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McColl v Toowoomba Regional Council[2025] QIRC 17

McColl v Toowoomba Regional Council[2025] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McColl v Toowoomba Regional Council [2025] QIRC 017

PARTIES:

McColl, Darren Brett

(Applicant)

v

Toowoomba Regional Council

(Respondent)

CASE NO:

TD/2024/64

PROCEEDING:

Application for reinstatement

DELIVERED ON:

22 January 2025

MEMBER:

Gazenbeek IC

HEARD AT:

On the papers

ORDERS:

The application for reinstatement in matter TD/2024/64 is dismissed

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where application filed beyond statutory time limit – factors informing discretion to extend time – length of delay – explanations for delay – prejudice to the applicant and respondent – conduct of the respondent – prospects of success – whether the Commission should exercise discretion to grant extension

LEGISLATION AND INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 38

Fair Work Act 2009 (Cth) s 394

Industrial Relations Act 2016 (Qld) s 317

Toowoomba Regional Council Field Based Staff Certified Agreement 2022 (No. 4)

CASES:

Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173

Brisbane South Regional Authority v Taylor (1996) 139 ALR 1

Bruest v Qantas Airways Limited (1995) 149 QGIG 777

Clark v Ringwood Private Hospital [1997] AIRC 344

Collins v State of Queensland (Department of Education) [2024] QIRC 086

Davidson v Aboriginal and Islander Child Care Agency Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784

Drage v State of Queensland (Queensland Health) [2023] ICQ 22

Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428

Hamilton v Racing & Wagering Western Australia [2019] FWC 4654

Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709

Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129

Lockhart v Queensland Health [2014] QIRC 012

Mills v Bupa Aged Care Australia Pty Ltd [2022] FWC 875

O'Hara v Victoria [2006] FCA 420

Palmer v RCR Engineering Pty Ltd [2009] FWA 1431

Paterson v Medical Benefits Fund of Australia Ltd (1998) 159 QGIG 232

Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43

Weaver v Ipswich City Council [2021] QIRC 234

Reasons for Decision

  1. [1]
    Mr Darren Brett McColl (‘the Applicant’) commenced employment with Toowoomba Regional Council (‘the Respondent’) on 7 March 1995.
  2. [2]
    On 2 May 2024, following a show cause process, the Applicant was advised that he was dismissed from his employment with the Respondent effective immediately. The Applicant was summarily dismissed by the Respondent on the basis that 14 allegations against him had been substantiated, and 4 allegations partially substantiated, with the conduct subject of these allegations amounting to breaches of the Respondent’s Code of Conduct for Employees and their Organisational Values and Behaviours.[1]
  3. [3]
    On 18 June 2024, the Applicant’s legal representative filed an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) in the Queensland Industrial Relations Commission (‘the Commission’ or ‘the QIRC’). The Applicant’s representative indicated in the application that it was not filed within 21 days of the Applicant’s dismissal taking effect as it had initially been “filed in the Federal Commission due to human error”, but that the Respondent “is not prejudiced by the delay.”[2]
  4. [4]
    The Respondent filed a response to the application on 24 June 2024, raising a jurisdictional objection to the application on the basis that the application is out of time.[3]
  5. [5]
    In light of the Respondent’s jurisdictional objection to the application, this matter was mentioned before me on 11 July 2024, during which both parties confirmed their wish for the Commission to deal with this objection on the papers in an interlocutory decision, following the filing of submissions by both parties.[4]
  6. [6]
    Such submissions having now been filed by the parties, the issue to be determined in this decision in whether an extension of time should be granted for the filing of the application.

Legislative framework

  1. [7]
    Section 317(2)(a) of the IR Act requires that an application for reinstatement must be made within 21 days after the dismissal takes effect. However, s 317(2)(b) of the IR Act provides the Commission with the discretion to extend the time for filing an application for reinstatement:

317 Application for reinstatement

  1. (1)
    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. (2)
    The application must be made within –
  1. (a)
    21 days after the dismissal takes effect; or
  1. (b)
    if the commission allows a further period on an application made at any time – the further period.

(emphasis added)

Relevant considerations in the exercise of discretion

  1. [8]
    It is the Applicant that must persuade the Commission to allow an extension of time to file the application.[5]
  2. [9]
    As noted by both parties in their submissions, the Commission has previously had regard to several factors when determining whether the discretion to extend the time under s 317(2)(b) of the Act should be exercised.[6]  Those factors were set out in Fletcher v State of Queensland (Queensland Police Service) (‘Fletcher’) as being:[7]
  1. the length of the delay;
  2. the explanation for the delay;
  3. the prejudice to the applicant if the extension of time is not granted;
  4. the prejudice to the respondent if the extension of time is granted;
  5. any relevant conduct of the respondent; and
  6. the prospects of success of the substantive application.
  1. [10]
    Some additional considerations were provided in Erhardt v Goodman Fielder Food Services Limited,[8] which were usefully summarised by Thompson IC in Lloyd v Department of Communities, Child Safety and Disability Services, as paraphrased below:[9]
  • the time limit of 21 days must be respected and should not be easily dispensed; and
  • the Applicant’s prospect of success at the substantive hearing is always a relevant matter in that where it appears an Applicant has no, or very limited, prospects of success, the Queensland Industrial Relations Commission would not normally grant an extension of time.
  1. [11]
    Decisions relating to applications for reinstatement under s 394 of the Fair Work Act 2009 (Cth) (‘the FW Act’) have been cited by the parties in their submissions, and in my consideration below. While such decisions provide useful guidance, it is prudent to note that the Commonwealth legislation differs from the IR Act in, e.g., requiring an applicant for an extension of time to show that there are “exceptional circumstances.”[10] Decisions of the FWC therefore cannot be treated as decisive when exercising the discretion to extend under s 317(2)(b) of the IR Act.

Length of delay

Applicant’s submissions

  1. [12]
    In relation to this factor, the Applicant submitted that:[11]
  1. 5.
    The delay of 18 days is minimal.
  1. 6.
    This minimal delay is further mitigated by the fact that the Applicant filed an application in the FWC in identical terms to this application before the Commission, within the 21 day limitation period, which was served on the Respondent, thus bringing it to the Respondent’s attention.
  1. 7.
    This factor falls in favour of the Applicant.

Respondent’s submissions

  1. [13]
    The Respondent submitted that:[12]
  1. 14.
    Whilst the Applicant submits there was a delay of 18 days, this measurement is in accordance with business days. The Respondent notes the filing of the QIRC Application was delayed by 26 calendar days.
  1. 15.
    Notably, the 21 day time limit expressed in section 317(2)(a) is in accordance with calendar days. As such, the measurement of the delay ought to be in calendar days.
  1. 16.
    At 26 days late and 47 days from the date of the dismissal, the time it took the applicant to file his Application within the correct jurisdiction was over twice the time limitation of 21 days. As such, the Respondent submits that this delay is not insignificant.

Consideration

  1. [14]
    Given the discrepancies between the parties’ submissions, it is necessary to first clarify the length of the delay in filing.
  2. [15]
    The Respondent is correct in submitting that the 21-day time limit imposed by s 317 of the IR Act is expressed in calendar days, not business days. That time period is to be calculated by excluding the day of the dismissal.[13] Given that the Applicant was terminated on 2 May 2024, the 21-day period for filing expired on 23 May 2024. By virtue of being filed in the Industrial Registry on 18 June 2024, the Application was filed 26 days out of time.
  3. [16]
    In Drage v State of Queensland (Queensland Health), Davis J, President, observed that:[14]
  1. [37]
    … the application was for an extension of time of only one day. There will be cases where it is inappropriate to grant an extension of one day, and there will be cases where it will be appropriate to grant an extension of time of months. However, the decision not to grant an extension of time of one day, especially when there is argument about the merits and that was determined summarily, is a decision which might be regarded, just purely for those reasons, as a finely balanced one.

(emphasis added)

  1. [17]
    Further, in Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service), Industrial Commissioner Dwyer noted that:[15]
  1. [36]
    In respect of the length of delay … the application is filed some 26 days beyond the nominated statutory time limit. The number of days ought not to be considered as if it is some type of number game. There is no rule as to what number of days is too little or what number of days is too many. It is something that ought to be considered in the context of the other considerations.
  1. [37]
    However I would observe that 26 days is not an insignificant lapse in respect of the time limitation and by observation I would say that, as recently as two weeks ago, I refused an application for an extension of time and that was in a matter that was eight days out of time.

(emphasis added)

  1. [18]
    In Weaver v Ipswich City Council, Vice President O'Connor further noted that:[16]
  1. [14]
    The starting point is the recognition that the Legislature has chosen to impose a 21-day time limit on applications for reinstatement which must be respected.
  1. [15]
    In Brisbane South Regional Authority v Taylor, McHugh J spoke of the rationale for the imposition of limitation periods in the following terms:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and business, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The finale rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

(emphasis added)

  1. [19]
    In light of the above observations, I find the Applicant’s submission that their delay in filing was “minimal”, and that the factor therefore plainly weighs in their favour, to be overly simplistic. No decisions have been cited by the Applicant in support of this assertion, and delays of, e.g., 9 days[17] and 26 days,[18] have previously been found in this Commission to be “not insignificant.”
  2. [20]
    In the context of a 21-day time limitation, I consider that the delay of 26 days is not insignificant. However, whether the length of this delay was reasonable must be considered within the context of the other factors to be considered.

Explanation for the delay

Applicant’s submissions

  1. [21]
    The Applicant submits that the delay was caused by representative error and that the Applicant is “blameless”, adding that:[19]
  1. 10.
    Here, the Applicant has met with his solicitors on 15 May 2024, or day 13. There cannot be any sensible submission that there were steps that the Applicant should have taken, but did not.
  1. 11.
    The delay from 10 June (notification of incorrect forum) to filing this application was 5 business days.
  1. 12.
    This delay (if indeed it is a delay) was caused by the Applicant’s solicitors (properly) seeking instructions and advice from Counsel.
  1. 13.
    Any delay has not been caused by the Applicant.
  1. 14.
    This factor falls in favour of the Applicant.

Respondent’s submissions

  1. [22]
    In response to the Applicant’s submissions, the Respondent contends that:[20]
  1. 17.
    At paragraph 6 of the Applicant’s submissions, it states that the Fair Work Commission Application was ‘in identical terms’ to that filed in the QIRC.
  1. 18.
    Paragraph 7 of the Statement of Jag Christian MacDonald of 25 July 2024 states that the Applicant became aware of the jurisdictional error on 10 June 2024, and then ‘sought advice from counsel and instructions and prepared and filed the application in the QIRC on 18 June 2024.’
  1. 19.
    If no changes to the document’s content were necessary, the Respondent submits that it is entirely unreasonable for the Applicant to have taken 8 days to file an ‘identical’ application in the QIRC.
  1. 20.
    In Palmer v RCR Engineering Pty Ltd, an extension was granted when an out of time Application was lodged in the correct jurisdiction within three days of the Applicant becoming aware that it had been lodged in the incorrect jurisdiction – in this instance, the delay of a further five days, including three business days, is important, and is much longer than the time taken to lodge the Application in the Palmer decision.
  1. 21.
    The Respondent submits that 8 days is a notable extension to the 3 days in the example above. The Applicant and its solicitors ought to have been able to research appropriately and file in the correct jurisdiction in a much shorter time than 8 days, particularly in light of the fact that the jurisdictional issue is not a complex one. Further, in circumstances where the content of the QIRC Application was not much more than a simple ‘cut and paste’, it is not unreasonable to expect that the Applicant and its solicitors ought to have reviewed the jurisdictional issue and informed themselves appropriately and filed it in the correct jurisdiction on the very same day that they became aware of the incorrect filing within the FWC jurisdiction.
  1. 22.
    In this respect, it is also contended that the Applicant is not blameless as he could have taken the appropriate steps to ensure that his solicitors filed in the correct jurisdiction on the very same day that they became aware of the jurisdictional issue. The Respondent notes that the Applicant has offered no explanation as to any such reasonable steps taken by the Applicant to ensure that his application was filed in a prompt and timely manner within the correct jurisdiction.
  1. 23.
    Notably, in Mills v Bupa Aged Care Australia Pty Ltd, Commissioner Yilmaz stated:
  1. [25]
    … it is unreasonable to expect that Ms Mills [the Applicant] having fulfilled her obligations by providing timely and clear instructions would anticipate a late lodgement by her representative, to take further action to ensure the application was made by midnight. Ms Mills was entitled to rely on her representative to complete the application on time.
  1. 24.
    Arguably, the present case is contrasted to that of Ms Mills, as the Applicant would have been aware on or about 10 June 2024 that his FWC Application was filed in the wrong jurisdiction, and upon becoming aware of that issue, he ought to have taken the appropriate steps to effect [sic] the filing of his application in the correct jurisdiction as soon as possible. In that regard, the Respondent notes the Applicant has not provided any explanation as to any such steps taken by the Applicant,  and submits that the Applicant could have taken more prompt and timely action in order to ensure the filing for the QIRC Application in a time much shorter than the 8 days that is eventually took.
  1. 25.
    As such, the Respondent submits that the delay is unreasonable, the Applicant is not entirely blameless in the delay and the circumstances of the filing in the incorrect jurisdiction does not warrant the granting of an extension.

Consideration

  1. [23]
    As observed by Vice President O'Connor in Weaver v Ipswich City Council, it is “incumbent on the Applicant to provide a basis upon which the Commission could properly exercise its discretion to extent the time in which to bring a reinstatement application.”[21]
  2. [24]
    Representative error may be a sufficient reason to extend the time within which an application for reinstatement is to be filed. However, in deciding whether representative error provides an acceptable explanation for the delay in filing, the applicant’s conduct is a central consideration. Further, a distinction “should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.”[22]
  3. [25]
    The submission that “there cannot be any sensible submission that there were steps that the Applicant should have taken” beyond meeting with his solicitors on one occasion, is overly simplistic. An applicant cannot merely leave their matter in the hands of their representative and take no further steps to, for example, enquire as to the matter’s progress, or provide further instructions where appropriate.[23] The Applicant’s submissions do not detail what involvement, if any, the Applicant had in their matter beyond 15 May 2024. Evidence of the Applicant having followed up with his representative after the initial meeting, or of giving additional instructions to his representative upon being alerted of having filed in the wrong jurisdiction, may have been compelling.[24] However, given the absence of submissions in this regard, I cannot be satisfied that the Applicant was entirely blameless for the delay in filing.
  4. [26]
    Crucially, I am not satisfied that a reasonable explanation has been provided for the 8-day delay between the Applicant’s representatives being alerted to having filed in the incorrect jurisdiction, and filing in the correct jurisdiction. The explanation provided – that the Applicant’s solicitors needed 8 days to seek instructions and advice from Counsel as to the correct jurisdiction in which to file a new application, and then prepare the new application – is underwhelming.
  5. [27]
    I concur with the Respondent’s submission that “the jurisdictional question was a relatively simple matter, able to be researched arguably in less than 90 minutes”, particularly by legal professionals.[25] I note that the Applicant’s representatives correctly stated in the original FWC application that the industrial instrument relevant to the Applicant’s employment is the Toowoomba Regional Council Field Based Staff Certified Agreement 2022 (No. 4).[26] Had the Applicant or his representatives merely searched the name of this certified agreement online, or reviewed the first page of the agreement, they would have quickly discovered that it was certified by the Queensland Industrial Relations Commission, not the Fair Work Commission (‘the FWC’).
  6. [28]
    Given the Applicant’s submission that the application filed in the QIRC was “in identical terms” to the application filed in the FWC,[27] it would be reasonable to expect that an application could have easily been prepared and filed in the QIRC with a far greater sense of urgency than that actually displayed. While initially filing in the FWC may have been a mere human error on the part of the Applicant’s representatives,[28] the further 8-day delay in filing after being alerted to this error demonstrates an indifference to the QIRC’s prescribed time-limits that I do not believe has been adequately justified, and for which I cannot conclude the Applicant is entirely blameless.
  7. [29]
    The error in the identification of the appropriate jurisdiction was not proactively remedied,[29] or with sufficient respect for the QIRC’s prescribed time-limits. I am not persuaded that an acceptable explanation for this delay has been provided, which does not weigh in favour of granting an extension of time. 

Prejudice to the parties

  1. [30]
    It is clear that the prejudice the Applicant will suffer if the extension of time is refused is that he will lose the right to have his application for reinstatement heard and determined.
  2. [31]
    Conversely, the prejudice to the Respondent would be that it would not be able to rely upon the prescribed time limit and would incur costs associated with defending the application.[30]

Conduct of the respondent

Applicant’s submissions

  1. [32]
    In relation to this factor, the Applicant submits that:[31]
  1. 22.
    The Applicant says that the conduct of the Respondent relevant here is not responding to the FWC application for a period of 18 days …
  1. 23.
    With respect, the Respondent ought to have known instantly that the FWC application had been filed in the incorrect forum.
  1. 24.
    Some simple professional courtesy would have seen the Respondent contact the Applicant immediately. This did not occur.
  1. 25.
    This factor falls in favour of the Applicant.

Respondent’s submissions

  1. [33]
    In reply, the Respondent relevantly submits that:[32]
  1. 48.
    … the Respondent submits that it was not late in any required filing of its Response to the Applicant’s FWC Application.
  1. 49.
    The Respondent notes the following:
  1. a.
    the Respondent received the FWC Application on 3 June 2024;
  1. b.
    the timeframe in which the FWC required a response from the Respondent was 7 days from the date of receiving the Application – that is, 10 June 2024;
  1. c.
    the Respondent filed its Response on 10 June 2024.
  1. 50.
    The Respondent has no legal obligation to immediately notify the Applicant that the FWC claim has been filed in the incorrect jurisdiction. As such, it did not do so.
  1. 51.
    For the above reasons, the Respondent submits that its conduct, as asserted by the Applicant, is not relevant to the Applicant’s request for an extension of time to file his QIRC Application.
  1. 52.
    Further, the Applicant’s failure to act within eight days of becoming aware of its error is not the fault of the Respondent. It is solely the fault of the Applicant and his solicitors. They should have acted sooner in filing the QIRC Application, and, if determined and including to, they could have filed the application in the correct jurisdiction on the very same day that they were aware of the jurisdictional error – and yet, they did not. The delay was a further 8 days.

Consideration

  1. [34]
    The Applicant’s submission that the Respondent ought to have notified them of their filing error, and that were not shown “simple professional courtesy” when the Respondent failed to do so, is a rather futile argument. It is plainly not the responsibility of the Respondent to provide the Applicant with advice on how best to bring proceedings against them.[33] Regardless, the Respondent provided their response to the FWC Application within the 7-day period it was provided to do so, and properly included in their response their jurisdictional objection to the Application. I do not accept the Applicant’s submission that this conduct of the Respondent is relevant to my present consideration.
  2. [35]
    There is no relevant evidence before the Commission of any conduct by the Respondent that may have contributed to the delay in the filing of the application in the QIRC.

Prospects of success

Parties’ submissions

  1. [36]
    The Applicant submits in relation to this factor that “he establishes the facts as alleged in this application, he will succeed in his application”, and that this is “sufficient to see this factor fall in favour of the extension.”[34]
  2. [37]
    In reply, the Respondent submits that:[35]
  1. 53.
    … the Applicant’s submissions in these paragraphs should not be accepted, even at a prima facie level, as the facts within the QIRC Application have not been examined and conclusively established. Further, the supporting information and materials necessary to support the Applicant’s asserted points are severely lacking.
  1. 54.
    In particular, the Respondent notes:
  1. a.
    the Applicant has offered no explanation or supporting materials to his assertion that “All of the allegations are false”;
  1. b.
    the fact that two complainants are no longer employed by the Respondent does not render the allegations false, and nor is this relevant – in fact it is the proposition of the Respondent that these employees resigned because of the Applicant’s conduct at work;
  1. c.
    it denied the Applicant’s contention that there were any further investigations that needed to be undertaken;
  1. d.
    it undertook the investigation into the Applicant’s conduct with due process and procedural fairness, and it was entitled to rely on the outcome of the investigation into the allegations;
  1. e.
    it considered the Applicant’s lengthy employment history with the Respondent but determined that in all the circumstances, termination was appropriate.

Consideration

  1. [38]
    It is not the function of an Industrial Commissioner to “examine minutely” the merits of a case when considering whether the discretion to extend the time in which to file an application for reinstatement has been enlivened. However, where “it is patently clear that the basic facts are essentially uncontested, and that on those facts the prospects of success are minimal”, it is not an error principal for the “futility of the proceedings” to be taken into account.[36]
  2. [39]
    The onus rests on the Applicant to demonstrate that this is a matter in which the Commission should exercise its discretion. Despite this, the Applicant’s present case is woefully vague. The Applicant’s submissions provide no assistance in considering this factor, merely stating that the Applicant would succeed if the facts alleged in his application are established. What those facts indeed are is unclear; the application for reinstatement says only that “all of the allegations [against him] are false” and that it was unfair to decide the allegations were true without “any further investigation” or any attempt to “introduce a plan for [his] employment.”[37]
  3. [40]
    By contrast, the Respondent has contended that:[38]
  • the Applicant was dismissed following an internal investigation and show cause process, throughout which the Applicant was afforded procedural fairness;
  • it was only after the findings of this investigation that the Applicant was summarily dismissed from his employment; and
  • the Applicant had previously received a formal written reprimand regarding his conduct, and that any further breaches of the relevant code of conduct, policies, and organisational values may result in his termination.
  1. [41]
    It is clear that the parties are diametrically opposed regarding the allegations upon which the decision to terminate the Applicant’s employment was made, and the events leading to this termination. While I agree with the Respondent’s submission that the Applicant’s asserted points are “severely lacking”,[39] I am unable to conclusively glean the prospects of success of the substantive application from the limited material before me. However, 14 substantiated and 4 partially substantiated allegations are not an insignificant hurdle to overcome, and far more cogent and detailed submissions than those filed to date by the Applicant would be required.

Conclusion

  1. [42]
    The statutory time limit contained in s 317 of the IR Act should only be departed from in the most compelling of circumstances.[40] I am not persuaded that such circumstances apply in the present matter. The reason for the Applicant’s delay has not been satisfactorily explained, and the deficiencies of the Applicant’s submissions prevent me from concluding with any confidence that the Applicant was entirely blameless for the both the initial errors of his representatives, and their prolonged delay in rectifying them. The failure to promptly file an application in the correct jurisdiction after having being alerted to their error indicates an indifference to the statutory time limit, an indifference that cannot be characterised as the most compelling of circumstances.
  2. [43]
    The Applicant has not discharged the burden of establishing that he has a case for an extension of time, and thus the discretion to extend the time in which to file the application for reinstatement under s 317 of the IR Act has not been enlivened.
  3. [44]
    Accordingly, the application for reinstatement is dismissed.

Orders

  1. [45]
    I make the following order:
    1. The application for reinstatement in matter TD/2024/64 is dismissed.

Footnotes

[1] Letter of Mr M. Brady (General Manager, Infrastructure Services Group) to Applicant, dated 2 May 2024, 6.

[2] Application for reinstatement, filed 18 June 2024, 4.

[3] Employer response to application for reinstatement, filed 24 June 2024, 3.

[4] Further Directions Order, issued 11 July 2024.

[5] Collins v State of Queensland (Department of Education) [2024] QIRC 086 [22]; Lockhart v Queensland Health [2014] QIRC 012 [14].

[6] Applicant’s submissions, filed 25 July 2024, [4]; Respondent’s submissions, filed 8 August 2024, [11].

[7] Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428 [9], citing Bruest v Qantas Airways Limited (1995) 149 QGIG 777; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Paterson v Medical Benefits Fund of Australia Ltd (1998) 159 QGIG 232; Weaver v Ipswich City Council [2021] QIRC 234.

[8] (1999) 163 QGIG 20

[9] [2013] QIRC 129 [5].

[10] Fair Work Act 2009 (Cth) s 394(3).

[11] Applicant’s submissions, filed 25 July 2024, [5]-[7].

[12] Respondent’s submissions, filed 8 August 2024, [14]-[25], citing Palmer v RCR Engineering Pty Ltd [2009] FWA 1431, and Mills v Bupa Aged Care Australia Pty Ltd [2022] FWC 875.

[13] Acts Interpretation Act 1954 (Qld) s 38.

[14] [2023] ICQ 22 [37].

[15] [2020] QIRC 173 [36]-[37].

[16] [2021] QIRC 234 [14]-[15], citing Brisbane South Regional Authority v Taylor (1996) 139 ALR 1.

[17] Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428.

[18] Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173.

[19] Applicant’s submissions, filed 25 July 2024, [9].

[20] Respondent’s submissions, filed 8 August 2024, [17]-[25].

[21] [2021] QIRC 244 [45].

[22] Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 [64], citing Clark v Ringwood Private Hospital [1997] AIRC 344.

[23] See Davidson v Aboriginal and Islander Child Care Agency Davidson v Aboriginal and Islander Child Care Agency (AIRCFB, Ross VP, Watson SDP, Eames C, 12 May 1998) Print Q0784.

[24] See Hamilton v Racing & Wagering Western Australia [2019] FWC 4654 [33]-[35].

[25] Respondent’s submissions, filed 8 August 2024, [37].

[26] Statement by Amy Belford, filed 8 August 2024, Attachment 2.

[27] Applicant’s submissions, filed 25 July 2024, [6].

[28] O'Hara v Queensland [2019] QIRC 155.

[29] See Hamilton v Racing & Wagering Western Australia [2019] FWC 4654 [35]-[36].

[30] Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428 [26]-[27].

[31] Applicant’s submissions, filed 25 July 2024, [22]-[25].

[32] Respondent’s submissions, filed 8 August 2024, [48]-[52].

[33] See O'Hara v Victoria [2006] FCA 420 [10], as cited in Weaver v Ipswich City Council [2021] QIRC 234.

[34] Applicant’s submissions, filed 25 July 2024, [26]-[27].

[35] Respondent’s submissions, filed 8 August 2024, [53]-[54].

[36] Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709, as cited in Weaver v Ipswich City Council [2021] QIRC 234 [72]. 

[37] Application for reinstatement, filed 18 June 2024, 5.

[38] Employer response to application for reinstatement, filed 24 June 2024, 4.

[39] Respondent’s submissions, filed 8 August 2024, [53].

[40] Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43.

Close

Editorial Notes

  • Published Case Name:

    McColl v Toowoomba Regional Council

  • Shortened Case Name:

    McColl v Toowoomba Regional Council

  • MNC:

    [2025] QIRC 17

  • Court:

    QIRC

  • Judge(s):

    Gazenbeek IC

  • Date:

    22 Jan 2025

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
Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173
3 citations
Jump To
Cite 1 - [2020] QIRC 173
Cite 2 - [2020] QIRC 173
Cite 3 - [2020] QIRC 173
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
2 citations
Jump To
Cite 1 - (1996) 139 ALR 1
Cite 2 - (1996) 139 ALR 1
Clark v Ringwood Private Hospital 1159/97 S Print P5279 [1997] AIRC 344
2 citations
Jump To
Cite 1 - [1997] AIRC 344
Cite 2 - [1997] AIRC 344
Collins v State of Queensland (Department of Education) [2024] QIRC 86
2 citations
Jump To
Cite 1 - [2024] QIRC 86
Cite 2 - [2024] QIRC 86
Drage v State of Queensland (Queensland Health) [2023] ICQ 22
2 citations
Jump To
Cite 1 - [2023] ICQ 22
Cite 2 - [2023] ICQ 22
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
3 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Cite 3 - (1999) 163 QGIG 20
Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428
4 citations
Jump To
Cite 1 - [2022] QIRC 428
Cite 2 - [2022] QIRC 428
Cite 3 - [2022] QIRC 428
Cite 4 - [2022] QIRC 428
Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709
2 citations
Jump To
Cite 1 - (1995) 149 QGIF 709
Cite 2 - (1995) 149 QGIF 709
Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129
3 citations
Jump To
Cite 1 - [2013] QIRC 129
Cite 2 - [2013] QIRC 129
Cite 3 - [2013] QIRC 129
Lockhart v Queensland Health [2014] QIRC 12
2 citations
Jump To
Cite 1 - [2014] QIRC 12
Cite 2 - [2014] QIRC 12
O'Hara v State of Queensland (Department of Education) [2019] QIRC 155
1 citation
Jump To
Cite 1 - [2019] QIRC 155
O'Hara v Victoria [2006] FCA 420
2 citations
Jump To
Cite 1 - [2006] FCA 420
Cite 2 - [2006] FCA 420
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
2 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Ramasamy v State of Queensland (Queensland Health) [2021] QIRC 244
1 citation
Jump To
Cite 1 - [2021] QIRC 244
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
2 citations
Jump To
Cite 1 - [2013] QIRC 43
Cite 2 - [2013] QIRC 43
Weaver v Ipswich City Council [2021] QIRC 234
5 citations
Jump To
Cite 1 - [2021] QIRC 234
Cite 2 - [2021] QIRC 234
Cite 3 - [2021] QIRC 234
Cite 4 - [2021] QIRC 234
Cite 5 - [2021] QIRC 234

Cases Citing

Case NameFull CitationFrequency
TB v State of Queensland (Queensland Health) [2025] QIRC 562 citations
1

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