QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Walters v State of Queensland (Queensland Health) [2023] QIRC 260

PARTIES:	
	Walters, Thomas
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2023/90
	
PROCEEDING:
	Public Sector Appeal – Appeal against a conversion decision 

DELIVERED ON:
	1 September 2023
	
HEARING DATE:
	1 September 2023
	
MEMBER:

HEARD AT:	Dwyer IC 

Brisbane

ORDER:
	1.	The request to discontinue proceedings is denied. 

2.	Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, matter number PSA/2023/90 is dismissed. 
	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a conversion decision – where conversion offered to appellant – whether appellant has an arguable case – where appellant failed to comply with directions orders – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) – appeal dismissed 
	
LEGISLATION AND OTHER INSTRUMENTS:

	Industrial Relations Act 2016 (Qld) s 562A

Industrial Relations (Tribunals) Rules 2011 (Qld) r 45, r 68  
	
APPEARANCES:	No appearance by the Appellant.

Mr C. Oxlee and Ms. L Bugeja for the Respondent. 
	
Reasons for Decision (delivered ex tempore)
Background

[1]	Mr Thomas Walters is currently casually employed as a general services assistant by the State of Queensland (Queensland Health) within the Metro South Hospital and Health Service ('the Respondent'). Mr Walters filed a public sector appeal on 8 May 2023 in respect of a deemed decision declining his conversion from casual to permanent employment.
 
[2]	On 16 May 2023, Mrs Michelle Walters was appointed as agent for Mr Walters. Mrs Walters is the mother of Mr Walters. 

[3]	On 18 May 2023, the Respondent conducted a review of Mr Walters' employment status and subsequently made an offer of permanent employment which, subject Mr Walters' agreement, would take effect on 12 June 2023. It is noted that the hours offered in the permanent role are the same as those worked by Mr Walters as a casual. In those circumstances, it is noted that the offer of employment appears to be compliant with clause 11 of Review of non-permanent employment (Directive 02/23) ('the Directive'). 

[4]	Mr Walters advised (through his mother) that he did not agree with the offer. 

[5]	The appeal was originally allocated to another member of the Commission who attempted a conciliated outcome of the appeal. Conciliation in the matter occurred on 1 June 2023, and again on 9 June 2023. No agreement could be reached.

The conduct of the appeal 

[6]	Following the failed attempts to conciliate the appeal, the matter was reallocated to the Commission as currently constituted. Having regard to the history of the mater and the offer of permanent employment on the file, an exercise of the discretion available to the Commission under s 562A of the Industrial Relations Act 2016 (Qld) ('the Act') was considered. Consequently, the matter was listed for mention on 17 July 2023 to explain this to Mr Walters.

[7]	At the mention on 17 July 2023, Mrs Walters (on behalf of Mr Walters) confirmed that the outstanding issue in dispute was that the offer of permanent employment was not suitable to Mr Walters because some of the hours offered included night shift hours.

[8]	It was then pointed out to Mrs Walters by the Commission that the appeal in this matter is in respect of a decision not to convert Mr Walters' employment to permanent. In the  circumstances where a subsequent offer to convert to permanent employment had been made and that offer appeared compliant with the Directive, there appeared to be no utility to proceeding to review the deemed decision.

[9]	Mr Walters was given four weeks to file submissions setting out why he had an arguable case and why the Commission ought to deal with his appeal. Directions to this effect were issued to the parties on 17 July 2023. Mr Walters was required pursuant to these directions to file and serve his submissions by 14 August 2023. 

[10]	No submissions were received from Mr Walters by 14 August 2023 or at all. 

[11]	On 22 August 2023 at 1.36 pm, Mrs Walters emailed the Industrial Registry saying, relevantly:

“[…] Please be advised I am required to make submissions to QIRC by 24th August in relation to the above matter. Can you please advise whether the QIRC have preference for format and layout and if so, can you please advise or forward a link to forms or templates.”

[12]	Relevantly, the email sent on 22 August 2023 at 1.36pm does not foreshadow any difficulty in filing the required submissions by 24 August 2023. The Industrial Registry replied to Mrs Walters at 2.18pm that same day with an email that included a link to the Commission's template for written submissions. 

[13]	At 5:20pm that day, Mrs Walters replied as follows:

“Good Afternoon 

Please be advised submissions were required to be lodged with the QIRC in relation to the above matter by 4.00pm 14th August 2023 as per Directions Order by J.C. Dwyer, Industrial Commissioner.

As Agent, I have to accept full responsibility for this oversight as I believed we had until Thursday, 24th August.  However, we are in the process of now seeking legal counsel as Mr Walters has been subjected to bullying, harassment and discrimination behaviours by Metro South HR Department as well as by his Managers at Logan Hospital, which has been as a result of and in the context of this Appeal.  Therefore, we were seeking to request an 'extension' to Directions Order to 31st August however as the deadline of 14 August is now past, this request may not be permissible.

Would you kindly advise how to proceed with extension, if permissible and/or QIRC action moving forward.”

[14]	The Industrial Registry forwarded Mrs Walters' email to the Respondent for a response to the request for extension. The Respondent replied by email on 23 August 2023, confirming consent to an extension to 24 August 2023, being the date that Mrs Walters had previously thought the submissions were due.

[15]	At 6.09pm on 23 August 2023, Mrs Walters emailed the Industrial Registry indicating she could not comply by 24 August 2023 and pressed her request for an extension. 

[16]	Because the reason for seeking an extension was not clearly explained in any of Mrs Walters' emails, the matter was listed for mention at 3:00pm on 24 August 2023 to resolve the controversy.

[17]	At the mention on 24 August 2023, the Commission sought to understand Mrs Walters' request for an extension. In particular, the Commission sought an explanation from Mrs Walters reconciling the contradiction in her two emails of 22 August 2023 sent approximately four hours apart. Despite being given numerous opportunities to explain, Mrs Walters failed to give any clear or relevant response.
 
[18]	The highest it could be put is that it seems that Mrs Walters is now indicating that they were awaiting some form of legal advice in respect of this and other matters however, she says at various times throughout the course of the mention on 24 August 2023 that they were expecting this advice on 21 August and 23 August (depending on which of Mrs Walter's answers one has regard to). Ultimately the Commission abandoned its efforts to extract any sensible explanation from Mrs Walters who became increasingly defensive with each probe by the Commission.  

[19]	Despite Mrs Walters' failure to adequately explain why she required an extension to 31 August 2023 or how it was that she had come to misunderstand the directions of 17 July 2023 in the first place, an extension was granted to 31 August 2023 to file the appropriate submissions. 

[20]	In light of Mrs Walter's apparent inability to read and understand a clear direction, and in light of her apparent inability to offer a simple explanation as to why she needed an extension,  the Commission cautioned Mrs Walters that any further failure to file her submissions now due on 31 August 2023 would result in the matter being dismissed. 

[21]	Further directions were then issued on 24 August 2023 requiring Mr Walters to file submissions by 4:00pm on 31 August 2023.

[22]	On 31 August 2023, Mr Walters (through his mother) filed a Form 27 – Request to discontinue proceeding ('the Form 27'). The Form 27 was signed by both parties to the appeal but it must be noted that, regardless of the mutual consent of the parties to discontinuance, leave to discontinue a proceeding is ultimately a matter for the discretion of the Commission. 

[23]	Accompanying the Form 27 was a one-page letter that was not signed but concluded with the typewritten names of both Mr Walters and his mother Mrs Walters. The letter expressed multiple grievances held by Mr Walters and Mrs Walters about the conduct of the Respondent, the member of the Commission who conciliated the matter, and the Commission as currently constituted. For all of the alleged conduct set out in the letter, it was said Mr and Mrs Walters were discontinuing because they had “no confidence” in the appeal process.

[24]	Having cursory regard to the matters set out in the letter accompanying the Form 27, it is apparent that many of the complaints are without foundation. Accordingly, the matter was listed for mention on 1 September 2023 to allow Mrs Walters to formally place her concerns on the record before considering whether to allow Mr Walters leave to discontinue the proceedings. A listing notice was issued to the parties directing them to participate in this mention. 

[25]	In response to that listing notice, on 31 August 2023, Mrs Walters sent an email which, relevantly, says:

“Good morning Registry,

Please be advised that we do not wish to continue communicating this matter any further and therefore decline this request. Commissioner Dwyer made his intentions 'chrystal' (sic) clear at conference on 24th August 2023 as mentioned in Form 27 Statement. We now have no confidence or trust in the Appeals and Conversion process nor Metro South HR or QIRC therefore if we have any pressing or concerning matters moving forward, we will proceed directly to legal counsel and therefore request Form 27 to be effective immediately.”

[26]	This email from Mrs Walters plainly expresses an intention by Mr Walters (through his mother) to deliberately contravene a direction of the Commission to attend the mention. Mrs Walters appears to be under the (very mistaken) impression that she can simply elect not to participate in a mention that the Commission has directed she attend.

[27]	At approximately 1:40pm on 1 September 2023, a telephone call from my chambers was made to Mrs Walters on her nominated number in an attempt to inquire whether she intended to participate in the mention. The call diverted to a message bank and a message was left for Mrs Walters to make contact. 

[28]	By 2:00pm there had been no response from Mrs Walters or her son. The mention proceeded by telephone. The call arrangements required an operator to contact Mrs Walters at 2:00pm. Shortly after 2:00pm, the Commission was informed that three attempts were made to connect Mrs Walters, but none were successful.

[29]	In the circumstances it appears that, true to her expressed intention in her email of 31 August 2023, Ms Walters and her son were refusing to comply with a direction of the Commission.

Consideration

Non-compliance with directions

[30]	Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') gives the Commission discretion to dismiss proceedings where a party fails to comply with a direction. Plainly, Mr Walters has, on three occasions, failed to comply with a direction of the Commission.
 
[31]	Firstly, Mr Walters failed to file submissions as directed by 14 August 2023. Secondly, Mr Walters then failed to file his submissions on 31 August 2023. It ought to be noted here that the filing of the Form 27 did not have the effect of vacating the direction issued on 24 August 2023, and no leave to be excused from compliance was ever sought by Mr Walters. 

[32]	Finally, Mr Walters (through his mother) has deliberately contravened a direction to attend the mention on 1 September 2023. 

[33]	In the circumstances, the grounds for the exercise of the discretion allowed under r 45 of the Rules to dismiss the proceeding are more than satisfied.

Request to discontinue proceedings

[34]	As noted above, mutual consent of the parties to discontinue will not abrogate the discretion of the Commission. The Commission should always exercise caution where a discontinuance is proposed by a party as a form of protest, or in any other way that appears to the Commission to be involuntary.
  
[35]	In the circumstances where Mr Walters (through his mother) has placed his desire to discontinue his appeal into a narrative of having 'no confidence' in the appeals process because of his interactions with the Commission, it is important to address the alleged concerns that he and his mother have raised before considering their request to discontinue the appeal. 

[36]	Before considering the alleged concerns, it must be observed that, having made the allegations, Mrs Walters and her son failed to take the opportunity they were afforded at the mention on 1 September 2023 to place them on the record and further particularise them. In those circumstance the Commission can only address the allegations by reference to the letter accompanying the Form 27.   

[37]	Firstly, it was said that the member who conciliated this matter 'bowed out'. The tone of the allegation is that the member gave up on the matter prematurely. The member who conciliated the appeal did so over the course of two conferences. This is exactly two more conferences than are usually convened for a public service appeal. That is to say, the member in question went above and beyond what is normally required to conclude a public service appeal. 

[38]	There can be no doubt that considerable effort by the member was applied to try to facilitate an agreed outcome for Mr Walters. While it is unfortunate that agreement was not able to be reached, there can be no valid criticism of the exertions of that member. Further, it is entirely proper that the member who has conciliated a matter 'bow out' once conciliation has concluded. 

[39]	Secondly, the letter accompanying the Form 27 contains comments attributed to the Commission as currently constituted that were allegedly made at the mention on 24 August 2023. Mrs Walters and her son are plainly unaware that those proceedings were recorded and the full dialogue was transcribed. 

[40]	The comments alleged by Mrs Walters and her son do not appear in the transcript or, to the extent that anything resembling them do, they are a gross misrepresentation of what was said. One such allegation said to support Mrs Walters loss of confidence in the Commission is the alleged statement that the Commission 'did not care' or 'was past caring'. 

[41]	To be clear, to the extent that the Commission expressed any view that it 'did not care', the comment was made in reference to the Commission abandoning its desire to understand why Mrs Walters required an extension to 31 August 2023 when only hours before she had apparently been ready to file her submissions by 24 August 2023. It was made at the point of the proceedings where Mrs Walters had failed on multiple occasions to offer a proper explanation to what was a very simple question.

[42]	After at least three attempts to have Mrs Walters provide an answer to a simple question the transcript reflects the Commission's comment as follows:

COMMISSIONER: Yes. Okay. Okay. There's clearly – we're at cross purposes. You are – I do not understand what changed, and you can't…explain to me what changed. Something has happened between when you sent the first email and the second email. I don't know what it is, and at this point I'm past caring what it is.   

[43]	This passage of the transcript is the only passage of transcript that bears any resemblance to Mrs Walter's assertions that the Commission had declared it 'did not care'.

[44]	The allegations said to be the basis upon which Mr Walter's (and his mother) had 'lost confidence' in the Commission are plainly unfounded. Mrs Walters refusal to attend the mention on 1 September 2023 where her allegations could be scrutinised speaks volumes about their veracity. 

Conclusion

[45]	Mr Walters has had the benefit of extensive assistance from the Commission and has, at all times, been given procedural fairness. Notwithstanding this, the Commission has been met with ingratitude, impertinence, hostility and recalcitrance.  

[46]	In all of those circumstances, the Commission declines the request to discontinue the proceedings where it is purportedly made without free will or in protest. 

[47]	However, in light of the multiple contraventions of directions issued by the Commission, the appeal must be dismissed. 

Order

[48]	I make the following orders: 

1.	The request to discontinue proceedings is denied. 

2.	Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, matter number PSA/2023/90 is dismissed.