general protections provisions contained within Part 1 of Chapter 8 of the Industrial Relations Act 2016 (Qld) ('IR Act'). This application has been made against Gumdale State School P&C Association ('First Respondent') and Steven Madsen ('Second Respondent') (together 'Respondents').
  1. [2]
    In a mention held in this matter on 21 June 2024, I raised preliminary concerns about the Applicant's cause of action. I expressed doubts as to whether any of the possible actions taken by the Respondents – i.e., "accepting" the Applicant's resignation, not agreeing to rescind that resignation, or not entering into a new contract with the Applicant – constituted 'adverse action' for the purpose of the general protections provisions within the IR Act. I subsequently invited the parties to address me in writing on whether I should exercise the discretion within s 541(b)(ii) of the IR Act because further proceedings by the Commission are not necessary or desirable in the public interest.

Relevant background

  1. [3]
    The Applicant was employed by the First Respondent from March 2020 until early December 2023. The Applicant alleges that she was subject to persistent unreasonable conduct throughout her employment that made it difficult for her to perform her role. The Applicant further alleges that she exercised her workplace rights in and around April 2023 by seeking support on how she should do her work, support to address issues in her employment and support for her mental health.
  1. [4]
    On 29 November 2023, the Applicant commenced a period of sick leave citing alleged persistent unreasonable conduct as a reason. On that same day, the Applicant emailed Mr Phil Savill, Principal of Gumdale State School, raising her concerns about her role and her mental health and requesting an investigation against the executives of the First Respondent. The Applicant, in a later email also on the same day, requested to meet with Mr Savill. Mr Savill noted the Applicant's concerns and recommended she refer to the grievance procedure under her relevant award, as well as contacting the relevant executives for guidance on how to raise her complaints. Mr Savill also requested a medical certificate from the Applicant and told her that he would not meet with her while she was on sick leave because that was the protocol of P&C Queensland and the Department of Education and because "the priority is for you to get well".
  1. [5]
    On 30 November 2023, the Applicant sent an email to the Second Respondent and the First Respondent's Vice President, Secretary and Treasurer, raising her concerns about her role clarity and requesting a meeting with the executives of the First Respondent.
  1. [6]
    The Applicant also alleges that during her personal leave the First Respondent made inquiries with staff who reported to the Applicant. The Applicant claims those staff contacted the Applicant. The Applicant says that "such conduct" undermined the Applicant and exacerbated her mental health condition.
  1. [7]
    On 5 December 2023, the Applicant sent an email to the First Respondent informing the First Respondent that she was resigning. The Applicant submits that she sent this email "[i]n a moment of feeling pressured, stressed, anxious and hopeless due to the [First Respondent's] continued repeated unreasonable conduct" and "during a moment of psychological distress and without consultation with any of [the Applicant's] immediate family or health practitioners".
  1. [8]
    By email sent on 8 December 2023 the Applicant sought to rescind her resignation on the asserted basis that she was not psychologically well when she emailed the resignation. Ms Abigail Chambers, an executive of the First Respondent, replied to the Applicant advising her that the First Respondent did not accept the Applicant's rescission of her resignation. Ms Chambers noted that the Second Respondent had formally acknowledged receipt of the Applicant's resignation on the afternoon of 5 December 2023, that the Applicant's statutory entitlements and outstanding reimbursements had been paid out and that the First Respondent had begun recruiting for the role the Applicant was in. Ms Chambers also noted that the Applicant had sent an email confirming her approval of, as I surmise, a farewell letter to her team on 6 December 2023 and that the Applicant had actively participated in the handover process.
  1. [9]
    The Applicant responded on 8 December 2023 to Ms Chamber's 8 December 2023 email reiterating the assertion that her resignation was not given with sound mind and that she would return on Monday "unless it has been determined your wish it (sic) to terminate my employment". Ms Chambers affirmed by email reply on 11 December 2023 the First Respondent's position in the email dated 8 December 2023 that it accepted the Applicant's resignation at the Applicant's request and would not reinstate the Applicant.
  1. [10]
    The Applicant responded to that email on 14 December 2023 expressing her dissatisfaction and requesting a meeting with the human resources personnel of the First Respondent. The Applicant also requested that her "work related property [be] returned to me, unless it has been determined your wish is to terminate my employment". The Applicant further noted that "[i]n reference to the hand over or active remarks, I have no reference and am not supportive of these comments". The Respondents replied to this email on 15 December 2023 noting that its position remained unchanged from that outlined in the emails sent to the Applicant on 11 December 2023.
  1. [11]
    The Applicant alleges that the First Respondent's refusal to allow rescission or retraction of her resignation, or the refusal to re-employ her, constitute adverse action taken by the First Respondent against the Applicant. The Applicant further alleges that the Second Respondent was the main decision-maker and therefore involved in the alleged adverse action and so is liable as an accessory.
  1. [12]
    The Applicant alleges the adverse action was taken:
  • because the Applicant had made complaints and enquiries during her employment; and/or
  • to prevent the Applicant from making further complaints in relation to her employment; and/or
  • because the Applicant had a disability (being, her mental health condition) and/or prospective and/or imputed disability; and/or
  • by the First Respondent failing to have proper or any regard to the fact that the Applicant had a disability when she resigned, and in so doing indirectly discriminating against her by treating her in the same manner as those without a disability.

Issues

  1. [13]
    There are two issues immediately before the Commission. The first is raised by the Respondents as to whether s 310 of IR Act denies the Commission jurisdiction to hear this matter because the application was filed out of time ('the Jurisdictional Issue'). The second is whether I should exercise the discretion residing within s 541(b)(ii) to dismiss the application because further proceedings are not necessary or desirable in the public interest ('the s 541(b)(ii) Issue')

The Jurisdictional Issue

Relevant law

The limitation period

  1. [14]
    Section 38 of the Acts Interpretation Act 1954 (Qld) ('Acts Interpretation Act'):
  1. If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—
  1. if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
  1. in any other case—by including the day on which the purpose is to be fulfilled.
  1. If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.
  1. If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.
  1. If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
  1. In this section—

"excluded day" —

  1. for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or
  1. otherwise—means a day that is not a business day in the place in which the thing must or may be done.
  1. [15]
    Section 310 of the IR Act says:
  1. An application relating to dismissal must be made within—
  1. 21 days after the dismissal took effect; or
  1. if the commission allows a further period under subsection (2) —the further period.
  1. The commission may allow a further period if the commission is satisfied there are exceptional circumstances, taking into account—
  1. the reason for the delay; and
  1. any action taken by the person to dispute the dismissal; and
  1. prejudice to the employer (including prejudice caused by the delay); and
  1. the merits of the application; and
  1. fairness as between the person and other persons in a similar position.
  1. An application relating to a contravention of this part (other than dismissal) must be made within 6 years after the contravention occurs.
  1. [16]
    The effect of s 310 of the IR Act is that applications relating to dismissal must be filed within 21-days after the dismissal takes effect, while applications not relating to dismissal must be filed within 6 years of the contravention.

Constructive dismissal

  1. [17]
    In State of Queensland (South West Hospital and Health Service) v Crews-Bradley,[1] his Honour, Deputy President O'Connor (as his Honour then was), considered a matter where the issue of constructive dismissal was in question. His Honour cited the decision of the Court of Appeal in Cook v CFP Management Pty Ltd,[2] where his Honour Justice Williams, with whom their Honours Chief Justice de Jersey and Justice Helman agreed, held that the appropriate test for whether there has been constructive dismissal is whether the termination was substantially caused by the employer or the employee.[3] O'Connor DP (as his Honour then was), also cited with approval the inquiry set out by the Full Bench of the Industrial Relations Commission of New South Wales in Allison v Bega Valley Council:[4]

…Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case by case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change…[5]

Consideration

  1. [18]
    In its submissions in the substantive matter filed on 16 January 2024, the Respondents submit that the application in this matter is out of time because the Applicant had 21‑days to file the application and the Applicant filed the application on 2 January 2024, 28‑days after her resignation on 5 December 2023. The Respondents proffer no authority in support of this proposition of there being a 21-day time limit, but I assume that they must be referring to sub-s 310(1) of the IR Act.
  1. [19]
    This submission assumes that the Applicant is claiming to have been dismissed. However, the Applicant does not allege that she was dismissed, let alone that the dismissal constitutes a contravention of the general protections provisions. On the facts, the only possible way the First Respondent could have dismissed the Applicant is by way of a "constructive dismissal". But even then, it is difficult to discern that the First Respondent's conduct was the real and effective initiator of the termination of the contract. Indeed, it appears that the First Respondent was supportive of the Applicant during her sick leave and guided her on how to raise her grievances. The Applicant claims that she was under pressure from the Respondents to resign, but that pressure does not appear to be undue as, on the Applicant's own case, the only pressure she felt arose from a general dissatisfaction she had with her role. The application therefore cannot be reasonably construed as alleging that the Respondents constructively dismissed the Applicant. Mere dissatisfaction prompting resignation does not overcome the high bar of establishing a constructive dismissal (the employer effectively forcing the employee to resign). Consequently, the Respondents' refusal to accommodate the Applicant's purported rescission or attempt to retract the resignation cannot be characterised as a dismissal. Thus the limitation period set out in sub-s 310(1) does not apply.
  1. [20]
    Furthermore, a refusal to re-employ after a resignation such as this or the act of "accepting" a resignation (which despite being directed to, the Applicant has not addressed my concerns that the concept is not one founded in law) cannot be characterised as a "dismissal" for the purposes of sub-s 310(1). That is because neither was an act by the relevant employer that brought the employment contract to an end.
  1. [21]
    But even if the Applicant argued that the Respondents contravened the general protections provisions by "constructively dismissing" her (which she does not argue), then the time to file an application in relation to that hypothetical constructive dismissal would have run out on 26 December 2023. However, the Commission was not open for filing documents on that day. It was closed from 25 December 2023 to 1 January 2024 inclusive. Therefore, 25 December 2023 through to 1 January 2024 were "excluded days" within the meaning of sub-s 38(5) of the Acts Interpretation Act. Under s 38(2) of the Acts Interpretation Act, the time for filing that application would be moved forward to 2 January 2024. As the application was filed on 2 January 2024, even if it were one relating to a "dismissal", it was filed within that 21-day limitation period. The Respondents' submissions must therefore be rejected.

The s 541(b)(ii) Issue

Relevant law

'Heat of the moment' resignations

  1. [22]
    In Minato v Palmer Corporation Ltd,[6] Registrar Murphy of the then-extant Industrial Relations Court of Australia, cited with approval the legal position set out by his Honour, Lord Justice May, in Sovereign House Security Services Ltd v Savage ('Sovereign House'),[7] that:

"In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise …

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight."[8]

  1. [23]
    Registrar Murphy also cited with approval the observations of his Honour, Justice Wood, in Kwik-Fit (GB) Ltd v Lineham,[9] where his Honour said (citations omitted):

If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant… These we refer to as ‘special circumstances’. Where ‘special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.[10]

  1. [24]
    Registrar Murphy's observations were cited with approval by a Full Bench of the Australian Industrial Relations Commission ('AIRC') in Ngo v Link Printing Pty Ltd ('Ngo').[11] This Commission has, on numerous occasions, cited with approval the Full Bench of the AIRC's approval of Registrar Murphy's approval of the legal position set out in Savage.[12] I add to this my own approval.
  1. [25]
    Furthermore, his Honour, Justice Gray, in Birrell v Australian National Airlines Commission,[13] held that a unilateral withdrawal of a notice of termination of a contract of employment is not possible after reviewing the relevant authorities on this point.[14] His Honour justified this holding as follows:

[t]he purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties…[15]

  1. [26]
    His Honour also noted that a unilateral withdrawal of a notice of termination of a contract of employment may only be valid where it is given immediately after the heat of the moment has ended.[16]
  1. [27]
    Industrial Commissioner McLennan put the position of this Commission succinctly in Sandhu v Wide Bay Hospital and Health Service (citations omitted):

[78]There is no definition of ‘dismissal’ or ‘constructive dismissal’ provided in the IR Act. However, this Commission is generally informed on that question by jurisprudence borne from both previous Queensland legislation and Federal legislation. In that regard, a resignation is not a dismissal, absent extenuating circumstances such as coercion, or a prompt recanting of the resignation which may render the resignation a constructive dismissal.

[79]An employer is generally able to treat a clear and unambiguous resignation as a resignation. The act of resigning, even in circumstances where one may decidedly regret doing so in hindsight, is not itself tantamount to dismissal. While it has been said that an employee may recant a resignation, that must occur during a reasonable period post-resignation. Precisely what constitutes a reasonable period is situational, though is generally a short period and not a matter of days or weeks.[17]

Prospective employment relationship

  1. [28]
    Neither of the terms "prospective employer" or "prospective employee" are defined in the IR Act. However, in Al-Attar v Consulate General of the Republic of Iraq, Sydney ('Al-Attar'),[18] his Honour, Manousaridis J, considered the meaning of "prospective employer" and "prospective employee" within the meaning of item 2 of sub-s 342(1) of the Fair Work Act 2009 (Cth) ('FW Act'), which uses identical language to that within sub-s 282(2) of the IR Act. His Honour opined:

I begin with the word  "employee". That describes a party to a well-recognised class of contracts, namely, contracts of employment, where the other party to the contract is called the  "employer". Next, there is the word  "prospective". When used in connection with  "employee",  "prospective" denotes the prospect that a state of affairs will or may exist in relation to a person at some point in the future, and a prospect that something will or may occur to that person in the course of that state of affairs. The prospective state of affairs is that the person will not be an employee, that is, there is the prospect that the person will not be in a contract of employment with an employer; and the prospective event is that the person will become an employee, that is, there is a prospect that the person will enter into a contract of employment with an employer. Because  "employee" is a party to a contract of employment, a person’s being a prospective employee necessarily implies there is an identifiable  "prospective employer"; and that is a person who at some point in the future may not be in a contractual relationship with the prospective employee, but there is a prospect that that person will enter into a contract of employment with the prospective employee. Thus, that two persons are currently parties to a contract of employment does not mean they cannot be a  "prospective employee" and a  "prospective employer". That will be the case where the parties are bound to a fixed term contract of employment and there is some prospect that the parties will enter into a contract for a further term. In those circumstances there is the prospect that a new contract of employment will be made, and the employee and the employer will be a prospective employee and a prospective employer.[19]

Adverse action

  1. [29]
    Section 285 of the IR Act says:
  1. A person must not take adverse action against another person—
  1. because the other person—
  1. has a workplace right; or
  1. has, or has not, exercised a workplace right; or
  1. proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. to prevent the exercise of a workplace right by the other person.

Note—

This subsection is a civil penalty provision.

  1. A person must not take adverse action against another person (the "second person") because a third person has exercised, or proposes to or has at any time proposed to exercise, a workplace right for the second person’s benefit or for the benefit of a class of persons to which the second person belongs.

Note—

This subsection is a civil penalty provision.

  1. [30]
    Section 284 of the IR Act says:
  1. A person has a "workplace right" if the person—
  1. has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
  1. is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  1. is able to make a complaint or inquiry—
  1. to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  1. if the person is an employee—in relation to the person’s employment.
  1. In this section—

"industrial body" means—

  1. the commission; or
  1. the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission’s functions and powers.
  1. [31]
    Subsections 282(1) and (2) of the IR Act says:
  1. "Adverse action" is taken by an employer against an employee if the employer—
  1. dismisses the employee; or
  1. injures the employee in the employee’s employment; or
  1. alters the position of the employee to the employee’s prejudice; or
  1. discriminates between the employee and other employees of the employer.
  1. "Adverse action" is taken by a prospective employer against a prospective employee if the prospective employer—
  1. refuses to employ the prospective employee; or
  1. discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

Section 541(b)(ii)

  1. [32]
    Section 541(b)(ii) of the IR Act says:

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

  1. dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—…
  1. further proceedings by the court or commission are not necessary or desirable in the public interest;…
  1. [33]
    In Campbell v State of Queensland (Department of Justice and Attorney-General) ('Campbell'),[20] his Honour, Justice Martin, President, as his Honour then was, considered the operation of s 541 of the IR Act. His Honour distinguished the general principle of summary dismissal codified by the limited discretion under rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR') to dismiss proceedings from the wider discretion bestowed on the Commission in s 541(b) of the IR Act to dismiss proceedings.[21] The former requires that there be no real prospects of success, while the latter only requires that the proceedings not be necessary or desirable in the public interest.[22] Consequently, his Honour held that the comparatively relaxed discretion afforded to the Commission under s 541(b) of the IR Act means that the case law concerning rr 292 and 293 of the UCPR is ill-suited to shedding light on the operation of s 541(b) of the IR Act.[23]
  1. [34]
    Martin P cited with approval the analysis by O'Connor DP, as his Honour then was, in State of Queensland v Lockhart,[24] of the analogue of s 541(b) under the IR Act's predecessor.[25] Bearing in mind that the concept of "public interest" is key to the operation of s 541(b), his Honour cited with approval the observations of their Honours, Chief Justice Mason and Justices Brennan, Dawson and Gaudron in O'Sullivan v Farrer that:

…‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable…[26]

  1. [35]
    O'Connor DP also cited with approval the observations of the Full Bench of Fair Work Australia in GlaxoSmithKline Australia Pty Ltd v Makin that:

…The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question…[27]

  1. [36]
    Martin P considered his Honour, President Hall's approval in Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd[28] of Thomas J's observations in Quinlan v Rothwall that:

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.[29]

  1. [37]
    In light of the above propositions and others, Martin P then summarised the operation of s 541 as follows (citations omitted):

[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.

[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.

[30]In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission…[30]

  1. [38]
    In Triplow v Leidos SAR Services Pty Ltd, ('Triplow')[31] Industrial Commissioner Dwyer followed Campbell. Dwyer IC added the following observations about what constitutes "public interest" (citations omitted):

[39]The ascertainment of where the public interest lies requires the balancing of interests, including competing public interests. It is trite to observe that there is a compelling public interest to preserve access for litigants seeking to pursue matters in the Commission. It goes without saying that the opportunity to pursue a claim before the Commission should not be extinguished by the Commission without "due circumspection on a proper consideration of relevant materials".

[40]On the other hand, it equally important that unwilling litigants should not have to endure lengthy and costly proceedings that are demonstrably misconceived. This becomes more relevant to the broader public interest where respondent is, for example, a public or local government entity.

[41]In the Commission’s view, the notion of 'public interest' is also broad enough that it can incorporate consideration of the public interest with respect to both the efficient use of the Commission’s resources and the likely impact that dealing with one proceeding will have on the Commission’s capacity to efficiently deal with other proceedings…

[123]There can be no risk that the Commission’s consideration of this application has put the respondent’s case at its highest. As demonstrated above, there is barely a need to consider the respondent’s case at all, save for excluding the prospect of proscribed motives lurking behind legitimate processes…

[125]While the Commission recognises the fundamental importance of access to courts and tribunals for litigants, there are obvious limits. In this matter, having regard to the respective merits of each parties arguments, the balancing of their interests plainly favours a conclusion that further proceedings are not necessary or desirable in the public interest.

[126]Additionally, there is a significant concern that the Commission’s publicly funded resources will be unnecessarily expended on hearing what can already be seen as an irretrievably unmeritorious complaint. The public (including other litigants with matters already before this Commission) are entitled to expect the resources and time of the Commission will be expended on resolving matters of genuine controversy in a timely and cost efficient manner. That standard will soon be eroded where litigants with grievances that are wholly underwhelming in their merit are permitted too freely to place demands on the Commission’s resources.[32]

Submissions

The Applicant's first submissions

  1. [39]
    The Applicant's submissions are somewhat discursive and are difficult to follow. The Applicant outlines a factual account of events prior to the filing of the application, but that account comprises mainly descriptions of tasks the Applicant says she carried out as part of her role, as well as instances where the Applicant alleged that she was dissatisfied with the actions of her employer. Submissions of this nature add nothing of substance to the facts already before the Commission. The Applicant also purports to outline the legal basis for her claim, but incorrectly cites the FW Act as authority for her claim. There are misplaced references to unfair dismissal and misguided claims of bullying (alleged against the Respondents' lawyers) said to have occurred after the Applicant resigned. The Applicant also outlines her claim for relief. The Applicant does not, however, address the shortcomings identified by the Commission.

The Respondents' submissions in reply

  1. [40]
    The Respondents submit that the Applicant has failed to disclose a cause of action because, on the Applicant's version of events, the Applicant was not an employee nor a prospective employee of the First Respondent when the Respondents are alleged to have adversely acted. The submission is essentially that, at the relevant time, the Applicant did not enjoy the protections of s 282 of the IR Act.
  1. [41]
    The Respondents also make submissions addressing the further grounds raised by the Applicant in her submissions. The Respondents submit that:
  • the Applicant's submissions about an unfair dismissal are irrelevant;
  • the Respondents' lawyers could not have engaged in adverse action because they were not the employer of the Applicant;
  • the FW Act did not apply to the Applicant's employment and is therefore irrelevant; and
  • the Respondents have not made any false or damaging statements about the Applicant and, alternatively, if any such statements did occur, they occurred at a time when the Applicant did not enjoy the protection afforded by s 282 of the IR Act.
  1. [42]
    The Respondents refer to the principles guiding the discretion in s 541(b) outlined above by Dwyer IC in Triplow at paragraph [38] of these reasons and submits that further proceedings are not necessary or desirable in the public interest because there is no cause of action made out, even on the Applicant's own case. The Respondents also submit that the First Respondent is a not-for-profit entity whose board is made up entirely of unpaid volunteers and it is not in the public interest for the First Respondent to endure lengthy and costly proceedings that are misconceived. The Respondents further submit that the Commission's resources ought not be unnecessarily expended on hearing an "irretrievably unmeritorious complaint."

The Applicant's submissions in reply

  1. [43]
    The Applicant makes two points in reply to the Respondents' submissions. First, she submits the proceedings would be in the public interest because it would serve the best interests of both parties. Second, she submits that the fact that the First Respondent is a not‑for‑profit entity whose board is made of unpaid volunteers should have no bearing on whether it is in the public interest to hear the matter.

Consideration

  1. [44]
    The first thing I must do is determine whether the Applicant was employed by the First Respondent at the time that the Respondents refused to agree to the Applicant's proposal to re-employ her, or "accepted" the resignation, or alternatively, refused to accept the Applicant's retraction of her resignation.
  1. [45]
    It is clear that on 5 December 2023 the Applicant conveyed words of resignation to the First Respondent, as the Applicant herself says that she told the employer she was resigning. Those words of resignation, to use the description in Sovereign House,[33] were unambiguous words of resignation that indicated that the Applicant had, in truth, resigned.
  1. [46]
    There is then the question of whether the employer was entitled to rely on that resignation. As held in Sovereign House and Kwik-Fit,[34] if there are 'special circumstances' existing at the time of the resignation, an employer may not be entitled to treat words or acts of resignation as evidence that the employee has in fact resigned until those special circumstances subside and the employee has had an opportunity to retract those words or acts of resignation. Such 'special circumstances' might include words spoken or acts taken when the employee was caught in the heat of the moment, has been jostled into a decision, or under some other extreme pressure.[35] However, that window of opportunity for an employee to retract those words of resignation is fleetingly small.[36] And after the special circumstances subside and the window closes, the employer is entitled to treat those words of resignation as evidence that an employee has in fact resigned despite those words of resignation being given at a time when the special circumstances existed.
  1. [47]
    The Applicant clearly conveyed words of resignation to the First Respondent on 5 December 2023. She says she was in the midst of a medical episode, was not of sound mind and was feeling pressured, stressed, anxious and hopeless. I note, however, that no medical evidence is proffered or referred to in support of this submission. This was no 'heat of the moment' situation either. I see no 'special circumstances' vitiating an assumption that the Applicant had in fact resigned at the exact time when she conveyed those words of resignation to the First Respondent.
  1. [48]
    Even if there were 'special circumstances' to the resignation, the date of resignation, 5 December 2023, was a Tuesday. The Applicant resigned, in writing, at 9:33am on that day. The Respondents conveyed by reply email confirmation of having received the Applicant's resignation that afternoon. Then, on Wednesday, 6 December 2023, the Applicant approved the text and sending of a farewell letter to her team and actively participated in a handover process. Thursday, 7 December 2023, came and went entirely without incident. So did most of Friday, 8 December 2023. It was not until 6:48pm on Friday 8 December 2023 that the Applicant sent the email to Ms Chambers purporting to rescind her resignation.
  1. [49]
    Noting that I do not see any 'special circumstances' in the Applicant's case, on that chronology, it seems to me to be far-fetched that any such 'special circumstances' would have continued to operate from 9:33am on Tuesday, 5 December 2023 to 6:48pm on Friday, 8 December 2023. That period falls almost completely within regular working hours, meaning the Applicant was more than able to retract her resignation during that period. It is also significant that the Applicant approved the text and sending of a farewell message to her colleagues, actively participated in a handover process, and had almost two full days to reflect on her resignation before finally attempting to retract it.
  1. [50]
    On my assessment of the Applicant's case, there were no 'special circumstances'. Even if there were such, they subsided long before to the purported retraction of the resignation. The Respondents were therefore entitled, at the time the Applicant purported to retract her resignation, to rely on the words of resignation conveyed to them by the Applicant on 5 December 2023 as evidence that the Applicant in fact had resigned. Furthermore, the Applicant's purported unilateral retraction of her resignation was ineffective to actually rescind that resignation.[37] The Applicant therefore ceased being an employee of the First Respondent well in advance of the time the Applicant purported to retract her resignation.
  1. [51]
    The Applicant also appears to argue that she was in a "prospective" employment relationship with the First Respondent when it refused to rescind her resignation and/or refused to re-employ her. This argument is deeply flawed and must be rejected. As held in Al-Attar, there must be a prospect of establishing, or re-establishing, an employment relationship between two parties for there to be a "prospective" employment relationship.[38] No such prospect existed here. The Respondents have at no point following the Applicant's resignation, or prior, even so much as hinted at the prospect of renewal. In my view, the First Respondent's conduct points to the opposite conclusion. The First Respondent paid out the Applicant's entitlements, and repeatedly advised the Applicant it was not going to agree to her request for reinstatement. Consequently, I find that no prospective employment relationship existed between the Applicant and the First Respondent at the time the First Respondent refused to agree to the Applicant's re‑employment proposal.
  1. [52]
    As the employment contract between the Applicant and the First Respondent had ended at the relevant time, and no prospective employment situation existed at the relevant time, the submission that the Applicant did not enjoy the benefits of the general protections scheme at the relevant time should be accepted. All the subsections defining "adverse action" under s 282 of the IR Act presuppose and require that an employment contract or prospective employment relationship exist. I therefore accept the submission that the Applicant has failed to make out a cause of action because the Applicant did not, at the relevant time, enjoy the benefits of the IR Act's general protections scheme.
  1. [53]
    Some of the Respondents' other submissions should also be accepted. The Applicant's claims about an unfair dismissal are misguided and irrelevant. The Applicant's claims that false or damaging statements were made that constituted adverse action are too poorly particularised as to make out a cause of action. Likewise, the claim that the Respondents' lawyers engaged in adverse action after the resignation through its correspondence is misconceived and entirely without merit. No  employment relationship of any kind existed between the Respondents' lawyers and the Applicant. Furthermore, the FW Act also plainly does not apply.
  1. [54]
    The Respondents' argument that the further proceedings are not necessary or desirable in the public interest because the Appellant fails to make out a cause of action is compelling. Such an argument strongly predisposes me to exercise the discretion to find that the matter should not be heard.
  1. [55]
    I am not so persuaded that the First Resident being a not-for-profit entity whose board is made of unpaid volunteers weighs heavily on the public interest test. When Dwyer IC referred to parties that should not have to endure lengthy and costly proceedings dealing with an irretrievably unmeritorious complaint, the focus was on the waste of public resources and cost to parties drawn into defending unmeritorious proceedings. The charitable status or moral character of one party in particular did not feature in Dwyer IC's analysis.
  1. [56]
    When weighing up the public interest, the primary focus is the lack of merit in the proceedings, not the nature of, or good corporate character of, a party to those proceedings. I accept the Applicant's submissions on this point. The public interest is not concerned with whether a party is staffed by volunteers or has the capacity to run a matter. It is therefore irrelevant to the public interest of hearing this matter that the First Respondent is a not-for-profit entity whose board is made of unpaid volunteers.
  1. [57]
    Overall, I am persuaded that the further proceedings are not necessary or desirable in the public interest. I am persuaded to do so principally by the fact that the Applicant has failed to make out a cause of action. This is, therefore, one of those relatively rare cases where, at first glance, and even after hearing from the Applicant on this concern, it is abundantly clear that the case is misconceived.
  1. [58]
    I am mindful of the gravity of dismissing the case or refusing to hear it. That is something that should only be done in the clearest of cases. However, in this case, after considering the Applicant's submissions and all of the material before the Commission, I am of the view that this is such a case. On my assessment, the Applicant's case cannot possibly succeed. For those reasons, canvassed above from paragraphs [44] to [58] of these reasons, I find that this case is one that should not be heard because it would not be in the public interest to do so. I therefore order that the matter is not to be heard further and that it be dismissed.

Order

  1. The application is dismissed.

Footnotes

[1] [2016] QIRC 34 ('Crews-Bradley').

[2] [2006] QCA 215 ('Cook').

[3] Crews-Bradley (n 1) [12], citing Cook (n 2) [17]-[19].

[4] [1995] NSWIRComm 175 ('Allison').

[5] Crews-Bradley (n 1) [13], citing Allison (n 4) 72.

[6] (1995) 63 IR 357 ('Minato').

[7] [1989] IRLR 115 ('Sovereign House').

[8] Minato (n 6) 361-362, citing Sovereign House (n 7) 116.

[9] [1992] ICR 183 ('Kwik-Fit').

[10] Minato (n 6) 362, citing Kwik-Fit (n 9) 191.

[11] (1999) 94 IR 375, [12].

[12] Crews-Bradley (n 1) [18] (O'Connor DP), cited with approval in Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182, [79] (McLennan IC) ('Sandhu') and McMahon v Mount Isa City Council [2023] QIRC 346, [8] (Hartigan DP).

[13] (1984) 5 FCR 447 ('Birrell').

[14] Ibid 457-458.

[15] Ibid 458.

[16] Ibid 459.

[17] Sandhu (n 12) [78]-[79].

[18] Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500 ('Al-Attar').

[19] Ibid [78].

[20] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 [24] ('Campbell'), citing State of Queensland v Lockhart [2014] ICQ 6.

[21] Ibid [20]-[22].

[22] Ibid [22].

[23] Ibid [22].

[24] [2014] ICQ 6 ('Lockhart').

[25] Campbell (n 20) [24].

[26] Campbell, [24], citing Lockhart (n 24) [21], citing O'Sullivan v Farrer (1989) 168 CLR 210, 216.

[27] Campbell, [24], citing Lockhart (n 24) [22], citing GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, 273-274.

[28] (2005) 180 QGIG 1209.

[29] (2005) 180 QGIG 1209, 1210, citing Quinlan v Rothwell [2002] 1 Qd R 647, 658.

[30] Campbell (n 20) [28]-[30].

[31] [2024] QIRC 12.

[32] Ibid [39]-[41], [123], [125]-[126].

[33] Sovereign House (n 7) 116.

[34] Ibid; Kwik-Fit (n 9) 191.

[35] Ibid 191.

[36] Sandhu (n 12) [78]-[79].

[37] Birrell (n 13) 457-458.

[38] Al-Attar (n 18) [78].

Close

Editorial Notes

  • Published Case Name:

    Pegg v Gumdale State School P&C Association & Anor

  • Shortened Case Name:

    Pegg v Gumdale State School P&C Association

  • MNC:

    [2024] QIRC 295

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    13 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allison v Bega Valley Council [1995] NSWIRComm 175
2 citations
Jump To
Cite 1 - [1995] NSWIRComm 175
Cite 2 - [1995] NSWIRComm 175
Birrell v Australian National Airlines Commission (1984) 5 FCR 447
2 citations
Jump To
Cite 1 - (1984) 5 FCR 447
Cite 2 - (1984) 5 FCR 447
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Cook v CFP Management Pty Ltd [2006] QCA 215
2 citations
Jump To
Cite 1 - [2006] QCA 215
Cite 2 - [2006] QCA 215
GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266
2 citations
Jump To
Cite 1 - (2010) 197 IR 266
Cite 2 - (2010) 197 IR 266
Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183
2 citations
Jump To
Cite 1 - [1992] ICR 183
Cite 2 - [1992] ICR 183
McMahon v Mount Isa City Council [2023] QIRC 346
2 citations
Jump To
Cite 1 - [2023] QIRC 346
Cite 2 - [2023] QIRC 346
Minato v Palmer Corporation Ltd (1995) 63 IR 357
2 citations
Jump To
Cite 1 - (1995) 63 IR 357
Cite 2 - (1995) 63 IR 357
Ngo v Link Printing Pty Ltd (1999) 94 IR 375
2 citations
Jump To
Cite 1 - (1999) 94 IR 375
Cite 2 - (1999) 94 IR 375
O'Sullivan v Farrer (1989) 168 CLR 210
2 citations
Jump To
Cite 1 - (1989) 168 CLR 210
Cite 2 - (1989) 168 CLR 210
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59
1 citation
Jump To
Cite 1 - [2005] ICQ 59
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
3 citations
Jump To
Cite 1 - (2005) 180 QGIG 1209
Cite 2 - (2005) 180 QGIG 1209
Cite 3 - (2005) 180 QGIG 1209
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
Jump To
Cite 1 - [2002] 1 Qd R 647
Cite 2 - [2002] 1 Qd R 647
Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182
2 citations
Jump To
Cite 1 - [2019] QIRC 182
Cite 2 - [2019] QIRC 182
Sovereign House Security Services Ltd v Savage [1989] IRLR 115
2 citations
Jump To
Cite 1 - [1989] IRLR 115
Cite 2 - [1989] IRLR 115
State of Queensland (South West Hospital and Health Service) v Crews-Bradley [2016] QIRC 34
2 citations
Jump To
Cite 1 - [2016] QIRC 34
Cite 2 - [2016] QIRC 34
State of Queensland v Lockhart [2014] ICQ 6
3 citations
Jump To
Cite 1 - [2014] ICQ 6
Cite 2 - [2014] ICQ 6
Cite 3 - [2014] ICQ 6
Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12
2 citations
Jump To
Cite 1 - [2024] QIRC 12
Cite 2 - [2024] QIRC 12

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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