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CITE

Unreported Judgment

Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2)[2025] QIRC 28Merrell DP
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Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2)[2025] QIRC 28

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2) [2025] QIRC 028
PARTIES:	Phillips, Helen (Applicant) v State of Queensland (Department of Transport and Main Roads) (Respondent)
CASE NO.:	TD/2023/29
PROCEEDING:	Application for reinstatement
HEARING DATE:	Determined on the papers
DELIVERED ON:	3 February 2025
DATES OF FINAL SUBMISSIONS:	Applicant's written submissions filed on 9 August 2024 and on 27 September 2024 Respondent's written submissions filed on 31 July 2024 and on 18 October 2024 Applicant's written submissions in reply filed on 31 October 2024
MEMBER:	Merrell DP
ORDER:	The order contained in paragraph [92] of these reasons for decision.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – Applicant employed by the Respondent in the Department of Transport and Main Roads in the position of Manager, (Development, Compliance and Support) classification AO8 – Applicant dismissed and made application, pursuant to the Industrial Relations Act 2016, for reinstatement on the basis her dismissal was harsh, unjust or unreasonable – after a trial, the Queensland Industrial Relations Commission determined that the Applicant's dismissal was not harsh, unjust or unreasonable within the meaning of the Industrial Relations Act 2016 – further directions orders made for the purpose of determining remedy – parties filed and served submissions and affidavit material for the purpose of determining remedy – parties given the opportunity to cross-examine deponents and be further heard on the question of remedy – parties agreed for the question of remedy to be determined on the papers – Applicant's reinstatement and re-employment impracticable – order made as to compensation
LEGISLATION:	Industrial Relations Act 2016, s 319, s 321 and s 322
CASES:	Carey v President of the Industrial Court of Queensland [2004] QCA 62; (2004) 2 Qd R 359 Johns v Gunns Ltd [1995] IRCA 373; (1995) 60 IR 258 Phillips v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 118 Smith v State of Queensland (Queensland Health) [2023] QIRC 296 Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 21

Reasons for Decision

Introduction

[1]
These reasons assume familiarity with the decision in Phillips v State of Queensland (Department of Transport and Main Roads) ('the Primary Decision').^[1] Unless otherwise stated, the definitions used in the Primary Decision are used in these reasons.

[2]
Ms Phillips was employed by the State of Queensland in the position of Manager (Development, Compliance and Support), classification AO8, in the Development Facilitation Unit of the Transport Strategy and Planning Branch ('TSP') of the Department. In November 2022, Ms Phillips was lawfully directed to transfer to the position of Program Manager (Active Transport), classification AO8, in the Cycling and Walking Unit of TSP ('the transfer position'). On 2 March 2023, Ms Phillips was dismissed for not reporting for duty in the transfer position.

[3]
Ms Phillips subsequently made an application for reinstatement contending her dismissal was unfair. In the Primary Decision, I found that Ms Phillips' dismissal was unfair^[2] because she did not refuse the transfer and she was not provided with any opportunity, prior to her dismissal, to respond to the conclusion reached by the Department that she had in fact refused the transfer and should be dismissed for that reason.^[3]

[4]
Because the parties had not filed any material or made any submissions about remedy, when I published my reasons for decision that Ms Phillips' dismissal was unfair on 17 May 2024, I issued Directions Orders for the filing and serving of relevant affidavit material and submissions, and then for the matter to be mentioned on 2 August 2024.^[4]

[5]
The following then occurred:

on 21 May 2024, the mention of the matter was relisted for 12 August 2024 at the Applicant's request;

on 3 July 2024, the Department filed an application to vary the earlier Directions Orders I made for various reasons;

in response, on 4 July 2024, I vacated the earlier Directions Orders and issued further Directions Orders;

on 25 July 2024, the Registry received correspondence from the Department's lawyers seeking further extensions of time to file its material; and

on 30 July 2024, I vacated the Directions Orders made on 4 July 2024 and issued further Directions Orders.

[6]
At the mention of the matter on 12 August 2024, the parties agreed that the question of remedy should be determined on the papers^[5] and, in light of that position, on 13 August 2024, I issued further Directions Orders for the Department to file one further affidavit on which it sought to rely and for the parties to file and serve final written submissions. On 18 October 2024, the Department filed a further affidavit and, in response to that affidavit, Ms Phillips filed further submissions on 31 October 2024.

[7]
I called a further mention on 22 November 2024. The purpose of that mention was to ensure that the position reached by the parties at the mention on 12 August 2024 – that the question of remedy be determined on the papers – was maintained by the parties in light of the material filed, including late material. Both parties still wanted the matter to be determined on the papers.^[6] As a consequence, none of the deponents were cross-examined.

[8]
The initial approach by the parties, in not filing material about remedy in the principal proceeding, and therefore not being able to make submissions about remedy at the conclusion of the evidence, was unsatisfactory. In ordinary circumstances, the Commission expects parties to an application for reinstatement to lead all evidence at the hearing; namely, evidence about whether or not the dismissal was unfair and evidence about remedy, so that when final submissions are made, the matter of remedy is also addressed. The assessment of what remedy may be ordered should be done in a timely manner on the evidence as it stands. I accept that the need to consider the remedy of re-employment may only become apparent at the point when it is clear that reinstatement is impracticable. However, that does not excuse the parties from leading evidence about remedy in the proceeding. The issues of the remedies of reinstatement or re-employment, when they arise on the facts, need to be dealt with reasonably quickly.

[9]
Ms Phillips seeks:

an order that she is reinstated to the transfer position; or, in the alternative

an order that she is re-employed to another position '… the Respondent has available and the Commission considers suitable'; and

orders:

–that the continuity of her employment is maintained;

–that the Department restores her accrued sick, recreation and long service leave taken prior to her dismissal and that she repays the cash equivalent of the accrued recreation and long service leave paid to her on her dismissal; and

–that the Respondent pay her the remuneration she lost due to her dismissal;^[7] or, in the alternative

an order that the Department pays her the maximum amount of compensation available under the IR Act.^[8]

[10]
The Department resists any order being made in favour of Ms Phillips.^[9]

[11]
The question for my determination is whether I should exercise my discretion and order a remedy in favour of Ms Phillips.

[12]
For the reasons that follow, pursuant to s 322(1) of the IR Act, I will order that the Department pay Ms Phillips compensation in the amount of $57,570.66 to be taxed according to law.

The submissions filed and affidavits read

[13]
Ms Phillips filed written submissions on 9 August 2024, 27 September 2024 and 31 October 2024. Ms Phillips read her affidavits filed on 12 June 2024 and 9 August 2024.

[14]
The Department filed submissions on 31 July 2024 and on 18 October 2024. The Department read the following affidavits:

the affidavit of Ms Julianne Mitchell filed on 31 July 2024;

the affidavit of Ms Lori Wilson filed on 31 July 2024;

the affidavit of Ms Penny Ford filed on 31 July 2024 ('Ms Ford's affidavit')

an affidavit of Mr Adam Ryan filed on 31 July 2024 ('Mr Ryan's first affidavit') and a further affidavit of Mr Ryan filed on the same day ('Mr Ryan's second affidavit');

the affidavit of Mr Randall Fletcher filed on 3 September 2024; and

the affidavit of Ms Rachelle Storm filed on 18 October 2024.

The relevant provisions of the Industrial Relations Act 2016

[15]
In the Primary Decision, I set out the relevant provisions of the IR Act that concern the issue of remedy. It is convenient to set them out again.

[16]
Section 319 of the IR Act provides:

319 Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle an application by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by–

making an order under section 321 or 322; or

dismissing the application.

[17]
Sections 321 and 322 of the IR Act provide:

321 Remedies–reinstatement or re–employment

This section applies if the commission is satisfied an employee was unfairly dismissed.

The commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.

The commission may also–

make an order it considers necessary to maintain the continuity of the employee’s employment or service; and

order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and

order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.

This section does not limit the commission’s power to make an interim or interlocutory order.

322 Remedies–compensation

If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.

The commission must not award an amount of compensation that is more than–

if the employee was employed under an industrial instrument–the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or

if the employee was not employed under an industrial instrument–the lesser of the wages under paragraph (a) and an amount equal to half the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.

The commission must take into account any amount paid to the employee by the employer on the dismissal.

This section does not limit the commission’s power to make an interim or interlocutory order.

Should an order be made that the Department reinstate Ms Phillips to the transfer position?

The relevant principles

[18]
In Smith v State of Queensland (Queensland Health)^[10] I addressed the principles concerning the notion of the impracticability of reinstatement or re-employment. I relevantly stated (citations omitted):

[358]
Generally speaking, the appropriateness of reinstatement will be considered in a common sense way: Nicholson v Heaven and Earth Gallery Pty Ltd.

[359]
In respect of a consideration of what is meant by 'impracticable' President Hall in Queensland Teachers Union of Employees v Department of Education stated:

It may be conceded that trust and confidence is a necessary ingredient of any employment relationship. It follows that ‘….. a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based: Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191. At the same time, the word “impracticable” does not import into s. 79(1) the whole of the judge made rule against ordering specific performance of contracts of employment because of a reluctance to force parties into a personal relationship involving elements of mutual confidence, compare Perkins v Grace Worldwide (Australia) Pty Ltd (ibid) at 190, Liddell v Lembke (1994) 1 IRCR 466 at 495 per Gray J and Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394 at 396 per Marshall J.

[360]
In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter a Full Bench of the Fair Work Commission relevantly stated in respect of the issue of the rationality of the claim by a former employer of the loss of trust and confidence in a former employee:

[27]
The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28]
Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

[361]
Similarly, in White, Deputy President O'Connor relevantly stated:

[86]
The respondent drew the Commission's attention to the decision of Wilcox J in Nicolson v Heaven and Earth Gallery where his Honour wrote:

"The word "impracticable" requires and permits the Court to take into account all of the circumstance of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement; notwithstanding that the job remains available."

[87]
There is no evidence before the Commission to support a conclusion that it would be "impracticable" to reinstate the applicant in the sense that such an order would impose "unacceptable problems or embarrassment or seriously affect productivity, or harmony".

[88]
The applicant referred the Commission to Perkins v Grace Worldwide (Aust) Pty Ltd where the Full Bench of the Fair Work Commission wrote:

"Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."

[89]
Whilst I accept that it may be inconvenient or difficult for the respondent to reinstate the applicant, it is nevertheless, in my view, not impracticable for them to do so. In Auto Logistics Pty Ltd v Kovacs de Jersey P considered the meaning of word "impracticable". His Honour concluded:

"That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practically impossible."

The parties' submissions

[19]
Even though Ms Phillips did not actually work in the transfer position, that was the position she held at the date of her dismissal and, therefore, can be the only position in respect of which an order for reinstatement may be made.^[11] Indeed, Ms Phillips seeks reinstatement to '… my former position' being the transfer position.^[12]

[20]
The Department, in its October submissions, relevantly submits (footnotes omitted):

14
The Respondent revised the Transfer Position after the Applicant did not take up duty in it (Revised Position), such that the Revised Position is substantially different from the Transfer Position.The Revised Position is a temporary position to October 2025 (12 months remaining at the time of these submissions) and not currently funded.The Revised Position's duties and responsibilities relate to achieving the Queensland Cycling Action Plan 2023– 2025 objectives (committed to by the government). The time needed to retrain the Applicant and redistribute work allocation, where only 12 months remains, would not achieve an effective, efficient and appropriate use of public resources.The replacement of the current incumbent would therefore impose unacceptable problems and seriously impact productivity.

15
On this basis, re-employment is impracticable as the Transfer Position no longer exists and re-employment to the Revised Position would not return the Applicant to employment on conditions at least as favourable as the conditions on which she was employed immediately before dismissal (being permanent employment).

[21]
The evidence relied upon for the revision of the transfer position is contained in paragraphs [4] to [6] of Mr Ryan's first affidavit and in paragraphs [7] to [16] of Ms Ford's affidavit.

[22]
In summary, Ms Phillips submits that it is not impracticable to reinstate her to the transfer position because:

she had a broad range of skills and is a high performing employee;^[13] and

as the '… transfer position has been in contention since 6 March 2023, the position was not available to be permanently "revised'''.^[14]

Ms Phillips' reinstatement is impracticable

[23]
The evidence of Ms Ford is that after Ms Phillips' dismissal, the transfer position remained vacant, was revised for operational reasons such that it is now a temporary position due to end on 17 October 2025, and is presently filled on a part-time basis by a permanent employee who is acting in the temporary transfer position on higher duties.^[15]

[24]
I acknowledge that it has been held that merely because a position has been vacated as a result of a dismissal of an employee and has subsequently been filled by a new employee, those facts cannot make the reinstatement of the dismissed employee impracticable because the refilling of the position would deprive an employee of the remedy of reinstatement: Johns v Gunns Ltd.^[16] However, on the unchallenged evidence of Ms Ford, the position is no longer a permanent position, it is a temporary position and is occupied by another employee until 17 October 2025 when the position is due to end.

[25]
Ms Phillips does not explain why the transfer position was not able to be revised by the Department following her application for reinstatement made on 6 March 2023. Ms Phillips does not suggest that the revision of the transfer position, following her application for reinstatement on 6 March 2023, was not genuine or was a sham so that the Department could avoid the remedy of reinstatement. Ms Ford and Mr Ryan were not cross-examined on their evidence about the revision of the transfer position.

[26]
In light of the unchallenged evidence of Mr Ryan and Ms Ford, I consider that Ms Phillips' reinstatement to the transfer position is practically impossible. This is because the transfer position is no longer a permanent position.

Should an order be made that the Department re-employ Ms Phillips in another position the Department has available and that the Commission considers suitable?

The relevant principles

[27]
In respect of the enlivenment of the discretionary power of the Commission to order an employer to re-employ the dismissed employee as contained in s 321(3) of the Act, it is necessary to demonstrate:

that the employer has another position available; and

the Commission considers that other position is '… suitable.'^[17]

[28]
In respect of the impracticability of re-employment, the principles referred to above in paragraph [18] of these reasons are equally applicable.

[29]
The Department submits that the Commission has no power to require it to create a position that does not exist or to place Ms Phillips in a supernumerary role.^[18] Having regard to the statutory text in s 321(3) of the IR Act, I accept this submission.

[30]
Ms Phillips submits:^[19]

Based on my qualifications, experience, capabilities and sounds [sic] understanding of the Respondent's business, I am well suited for many positions which become available from time to time in the department. If it is decided that re-instating me to the transfer position is impracticable, the Respondent regularly has available many positions which I have the skills and experience for. I am willing to work with the Respondent to find positions to recommend to Deputy President Merrell that are suitable for me to be re-instated to.

[31]
The Department, in response, submits that it is not a matter for Ms Phillips to select positions (other than those identified by the Department) as they become available from time to time.^[20] A number of things may be said of this submission.

[32]
First, the triggering of the Commission's discretion, to order an employer to re-employ an employee, does require the identification of another position that the employer has available.

[33]
Secondly, s 321(3) of the IR Act does not specify that the identification of such a position can only be made by the employer.

[34]
Thirdly, in respect of the application of s 321(3) of the IR Act, the determination of whether an employer has another available position is made on the evidence before the Commission at the point in time the Commission hears and determines the question of remedy. The IR Act confers no role on the Commission to act as an ongoing facilitator, between the employer and the unfairly dismissed employee, to secure the employee's re-employment.

[35]
No submissions were made about the meaning of the word '… suitable' in s 321(3) of the IR Act. However, having regard to the purpose of s 321(3) of the IR Act, namely, to confer discretion on the Commission to order an employer to re-employ an unfairly dismissed employee in another available position, my view is that the word '… suitable' can only bear its ordinary meaning. The Commission has to consider, having regard to all the relevant circumstances, whether or not the re-employment of the employee to the other identified available position is suitable.

[36]
Finally, nothing in s 321 of the IR Act indicates that the onus of proof, about the suitability of another position that the employer has available, shifts from the employee to the employer.

The parties' submissions

[37]
The Department's general submission is that Ms Phillips' re-employment is impracticable because:

the Department has no available AO8 positions that are suitable for Ms Phillips;^[21] and

there is a loss of trust and confidence between the Department and Ms Phillips based on her history with the Department.^[22]

[38]
In summary, Ms Phillips submits that it is not impracticable to re-employ her because:

she has a broad range of skills and is a high performing employee;^[23]

there are ten (10) suitable vacancies in the Department, not referred to by the Department in its affidavit material, into which she could be re-employed;^[24]

there is no sound and rational basis for the Department's contention that there is a loss of trust and confidence between her and the Department.^[25]

Ms Phillips' re-employment is impracticable

[39]
While Ms Phillips has not actually worked in the Department since 25 May 2020,^[26] her present evidence is that she is willing and capable of resuming duties^[27] and she has led evidence from her General Practitioner that she was fit to return to work as from 11 June 2024.^[28] None of that evidence has been challenged.

[40]
As the Department submits,^[29] of the 68 AO8 positions identified as substantively vacant (as at 31 July 2024) in paragraphs [27]-[30] of Mr Ryan's second affidavit, Ms Phillips submitted^[30] that she was well suited to one position, namely, Manager School Transport Assistance Scheme (STAS) Policy Team.^[31] Mr Ryan's evidence was that this position, while it was vacant as at 31 July 2024, was subject to a recruitment and selection process in respect of which it was anticipated it would be filled in the immediate future.^[32] In fact, Ms Phillips applied for that vacant position.^[33] Ms Storm's evidence, contained in her affidavit filed on 18 October 2024, was that above position was permanently filled as from 16 August 2024.^[34]

[41]
Further, Ms Storm's evidence was that at the date of her affidavit, of the 68 AO8 vacancies identified by Mr Ryan, there were presently no genuine vacancies that the Department had available which did not require a mandatory qualification or Aboriginal and/or Torres Strait Islander heritage.^[35]

[42]
Ms Phillips, in her final submissions filed on 31 October 2024, submitted that despite her evidence, Ms Storm did not provide an update about current vacancies in the Department advertised on the Queensland Government Smart Jobs website. In this regard Ms Phillips referred to four permanent vacant AO8 positions and six temporary vacant AO8 positions in the Department.^[36] Ms Phillips then submits:

[10]
I provided my resume and further details about my skills and experience to assist with the assessment of my suitability for re-employment into other positions should it be decided that reinstatement to the transfer position is impracticable.^[37]

[43]
Ms Phillips was employed in a permanent position when she was dismissed. For that reason, I do not consider a temporary position to be suitable for her re-employment.

[44]
The four AO8 permanent positions are:

Manager – Emergency Management, Transport Network Security and Resilience;^[38]

Manager, Engagement – Stakeholder Engagement – CITEC Enabling Services;^[39]

Human Resources Manager – People and Culture, Business Services, Queensland Government Customer and Digital Group;^[40] and

Principal Project Manager, Information Brokerage CITEC Integration and Enabling Technologies, Digital Government, Queensland Government Customer and Digital Group.^[41]

[45]
I have read the position descriptions for these four positions. While none of the position descriptions for these four permanent positions have mandatory qualifications or requirements (other than two requiring criminal history checks and one requiring a current drivers' licence) they all set out in detail:

the key responsibilities for each position; and

the key requirements of each position and, where relevant, mandatory qualifications and conditions.

[46]
Ms Phillips, in her submissions, does not address, even in a broad sense, how she meets the requirements of any of those positions and why she can discharge the key responsibilities of any of them.

[47]
The onus of proof was on Ms Phillips to demonstrate that, in respect of the four permanent AO8 positions that she identified in her October submissions, they were suitable in respect of her re-employment. By merely referring to her resume and providing general details about her skills and experience, but without addressing, at any level, how she meets the requirements of these roles and their key responsibilities as set out in the relevant position descriptions, Ms Phillips has provided no assistance to me in respect of my function of considering if any of those positions are suitable. Therefore, I have had to conduct my own assessment, without any explanation from Ms Phillips, as to how her skills, training and experience mean any of those positions are suitable for her re-employment.

[48]
On my assessment of Ms Phillips' skills, training and experience, I do not consider the four permanent AO8 positions, to which she has referred in her submissions, to be suitable for her re-employment.

[49]
For the reasons given below, these positions are quite specialised. Ms Phillips, while experienced as an AO8 manager, does not have all of the highly regarded qualifications or experience for these positions, or otherwise has not worked in the relevant disciplines in a management position. According to her resume, Ms Phillips' most recent management experience (from 2013 until 2023) is in administrative support to the Department's land use development applications assessment function.

[50]
Ms Phillips' resume relevantly provides:^[42]

2013-2023

MANAGER, DEVELOPMENT COMPLICANCE [sic] AND SUPPORT (DCS) QUEENSLAND DEPARTMENT OF TRANSPORT AND MAIN ROADS (TMR)

Key Responsibilities

Management of team responsible for service management of the electronic development assessment management application (eDAM). eDAM is a document management system for planning applications assessed by the department. Responsibilities included:

Service program development, monitoring and evaluation
Vendor contract management for eDAM managed service
Budget management, including budget submissions for pipeline of work

Development of practice notes (policies) for TMR's interests in development assessment
Operational planning for team
Contribute to strategic planning in wider work unit
Providing leadership across TMR for development assessment processes including relationship management with the regional officers, compliance, enforcement and Planning and Environment Court appeals
Managing and coordinating development assessment processes, including driving innovation, developing improvements and providing learnings to relevant TMR officers
Managing, coaching and supporting team members

[51]
Ms Phillips' evidence about her skills and experience was (footnotes omitted):

Re-instatement or re-employment not impracticable – large department, broad range of skills

I have had a varied professional career, including a significant experience as a registered nurse, broad range of experience in complex public sector environments and in administrative roles, including policy development, change management, business analysis, team leadership /management, project management, legislation interpretation, Planning and Environment Court appeal management and training and assessment.

As the Manager, Development Compliance and Support (DCS) team, I wrote and provided to my direct supervisor (Director, Development Facilitation (DF)) a monthly status report of the work undertaken by the team and an annual year in review for the team. These documents describe the work done by the team that I oversaw and managed. I also prepared and kept updated a Forward Program of Work for the DCS team which I regularly updated and discussed with my direct supervisor at the regular Director/Manager meetings I had with him.
Apart from strengthening my management skills, in the role of Manager DCS, I broadened my experience in contract management, project management, business process modelling, business analysis and change management and successfully gained qualifications in these areas.^[43]

[52]
The position of Manager – Emergency Management, Transport Network Security and Resilience is located in the Transport Network Security and Resilience Branch of the Department which '… has a state-wide focus on the coordination of TMR's emergency management and transport security framework.' The key responsibilities of the position are:

Leading a team to enable coordination and delivery of the approved resilience and assurance program.

Focus on business continuity and emergency management to ensure the department is well positioned to meet its responsibilities under the Queensland Disaster Management Act 2003.

Actively contributing to strategic agendas, emergency management and assurance frameworks and associated planning and preparedness arrangements.

Collaborating across stakeholders to support and enhance the resilience of the transport network and ensure frameworks are applicable and relevant for operational implementation in response to disruptive events and other elements of emergency management.

Leading and influencing change/change management practice and processes for the development and implementation of an emergency management culture which supports integration of new initiatives and promotes good governance practice and behaviour.

Promoting a cohesive and comprehensive TMR approach to the achievement of the all-hazards objective. Enhance and evolve continuity management and emergency management capability across the department.

[53]
One of the requirements of the role is: 'Ability to communicate with influence to increase adoption of best practice emergency management approaches.'

[54]
As best as I can make out from Ms Phillips' material, she has no experience in emergency management within the Department.

[55]
In respect of the position of Manager, Engagement – Stakeholder Engagement – CITEC^[44] Enabling Services, while not specifying having a mandatory qualification, the role description states that IT qualifications, experience or knowledge of CITEC's IT products and services, and knowledge of the IT Infrastructure Library Service Delivery Framework will be highly regarded.

[56]
The role description relevantly provides:

Key responsibilities

As Manager Engagement, you will contribute to shaping a digital government by partnering and collaborating with an assigned portfolio of client agencies and also CITEC teams. Your engagement with internal and external stakeholders will shape current and future ICT services offerings. Your contribution will be critical to ensure excellent client experiences for your client portfolio.

Some of your responsibilities will include:

Managing a small team to deliver outcomes by utilising specialist expertise, knowledge, and skills from within the team and across CITEC to achieve individual agency, CITEC and Queensland Government priorities.

Obtaining a deep understanding of your portfolio of agency's business environment and strategy by partnering, collaborating, and collecting information from internal and external stakeholders

Driving collaboration amongst stakeholders towards the development, implementation and management of client-centric roadmaps, strategic plans and process improvements.

Identifying and gathering sources of quantitative and qualitative data and information for analysis to develop recommendations and trend analysis to inform decision making.

Continuously seeking to improve engagement across all layers to ensure agency and internal expectations are met and strong relationships are established.

Identifying opportunities to ensure value, synergies and innovation is leveraged in current and future services enabled or delivered by CITEC for your client portfolio.

Working with other leads within the Stakeholder Engagement team to identify and develop whole of enterprise opportunities for improvements with action-orientated recommendations to deliver improved client outcomes.

Writing and/or reviewing complex reports, briefing notes, submissions and, where required, provide verbal briefings and presentations to Senior leadership, external stakeholders and CITEC staff.

Playing an active role in leading and promoting a culture of client and service excellence across CITEC.

[57]
Ms Phillips does state on her resume that she obtained an ITIL Foundation Certificate in IT Service Management in 2017. Ms Phillips' reference to 'ITIL' probably refers to the 'IT Infrastructure Library', knowledge of which is highly regarded for this position.

[58]
Even if the ITIL Foundation Certificate in IT Service Management is relevant to the role, Ms Phillips does not list, on her resume, IT qualifications or experience in CITEC's IT products and services.

[59]
Ms Phillips does not explain how her qualifications are relevant to the role, and does not explain whether she has relevant practical experience by reference to the key responsibilities of the position. From the information that Ms Phillips has provided, her qualifications and practical experience are not in a role of this kind.

[60]
In respect of the role description for the position of Human Resources Manager – People and Culture, Business Services, Queensland Government Customer and Digital Group, while not specifying a mandatory qualification, it states that '… a relevant qualification in Human Resource Management and/or Industrial Relations will be highly regarded.' Ms Phillips does not have such qualifications. The only human resource management qualification Ms Phillips has is from 1993 and concerns human resource management for nurses. This qualification has limited relevance to the specific business area of the role.

[61]
The role description then provides:

Key responsibilities of the Human Resources Manager include:

Lead and guide the HR team alongside the Director, People and Culture, to deliver on a range of tactical, strategic, and operational human resource management advisory and consultancy services including Workforce Planning; Workforce Capability and Leadership; Recruitment and Selection; Performance Management; Case Management; Industrial and Employee Relations; Culture Initiatives, and Change Management in a multi-disciplinary business environment.

Provide strategic input to the Director, People and Culture, the Executive Director, Business Services, and the Senior Leadership Team as applicable regarding the development, implementation and analysis of human resources plans and strategies.

Contribute towards the successful achievements of QGCDG's strategic direction by ensuring the development and application of fair and equitable human resources principles and policies, systems and processes, effective organisational design, and supportive integrated people management activities, in accordance with approved delegations and departmental policies.

Manage complex and/or substantial investigations and reviews such as individual employee grievances, discipline investigations, medical case management and disputes.

Present concise, high quality and timely reports, correspondence, and submissions of a complex nature on a full range of people management issues within the organisation.

[62]
Ms Phillips does not list management experience in human resource management and industrial relations on her resume. While Ms Phillips has had experience in report writing at the AO8 level, it has not been in the disciplines of human resource management and industrial relations.

[63]
In respect of the position of Principal Project Manager, Information Brokerage CITEC Integration and Enabling Technologies, Digital Government, Queensland Government Customer and Digital Group, while not specifying a mandatory qualification, the role description states that '… experience with Atlassian tools (Jira and Confluence) and a Certification in Agile, PRINCE2 and other project management methodologies will be highly regarded.'

[64]
Ms Phillips does not list such experience with Atlassian tools on her resume.

[65]
Ms Phillips does list the following potentially relevant certificates on her resume:

a certificate IV in project management practice obtained in 2017;

a PRINCE2 foundation certificate in project management obtained in 2018; and

a managing successful programs foundation certificate obtained in 2019.

[66]
The role description provides:

Requirements of the role

Have successfully led complex ICT/ICT enabled, business change or financial management projects through to completion.

Influence and negotiate with stakeholders and other teams to achieve results.

Work collaboratively and effectively with the project members and stakeholders to ensure project deliverables are met.

Effectively communicate project requirements and outcomes, both in writing and verbally.

Experience in using Agile project management methods to achieve outcomes.

[67]
While Ms Phillips has some training in the highly regarded project management methodologies, she does not list on her resume that she has successfully led a complex ICT/ICT enabled, business change or financial management project through to completion.

[68]
While I accept that a manager whose position is classified at the AO8 classification will have a range of skills that are transferrable between positions in different disciplines within a government department or between government departments, such as report writing and project management, Ms Phillips has not indicated that she has the experience sought in the unique disciplines of these four positions.

[69]
For all these reasons:

the available four permanent AO8 positions, identified by Ms Phillips, are not suitable for her re-employment; and

as a consequence, Ms Phillips' re-employment is impracticable.

Should an order be made that the Department pay Ms Phillips an amount of compensation decided by the Commission?

The relevant principles

[70]
In Smith v State of Queensland (Queensland Health) (No 2),^[45] I relevantly stated (citations omitted):

[11]
It is obvious, from the terms of s 322 of the Act, that the provision contemplates the making of two discretionary decisions.

[12]
The first is, where the Commission considers that the unfairly dismissed employee's reinstatement or re-employment is impracticable, whether in light of all the relevant circumstances of the case, the Commission should exercise discretion to make an order that the employer pay the employee an amount of compensation decided by the Commission.

[13]
The second discretionary decision is, subject to the matters contained in s 322(2) and s 322(3) of the Act, the determination of the amount of compensation.

…

[25]
Some matters, regarding the application of s 322(1) of the Act, are well established.

[26]
First, the object of compensation is to restore an unfairly dismissed employee, as far as practicable, to the financial position they would have been in but for the unfair dismissal. The starting point is to identify that which the unfairly dismissed employee has lost. As a consequence, it is clear that the object of such an order is not to punish an employer who has unfairly dismissed an employee. Further, because s 322(2) of the Act, in terms of the calculation of the statutory cap, refers to 'wages' as opposed to 'remuneration', it seems clear that the compensation to be assessed is in respect of an employee's lost wages as defined in sch 5 of the Act, which excludes superannuation.

[27]
Secondly, the assessment of compensation is not a process of ungoverned intuition, but that, in measuring what might have happened (so as to fix the loss suffered by the employee), the Commission is not engaged in a precise mathematical calculation and the exercise is concerned as much with judgment as with reasoned inference.

[28]
Thirdly, and consistently with the Department's submissions, the legislative cap on compensation, contained in s 322(2) of the Act, is an arbitrary one and does not operate as a maximum to be awarded in only the most serious or grievous cases.

…

[38]
Despite the absence of an express requirement in s 322 of the Act, I can see no reason not to consider the principle of mitigation in deciding the amount of compensation under s 322(1) of the Act.

[39]
At common law, a plaintiff is expected to take reasonable steps to minimise the effect of a breach of contract. In British Westinghouse Electric and Manufacturing Company Ltd. v Underground Electric Railways Company of London Limited, Viscount Haldane relevantly stated:

Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed.

The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.

[40]
It would not be a just outcome if, in assessing the amount of compensation, the failure of an unfairly dismissed employee to take reasonable steps to, for example, obtain other employment, was not taken into account in that assessment of compensation. The Commission, in previous decisions, has taken the principle of mitigation into account.

Is the Commission's discretion to make an order for compensation triggered?

[71]
By virtue of s 322(1) of the IR Act, the Commission may order the Department to pay Ms Phillips an amount of compensation decided by it, if and only if the Commission considers reinstatement or re-employment would be impracticable. For the reasons given above, Ms Phillips' reinstatement or re-employment is impracticable.

[72]
While the Department makes submissions as to why the amount of compensation to be paid to Ms Phillips should be zero, based upon reasons of mitigation and a lack of evidence as to alternative income, the Department has advanced no reason why my discretion to make an order that it pays Ms Phillips an amount of compensation is not enlivened.

[73]
Ms Phillips, for the reasons I gave in the Principal Decision, was unfairly dismissed. I can see no reason why, having formed the view that Ms Phillips' reinstatement or re-employment is impracticable, I should not order the Department to pay Ms Phillips an amount of compensation I decide.

What amount of compensation should the Department be ordered to pay Ms Phillips?

[74]
Ms Phillips submits that she should be paid '… the maximum amount allowable under the legislation.'^[46]

[75]
Ms Phillips then relevantly submits the Department should be ordered to pay such an amount because, while she has endeavoured to secure other employment, her professional relationships and reputation have been adversely impacted by having her employment unfairly terminated which has contributed to her not being able to secure other employment.^[47]

[76]
The Department submits:

on around 6 August 2024, it rectified its administrative oversight at the time of Ms Phillips' dismissal on 2 March 2023, and, on that date, paid Ms Phillips an amount equivalent to 5 weeks' pay in lieu of notice;

the Commission ought to consider the principle of mitigation in deciding the question of compensation;

Ms Phillips has failed to provide adequate evidence to support her claims regarding her unquantified financial and personal loss, including her financial situation and any non-refundable remuneration from other sources that she received between 31 July 2020 and 15 April 2022; and

despite claiming she has applied for many jobs, Ms Phillips has only identified one position for which she has applied in the time since her dismissal.^[48]

[77]
The Department further submitted:

Ms Phillips' length of service was 29 years and five months;^[49]

at the date of her dismissal, Ms Phillips was 58 years of age;^[50] and

at the date of her dismissal, Ms Phillips' salary in accordance with the Transport and Main Roads Enterprise Bargaining Certified Agreement 2019 ('the certified agreement') was $142,555.81, exclusive of superannuation.^[51]

[78]
The Department then made the submission that it should be given the opportunity to put on further material about the issue of compensation.^[52] I reject this submission. The Department has had every opportunity to put on whatever material it wanted to put on about any order the Commission may make in respect of compensation. There have been enough delays. It is in the interests of justice that this matter be finalised.

[79]
I take into account the following matters in deciding the amount of compensation that I order the Department pay Ms Phillips.

[80]
First, Ms Phillips has a very long length of service, namely 29 years and five months.

[81]
Secondly, as at the date of her dismissal, Ms Phillips was 58 years of age.

[82]
Thirdly, having regard to Ms Phillips' age and length of service, it is reasonable to conclude that, in the absence of her unfair dismissal and in the absence of other relevant contingencies, Ms Phillips would have continued in her employment with the Department at least until she turned 60 years of age.

[83]
Fourthly, there is a relevant contingency to consider.

[84]
Due to issues connected with Ms Phillips' health, she had not worked in the Department since May 2020. However, as referred to earlier in these reasons, the unchallenged evidence is that Ms Phillips was willing and able to return to work and that her General Practitioner was of the view that she was fit to return to work from 11 June 2024.

[85]
Ms Phillips' evidence is that since the dismissal, she has applied for many jobs but as at August 2024, she had been unsuccessful. Ms Phillips' evidence included her signing on with a recruitment agency.^[53] Further, as set out earlier in these reasons, Ms Phillips did apply for a vacant AO8 position within the Department in July 2024. Ms Phillips' submission was that other than the five weeks' pay in lieu of notice, paid to her by the Department in August 2024, she has received no employment benefits or wages since the dismissal.^[54] None of these claims by Ms Phillips were challenged in cross-examination. The Department had every opportunity to challenge this evidence and these assertions or to put on other evidence in its possession that went to any income received by Ms Phillips since the dismissal. In particular, the Department, in its submissions, seems to suggest that Ms Phillips had been receiving income protection insurance payments between 31 July 2020 and 15 April 2022.^[55] Again, if there is evidence to prove that assertion, the Department had every opportunity to put on that evidence. It chose not to do so.

[86]
Despite the Department's submissions, on the basis of the unchallenged evidence, Ms Phillips did take reasonable steps to mitigate her loss following her dismissal.

[87]
Having regard to all the above issues, my view is that Ms Phillips' loss as a result of her unfair dismissal would have been at least two years' wages, until she turned 60 years of age, in the amount of $285,111.62.^[56]

[88]
The statutory cap contained in s 322(2) of the IR Act must then be applied. This is the wages the Department would have been liable to pay Ms Phillips for the six months immediately after her dismissal, paid at the rate she received immediately before dismissal. It is unclear what remuneration Ms Phillips was actually receiving from the Department immediately before her dismissal. In any event, on the statutory text contained in s 322(2) of the IR Act, the reference to '… the rate the employee received immediately before the dismissal' is part of the formula used by the Parliament to set the statutory cap for compensation. Assuming that Ms Phillips would have been paid the annual salary of $142,555.81 (as set by the certified agreement) immediately prior to her dismissal (but for her ill health), the statutory cap is $71,277.96.^[57]

[89]
Ms Phillips does not dispute that on 6 August 2024, the Department paid her an amount equivalent to 5 weeks' pay in lieu of notice. No party has specified what that amount was. Having regard to Ms Phillips' gross annual salary under the certified agreement, I estimate this amount to be $13,707.30.^[58] Pursuant to s 322(3) of the IR Act, the Commission must take this amount into account. I will take this amount into account in determining the amount of compensation the Department will be ordered to pay Ms Phillips.

[90]
Pursuant to s 322(1) of the IR Act, I will order that the Department pay Ms Phillips an amount of compensation. I decide that amount is $57,570.66^[59] which is to be taxed according to law.

Conclusion

[91]
For the reasons I have given:

Ms Phillips' reinstatement and re-employment are impracticable; and

the Department is ordered to pay Ms Phillips the amount of $57,570.66 as compensation, to be taxed according to law.

Order

[92]
I make the following order:

Pursuant to s 322(1) of the Industrial Relations Act 2016, the Respondent is to pay the Applicant compensation in the amount of $57,570.66 to be taxed according to law.

Footnotes

[1] [2024] QIRC 118 ('Primary Decision').

[2] Primary Decision (n 1) [101].

[3] Ibid [79] to [100].

[4] Ibid [110].

[5] T (12 August 2024) 1-6, ll 38-39 and T 1-7, l 41.

[6] T (22 November 2024) 1-2, ll 16-45.

[7] Ms Phillips' written submissions filed on 31 October 2024 (Ms Phillips' October submissions'), para. 24.

[8] Ms Phillips' October submissions, para. 16.

[9] The written submissions of the State of Queensland through the Department of Transport and Main Roads filed on 18 October 2024 ('the Department's October submissions'), para. 3.

[10] [2023] QIRC 296.

[11] See Carey v President of the Industrial Court of Queensland [2004] QCA 62; (2004) 2 Qd R 359 ('Carey'), [17] (McPherson JA, with Davies JA at [28] and Mackenzie J at [29] agreeing) in respect of similar provisions in the Industrial Relations Act 1999.

[12] Ms Phillips' October submissions, paras. 5 to 7 and 24, and the affidavit of Ms Helen Phillips filed on 12 June 2024 ('Ms Phillips' June affidavit') para. 5(a).

[13] Ms Phillips' written submissions filed on 27 September 2024 (Ms Phillips' September submissions'), paras. 5 to 15.

[14] Ms Phillips' October submissions, para 7.

[15] The affidavit of Penny Ford filed on 31 July 2024 ('Ms Ford's affidavit'), paras. 6 to 7.

[16] [1995] IRCA 373; (1995) 60 IR 258, 271 (Northrop J).

[17] Carey (n 11), [16] (McPherson JA, with Davies JA at [28] and Mackenzie J at [29] agreeing).

[18] The Department's October submissions, para. 17.

[19] Ms Phillips' September submissions.

[20] The Department's October submissions, para. 17.

[21] The Department's October submissions, paras. 16 to 24.

[22] The Department's October submissions, paras. 25 to 31.

[23] Ms Phillips' September submissions, paras. 5 to 15.

[24] Ms Phillips' October submissions, paras. 8 to 11.

[25] Ms Phillips' October submissions, paras. 12 to 15.

[26] Primary Decision (n 1), [21].

[27] Ms Phillips' June affidavit, para. 6.

[28] Ms Phillips' June affidavit, exhibit 3.

[29] The Department's October submissions, para.18.

[30] The submissions Ms Helen Phillips filed on 9 August 2024 ('Ms Phillips' August submissions'), paragraph 7.

[31] The second affidavit of Adam Ryan filed on 31 July 2024 ('Mr Ryan's second affidavit'), para. 37(a)(xx).

[32] Mr Ryan's second affidavit, para. 37.

[33] The affidavit of Ms Helen Phillips filed on 9 August 2024 ('Ms Phillips' August affidavit'), para. 131.

[34] The affidavit of Ms Rachelle Storm filed on 18 October 2024, exhibit RJS-1, fourth page.

[35] Ms Storm's affidavit, paras. 6 to 12.

[36] Ms Phillips' October submissions, paras. 8-9.

[37] Ms Phillips' October submissions.

[38] Ms Phillips' October submissions, Attachment 1.

[39] Ms Phillips' October submissions, Attachment 2.

[40] Ms Phillips' October submissions, Attachment 3.

[41] Ms Phillips' October submissions, Attachment 4.

[42] Ms Phillips' August affidavit, exhibit 28.

[43] Ms Phillips' September submissions.

[44] CITEC stands for Centre for Information Technology and Communication.

[45] [2024] QIRC 21.

[46] Ms Phillips' October submissions, para. 16.

[47] Ms Phillips' October submissions, para. 17.

[48] The Department's October submissions, paras. 36 to 37.

[49] The Department's October submissions, para. 34.

[50] The Department's October submissions, para. 34.

[51] The Department's October submissions, para. 39.

[52] The Department's October submissions, para. 39.

[53] Ms Phillips' August affidavit, paras. 127 to 130.

[54] Ms Phillips' October submissions, para. 18.

[55] The Department's October submissions, para. 37.

[56] $142,555.81 multiplied by two = $285,111.62.

[57] $142,555.81 divided by fifty-two = $2,741.46. $2,741.46 multiplied by 26 = $71,277.96.

[58] $142,555.81 divided by fifty-two = $2,741.46. $2,741.46 multiplied by 5 = $13,707.30.

[59] $71,277.96 minus $13,707.30 = $57,570.66.

Editorial Notes

Published Case Name:
Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2)
Shortened Case Name:
Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2)
MNC:
[2025] QIRC 28
Court:
QIRC
Judge(s):
Merrell DP
Date:
03 Feb 2025

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Abbott-Etherington v Houghton Motors Pty Ltd	(1995) 63 IR 394	1 citation Jump To Cite 1 - (1995) 63 IR 394
Carey v President of the Industrial Court Queensland	[2004] 2 Qd R 359; [2004] QCA 62	4 citations Jump To Cite 1 - [2004] QCA 62 Cite 2 - [2004] QCA 62 Cite 3 - [2004] 2 Qd R 359 Cite 4 - [2004] 2 Qd R 359
Johns v Gunns Ltd	(1995) 60 IR 258	2 citations Jump To Cite 1 - (1995) 60 IR 258 Cite 2 - (1995) 60 IR 258
Liddell v Lembke	(1994) 1 IRCR 466	1 citation Jump To Cite 1 - (1994) 1 IRCR 466
Perkins v Grace Worldwide (Aust) Pty Ltd	(1997) 72 IR 186	1 citation Jump To Cite 1 - (1997) 72 IR 186
Phillips v State of Queensland (Department of Transport and Main Roads)	[2024] QIRC 118	2 citations Jump To Cite 1 - [2024] QIRC 118 Cite 2 - [2024] QIRC 118
Smith v State of Queensland (Queensland Health)	[2023] QIRC 296	2 citations Jump To Cite 1 - [2023] QIRC 296 Cite 2 - [2023] QIRC 296
Smith v State of Queensland (Queensland Health) (No 2)	[2024] QIRC 21	2 citations Jump To Cite 1 - [2024] QIRC 21 Cite 2 - [2024] QIRC 21

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Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2)[2025] QIRC 28