TB v State of Queensland (Queensland Health)
[2025] QIRC 56
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- Unreported Judgment
- TB v State of Queensland (Queensland Health)[2025] QIRC 56
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TB v State of Queensland (Queensland Health)[2025] QIRC 56
TB v State of Queensland (Queensland Health)[2025] QIRC 56
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | TB v State of Queensland (Queensland Health) [2025] QIRC 056 |
PARTIES: | TB Appellant v State of Queensland (Queensland Health) Respondent |
CASE NO: | Anonymised |
PROCEEDING: | Public service appeal of a fair treatment decision |
DELIVERED ON: | 25 February 2025 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – where the appellant appeals a review carried out by the respondent of an internal grievance – where respondent seeks that appeal be struck out on the basis that the appeal has been filed out of time – where respondent alternatively seeks that matter not be heard pursuant to section 562A of the Industrial Relations Act 2016 (Qld) – consideration of section 324 and Ch 3, Pt 10 of the Public Sector Act 2022 (Qld) and of section 562A, 562B, 562C and 564 of the Industrial Relations Act 2016 (Qld) – consideration of case law on extension of time for filing appeals in the Commission – held that the length of delay, being 7 days, was significant – where the appellant submits that the appellant did not file the appeal because it was lodged by the appellant's representatives, because the Commission was busy, and because the appellant did not know how to progress the appellant's appeal – where respondent submits that there needs to be exceptional circumstances to justify extending the time for filing an appeal in the Commission – held there need not be exceptional circumstances but there must be an acceptable explanation for the delay – held that the appellant did not provide an acceptable explanation for the delay – where appellant submits that the appellant's appeal has merits because the respondent did not adequately consult with the appellant or the appellant's representatives, because the respondent did not consider the appellant's human rights, and because there is a public interest in this matter – where respondent submits that the appeal is without prospects because the appellant's arguments are misconceived and have failed in similar matters previously decided in the Commission – held that the appeal lacks merit – held that there is prejudice to the appellant and the respondent – held that there would unfairness as between the appellant and other persons in a like position if extension of time were granted – application refused. |
LEGISLATION: | Human Rights Act 2019 (Qld), s 58 Industrial Relations Act 2016 (Qld), s 562A, s 562B, s 562C 564 Public Sector Act 2022 (Qld), s 324, ch 3, pt 10 Public Service Act 2008 (Qld) Work Health and Safety Act 2011 (Qld) |
CASES: | A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hans v MTV Publishing Ltd (1995) 67 IR 298 Clark v Ringwood Private Hospital [1997] AIRC 344 Cooper v Hopgood & Ganim [1999] 2 Qd R 113 Cullen v State of Queensland (Queensland Health) [2021] QIRC 258 Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195 Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 Gibson v State of Queensland (Queensland Health) [2024] QIRC 090 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147 Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Maina v State of Queensland (Queensland Health) [2022] QIRC 100 McColl v Toowoomba Regional Council [2025] QIRC 17 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 Pflaum v State of Queensland (Department of Education) [2024] QIRC 50 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Thompson v State of Queensland (Queensland Health) [2022] QIRC 74 Ulowski v Miller (1968) SASR 277 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 Vlies v Commonwealth of Australia [2004] QSC 404 |
Reasons for Decision
- [1]This is a public service appeal filed by TB ('Appellant') on 21 January 2022 against a fair treatment decision ('Appeal') of the State of Queensland (Queensland Health) ('Respondent'). The decision that is the subject of the Appeal is the outcome of an internal review conducted by Dr Michael Cleary, Acting Chief Operating Officer, Metro South Health, of the Respondent's prior decision to deny the Appellant an exemption from the requirement to be vaccinated for COVID-19 ('Decision'). The Decision was made on 24 December 2022.
- [2]The Respondent also raises in its application in existing proceedings filed on 23 February 2022 the jurisdictional issue that the appeal has been filed out of time and seeks that the matter be struck out on that basis. The Respondent also, in that same application, seeks to strike out the matter because the Appeal contains incomprehensible claims.
- [3]The Commission issued directions orders on 15 July 2024 requiring the parties to address with written submissions whether the Commission should refrain from hearing the Appeal pursuant to s 562A of the Industrial Relations Act 2016 (Qld) ('IR Act'). Another set of directions orders were issued on 12 August 2024 by a Delegated Officer for the Industrial Registrar extending the timeframe for the filing and serving of those written submissions.
Relevant background
- [4]At the time of lodging the Appeal, the Respondent employed the Appellant as a registered nurse in Logan Hospital's Addiction and Mental Health unit. The Appellant held that position when, in 2021, the Respondent issued Health Employment Directive No. 12/21: Employee COVID -19 vaccination requirements ('Directive'). The Directive directed the Appellant to receive vaccinations for COVID-19 by prescribed dates unless granted an exemption by the Respondent from doing so. The Appellant applied for an exemption from receiving those vaccines, first on 30 September 2021 and then again on 14 November 2021. The Respondent considered those applications but declined to grant the Appellant an exemption from complying with the Directive. The Appellant sought an internal review of that decision. Dr Cleary carried out that internal review and delivered the Decision on 24 December 2022.
Issues
- [5]There are two issues to be resolved. There is first the issue of the Appeal being filed out of time and whether the Commission should grant the Appellant extra time to file the Appeal. Should the Commission grant extra time for the Appellant to file the Appellant's Appeal, the issue then becomes whether the Commission should refrain from hearing the Appeal pursuant to section 562A(3) of the IR Act because the appeal is misconceived, lacks substance or for any other compelling reason.
Relevant law
Relevant legislation
- [6]The Public Service Act 2008 (Qld) ('repealed Act') applied when this Appeal was filed. However, that Act was superseded by the Public Sector Act 2022 (Qld) ('PS Act'). Section 324 of the PS Act relevantly provides that appeals brought under the repealed Act are to be heard and determined pursuant to Chapter 3, Part 10 of the PS Act. The effect of those provisions is that the Appeal is to be heard and determined under the IR Act.
- [7]Section 564 of the IR Act effectively provides that public service appeals of fair treatment decisions must be filed within 21 days of the relevant decision being given to the employee. However, that same section bestows on the Commission discretion to extend the time for filing appeals of this nature. Section 562B of the IR Act relevantly provides that appeals to the Commission are by way of a review and that the test to be applied is whether the decision was fair and reasonable.
- [8]Section 562C of the IR Act sets out what remedies the Commission may provide upon finding that a decision was not fair and reasonable. The remedies in a case such as this one are limited to setting the Decision aside and either substituting it for another decision or returning the matter to the decision-maker with directions and a copy of the decision on appeal.
- [9]However, section 562A(3) of the IR Act provides the Commission with the discretion to not hear a public service appeal against a decision if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal is frivolous or vexatious, is misconceived or lacks substance, or should not be heard for another compelling reason.
Relevant case law
- [10]
- length of the delay;
- explanation for the delay;
- hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred;
- prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
- conduct of the defendant in the litigation.
- [11]His Honour went on to provide further guidance from the decision of his Honour, Wilcox J, in Hunter Valley Developments Pty Ltd v Cohen ('Hunter Valley Developments'):[4]
- special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
- action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
- any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the granting of an extension;
- the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
- considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.
- [12]In Thompson v State of Queensland (Queensland Health),[5] Hartigan IC, as her Honour then was, considered the test for extension of time applications of this nature. Hartigan IC followed the observations of his Honour, Martin P, as his Honour then was, in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('A1 Rubber').[6] In that matter, his Honour held that the appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised.[7] Hartigan IC also observed and followed the principles in Hunter Valley Developments, noting them to be a useful guide in deciding applications seeking an extension of time for filing.[8]
- [13]In Keir v Simon Blackwood (Workers' Compensation Regulator),[9] a Full Bench of this Commission cited the observations of their Honours McColl JA, Whealy JA and Tobias AJA in Daily Examiner Pty Ltd v Mundine; Brown v Mundine[10] that the fact of representative error 'itself cannot constitute an impenetrable bar to the making of an order refusing application for the extension of time.'[11]
- [14]
[f]or example, if a plaintiff had chosen to let an action go to sleep, that would be a discretionary consideration adverse to his being allowed to belatedly prosecute it. In the present case, the omissions of some of the plaintiff’s lawyers have contributed to the delay. But so too has the plaintiff, who should have insisted that his case be prosecuted. The plaintiff admits that he was made aware of the various delays, and that he has “always been aware of any decision which may affect the action”. The fault is not simply that of (some of) the plaintiff’s lawyers, or former lawyers…
- [15]In McColl v Toowoomba Regional Council,[15] Gazenbeek IC more recently summarised the position of the relevance of representative error as an explanation for delay in filing matters. It was noted that the applicant's conduct with respect to the representative error is a central consideration as to whether that representative error provides an acceptable explanation for the delay.[16] Gazenbeek IC cited, at [24], Thompson IC's endorsement in Lloyd v Department of Communities, Child Safety and Disability Services[17] of the Full Bench of the Australian Industrial Relations Commission in Clark v Ringwood Private Hospital ('Clark'),[18] where the Full Bench noted:[19]
In our view the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:
- Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged…
- A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant…
- The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicants efforts to ensure that the claim is lodged…
- Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted…
Length of the delay
- [16]The Appellant was given the Decision on 24 December 2021. The 21-day limitation period expired on 14 January 2022. The Appeal was filed on 21 January 2022, which was 7 days outside of the statutory limitation period.
- [17]The Respondent submits that the Appeal was filed 7 days late and so is out of time.[20] I accept that submission. In Forsyth-Stewart v State of Queensland (Department of Education),[21] a delay of 10 days was held by his Honour, Merrell DP, to be 'significant.'[22] In Gibson v State of Queensland (Queensland Health),[23] Pidgeon IC found a delay of 5 days to be 'significant.'[24] In Kazuva v State of Queensland (Queensland Health),[25] Power IC agreed with the submission that a 6 days long delay was 'significant.'[26] These authorities necessarily lead me to take the view that the 7-day delay in this case can be described as significant.
Acceptable explanation for the delay
- [18]In the Appellant's notice of appeal, the Appellant says that the application is out of time because of:
- Representative error / administration as they (sic) sheer volume of materials overwhelmed their industrial association / representative, including when the files transferred to Supportah;
- The Respondent knew representatives were on the record and despite this directed correspondence to employee directly (sic), requiring additional steps over the Christmas period (and additional impact);
- Covid / Omnicron virus and staff sickness has reduced Supportah Australia's capacity by 45%; and
- Document collection for members / clients has been difficult, especially with the Stage 2 Declinature.
- Having regard for the above, the Applicant is blameless.
- [19]In the Appellant's submissions, the Appellant says very little that explains the delay in filing. The Appellant appears to blame in some way those who represented the Appellant at an early stage of the proceedings. Under the heading 'Explanation for delay' in the Appellant's submissions, the Appellant says:
- I didn't progress my Public Service Appeal because it was lodged by Supportah on behalf of my professional association that sought to consult on my behalf following the imposition of HED 12/21, who jumped off record around 2023
- In addition QIRC was extremely busy and I didn't know to progress Public Service Appeals.
- [20]The Appellant's claims in the Appellant's appeal notice are unclear. The Appellant refers to the entity responsible for the representative error variously as the Appellant's 'industrial association,' the Appellant's 'representative' and 'Supportah', so it is not clear exactly who or what is responsible for that alleged representative error. There are no dates or information pertaining to the Appellant's communications with the entity, or entities, said now to be responsible for the representative error. The only information I have is that the Appellant knew that the entity who was representing the Appellant was inundated with work while also being understaffed, though it is again unclear whether the Appellant was aware of the Appellant's representatives' limited capabilities at that time.
- [21]Importantly, the Appellant has also failed to say when the Appellant claims to have put the matter in the hands of either, or both, of the named representatives. I therefore do not know whether the representative had a reasonable amount of time to take instructions and file the application within time. This is an essential part of determining whether the Appellant was entirely blameless in the delay.
- [22]As outlined Vlies and Clark, an assessment of whether an applicant is blameless for any representative error is crucial for deciding whether representative error provides an acceptable explanation for the delay in filing an application.[27] The nature of the Appellant's submissions and evidence on this point is such that I cannot discern any clear case in the appeal notice that the Appellant has been entirely blameless for the delay.
- [23]As to the submissions, it is also unclear as to what the Appellant means by 'I didn’t progress my Public Service Appeal'. The word 'progress' does not explain exactly what step in the proceedings the Appellant did not take to advance the Appellant's case. One thing is clear, however, and that is that there is no acceptable explanation in the submissions for the delay in filing the Appeal. The Appellant has barely put on any explanation for the delay whatsoever. As best I can tell, the Appellant submits that the Appellant did not take steps in the proceedings because the matter was or was not lodged by the Appellant's representatives. However, there is no evidence in these submissions as to the nature of any representative error aside from the mere allegation that the Appellant's representative, whether it be Supportah or the Appellant's 'professional association,' was somehow involved in the lodging, or lack thereof, of the appeal. I cannot therefore see any reasonable explanation for the delay in filing the Appeal.
- [24]I am also left guessing as to the submission that the Commission was 'extremely busy'. It is not developed at all. If the Appellant is alleging that there is fault on the part of the Commission in processing the application, the Appellant does not say so. Nor does the Appellant particularise such a claim in any way. Even if the Appellant is alleging that there was some processing delay caused by the Commission, the Appellant does not explain how that caused the Appellant's appeal to be filed late. This submission must be rejected.
- [25]The Appellant also submits that the Appellant did not know how to progress the Appellant's public service appeal. A similar explanation for delay was proffered in A1 Rubber, and his Honour, Martin J, as his Honour then was, found that that explanation was not an adequate explanation for delay, noting that the 'time provision is not hidden' and that '[s]ection 564 [of the IR Act] is quite clear.'[28] Following in his Honour's footsteps, I also find that the Appellant's lack of knowledge as to how to progress the Appellant's public service appeal is not an acceptable explanation for the delay.
- [26]The Respondent submits that statutory time limits have been recognised as important and should not be dispensed with lightly,[29] with exceptional circumstances being required to extend those time limits.[30] The Respondent submits that the delay occasioned by representative error does not constitute exceptional circumstances to extend the time limit.
- [27]I cannot accept the submission that there needs to be exceptional circumstances demonstrated before an extension of time will be allowed for a public service appeal. The authority the Respondent cites as precedent for this submissions is the decision of her Honour, Linnane VP, in Erhardt v Goodman Fielder Food Services Limited.[31] However, that decision does not comment on whether exceptional circumstances are necessary before granting an extension of time. And in any case, the guidance clearly set out in Hunter Valley Developments is that special circumstances need not be shown. An applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.[32] That said, I am of the view that the Appellant has not provided an acceptable explanation for the delay. The submissions around representative error and of error on the part of the Commission are unclear, insufficiently particularised, and ultimately unconvincing explanations for delay. The Appellant's submission that the Appellant delayed in prosecuting the appeal because the Appellant was ignorant of the law is, as explained above, without merit. The lack of any explanation is even less acceptable in circumstances where the Respondent, in the letter containing the Decision, informed the Appellant of the 21-day limitation period for filing an appeal and of where to find information about filing an appeal.
Merits of the Appeal
- [28]The Appellant states in the appeal notice the following grounds of appeal:
The Appellant is reviewing the decision to to (sic) have their exemption declined on the basis that they sought to be consulted with, including with their trade union / industrial association or representative(s) (as alternative (sic) defined under statute or common law) [the Representative(s)].
The Appellant sought to be heard as part of the decision making process and was not.
In the absence of consultation and direct engagement with the Applicant , their Representative(s) Individual employee grievances Directive: 11/20 Effective date: 25/09/20 has not been discharged.
The Appellant seeks an external review under 9.3(a) of the Directive for fairness.
- [29]Then, in the submissions, the Appellant reiterates the arguments made in the Appeal Notice that there was a failure to consult about compliance with the Direction. Under the heading of 'Utility of my Public Service Appeal', the Appellant submits that the Appeal is about the Respondent inadequately consulting the Appellant when imposing a 'medical procedure' on the Appellant that the Appellant later was found to have a medical contraindication against having. The Appellant further submits that there is a public interest in seeing a decision that an employer like the Respondent should adequately consult and inform employees about medical treatment. The Appellant then submits that the alleged inadequate consultation meant that the Respondent did not consider the Appellant's impairment. The Appellant also submits the failure to consult was unsafe, discriminatory, and contrary to the purposes of the IR Act.
- [30]Under the heading of 'Failure to consider human rights or medical ethics', the Appellant submits that, on the face of the Decision, the Respondent failed to consider the Appellant's human rights when deciding not to consult further and directing the Appellant to receive the vaccinations. The Appellant submits that such conduct was unlawful under section 58 of the Human Rights Act 2019 (Qld) ('HR Act') and cites as support for this point Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) ('Johnston').[33] The Appellant also submits that the conduct was unlawful because 'it was improper medical advice.'
- [31]In the concluding remarks, the Appellant submits that not consulting with the Appellant or the Appellant's representatives and directing the Appellant without considering the Appellant's human rights 'was not a Fair Treatment Decision.' I surmise that the Appellant meant to say that the decision was not fair and reasonable, rather than that it 'was not a Fair Treatment Decision'. I further surmise the Appellant's reason for arguing the Decision was not fair and reasonable was because it was unlawful and contrary to the Work Health and Safety Act 2011 (Qld), the Anti-Discrimination Act 1991 (Qld), the IR Act and the HR Act. The Appellant also argues that the Decision was not fair and reasonable because the Appellant later obtained evidence of a medical contraindication.
- [32]The Respondent submits that the limited prospects of success of the Appeal is a relevant consideration as to whether the Appellant should be granted an extension of time to file the Appeal.[34] The Respondent cites Mocnik & Others v State of Queensland (Queensland Health) ('Mocnik') for the submission that the Appellant's arguments have all previously failed and are therefore misconceived or lacking in substance.[35] The Respondent submits that such weak arguments renders the Appeal without prospects, and the lack of prospects is so obvious that, should extra time be granted, the Commission should enliven and exercise its discretion to refrain from hearing the Appeal.
- [33]The Respondent also argues that the Appeal should not be heard because the Appellant is no longer a health service employee, having been dismissed on 20 August 2023.[36] The point is made that any decision I could make would have no utility or practical effect. The Respondent cites in support of this point the decision of his Honour, Merrell DP, in Venables v State of Queensland (Queensland Health) ('Venables').[37] In that case, his Honour considered whether to hear a public service appeal of an employee who had been dismissed since filing the appeal. His Honour found that hearing such a case was undesirable because it would have no utility or practical effect on the appellant's continued employment.[38]
- [34]Furthermore, the Respondent submits that the Appellant makes a misconceived claim that the Direction was unlawful because the Appellant's human rights were not considered under section 58 of the HR Act. The basis of that submission is twofold. The Respondent first submits the claim is misconceived because the Decision expressly says that Dr Clearly did consider the Directive and found it to be compatible with section 58 of the HR Act. Second, the Johnston decision that the Appellant relies on has no bearing on the lawfulness of the Directive in this case because it turned on the unique facts of that case.
- [35]There is considerable force to the Respondent's submissions about the utility or practical effect of any decision I could make on the Appeal. I accept that this case is very much like the one his Honour considered in Venables and that any decision I could make, even the one sought by the Appellant, would have no practical utility because the Appellant is no longer an employee of the Respondent. Even where there is an application for reinstatement on foot, there is no certainty of outcome from that process. I therefore conclude that any decision that I might make in this Appeal would have no utility or practical effect. That alone leads me to conclude that the Appeal has no real prospects of success because even if I were to extend time, I would find this to be a compelling reason to not hear the matter.
- [36]The Respondent's submissions about the Appellant's arguments being misconceived and having failed previously also have force to them in my opinion. Dr Cleary clearly considered the Appellant's human rights. The letter containing the Decision states:
Further, based on my own additional review, I am satisfied that the Directive is lawful and complies with section 58 of the HR Act and the Department's consultation and risk assessment obligations under the Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulation 2011 (WHS Regulation).
- [37]In the face of such a statement, I cannot see how this ground of appeal amounts to anything more than mere disagreement with the outcome of Dr Cleary's review of whether the Directive does comply with section 58 of the HR Act. I therefore accept the Respondent's submissions that the Appellant makes a misconceived argument when the Appellant argues that the human rights issue was not considered. I would find this to be a compelling reason not to hear this part of the Appeal in the event I were to extend the time to hear this Appeal.
- [38]The same can be said in relation to the appeal ground concerning Johnston. That case turned on an entirely different set of facts and dealt with whether a different decision maker in a different government department considered the human rights of workers in that different government department. The findings of whether human rights were considered in that case turned largely on the facts unique to that case. Those facts are not present in this case. But insofar as Johnston is an applicable authority, it is only an applicable authority for the proposition that the curtailing of human rights by the vaccine mandates in that matter were demonstrably justified. As Dwyer IC observed in Radanovic v State of Queensland (Department of Education) when declining to hear an appeal based partly on the same arguments:[39]
Further, on the question of human rights, Johnston largely rejects that the mandates in that matter restricted a range of human rights considered but further, concluded that to the extent they did, that the restriction is demonstrably justified in accordance with the terms of s 13 of the Human Rights Act 2019 (Qld) ('HR Act').
- [39]This ground of appeal under Johnston is therefore misconceived. Were I to extend time, I would find this to be a compelling reason not to hear this part of the Appeal.
- [40]Furthermore, in Mocnik, his Honour, O'Connor VP, determined that there was no obligation to consult employees individually, or through their representatives, about the Directive under the Work Health and Safety Act 2011.[40] The Appellant's argument that the Respondent had an obligation to consult the Appellant individually or through the Appellant's representative is therefore doomed to fail. There is therefore no point to extending the time to lodge the appeal to hear this argument. It is absolutely clear, even from this early vantage point, that the argument is futile.
- [41]The Appellant's arguments here are therefore misconceived and have been run previously with futility. For those reasons, I conclude that the Appeal has no real prospects of success, a conclusion that militates against the Commission exercising its discretion to extend the time to hear the appeal. Consequently, if time were extended for filing of the Appeal, the Appeal's lack of prospects would form a compelling reason to not hear the Appeal.
Prejudice to either side
- [42]The Appellant would suffer significant prejudice if the time were not extended, as the claims would not be heard and the Appellant's rights would lapse. However, against that I must weigh what I have found to be very poor prospects of success of the Appeal. Conversely, the Respondent will suffer some prejudice should the Commission extend the time for the Appellant to file the appeal, as it would have to defend a claim that it would otherwise be entitled to consider as being extinguished. The prejudice suffered by the Respondent might only be minimal, but the mere fact that the prejudice is slight does not ipso facto warrant an extension of time being granted.[41]
Fairness as between the appellant and other persons in a like position
- [43]As I have touched on above, there are many cases where appellants in a like position to that of the Appellant have had their applications for extra time refused. I find that this case involves a significant delay in filing, has no acceptable explanation for the delay, and has no real prospects of success. I consider it would be most unfair to others in a like position, whose extra time applications were refused, if I were to grant the extra time the Appellant seeks.
Conclusion
- [44]For the foregoing reasons, I conclude that the application to extend time should be refused. The matter therefore cannot be heard. I order accordingly.
Orders
- The application for extra time within which to file the appeal is refused
- The Decision is confirmed
Footnotes
[1] [2021] QIRC 258, [15] ('Cullen') citing Ulowski v Miller (1968) SASR 277, 280.
[2] (1968) SASR 277 ('Ulowski').
[3] Cullen (n 1) [15] citing Ulowski (n 1) 280.
[4] Cullen (n 1) [16], citing Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 348-349 ('Hunter Valley Developments').
[5] [2022] QIRC 74 ('Thompson').
[6] Ibid, citing A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 ('A1 Rubber').
[7] A1 Rubber (n 6) citing Hall P's judgement in Neophytos Foundadjis v Collin Bailey [2007] ICQ 10.
[8] Thompson (n 5) [14].
[9] [2014] QIRC 123 ('Keir').
[10] [2012] NSWCA 195 ('Daily Examiner').
[11] Keir (n 9) [16], citing Daily Examiner (n 10) [159].
[12] [2004] QSC 404 ('Vlies').
[13] Ibid [20], with reference to the observations of his Honour, Derrington J, in Cooper v Hopgood & Ganim [1999] 2 Qd R 113, 124.
[14] Vlies (n 12) [20].
[15] [2025] QIRC 17.
[16] Ibid [24].
[17] [2013] QIRC 129
[18] [1997] AIRC 344 ('Clark').
[19] Ibid.
[20] citing Industrial Relations Act 2016 (Qld) s 564.
[21] [2021] QIRC 395.
[22] Ibid [26]-[27].
[23] [2024] QIRC 090.
[24] Ibid [47]-[48].
[25] [2022] QIRC 147.
[26] Ibid [13], [21]-[24].
[27] Vlies (n 12) [20]; Clark (n 18).
[28] A1 Rubber (n 6) 3.
[29] citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 ('Erhardt'); Maina v State of Queensland (Queensland Health) [2022] QIRC 100, [25].
[30] citing Erhardt (n 29).
[31] Erhardt (n 29).
[32] Hunter Valley Developments (n 4) 348-349.
[33] [2024] QSC 2 ('Johnston').
[34] citing Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147, [25]; Davies v State of Queensland [2022] QIRC 151, [40].
[35] [2023] QIRC 058 ('Mocnik').
[36] Referring to s 562A(3)(b)(iii) of the IR Act.
[37] [2022] QIRC 137.
[38] citing Venables (n 37) [23]-[24].
[39] [2024] QIRC 225, [31] citing Johnston (n 33) [286]-[379] and Mocnik (n 35).
[40] Mocnik (n 35) [95].
[41] as observed by McLennan IC in Pflaum v State of Queensland (Department of Education) [2024] QIRC 50, [39], citing Brodie-Hans v MTV Publishing Ltd (1995) 67 IR 298, 300.