Daniells v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)
[2022] QIRC 411
•19 October 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Daniells v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2022] QIRC 411 |
PARTIES: | Daniells, Kirsty v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) |
CASE NO: | TD/2022/57 |
PROCEEDING: | Application for reinstatement |
DELIVERED EX TEMPORE ON: | 19 October 2022 |
MEMBER: | Dwyer IC |
| HEARD AT: | Brisbane |
ORDER: | 1. Pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 the matter TD/2022/57 is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where the applicant failed to comply with direction to file submissions – where the applicant failed to comply with direction to attend a mention on 19 October 2022 – application dismissed |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) s 541 Industrial Relations (Tribunals) Rules 2011 (Qld) r 45 |
Reasons for Decision (ex tempore)
Ms Kirsty Daniells filed an application for reinstatement on 22 February 2022. Ms Daniells was dismissed from the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships ('the Department') for a failure to comply with a direction to be vaccinated. The matter did not resolve at a conciliation before another Member of the Commission and was subsequently allocated to me for hearing.
Having regard to the material on the file when the matter was allocated to me, I noted that Ms Daniells' reasons for failing to comply with the direction to be vaccinated conformed with a familiar pattern that has been observed with respect to similar matters before this Commission throughout the year. For example, when she was given the direction with respect to vaccination Ms Daniells responded in writing to the effect:
Your offer/ultimatum to contract in a patented, irreversible, invasive medical procedure which is proven not to do as claimed has been declined.
Understandably, Ms Daniells was then subjected to a disciplinary process. Subsequent responses throughout the show-cause phase of the process contained a similarly recalcitrant theme. Having regard to these matters, I considered that Ms Daniells' application might be worthy of consideration for an exercise of my discretion, pursuant to section 541 of the Industrial Relations Act 2016 (Qld) ('the IR Act') in that, I was of a preliminary view that a hearing of this matter was not in the public interest.
The matter was listed for a mention on 25 August 2022 and Ms Daniells attended that mention by telephone. The proceedings were recorded, and a transcript has subsequently been produced. A review of the transcript confirms that, at that mention, my preliminary view about Ms Daniells' application was explained to her in full. Further (importantly) at the close of that mention, Ms Daniells indicated that she understood and had no questions in respect of what I proposed would occur with the matter. [1]
[1] Transcript of proceedings in matter TD/2022/57, 25 August 2022.
Consequently, a direction was issued from my chambers on 25 August 2022 that required Ms Daniells to file and serve submissions addressing the exercise of my discretion pursuant to section 541(b) of the IR Act by 6 October 2022. The directions also listed the matter for hearing on 9 December 2022.
Ms Daniells did not comply with that direction. Further, at the time of delivery of these reasons, she continues to be in breach of that order.
Ms Daniells was contacted by the Industrial Registry on 12 October 2022 and asked about her intention to comply with the order. Ms Daniells responded via email and relevantly said:
I was unable to make my last hearing/mention in person due to work commitments however received a phone call after the mention on the day of the hearing from Commissioner Dwyer.
I was unable to hear clearly hear (sic) Commissioner Dwyer due to static phone line however was under the impression my next hearing wasn’t until 09/12/22.
The 'phone call' Ms Daniells refers to is the mention on 25 August 2022. Like so many self-represented litigants who participate in proceedings by telephone, it appears Ms Daniells entirely failed to appreciate that the 'phone call' was a proceeding before the Commission.
Notwithstanding this, I reject any suggestion that Ms Daniells did not understand what was said to her. I regard Ms Daniells' assertion about static with extreme scepticism. There was no audible static on the line from the Commission's perspective. Ms Daniells is almost certainly unaware that the entire telephone exchange on 25 August 2022 was recorded on transcript. A review of the transcript reveals Ms Daniells conversed with the Commission in a way that was entirely unimpeded.[2] Ms Daniells expressed no difficulties in hearing what was being said to her during the mention and confirmed she understood when expressly asked by the Commission.
[2] Apart from a very brief exchange at the commencement of the proceedings where Ms Daniells was asked to move to a quiet place, which she did. Thereafter, Ms Daniells communicated clearly and made no complaint of not being able to hear.
Further, following the mention, a directions order was emailed to Ms Daniells not once but twice: firstly, on 25 August 2022 and again on 12 October 2022. The directions order is in plain and simple terms and is clearly addressed to Ms Daniells. It sets out what the requirements are of her with respect to the filing of submissions. I also note the email address to which the directions order was sent is the same email address with which Ms Daniells has been communicating with the Registry as recently as 19 October 2022.
The matter was listed for telephone mention on 19 October 2022 at 1:30pm. On the morning of the mention Ms Daniells emailed the registry seeking an adjournment on the basis that she had a child home from school sick and she was unable to obtain a babysitter. The application to adjourn the mention was refused. Ms Daniells was assured by reply email from the Registry that she would be able to participate in these proceedings by telephone, and that the proceedings would take no more than ten minutes.
At the commencement of the mention my Associate attempted to contact Ms Daniells on the designated telephone number and, despite three attempts, Ms Daniells failed to respond. My Associate also checked with the Registry to ensure that no further emails have been received from Ms Daniells. I was informed that there were none.
Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides that the Commission may dismiss proceedings where a party fails to comply with a directions order. This does not require multiple failures. A single failure in appropriate circumstances will suffice.
Relevantly, rule 45 provides:
(1)This rule applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b) the party fails to attend the hearing or conference.
(2)This rule also applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(b) the party fails to comply with the order.
(3)The court, commission or registrar may—
(a) dismiss the proceeding; or
(b) make a further directions order; or
(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
(d) make orders under paragraphs (b) and (c).
Ms Daniells has failed to comply with the directions order by 6 October 2022. Ms Daniells continues to be in breach of that order. She has offered no plausible excuse. Indeed, having regard to the transcript, I consider her explanation about 'static' on the telephone line and her 'difficulty' understanding to be entirely false.
Ms Daniells was directed to participate in a mention of the matter on 19 October 2022. She was clearly aware of the listing and was assured about her leave to appear by telephone and the simple and short nature of the matter when she (unsuccessfully) sought an adjournment. Ms Daniells failed to comply with the direction to attend the mention.
In all of the circumstances, I am satisfied that there are at least two clear breaches by Ms Daniells with respect to directions issued to her and, in the circumstances, I propose to dismiss this application.
Order
In the circumstances I make the following order:
1.Pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 the matter TD/2022/57 is dismissed.
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