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Goodchild v State of Queensland (Department of Education)[2025] QIRC 46

Goodchild v State of Queensland (Department of Education)[2025] QIRC 46

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Goodchild v State of Queensland (Queensland Health) [2025] QIRC 046

PARTIES:

Goodchild, Donna

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2024/71

PROCEEDING:

Application for reinstatement

DELIVERED ON:

13 February 2025

MEMBER:

On the papers

HEARD AT:

O'Neill IC

ORDER:

The application for reinstatement in matter TD/2024/71 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – UNFAIR DISMISSAL – applicant employed by Queensland Health – Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements required employees to receive the prescribed number of doses of a COVID-19 vaccine – where the applicant did not comply with vaccination requirements and her employment was terminated – where application for reinstatement filed by the applicant – where the application filed beyond statutory limit – length of delay – reasons for delay – prejudice to the applicant and respondent – whether the Commission should exercise discretion to grant extension – prospects of success – application dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 317

CASES:

Bax v State of Queensland (Queensland Health) [2022] QIRC 304

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Davies v State of Queensland (Queensland Health) [2022] QIRC 151

Douglas v Allen and Ors [1984] FCA 77

Erhardt v Goodman Fielder Food Services Limited [1999] QIRC 2; (1999) 163 QGIG 20

Gambaro v Workers' Compensation Regulator [2017] ICQ 5

Goodchild v State of Queensland (Queensland Health) [2023] QIRC 053

Goodchild v State of Queensland (Queensland Health) [2023] ICQ 026

Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709

Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149

Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010

Johnston & Ors v Carroll [2024] QSC 2

Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147

Maina v State of Queensland (Queensland Health) [2022] QIRC 100

Marston v Ocean Sky Pty. Ltd. & Ors (1995) 150 QGIG 1131

Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058

Rich v Chubb Protective Services [2001] ICQ 24; (2001) 167 QGIG 159

Robertson v Hollings [2009] QCA 303

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Sutton & Ors v Carroll [2024] QSC 6

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

Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294

Wilson v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 245

Reasons for Decision

  1. Introduction
  1. [1]
    Ms Donna Goodchild ('the Applicant') commenced employment with the State of Queensland (Queensland Health) on 1 September 1999. At all relevant times to the application the Applicant was employed at the Children's Health Queensland Hospital and Health Service ('CHQ') as a Senior Mental Health Clinician.
  1. [2]
    Following a disciplinary and show cause process, the Applicant was dismissed from her employment effective from 13 June 2024. The Applicant was dismissed after two allegations were found to be substantiated, one of which involved the Applicant failing to comply with a lawful and reasonable direction.
  1. [3]
    On 11 July 2024, the Applicant filed an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the IR Act') in the Commission. Ms Goodchild indicated on her application that it was not filed within 21 days of the dismissal taking effect. The Applicant outlined the reason for the late filing was due to being overseas and not having access to documents she required in order to file the application. 
  1. [4]
    The issue for determination by the Commission is whether the Applicant should be granted an extension of time to file her application for reinstatement pursuant to s 317(2)(b) of the IR Act.
  1. [5]
    For the reasons that follow I have determined:
  1. That the Applicant has failed to discharge the onus placed on her to establish that the justice of this case supports the exercise of a discretion to grant an extension of time.
  1. To not exercise my discretion to extend time to the Applicant within which to lodge her application for reinstatement.

Jurisdictional Objection

  1. [6]
    The Respondent filed its Form 12A – Employer response to application for reinstatement on 25 July 2024 ('the response').
  2. [7]
    In the response the Respondent raised a jurisdictional objection that the application was out of time. In the response the Respondent submitted that:
  • The application for reinstatement was required to be filed by 4 July 2024[1] and was not filed until 11 July 2024, seven days out of time.
  • The Applicant did not advise CHQ that she would be overseas prior to 13 June 2024, when her employment was terminated. The Applicant could have found access to a computer whilst she was overseas to complete her Application.
  • The importance of the application of the statutory time limits has been consistently recognised[2] and should not easily be dispensed with.[3] The Respondent contends that in the context of a 21-day limitation period, the delay of 7-days is not insignificant, and the Applicant has failed to provide evidence of exceptional circumstances warranting an extension of time.
  • The Applicant's limited prospects of success is a relevant consideration as to whether the Applicant should be granted an extension of time to file her application.[4]
  1. [8]
    The Commission sought confirmation from the Respondent that it maintained the jurisdictional objection. By email dated 18 December 2024 the Respondent confirmed that it maintained the jurisdictional objection on the basis that the application for reinstatement had been filed out of time. The Respondent further requested that this issue be dealt with as a preliminary issue.
  2. [9]
    Following receipt of that email the Commission issued a directions order for the parties to file submissions addressing the jurisdictional objection.

Relevant Law

  1. [10]
    Section 317(2)(a) of the IR Act requires an application for reinstatement to be made within 21 days after the dismissal takes effect. Section 317(2)(b) of the Act, however, allows the Commission discretion to grant an extension to the time frame to file the application.
  1. 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.
  1. (emphasis added)
  1. [11]
    The Applicant bears the onus of establishing that the justice of the case requires an extension of time.[5]
  2. [12]
    The general principles relevant to the Commission exercising a discretion to extend time are well settled.
  3. [13]
    In considering s 74(2) of the Industrial Relations Act 1999 (the equivalent provision to s 371(2) of the current IR Act, President Hall in Rich v Chubb Protective Services[6] observed:

    4. The view which I expressed in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109 about the counterpart provision in the Workplace Relations Act 1997 (s. 218(3)) is equally applicable here. The power to allow a further period of time within which an application about an alleged unfair dismissal may be made is vested in the Commission by statute because by statute a time limit of 21 days is imposed and because the legislature recognised ''that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case'', Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J (with whom Dawson J agreed). In exercising the power the legislature's choice of a 21 day limitation period must be respected, Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060 at 1060, Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature's judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 553 per McHugh (with whom Dawson J agreed). Section 74(2)(b) should not be treated as having equal standing with s. 24(2)(a). Section 74(2) is not the equivalent of a rule of court providing that if a matter is not commenced within 21 days it may be commenced only with leave of the relevant tribunal. It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s. 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed).

    Subject to the above, the Act gives no direct guidance as to the basis upon which the power at s. 74(2)(b) is to be exercised. Notwithstanding the omission of the facilitative verb ''may'', it seems to me that like s. 218(3) of the Workplace Relations Act 1997 the power has to be approached upon the basis that the power to extend time is a “full and unlimited” discretionary power, compare Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. It is useful to marshall up the cases in which the power has been exercised (or not exercised) and distil ''principles'' or ''guidelines'' for the disposition of other cases in which the power at s. 74(2)(b) is invoked. However, any such set of ''principles'' or ''guidelines'' may not be treated as exhaustive. Neither may testing the circumstances of a particular case against the ''principles'' or ''guidelines'' become a substitute for the exercise of the power itself: compare Breust v Qantas Airways Limited (1995) 149 QGIG 777 at 778.

    The exercise of the power at s. 74(2)(b) is a quintessential example of the exercise of discretion, compare Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 354 at 354. The discretion is that of the Commission (not of the Court) and the Commission is allowed ''some latitude as to the choice of the decision to be made'', compare Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1354 per Gleeson CJ, Gaudron and Hayne JJ.

    (emphasis added)

    1. [14]
      The matters to be taken into account in an extension of time application were set out by Vice President Linnane in Erhardt v Goodman Fielder Food Services Ltd[7]. The key factors identified by her Honour were:
    1. (i)
      the length of the delay;
    1. (ii)
      the explanation for the delay;
    1. (iii)
      the prejudice to the applicant if the extension of time is not granted;
    1. (iv)
      the prejudice to the respondent if the extension of time is granted; and
    1. (v)
      any relevant conduct of the respondent.
    1. [15]
      Her Honour also noted three caveats to the above approach as follows:
    1. (a)
      that s 74(2)(b) vests an unlimited statutory discretion which must always be exercised;
    1. (b)
      that the time limit of 21 days provided for in s 74(2)(a) must be respected; and
    1. (c)
      that the applicant's prospects of success at the substantive hearing is always a relevant matter, that is, where it appears that the applicant has no, or very limited, prospects of success the commission should not grant an extension of time.[8]
    1. [16]
      In Wantling v Department of Community Safety (Queensland Corrective Services)[9] ('Wantling'), Deputy President O'Connor (as his Honour then was) in also determining an application for an extension of time arising from an out of time reinstatement application observed:
    1. [57]
      As was observed in Erhardt, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time.
    1. [58]
      I have formed the view that the Applicant's prospects of success are both poor and clear cut.
    1. [59]
      I am of the view that the statutory time limit in s. 74(2)(a) should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties.
    1. [60]
      It is essential for the proper administration of justice that these matters are heard and determined as quickly as possible.[10]
    1. (emphasis added)
    1. Length of the Delay
    1. [17]
      The application for reinstatement was made on 11 July 2024. The application was filed seven days beyond the statutory time limit.[11]
    2. [18]
      The Applicant was notified of the dismissal by email dated 13 June 2024 which attached the termination letter, and the termination letter was also sent by registered post.[12]
    3. [19]
      The Respondent submits that the 7-day delay, in the context of a 21-day limitation period is significant and should not easily be dispensed with.[13]
    4. [20]
      I am satisfied that the Applicant received the termination letter on 13 June 2024, meaning that the application should have been filed on or before 4 July 2024 in order to comply with s 317(2)(a) of the IR Act. Given this, I am satisfied that the application was filed out of time. In the context of a 21-day limitation period, I consider a seven-day delay to be a significant delay.
    5. [21]
      I further note that the termination letter[14] relevantly provides at page 6:

    Application for reinstatement

    You may lodge an application for reinstatement in accordance with Chapter 8, Part 2 of the Industrial Relations Act 2016 with the Queensland Industrial Relations Commission within 21 calendar days of receipt of this letter. Information about lodging an application for reinstatement can be obtained from the website www.qirc.qld.gov.au.

    1. [22]
      The termination letter further noted at page 7:

    Questions

    If you have any questions in relation to the matters raised in this letter, please contact Ms Renata Belperio, Senior Human Resources Consultant, CHQ on 3069 7035.

    1. [23]
      The link provided in the termination letter if clicked directs the user to the QIRC home page where further information regarding unfair dismissals (along with other topics) is readily available, including a link to the Unfair dismissal and reinstatement application guide which is a detailed guide to preparing and conducting an application for unfair dismissal.

    Reasons for the delay

    1. [24]
      In the Applicant's submissions[15] four explanations have been provided for the failure to lodge the application for reinstatement within time and the further delay in filing the application as follows:
  • Travel and accessibility limitations.
  • Critical family circumstances.
  • Illness during and after travel.
  • Correspondence with the QIRC and the Respondent.
  1. [25]
    It will be necessary to examine each of these matters both individually and collectively to determine whether the Applicant has provided an explanation for the delay.

Travel and accessibility limitations

  1. [26]
    In her submissions the Applicant confirms that she was overseas from 13 June 2024 to 6 July 2024 on a trip planned months in advance to visit family.[16] In the Form 12 Application for reinstatement, the Applicant states that on 13 June she was on a plane from Brisbane to Narita in Japan with the flight commencing at 9:30 am AEST.
  2. [27]
    The Applicant further contends that during this period she had no access to her laptop or necessary documentation and was reliant on an Android telephone, which was inadequate for preparing and filing a comprehensive application.[17] The Applicant further submits that she and her family were restricted to 7 kilogram carry on bags each, with no luggage, and given that the 13 June 2024 email was sent at 1:06 pm, she did not have the opportunity to pack a laptop and the necessary documents.[18]
  3. [28]
    In relation to the Respondent's contention in the Form 12A response, that the Applicant could have resolved the issue by accessing a computer whilst overseas, the Applicant submits that this overlooks the fact that the Applicant lacked access  to critical documents and information necessary to file a complete application.[19]
  4. [29]
    The Applicant referred the Commission to five decisions which she alleged were from the Fair Work Commission in which an extension of time was afforded to the applicant in circumstances which were startlingly similar to those relied upon by the Applicant. The Applicant identified the decisions as follows:
  • Kumar v Qantas Airways Limited (U2020/12345).
  • Smith v XYZ Corporation (U2019/6789).
  • Brown v ABC Pty Ltd (U2018/2345).
  • Jones v DEF Industries (U2017/8910).
  • Mitchell Graham v BHP Coal Pty Ltd (U2021/2749).
  1. [30]
    In its submissions in reply,[20] the Respondent accepts that the Applicant was overseas from 13 June 2024 to 6 July 2024. The Respondent however notes that the Applicant was in Tokyo, on holiday, for eight nights before travelling to Thailand. The Respondent submits that during this time there was no impediment to her visiting an internet café or using other available WiFi to file her application. The Respondent submits that it was open to the Applicant to file her application within the 21-day statutory timeframe and amend it at a later date if necessary.[21]
  2. [31]
    The Respondent further contends that the Applicant has demonstrated a (repeated) ability to commence proceedings in the Commission and the Industrial Court of Queensland, including by filing her Public Sector Appeal on 2 March 2022 and her subsequent appeal of that decision to the Industrial Court. The Respondent submits that this familiarity is another factor in support of the Respondent's jurisdictional objection to the application.[22]
  3. [32]
    In the Applicant's reply submissions filed on 28 January 2025, it is submitted that the Respondent's contention that the Applicant could have filed her application whilst overseas disregards critical factors including:
  • The Applicant was occupied with intensive family commitments, including providing end-of life care for her terminally ill Aunt.
  • Limited access to critical documentation and reliance on mobile technology made preparing a complete application impractical. [23]
  1. [33]
    The Applicant submits that on 19 June 2024, she contacted the QIRC from Thailand for guidance and that the response suggested that the late filing with an explanation was acceptable, further contributing to the delay.[24] This contention will be addressed in greater detail later in these reasons.
  2. [34]
    The Applicant then submits that the Court have acknowledged the importance of considering personal circumstances, as seen in Kumar v Qantas Airways Limited (U2020/12345).[25]
  3. [35]
    The Applicant further submits that the Respondent's suggestion that the Applicant could have accessed alternative resources overlooks the emotional and logistical challenges she faced:
  • The Applicant was navigating significant emotional distress and health challenges, compounded by logistical constraints.
  • Filing a detailed application required access to legal advice and supporting documentation, which were unavailable during the Applicant's overseas travel.[26]
  1. [36]
    Dealing firstly with the authorities identified by the Applicant and listed in paragraph [29] above, despite separate searches being undertaken by both my Associate and me, utilising a number of legal search resources and the Fair Work Commission website, no decisions as identified by the Applicant could be located, either by party name or file number.
  2. [37]
    By email sent on 30 January 2025, the Applicant was requested to provide a copy of each of the decisions or a hyperlink to the actual decision. Failing that, the Applicant was requested to provide an explanation of where the information was sourced from.
  3. [38]
    By email dated 4 February 2025, the Applicant stated:

Upon review, I acknowledge that some cases I cited were sourced through general internet searches and not from official legal databases. As someone without legal training or legal representation, and working under time constraints, I inadvertently included cases that may not meet formal legal citation standards. I apologise for this oversight and any confusion it may have caused.

  1. [39]
    The Commission accepts the Applicant's explanation. Given that there appears to be significant doubt over whether the authorities cited by the Applicant represent actual  decisions from the Fair Work Commission, I will give the authorities cited by the Applicant no weight in determining whether she has provided an explanation for the delay. This appears to be a salutary lesson for litigants in the dangers of relying on general search engines on the internet or artificial intelligence when preparing legal documents.
  2. [40]
    As confirmed above, the Applicant was clearly placed on notice by the contents of the termination letter that she had 21 days to lodge her application for reinstatement with the Commission. This information included a link to the Commission's website which as noted above provided access to the detailed Unfair dismissal and reinstatement application guide which has been prepared as an aide for all litigants, but in particular self-represented litigants.
  3. [41]
    The Applicant has provided as attachments to her submissions her trip itinerary and what appears to be information sourced from google maps tracking her activities on a daily basis.
  4. [42]
    The flight information confirms that the Applicant was in Japan until 21 June 2024 and flew out from Fukuoka, Japan to Phuket City, Thailand on 21 June 2024. The Applicant was therefore still in Japan when she emailed the Commission on 19 June 2024 and not in Thailand as she contended in her submissions.
  5. [43]
    For the period from 14 June 2024 to 21 June 2024, the information from google maps appears to confirm the Applicant and her family undertaking various tourist activities including visiting tourist sites, cycling and walking.
  6. [44]
    The information confirms that on 19 June 2024 the Applicant was in Kyoto and then later in the day travelled to Hakata. On 20 June 2024, the Applicant travelled from Hakata to Fukuoka.
  7. [45]
    On 19 June 2024, the Applicant despite being overseas was able to email the Registry requesting an extension of time of 21 days from her return date (until 29 July 2024) to gather the relevant information and submit a detailed response.[27]
  8. [46]
    In the response email sent on 20 June 2024 at 9:09 am the Industrial Registry replied:

If you wish to appeal your dismissal, please review the Form 12- Application for reinstatement (attached).

Additionally, if you are submitting the form to the Registry outside of the 21 day timeframe, please complete the below section on the form.[28]

  1. [47]
    The Applicant would have received that email at 8:09 am on 20 June 2024 in Fukuoka. The Applicant was again placed on notice by that correspondence of the 21-day limitation period. She was also provided with a copy of the Form 12 that had to be filed if she sought to challenge  her dismissal. I also note that this occurs with two weeks left to run in the limitation period.
  2. [48]
    The google timeline reveals that on 20 June 2024 the Applicant left her accommodation at the Dream Inn Hakata at 10:07 am and then travelled by walking and bus to the Mizuho Pay Pay Dome Fukuoka and the Boss E – Zo Fukuoka where she stayed for approximately 2.5 hours prior to travelling to overnight accommodation at the Trip Pod Sumiyoshi B.
  3. [49]
    The next morning, 21 June 2024, the Applicant flew from Fukuoka to Patong, Phuket, Thailand.
  4. [50]
    The google timeline again reveals the Applicant undertaking various apparent tourist activities between 22 June 2024 until 2 July 2024.
  5. [51]
    On Friday, 28 June 2024, at 9:45 pm the Applicant sent an email to the Respondent's Human Resource Unit formally requesting an extension of the 21-day limitation period.[29] In that email, the Applicant states the reason for the overseas trip as follows:

Currently, I am overseas visiting my parents and I will be returning on July 7, 2024. Given my location and the purpose of my visit, I do not have access to the necessary documents, my laptop, or my PC to prepare my submission. The trip was planned well in advance to allow my family and me to spend quality time together, which I believe is essential for our well-being.

  1. [52]
    There is no mention in that email that the Applicant was unwell, or any issues related to her Aunt's health.
  2. [53]
    On Tuesday, 2 July 2024, at 8:35 am the Respondent's Human Resources unit sent the Applicant a response confirming that CHQHHS could not grant an extension. The email further advised the Applicant to contact the Queensland Industrial Relations Commission providing a 1300 number and the website address for the Commission for advice on how to seek an extension. The email confirmed that the Applicant had until close of business on Thursday, 4 July 2024 to lodge her application.
  3. [54]
    There is no evidence of there being any further attempt by the Applicant to make contact with Industrial Registry. Additionally, there is no evidence of the Applicant at any time attempting to make contact with Ms Renata Belperio, Senior Human Resources Consultant who was nominated in the termination letter dated 13 June 2024 as the Applicant's contact person for any questions.
  4. [55]
    The google timeline confirms that on 2 July 2024 the Applicant travelled to the Banana Beach, Sirinat National Park and the Big C Market prior to returning to her accommodation at the Boomerang Inn at 7:05 pm.
  5. [56]
    The next day, 3 July 2024, the Applicant flew from Phuket to Bangkok at 8:15 pm. There is no google timeline indicating what else the Applicant did on 3 July 2024.
  6. [57]
    The Applicant arrived in Bangkok in the early morning of 4 July 2024 and spent approximately one hour at the Mueang Samut Pu Chao Hospital. Later the same day the Applicant returned to Phuket. The Applicant flew out of Phuket on 5 July 2024 and arrived back in Brisbane on Saturday 6 July 2024 at approximately 4:00 pm and arrived at home at 7:46 pm.
  7. [58]
    On Sunday 7 July 2024, the google timeline reveals that the Applicant travelled to the markets at the Northey Street Farm returning home around midday and staying there until 2:39 pm. The entry is then cut off but there is reference to the Applicant driving for 2 hours and 40 minutes.
  8. [59]
    On Monday 8 July 2024, the Applicant appears to have stayed home all day.
  9. [60]
    On 9 July 2024, the Applicant attended on her General Practitioner at the Family Practice at the Gap and obtained her second medical certificate certifying her as 'unfit to continue her usual duty' from 9 July 2024 to 12 July 2024.
  10. [61]
    The Applicant in her submissions and her contemporaneous email communications with the Registry and the Respondent contended that it was necessary for her to have access to all required documentation in order to prepare a comprehensive submission. In light of this, I believe it is necessary to consider the Form 12 application that was ultimately filed by the Applicant on the evening of 10 July 2024.
  11. [62]
    The Form 12 filed by the Applicant is a 7-page document. The last page is a signing page, and it was signed by the Applicant on 10 July 2024 with an electronic signature. The first three pages provide pro forma identification and employment history information which the Applicant could have completed whilst overseas.
  12. [63]
    Page 4 of the Form 12 contains question 7 which provides the Applicant with an opportunity to provide an explanation for any delay in filing the form. The Applicant appears to have prepared a response and then cut and paste that into the form. The relevant explanation provided in the Form 12 for the delay is:

On 13 June 2024 a letter was emailed to the Applicant stating that her employment had been terminated effective immediately.

The Applicant was on a plane from Brisbane to Narita, Japan. She flew from 9:30 am AEST.

The Applicant had not brought her laptop or personal computer and could not access the documents she needed until she returned.

On 19 June 2024 she contacted QIRC by email indicating that she was overseas and could not access the documents until she returned to Brisbane, which would be 8 July 2024.

On 20 June 2024 QIRC responded stating that she needed to complete the Form 12 and fill out this section of the form.

After spending 1 week in Japan the Applicant flew to Thailand to visit family including her dying Aunt at her bedside.

  1. [64]
    There is no mention of ill-health or a medical reason for the Applicant not being able to file the document.
  2. [65]
    Logically, the above information would not have been required had the Applicant filed her application within time. 
  3. [66]
    On page 6 of the Form 12 the Applicant has set out her grounds for saying that the dismissal was unfair. There is no reference in that response to other documents and the contents appear to be consistent with the same arguments that the Applicant had presented in her public sector appeal and the appeal to the Industrial Court about the refusal of her exemption. There were no additional submissions or other documentary evidence attached to the Form 12 application.
  4. [67]
    It is therefore not clear to me why the Applicant could not have completed the application whilst she was in either Japan or Phuket in Thailand, because it does not appear that she has had need to refer to other documents or other information in order to complete the Form 12 application.
  5. [68]
    There is no evidence available to me of the Applicant making an attempt to prepare the Form 12 on her mobile telephone. In my view, there is no apparent reason why application as filed by the Applicant could not have been prepared whilst the Applicant was overseas using a smart mobile telephone.
  6. [69]
    The Applicant had been sent the form by the Registry on 20 June 2024 and in the period from 13 June 2024 to 4 July 2024 the Applicant was told on three separate occasions that there was a 21-day period within which to file her application. On 2 July 2024 the Respondent informed the Applicant that the application had to be filed by close of business on 4 July 2024.
  7. [70]
    Even if the Applicant experienced difficulties with completing the Form 12 on her mobile device, in my view as submitted by the Respondent there were other options available to the Applicant both in Japan and Thailand to access a computer to complete the form and email it, either in the form of an internet café, or sourcing a computer at any of the various places she was staying.
  8. [71]
    From the summary of the activities of the Applicant as indicated in the google timeline documents that she has provided, it appears that the Applicant has prioritised her holiday over taking the necessary time to complete the application and ensure that it was lodged by close of business on 4 July 2024. Given the content of the Form 12A application ultimately filed by the Applicant, there appears to have been ample opportunity for the Applicant to have completed this and filed it whilst overseas. The Applicant has made a choice to prioritise her holiday over protecting her right to lodge a reinstatement application.
  9. [72]
    I am therefore not satisfied that the period of overseas travel provides an explanation for the delay in filing the application by 4 July 2024.

Critical Family Circumstances

  1. [73]
    In the Applicant's submissions, the Applicant submits that whilst overseas, the Applicant's Aunt, who was terminally ill, required the Applicant's presence at her bedside. The Applicant submits that this added significant emotional and logistical challenges.
  2. [74]
    As noted in paragraphs [56] and [57] above, the Applicant flew to Bangkok from Phuket in the evening of 3 July 2024 with the purpose of visiting her Aunt in hospital and returned to Phuket the next day on 4 July 2024. Although, this might provide some explanation for the failure of the Applicant to lodge on the last day of the limitation period, it provides no explanation for the previous 20 days.
  3. [75]
    It is further noted that this was not an explanation relied upon by the Applicant when she did complete the Form 12 application when responding to Question 7.

Illness During and After Travel

  1. [76]
    In the Applicant's submissions she contends that she experienced significant health challenges and emotional distress during and after her overseas travel. The Appellant notes that on 29 June 2024, she experienced food poisoning, and subsequently a severe allergic reaction to crab about 1 July 2024.[30]
  2. [77]
    The Applicant further submits that whilst transiting through Singapore Airport, she felt fatigued and unwell, which persisted upon her return to Australia. Once at home she developed the symptoms of an upper respiratory infection, including a sore throat and voice loss, compounded by the physical and emotional toll of the trip.[31] Other than the Applicant's assertions about this, there is no independent evidence corroborating her allegation of her experiencing illness at the Singapore Airport.
  3. [78]
    The Applicant also reports emotional distress impacting upon her from the recent death of her Aunt.[32]
  4. [79]
    The Respondent in its submissions notes that the medical certificates attached to the Applicant's submissions state that she is 'unfit for work' or is 'receiving medical treatment' and will be 'unfit to continue her usual duty' for the periods from 8 July to 11 July 2024 and 9 July to 12 July 2024, respectively.
  5. [80]
    The Respondent goes on to note that the dates in the medical certificates are after the application was due to be filed. The Respondent therefore contends that the Applicant has provided no evidence of any incapacity to file her Application between 13 June and 4 July 2024. I accept this submission.
  6. [81]
    In considering the submissions of both parties relevant to this factor, it is noted that the Applicant has not provided any medical evidence corroborating that she had some form of medical incapacity in the period up to 4 July 2024 which prevented her from completing the unfair dismissal application.
  7. [82]
    The Applicant has provided some contemporaneous instant messenger exchanges which appear to support her having suffered food poisoning around 29 June 2024.
  8. [83]
    The google timeline appears to show that on 29 June 2024 the Applicant attended at both the Banana Beach and the Kalim Beach along with two instances of motorcycling (amongst apparently other activities).
  9. [84]
    On Sunday 30 June 2024 the Applicant was driving approximately 12 kilometres from her accommodation and then walked for just over two hours before being driven back to her accommodation. It therefore does not appear that the Applicant was seriously impacted by the food poisoning. I note that it appears that the Applicant stayed in all day at the Boomerang Inn on Monday 1 July 2024 and her activities on 3 July 2024 are unknown.
  10. [85]
    As regards the Applicant's illness after she returned home, the following points should be noted:
  • One of the medical certificates was obtained from a telehealth consultation.
  • Both medical certificates are generic in nature and merely refer to the Applicant's fitness for work. The medical certificates do not indicate that she had an incapacity which prevented her from completing the application form.
  • As noted above, on Sunday, 9 July 2024 the Applicant was able to attend the Northey Street markets along with driving or being driven in a car for over two hours.
  • Despite the medical certification, the Applicant was apparently able to complete the Form 12 on 10 July 2024 and email it to the Industrial Registry at 6:42 pm on 10 July 2024. It therefore appears that the medical condition/s that the Applicant was suffering from did not, in fact, prevent her from completing the Form 12 application.

Correspondence with the QIRC and Respondent

  1. [86]
    The final matter that the Applicant relies upon is the correspondence referred to above with the QIRC and the Respondent.
  2. [87]
    In relation to the communication with the QIRC, the Applicant states that in its response on 20 June 2024, the QIRC did not explicitly advise that the Form 12 must be filed within the 21-day period, even if incomplete.
  3. [88]
    The Applicant contends that the response from the Industrial Registry (which is set out in paragraph [46] above) gave her the impression that it was acceptable to submit her application after 21 days. The Applicant further states that she relied on this advice provided by the QIRC and she should not now be prevented from having her matter heard in the QIRC given her reasonable reliance on the advice from the QIRC.[33]
  4. [89]
    The Applicant then alleges that she was unaware of the statutory requirement to file the Form 12 within the 21-day period under the IR Act. The Applicant submits that if the QIRC had clearly stated this obligation and advised that the documents could be added later, the Applicant would have lodged the form promptly.[34]
  5. [90]
    The Applicant also relies upon her mistaken belief that the Respondent could grant an extension, as outlined in her email to Queensland Health on 28 June 2024. She confirms that the Respondent clarified on 2 July 2024 that extensions could only be granted by the QIRC.[35]
  6. [91]
    The Respondent in its submissions contends that the Commission's Registry does not provide legal advice, and the Applicant should have taken the initiative to better understand the process upon which she was embarking.[36]
  7. [92]
    In the Applicant's reply submissions, the Applicant reiterates the submissions made in her primary submissions.[37]
  8. [93]
    In the decision cited by the Respondent, that being Wilson v State of Queensland (Department of Justice and Attorney-General)[38] ('Wilson'), Commissioner McLennan dealt with an out-of-time public sector appeal which had been filed two days late.
  9. [94]
    The Appellant in that matter contacted the Registry in late December 2020 to enquire about lodging an appeal. The Appellant was advised that the timeframe to appeal would fall within the Christmas holidays and so she should file an extension to lodge an appeal as soon as possible after 4 January 2021. Commissioner McLennan noted:
  1. [24]
    Ms Wilson's explanation does evidence a degree of tardiness in both taking the initiative to properly educate herself on the appeal process and also in filing the appeal. Ms Wilson had substantial time from 11 December 2020 until the commencement of the Christmas break to file an appeal or an application for an extension to file an appeal. It appears that the delay largely stems from Ms Wilson's misbelief that she would be prejudiced if she was not given the opportunity to obtain legal representation before filing the appeal. That is incorrect for the reasons submitted by the Department.
  1. [25]
    The QIRC Registry does not provide legal advice and Ms Wilson should have taken the initiative to better understand the process upon which she was embarking. Ms Wilson stated she remained confused following the procedural guidance provided. However, that in itself is not a persuasive argument for extending time to appeal in the usual course.[39]
  1. (emphasis added)
  1. [95]
    I make the following findings regarding this ground for seeking an extension of time:
  • The Applicant in my view cannot in good faith maintain a contention that she was unaware of the requirement to lodge the application within 21-days in circumstances where:
  • The termination letter dated 13 June 2024 clearly informed her of the 21-day limitation period;
  • The Applicant by her actions in approaching the QIRC to seek an extension reveals her awareness of the 21-day limitation period;
  • The email response from the Industrial Registry dated 20 June 2024 also makes reference to the 21-day limitation period;
  • The Applicant's actions in then approaching Queensland Health for an extension of time are also inconsistent with her not having an awareness of the 21-day limitation period;
  • Finally, in the response email from Queensland Health on 2 July 2024, the Applicant is specifically told that she has until close of business on 4 July 2024 to lodge her application.
  • I do not accept that the Applicant genuinely believed based on the email she received from the Industrial Registry that it was acceptable to submit her application after 21 days. The Applicant's actions in subsequently approaching Queensland Health for an extension of time on Friday, 28 June 2024 are inconsistent with her holding such a belief.
  • I agree with the observations of Industrial Commissioner McLennan in Wilson that there is at least some obligation on an unrepresented party to take the initiative and properly inform themselves of the process upon which they are embarking. I note in Gambaro v Workers' Compensation Regulator,[40] President Martin J observed that a lack of legal representation is a misfortune, not a privilege.[41]
  • The Applicant had a number of opportunities to properly inform herself of the necessity to file the application within the 21-day limitation period, including the following:
    • The Applicant had been provided with the contact details for Ms Renata Belperio, Senior HR Consultant in the termination letter. There is no evidence of the Applicant making any attempt to contact Ms Belperio;
    • If the Applicant was left uncertain or confused by the email from the Industrial Registry on 20 June 2024, she could have followed up with the Industrial Registry to seek clarification. She failed to do so.
    • The email from the Respondent in response to the further request from the Applicant for an extension of time specifically noted:

The 21-day timeframe is set by the Industrial Relations Act 2016 and is not something that CHQHHS can grant an extension on. As stated in correspondence from Mr Frank Tracey, Health Service Chief Executive, dated 13 June 2024, termination of your employment was effective immediately upon the date of receipt of the letter. I note the correspondence was emailed to you 13 June 2024 and therefore the 21-day timeframe commenced on 14 June 2024, giving you until close of business this Thursday, 4 July 2024 to lode your application.

I suggest that you contact the Queensland Industrial Relations Commission on 1300 592 987 or at www.qirc.qld.gov.au for more information on how you may be able to seek an extension to the 21-day timeframe. (emphasis added)

The Applicant has been provided with a contact number for the Commission and the website link (again). Despite this, there is no evidence that the Applicant made any further attempt to contact the Industrial Registry to seek clarification about her position.

  • As noted above, a further resource available to the Applicant had she taken the initiative to go to the QIRC's website was the Unfair dismissal and reinstatement application guide. At page 12 of that document is a section that specifically addresses how to complete the Form 12. That section also notes that although it is an option to attach documents to the Form 12, it is not strictly required and there would be opportunities in the future to provide further documentation in support of the application.
  1. [96]
    For the reasons set out above, I am not satisfied that this ground provides the Applicant with an excuse for the failure to lodge the application within time.

Conclusion on reasons for the delay

  1. [97]
    I am satisfied that the Applicant's overseas travel and her communications with both the Industrial Registry and the Respondent do not provide her with a reasonable explanation for the failure to lodge the application within time.
  2. [98]
    I also consider that it is necessary to assess the factors collectively in determining whether an explanation has been provided for the failure to lodge the application within the 21-day limitation period and then the further delay of one week.
  3. [99]
    Given the circumstances that the Applicant experienced in the period from approximately 3 July 2024 to 6 July 2024 which involved the Applicant experiencing some degree of ill-health, the death of her Aunt, the necessity to travel from Phuket to Bangkok and return, and then the travel back to Australia, it is arguable that the Applicant has a reasonable explanation for at least that period of time.
  4. [100]
    I note however, that this only encompasses some two days of the 21-day period in which is provided by the IR Act for her to lodge her Form 12 Application. It also only encompasses two days of the further seven-day delay in lodging the reinstatement application. The Applicant in my view has failed to provide an adequate explanation for the further five-day delay in filing the application.

Prejudice to the Parties

  1. [101]
    The Applicant does not address this factor in her submissions.
  2. [102]
    There will clearly be prejudice sustained by the Applicant if an extension is not granted, as she will be unable to proceed to have her application for reinstatement heard and determined.
  3. [103]
    The Respondent does not raise any issue of prejudice that it would suffer if an extension was granted to the Applicant. I note however, that the absence of prejudice to the Respondent, is not of itself, a factor which justifies an extension of time.[42]
  4. [104]
    The Respondent does submit that any prejudice to the Applicant in not having the opportunity to proceed with her application must be weighed against the other relevant factors such as her prospects of success.[43]

Conduct of the Respondent

  1. [105]
    The only conduct of the Respondent raised by the Applicant in her submissions was her email request to the Human Resources unit of QCH on 28 June 2024. As noted above, the Respondent replied to that email on 2 July 2024 confirming that the Respondent did not have the power to allow an extension and further that extensions could only be granted by the Commission.
  2. [106]
    As noted above, the Respondent in its reply email of 2 July 2024 clearly places the Applicant on notice that her Form 12 application had to be filed by close of business on 4 July 2024.[44]
  3. [107]
    The Respondent submits in its submissions that there has been no conduct by the Respondent that contributed to the Applicant's delay in filing her application.[45]
  4. [108]
    I accept that there has been no conduct by the Respondent that has caused or contributed to the Applicant's delay in filing the application.

Merits of the Application

  1. [109]
    Although some of the authorities have cautioned against any close examination of the merits of the case at a preliminary stage,[46] given that I have available to me the two show cause letters and the Applicant's responses, the termination letter and the parties submissions in respect of the jurisdictional point, I consider that I am well placed to make a realistic assessment of the merits of the Applicant's unfair dismissal claim.
  2. [110]
    In the termination letter dated 13 June 2024, Mr Frank Tracey, Health Service Chief Executive, CHQ, informed the Applicant that her employment was terminated, effective immediately, because it was found:
  1. she failed to comply with the requirements of Health Employment Directive 12/21Employee COVID-19 vaccination requirements (HED 12/21) to receive the prescribed number of doses of a COVID-19 vaccine and to provide evidence of having received the prescribed number of doses of a COVID-19 vaccine (Allegation One); and
  1. from 21 January 2022 to 27 November 2022, she failed to inform CHQ that she was continuing to receive her salary even though she knew she was required to take paid or unpaid leave as she was absent from work due to her failure to receive a COVID-19 vaccine (Allegation Two).
  1. [111]
    In the Form 12 application, the Applicant has set out the following grounds as to why the dismissal was unfair:

Allegations;

Allegation 1 – That the Applicant did not comply with a lawful and reasonable direction.

Allegation 2 - That the Applicant received payments, overpayments, in 2022 while not working.

Allegation 1

The Respondent has failed in understanding the difference between a lawful and reasonable direction and inherent requirements.

Fron January 2022 to November 2023 the Applicant was seeking an exemption against the requirement to be vaccinated against COVID-19.

There is no refusal in a situation where an individual is challenging the requirement or seeking an exemption from it. To become vaccinated would defeat the purpose of seeking an exemption.

Further, pursuant to s 22, 23 and 26 of the Australian Immunisation Register Act 2015 (Cth) to receive someone's protected information, including COVID-19 vaccination status, consent must be provided.

Consent to the provision of protected information infers a choice to provide or not provide said protected information to anyone, including an employer.

If it is a requirement of the role to be vaccinated against COVID-19, a failure to becoming vaccinated or to provide this protected information cannot be construed as misconduct, only that the individual cannot meet the inherent requirements of their role.

It is not an employer's place to direct an individual to become vaccinated. An employer can lawfully impose a mandate as a requirement of employment but cannot direct an individual on what personal choice to make This does not make the requirement unlawful, however, it does not give an employer the right to direct an employee on how to exercise their lawful choice to become vaccinated or provide protected information under the AIR Act.

The individual can be terminated due to not meeting the inherent requirements of their role, but not for misconduct.

Misconduct for refusal to follow a lawful and reasonable direction, by definition, implies that there is no choice.

Directions cannot be refused, there is only one outcome. It is nonsensical to believe that a direction can be given to an employee where their personal choice is protected by law.

While there are consequences for that decision, in the form of not meeting the inherent requirements and therefore potentially being terminated, it can never be construed as misconduct.

An employer cannot direct an employee in any situation where the employee can lawfully choose not to follow the direction. As consent is a lawful requirement for both undergoing a medical procedure and providing protected information, it is not open to an employer to make this direction to employees under any circumstance.

Allegation 2

The Applicant made communications to the Respondent that she was receiving payments which were meant to be taken out of her leave entitlements. She did not receive a response or direction on how to alleviate this.

Further, she was entitled to be paid pursuant to s 4 status quo provisions which governs the Individual employee grievance policy and extends to public service appeal pursuant to the now repealed Public Service Act 2008.

The Applicant was working from home in later 2021 and could have continued in this capacity. The date that the internal review process, in relation to her example, began on 21 December 2021 while the Applicant had been working from home.

Allegation 1

  1. [112]
    As regards Allegation 1, there does not appear to be any factual dispute between the parties that the Applicant failed to both receive the prescribed number of doses of a COVID-19 vaccine and provide evidence of having received the prescribed number of doses.
  2. [113]
    The Applicant sought an exemption from having to comply with HED 12/21, which was refused. The Respondent's Form 12A Response sets out the following timeline of events following the refusal of the exemption application:
  1. 11.
    On 21 December 2021, Ms Goodchild requested an internal review of the decision to decline her exemption application (Attachment 3).
  1. 12.
    By letter dated 11 February 2022, Ms Naomi Hebson, Executive Director, People and Governance, advised Ms Goodchild that she had conducted an internal review and determined to confirm Mr Tait's decision to decline her exemption application (Attachment 4).
  1. 13.
    On 2 March 2022, Ms Goodchild filed a Public Service Appeal in the Queensland Industrial Relations Commission appealing the decision of Ms Hebson dated 11 February 2022 (PSA).
  1. 14.
    On 17 February 2023, Knight IC delivered her decision in respect of Ms Goodchild's PSA, confirming Ms Hebson's decision on the basis it was fair and reasonable.[47] Ms Goodchild appealed Knight IC's decision to the Industrial Court (Appeal).
  1. 15.
    On 20 November 2023, Davis J delivered his decision, dismissing the Appeal.[48]
  1. [114]
    In the Respondent's submissions it is submitted that HED 12/21 and the requirement to comply with it, including the requirement to receive an approved COVID-19 vaccine, has been consistently found to be a lawful and reasonable direction in other matters before the Commission.[49]
  1. [115]
    The Respondent further submits that the matters raised by the Applicant regarding Allegation One (with respect to consultation, the safety and efficacy of vaccines and consent to vaccination) have already been extensively considered and determined in numerous public service appeals and the collective reinstatement matter of Mocnik & Others v State of Queensland (Queensland Health).[50]
  1. [116]
    The Respondent further submits that none of the matters raised in the Applicant's Application have been found in favour of employees or former employees, including the Applicant in her ICQ appeal. The Respondent contends that the Applicant did not have a reasonable excuse justifying refusal to be vaccinated.[51]
  1. [117]
    The Respondent contends that the Applicant remained in defiance of a lawful direction issued to her for over two years. The Respondent further submits that employees cannot be permitted to 'wait out' directions issued to them, particularly where those directions remain in place for two years, in the hope the direction may be revoked.[52]
  1. [118]
    The Applicant provided reply submissions which far exceeded the five pages for her reply submissions per direction 3 of the Directions Order dated 19 December 2024. Despite this, I have considered the Applicant's reply submissions in detail, however, I will only summarise the key points from those submissions.
  1. [119]
    The Applicant relies upon the following points in reply: 
  • More recent judicial rulings such as Johnston & Ors v Carroll[53]and Sutton & Ors v Carroll[54], underscore the necessity of scrutinising vaccine mandates to balance individual rights with public health objectives. The Applicant contends that her case raises similar questions about proportionality and fairness. With respect it does not. I agree with the Respondent's submissions that HED 12/21 has been consistently upheld and found to be lawful in numerous decisions of the Commission. The two decisions of Justice Martin that the Applicant refers to, and relies upon, are not relevant to her application for unfair dismissal as they were addressing different factual scenarios and mandates made under different circumstances.
  • The Applicant then contends that the unique context of her case being her documented medical condition and exemplary service record differentiate her circumstances from those in the cited precedents. Again, with respect they do not. The Applicant has not provided any medical evidence which would support a finding that she had a contraindication to receiving the vaccine. This was noted by his Honour, Davis P in Goodchild v State of Queensland (Queensland Health)[55]. An exemplary service record provides no justification for a failure to comply with a lawful direction for two years.
  • The Applicant contends that the termination process lacked transparency and fairness contravening principles which reaffirm the necessity of genuine opportunities for individuals to respond. The Applicant was not denied procedural fairness for the following reasons:
  • By letter dated 22 March 2023, the Applicant was afforded the opportunity of showing cause in relation to both allegations why disciplinary findings should not be made against her;[56]
  • The Applicant took up that opportunity and on 27 April 2023, she provided a response to the first show cause letter.[57] The Applicant's response to the first show cause letter was 12 pages in length;
  • On 20 January 2024, Mr Tait informed the Applicant that the disciplinary process would resume (it had been temporarily suspended whilst waiting for a decision of the Commission). Further, the Applicant was afforded a further seven-day period to provide any additional response to the first show cause letter;[58]
  • The Applicant again took up the invitation and provided a further response on 28 January 2024. This response was a further four pages long;[59]
  • On 23 February 2024, Mr Tait wrote to the Applicant informing her that he had found the allegations to be substantiated, and the Applicant was then provided an opportunity to show cause re the proposed penalty of termination of her employment;[60]
  • The Applicant once again took up this opportunity and provided her response on 4 March 2024. This was a three-page response which includes some of the submissions she currently relies upon.[61]
  • Given that timeline, the Applicant cannot succeed in any argument that is premised upon her being denied procedural fairness. The fact that the Applicant did not receive the outcome she desired, does not mean that she was denied procedural fairness. She was provided every opportunity to respond to the allegations and put forward her defence.
  • In relation to her non-compliance with HED 12/21, the Applicant submits that she was on leave and not present in the workplace during the relevant period and questioned the proportionality of enforcing HED 12/21 as a condition of employment. She contends that her decision to delay compliance with the directive was based on legitimate health concerns and supported by emerging research. I do not accept that any of these matters provided a basis for the Applicant to not comply with the lawful direction.
  • I have also considered the balance of the matters raised by the Applicant in her reply submissions in relation to Allegation 1. I am satisfied that they amount to the same type of arguments that have been consistently rejected by the Commission as providing any basis to not comply with the vaccine mandate.
  1. [120]
    I am satisfied that the matter raised by the Applicant in her Form 12 application and in her reply submissions fail to provide a sound basis for her to establish that the termination of her employment was harsh, unjust or unreasonable within the meaning of s 320 of the IR Act as regards Allegation 1.

Allegation 2

  1. [121]
    In relation to Allegation 2, the Respondent submits that none of the Applicant's explanations in her Form 12A application and throughout the disciplinary process in respect of receiving the overpayment and failing to notify CHQ of this, amount to a reasonable excuse or explanation for her conduct.[62]
  2. [122]
    The Respondent further submits that the Applicant received her full-time salary from 21 January 2022 to 27 November 2022, a period of more than 10 months. Further, the Applicant waited for 10 months to address the matter with CHQ, despite knowing she should not have been receiving her full salary as she was advised by Mr Dominic Tait, Executive Director, Clinical Services, CHQ, in his letter dated 21 January 2022 that she was required to take paid or unpaid leave as she was absent from work due to her failure to receive a COVID-19 vaccine.[63]
  3. [123]
    The Respondent goes on to submit that the Applicant owes the Respondent approximately $91,726. The Respondent further contends that the Applicant also appears (on her own submissions) to have dishonestly obtained financial benefit from secondary employment which she failed to disclose to CHQ, despite being directed by Mr Tait in his letter dated 23 February 2024 to disclose details of any secondary employment. The Respondent submits that these matters negatively impact upon the Applicant's credit and honesty, which in turn impact on her prospects of being reinstated.[64]
  4. [124]
    In her reply submissions filed on 28 January 2025, the Applicant submits that the Respondent's claim that the Applicant intentionally delayed addressing the overpayment ignores systemic administrative failings within Queensland Health ('QH') which she lists as follows:
  • The Applicant relied on QH systems to process leave applications and manage salary adjustments. Following the suspension of her access to internal payroll systems, she could not independently verify or adjust her leave status.
  • Despite the Applicant's clear communication with her team leader, Ms. Morlin, to transition to various leave options, unbeknownst to the Applicant, Ms. Morlin had delegated the task to her line manager, Mr. Davidson, who likely failed to action it, resulting in continued salary payments.
  1. [125]
    The Applicant further contends that her payments were approved by QH Staff:
  • The Applicant's fortnightly pay was approved by Ms. Morlin for over 10 months, contradicting claims of intentional misconduct.
  • The Applicant disclosed her secondary employment which she commenced in April 2022, to Ms Morlin, months before QH formally notified her of the overpayment at the end of November 2022, underscoring her good faith.
  1. [126]
    The Applicant also relies upon her proactive efforts to address the overpayments and a lack of payslips and procedural clarity during the relevant period.
  2. [127]
    The Applicant does not appear to dispute in any material available to me that in the correspondence from Mr Tait on 21 January 2022 she was informed as follows:

Now that your exemption application has been determined, Mr Tracey has made the decision that no further PDSL[65] will be approved beyond 21 January 2022. Accordingly, you will be required to advise your line manager, Siobahn Morlin, A/Team Leader North West CYMHS, by 31 January 2022 if you would like to access your accrued leave entitlements. Should you not have any accrued leave available or if you do not advise your manager by this date, you will be placed on leave without pay.[66]

  1. [128]
    I further note the information set out under the heading of Allegation 2 in the first show cause letter from Mr Tait dated 22 March 2023 as to the various communications between the Applicant and Ms Morlin.[67]
  2. [129]
    In circumstances where the Applicant was aware that she was either not to receive pay at all, or that she would receive half-pay until her various leave entitlements ran out, the Applicant must have been aware that she was not entitled to receive the full pay amounts that she received for a period of ten months (emphasis added). It is difficult to reach any conclusion other than the Applicant was prepared to sit back and continue to receive her full pay in circumstances where she was aware that she was not entitled to it.
  3. [130]
    The explanations that the Applicant has put forward during the show cause process and in her reply submissions do not provide an adequate explanation as to why she sat back and received full payment when she was aware that this should not be occurring.
  4. [131]
    I accept the Respondent's contention that this would impact upon any assessment of the Applicant's credibility and honesty for both determining whether the termination was harsh, unjust and unreasonable, but also for whether reinstatement or re-employment was a viable option.

Conclusion – Merits of the Application for Reinstatement

  1. [132]
    In my view, the Applicant's prospects of success in establishing that her dismissal was for an invalid reason are negligible. In the circumstances of this case significant weight should be given to this factor in the exercise of my discretion as to whether an extension of time should be granted.

Overall Conclusion

  1. [133]
    For the reasons set out above, I am satisfied that the application for reinstatement was filed out of time and in circumstances where the requirement to lodge the application within a 21-day time period had been communicated to the Applicant.
  2. [134]
    I have found that the Applicant has not provided a reasonable explanation for the majority of the delay in filing her application and for her failure to file her application for reinstatement within time.
  3. [135]
    I have further found that the Applicant has limited to no prospects of success in her reinstatement application, and this is a factor which in my view heavily weighs against the exercise of my discretion to extend time for filing the application. I am also satisfied that there are no other factors that would justify the Applicant receiving an extension of time.
  4. [136]
    As noted in paragraph [16] in Wantling v Department of Community Safety (Queensland Corrective Services)[68], Deputy President O'Connor (as his Honour then was) confirmed that where an application has no, or very limited, prospects of success, the Commission should not grant an extension of time. His Honour further confirmed that the statutory time limit should only be departed from in the most compelling of circumstances.
  5. [137]
    The Applicant has failed to establish that the application for reinstatement has viable prospects of success. This is not a case where the Applicant has established compelling circumstances justifying an extension of time.
  6. [138]
    As a consequence, the Applicant has failed to discharge the onus placed on her to establish that the justice of the case supports the exercise of a discretion to grant an extension of time. I have determined to not exercise my discretion to extend time to the Applicant within which to lodge her application for reinstatement.
  7. [139]
    Given that finding, it is not necessary for me to consider the further ground relied upon by the Respondent to dismiss the application, that being further proceedings were not necessary or desirable in the public interest under s 541(b)(ii) of the IR Act. I would merely note that this ground also appeared to have merit.

Order

  1. [140]
    Accordingly, I make the following order:

The application for reinstatement in matter TD/2024/71 is dismissed.

Footnotes

[1] Industrial Relations Act 2016 (Qld), s 317(2)(a).

[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20.

[3] Maina v State of Queensland (Queensland Health) [2022] QIRC 100.

[4] Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147 at [25]; Davies v State of Queensland (Queensland Health) [2022] QIRC 151 at [40].

[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[6] [2001] ICQ 24; (2001) 167 QGIG 159.

[7] [1999] QIRC 2; (1999) 163 QGIG 20, per Linnane VP.

[8] Ibid, citing Marston v Ocean Sky Pty. Ltd. & Ors (1995) 150 QGIG 1131.

[9] [2013] QIRC 43.

[10] Ibid, [57]-[60].

[11] Respondent's submissions filed 21 January 2025, [2].

[12] Respondent's Form 12A Response, Schedule A, [33] and Attachment 14 – Termination letter dated 13 June 2024 ('Form 12A').

[13] Respondent's submissions, [3] citing Maina v State of Queensland (Queensland Health) [2022] QIRC 100 at [25].

[14] Form 12A (n 12).

[15] Applicant's submissions filed 7 January 2025.

[16] Ibid, [3].

[17] Ibid, [4]-[5].

[18] Ibid, [5].

[19] Ibid, [7].

[20] Respondent's submissions filed 21 January 2025.

[21] Ibid, [6].

[22] Ibid, [9].

[23] Applicant's reply submissions filed 28 January 2025, [3].

[24] Ibid, [4].

[25] Ibid, [5].

[26] Ibid, [6].

[27] Applicant's submissions, Annexure A.

[28] Ibid.

[29] Ibid, Annexure B.

[30] Applicant's submissions, [10].

[31] Ibid.

[32] Ibid, [11].

[33] Applicant's submissions, [14].

[34] Ibid, [15].

[35] Ibid, [16].

[36] Respondent's submissions filed 21 January 2025, [8], citing Wilson v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 245, [25].

[37] Applicant's reply submissions filed 28 January 2025, [10]-[11].

[38] [2021] QIRC 245.

[39] Ibid, [24]-[25] per McLennan IC.

[40] [2017] ICQ 5.

[41] Ibid, [14], citing Robertson v Hollings [2009] QCA 303 at [11].

[42] Douglas v Allen and Ors [1984] FCA 77.

[43] Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294 at [29].

[44] See paragraph [52].

[45] Respondent's submissions, [19].

[46] Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709, per McKenzie P; Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010, per Chief Industrial Commissioner Hall (as his Honour then was).

[47] Goodchild v State of Queensland (Queensland Health) [2023] QIRC 053.

[48] Goodchild v State of Queensland (Queensland Health) [2023] ICQ 026.

[49] Respondent's submissions, [13] citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 at [36], [39] and [41]; Bax v State of Queensland (Queensland Health) [2022] QIRC 304 at [53]; Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149 at [30].

[50] [2023] QIRC 058.

[51] Goodchild v State of Queensland (Queensland Health) [2023] ICQ 026, [31] per Davis P.

[52] Respondent's submissions, [15]

[53] [2024] QSC 2.

[54] [2024] QSC 6.

[55] [2023] ICQ 026, [21] per Davis P.

[56] Respondent's Form 12 A Response, [23] and Attachment 8.

[57] Ibid, [25], Attachment 9.

[58] Ibid, [27], Attachment 10.

[59] Ibid, [28], Attachment 11.

[60] Ibid, [29], Attachment 12.

[61] Ibid, [31], Attachment 13.

[62] Respondent's submissions, [16].

[63] Ibid.

[64] Ibid, [17].

[65] Paid Discretionary Special Leave.

[66] Respondent's Form 12A Response, Attachment 5, Correspondence from Mr David Tait dated 21 January 2022.

[67]

[68] [2013] QIRC 43.

Close

Editorial Notes

  • Published Case Name:

    Goodchild v State of Queensland (Department of Education)

  • Shortened Case Name:

    Goodchild v State of Queensland (Department of Education)

  • MNC:

    [2025] QIRC 46

  • Court:

    QIRC

  • Judge(s):

    O'Neill IC

  • Date:

    13 Feb 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
Bax v State of Queensland (Queensland Health) [2022] QIRC 304
2 citations
Jump To
Cite 1 - [2022] QIRC 304
Cite 2 - [2022] QIRC 304
Breust v Qantas Airways Limited (1995) 149 QGIG 777
1 citation
Jump To
Cite 1 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
4 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540
2 citations
Jump To
Cite 1 - (1996) 186 CLR 540
Cite 2 - (1996) 186 CLR 540
Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108
3 citations
Jump To
Cite 1 - (1998) 159 QGIG 108
Cite 2 - (1998) 159 QGIG 108
Cite 3 - (1998) 159 QGIG 108
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348
1 citation
Jump To
Cite 1 - (2000) 74 ALJR 1348
Davies v State of Queensland (Queensland Health) [2022] QIRC 151
2 citations
Jump To
Cite 1 - [2022] QIRC 151
Cite 2 - [2022] QIRC 151
Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149
2 citations
Jump To
Cite 1 - [2022] QIRC 149
Cite 2 - [2022] QIRC 149
Douglas v Allen and ors [1984] FCA 77
2 citations
Jump To
Cite 1 - [1984] FCA 77
Cite 2 - [1984] FCA 77
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
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Goodchild v State of Queensland (Queensland Health) [2023] QIRC 53
2 citations
Jump To
Cite 1 - [2023] QIRC 53
Cite 2 - [2023] QIRC 53
Goodchild v State of Queensland (Queensland Health) [2023] ICQ 26
4 citations
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Cite 1 - [2023] ICQ 26
Cite 2 - [2023] ICQ 26
Cite 3 - [2023] ICQ 26
Cite 4 - [2023] ICQ 26
Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 709
Cite 2 - (1995) 149 QGIG 709
Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010
2 citations
Jump To
Cite 1 - (1996) 151 QGIG 1010
Cite 2 - (1996) 151 QGIG 1010
Johnston v Carroll [2024] QSC 6
2 citations
Jump To
Cite 1 - [2024] QSC 6
Cite 2 - [2024] QSC 6
Johnston v Commissioner of Police [2024] QSC 2
2 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147
2 citations
Jump To
Cite 1 - [2022] QIRC 147
Cite 2 - [2022] QIRC 147
Maina v State of Queensland (Queensland Health) [2022] QIRC 100
3 citations
Jump To
Cite 1 - [2022] QIRC 100
Cite 2 - [2022] QIRC 100
Cite 3 - [2022] QIRC 100
Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131
2 citations
Jump To
Cite 1 - (1995) 150 QGIG 1131
Cite 2 - (1995) 150 QGIG 1131
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
2 citations
Jump To
Cite 1 - [2023] QIRC 58
Cite 2 - [2023] QIRC 58
Rich v Chubb Protective Services [2001] ICQ 24
2 citations
Jump To
Cite 1 - [2001] ICQ 24
Cite 2 - [2001] ICQ 24
Robertson v Hollings [2009] QCA 303
2 citations
Jump To
Cite 1 - [2009] QCA 303
Cite 2 - [2009] QCA 303
Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 354
1 citation
Jump To
Cite 1 - (1999) 162 QGIG 354
Shane Rich v Chubb Protective Services (2001) 167 QGIG 159
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 159
Cite 2 - (2001) 167 QGIG 159
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
2 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39
Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060
1 citation
Jump To
Cite 1 - (1997) 155 QGIG 1060
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
3 citations
Jump To
Cite 1 - [2013] QIRC 43
Cite 2 - [2013] QIRC 43
Cite 3 - [2013] QIRC 43
Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294
2 citations
Jump To
Cite 1 - [2024] QIRC 294
Cite 2 - [2024] QIRC 294
Wilson v State of Queensland (Department of Justice and Attorney–General) [2021] QIRC 245
3 citations
Jump To
Cite 1 - [2021] QIRC 245
Cite 2 - [2021] QIRC 245
Cite 3 - [2021] QIRC 245

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Ivins v KMA Consulting Engineers Pty Ltd [2025] QIRC 1412 citations
Zadravec v Mornington Shire Council [2025] QIRC 942 citations
1

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