Dushanthi Wanninayake v State of Queensland

[2017] FWC 2589

[2017] FWC 2589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Dushanthi Wanninayake
v
State of Queensland
(C2016/4305)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 MAY 2017

Application to deal with an unlawful termination dispute.

[1] Ms Dushanthi Wanninayake alleged that the termination of her employment by the Department of Natural Resources was unlawful.

[2] A number of preliminary matters needed to be determined.

(a) What is the identity of the Respondent to the proceeding?

[3] The Respondent submitted that under s.8 of the Crown Proceedings Act 1980 (Qld) the proceedings must be made against the State of Queensland.

[4] The Crown Proceedings Act 1980(Qld) provides as follows:

8 Mode of proceeding

(1) Subject to this Act and any other Act or law, a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title the ‘State of Queensland’.

(2) This section does not apply to a claim by or against a corporation representing the Crown, constituted by or under any Act or incorporated or registered under the Corporations Act.

[5] Ms Wanninayake submitted that at the date of her termination she was employed by the Department of Natural Resources - SIMTARS and it was her responsibility to identify the Respondent. She relied upon her letter of offer. That letter of offer was made on behalf of Simtars a business unit of the Department of Employment, Economic Development and Innovation. She further relied upon her pay advice which was headed Queensland Government Department of Mines & Energy Payroll and an electronic funds transfer advice which was from the Queensland Government Department of Natural Resources & Mines to establish that she was not employed by the State of Queensland. She further relied upon s. 6 of the Public Service Act 2008 (Qld).

[6] The Public Service Act 2008 (Qld) provides as follows:

5 The public service

The Queensland Public Service consists of the persons who are employed under this Act, called public service employees.

6 Employment of public service employees

Public service employees are employed in departments or public service offices.

7 What are departments

A department is an entity declared under division 2 to be a

department of government.

Note-

For public services offices, see section 21.

8 Who is a public service officer

A person is a public service officer if the person is

employed under this Act as -

(a) a chief executive; or

(b) a senior executive; or

(c) an officer of another type.

Note -

For the appointment of public service officers, see sections 92, 110 and

119.

9 Public service employees

(1) A person is a public service employee if the person is

employed under this Act as-

(a) a public service officer; or

(b) a general employee; or

(c) a temporary employee.

(2) Public service employees are employees for the Industrial

Relations Act 1999

(3) Subsection (2) is subject to sections 215(3) and 217.

Notes-

Section 215(3) excludes the jurisdiction of the IRC for decisions

against which a person has appealed under chapter 7, part 1.

Section 217 excludes particular matters from the concept of

industrial matter.

[7] Ms Wanninayake submitted that she was a general employee and that s.6 means that her employer was the Department. However Ms Wanninayake misunderstands s.6. It refers to employees being employed in departments or public service offices (my emphasis) not by departments.

[8] SIMTARS which is an acronym for the Safety and Mines Testing and Research Station is a registered business name. There is no evidence that it is a corporation representing the Crown. Employees of the Department of Natural Resources which is a Queensland government department are assigned to work in SIMTARS. Ms Wanninayake at the time of her dismissal was a Queensland public service employee and she seeks to bring proceedings against her employer.

[9] I am therefore satisfied that the proceeding must be taken against the State of Queensland and I will order that the Respondent’s name be changed to reflect that.

(b) Permission to be represented by a lawyer.

[10] S.596 of the Fair Work Act 2009 provides that a party may be represented by a lawyer with the permission of the Commission. The decision to grant permission involves a consideration of 3 matters. The three matters are as follows:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[11] If any of the three matters are satisfied then the Commission has the discretion to grant permission.

[12] In reaching my decision I have had regard to the decision of Flick J in Warrell v Walton: 1

[24]A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596 (2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

[13] The Respondent argues that this matter involves some complexity. Ms Wanninayake opposes permission being granted. She submits that refusing permission will reduce costs to the Queensland Government plus she points to the disadvantage she would suffer as she is not legally represented and she comes from a non-English speaking background. She also submitted that the Respondent is a large organisation and they have suitably qualified and experienced personnel who could represent the department effectively.

[14] The issue of whether an employee should be granted an extension of time to lodge an unlawful dismissal application usually does not involve any particular complexity.

[15] However in this matter Ms Wanninayake has filed a significant amount of material. Both parties wish to cross examine the other party’s witness. There is a dispute between the parties as to the legal identity of the Respondent. There is also a dispute between the parties as to application of ss. 725 and 732 of the Act to the assessment of the merits of Ms Wanninayake’s application. Further the Respondent submitted that s.773 of the Act does not apply to Queensland public sector employees because of the implied limitation on the Commonwealth legislative power with respect to State system employees – the Melbourne Corporation principle. 2 Further it submitted that the doctrine of issue estoppel would apply to prevent Ms Wanninayake’s substantive application from ultimately succeeding.3

[16] I am therefore satisfied that the matter does involve some complexity and I consider that legal representation would permit the matter to be dealt with more efficiently.

[17] I have further decided that I will exercise my discretion to grant permission. I have had regard to the commitment from the Respondent to comply with the model litigant principles. I have had regard to any disadvantage Ms Wanninayake may suffer as a result of permitting the Respondent to be represented. While Ms Wanninayake relies on the fact that she comes from a non-English speaking background I note that she has completed a masters degree from an Australian University and has undertaken a number of training courses in Australia. I accept that she is not legally qualified however the material she has placed before the Commission shows that she is able to articulate the issues in dispute and she has made extensive submissions on the criterion the Commission must have regard to in deciding whether to grant her an extension of time. I am therefore satisfied that the granting of permission will not cause Ms Wanninayake to be denied a fair hearing. Further I am satisfied that given Counsel’s involvement in the earlier matters it would be unfair to deny the Respondent its representative.

(c) Hearing or determinative conference.

[18] I sought the parties’ views about the procedure to be adopted. The Respondent wanted the matter to proceed by way of a hearing. Ms Wanninayake preferred a determinative conference but did not argue strongly for this. I determined that given the matters in dispute that it would be more appropriate to have a hearing.

(d) What evidence and submissions that were before Deputy President Asbury do the parties rely upon in this proceeding?

[19] This application had initially been heard and determined by Deputy President Asbury. On appeal it was referred to me to hear and determine. I directed the parties to advise what material that was before Deputy President Asbury they wished to rely on in this proceeding. Ms Wanninayake sought to place before me as evidence some but not the entire transcript of the matter before Deputy President. The Respondent sought to have the entire transcript before me. In light of the Full Bench decision, I determined that I would receive the transcript from 14 October 2016 pages 1-33 and 76-103 as proposed by Ms Wanninayake. The omitted transcript was the cross-examination of Ms Wanninayake. As a result I permitted cross-examination of Ms Wanninayake at the hearing and provided Ms Wanninayake with a further opportunity to cross-examine the Respondent’s witness.

(e) Whether the extension of time application should be dealt with at the same time as the merits of the case.

[20] Ms Wanninayake submitted that it would be more efficient and cost effective if the matter could be heard with the merits. She made reference to the Unfair Dismissal Bench Book.

[21] Ms Wanninayake misunderstands the role of the Commission in unlawful dismissal cases. The role of the Commission in unlawful dismissal applications, if made within time or if an extension of time is granted, is to conduct a conference and if it forms the view that all reasonable steps to resolve the dispute are unsuccessful or are likely to be unsuccessful then it must issue a certificate. The issuing of the certificate entitles an applicant either to make an application to the court or if there is consent of both parties to have the matter arbitrated by the Commission. The role of the Commission in an unfair dismissal application is, subject to any jurisdictional objections, to hear and determine the merits of the application. As such the procedure described in the Unfair Dismissal Bench Book has no relevance to this application as this is not an unfair dismissal application.

[22] Further I accept that until such time as an extension of time is granted to Ms Wanninayake there is no application before the Commission. 4

[23] The Commission has no capacity to hear the merits of an unlawful termination application at the same time as it hears an application for an extension of time. Therefore the Commission must, as a first step, determine whether to grant an extension of time and therefore I rejected Ms Wanninayake’s application that I hear and determine the merits of her claim.

(f) Notices to attend.

[24] Ms Wanninayake filed applications for orders to attend directed to three witnesses. She wished to call Mr Winter and Ms Hortle to give evidence about her absence from work and her notification of her sick leave. She wished to call Ms Gribaudo her HR manager to give evidence to verify her telephone conversations in relation to her termination and advice and directions given to make a claim in the Queensland Industrial Relations Commission only but not to this Commission.

[25] I declined to grant the orders to Mr Winter and Ms Hortle. While regard must be had to the merits, an extension of time hearing is not an opportunity to consider fully the merits of the claim. In relation to Ms Gribaudo Ms Wanninayake tendered evidence of Ms Gribaudo’s advice to her. 5 Further I am prepared to accept her evidence that “later in [her] discussions with the respondent [she] informed that [she] will have to contact the FWC. In those discussions [she] was expressly advised to appeal to the QIRC because it is the tribunal for state government employees but not the FWC.” As this evidence was not challenged I did not consider it necessary to issue the order.

(g) Other matters.

[26] I accepted as evidence and submissions before me all the other documents listed by the parties.

The extension of time application.

[27] Ms Wanninayake was dismissed on 7 November 2013 and as such her unlawful dismissal application was not made within 60 days of her dismissal. 6

[28] The Commission can extend time for the lodging of an unlawful dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[29] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 7 where the Full Bench said: [13] in summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

(a) the reason for the delay;

[30] Ms Wanninayake explains her delay as follows:

1. The Respondent prematurely referred her employment dispute to the QIRC and expressly advised her not to take the matter to the FWC.

She further received legal advice to the same effect as well as advice from the Queensland Ombudsman

2. She was not aware that she could take the matter to the FWC until she was advised by the Fair Work Ombudsman on 22 June 2016.

3. The delay in lodging her application after that date was because she needed to get advice and she wanted to make a thorough application.

4. She unsuccessfully tried to find alternative employment during this period and this was distressing.

5. She had other disputes she needed to deal with and that placed her under stress.

6. She was unable to afford independent legal advice.

[31] There is no evidence that the Respondent referred Ms Wanninayake’s employment dispute to the QIRC. Ms Wanninayake made that application herself.

[32] At the time of her dismissal Ms Wanninayake was given a letter of termination which contained the following:

“If you consider your dismissal to be unfair in terms of the Industrial Relations Act 1999 you may wish to make application for reinstatement. If so you must make application to the Queensland Industrial Relations Commission within 21 days after the dismissal takes effect.” 8

[33] That information was repeated in an email from Ms Gribaudo dated 13 November 2013. 9

[34] On 15 November 2013 the Queensland Assistant Ombudsman when advising her that he would not be investigating her complaint gave her the following information:

“you have the right to have these issues determined by the QIRC. As the QIRC is the specialist body created to perform this particular task and has both the specific jurisdiction and expertise to decide such issues, I consider the QIRC is the more appropriate body to deal with your concerns.” 10

[35] Ms Wanninayake said she met with a lawyer and discussed her matter in detail on 19 November 2013 and he advised her to file in the QIRC. She filed application within the 21 days provided for in the Industrial Relations Act 1999 (Qld).

[36] At that time the Industrial Relations Act 1999 (Qld) provided at s.73 as follows:

When is a dismissal unfair

73.(1) A dismissal is unfair if it is—

(a) harsh, unjust or unreasonable; or

(b) for an invalid reason.

(2) Each of the following is an “invalid reason”—

(a) temporary absence, within the meaning of a regulation, from work because of illness or injury (other than an injury within the meaning of part 5)

[37] In her application to the QIRC Ms Wanninayake alleged that the termination of her employment was harsh, unjust or unreasonable. However before the QIRC she submitted that the termination was also for an invalid reason. 11 The invalid reason was her temporary absence from work. Her application was dismissed on 16 December 2014. Deputy President Kaufman in his decision12 held as follows:

“[27] I agree that the conduct of the applicant in relation to the two matters that were relied upon by the Department in dismissing her warranted the termination of her employment. Each founded a valid reason for termination.

[28] The applicant also contends that the dismissal was unfair because it was for an invalid reason being that she was temporarily absent from work because of illness. It is apparent from my narration of the circumstances surrounding her absence from work that this contention cannot be made out.”

[38] Ms Wanninayake sought leave to appeal that decision and on 20 February 2015 leave was refused. 13 Ms Wanninayake was represented in that proceeding by a lawyer. She then sought a review of the decision in the Industrial Court of Queensland but she was refused an extension of time to lodge the appeal.14 On 18 November 2015 an appeal against that decision was dismissed.15

[39] Ms Wanninayake said she was unaware that the QIRC did not have the jurisdiction to deal with unlawful termination claims. She said was not aware, until 22 June 2016 when she received a letter from the Fair Work Ombudsman which referred her to this Commission, that she could make an unlawful dismissal claim. That letter provided the following information. “Non-national system employees may be eligible to make an unlawful termination application with the Fair Work Commission under the Commonwealth Fair Work Act 2009, depending on the circumstances of the case. However, an employee must not make both an unlawful termination application and an application under Queensland state laws in respect of the same termination.” The letter directed her to the Commission’s website and encouraged her to seek legal advice. 16

[40] Ms Wanninayake submitted that she was misled by the Respondent and received inadequate legal advice. Further she submitted that she was unable to make a complaint under other laws while she was trying to resolve her dispute under State Law.

[41] I do not accept Ms Wanninayake’s characterisation of the information she received. The information she received in her dismissal letter that she could make an application to the QIRC if she wished to claim her dismissal was unfair was correct. Ms Wanninayake could not make a claim to this Commission if she considered her dismissal to be unfair because she was not a national system employee. Further it was not incumbent on her employer to provide her with information on all possible options she may have had.

[42] I have accepted Ms Wanninayake’s evidence that “later in [her] discussions with the respondent [she] informed that [she] will have to contact the FWC. In those discussions [she] was expressly advised to appeal to the QIRC because it is the tribunal for State government employees but not the FWC.”

[43] It is clear from this evidence that Ms Wanninayake was aware of this Commission from soon after her dismissal took effect. I do not consider that information to be misleading for the reasons I have explained at paragraph [41]. Even if I accepted that the advice from the Respondent was misleading, as Ms Wanninayake was aware of this Commission she could have made her own inquiries about its jurisdiction. In any event after receiving this advice she repeatedly consulted lawyers whilst her matter was before the QIRC and the Queensland Court. 17 Even accepting she was told by a representative of the Respondent that she should appeal to the QIRC because it was the tribunal for state government employees but not this Commission she had the opportunity to test that advice with her lawyers.

[44] I further do not consider any advice she received from her lawyers to pursue her claim in the QIRC could be characterized as representative error. The Industrial Relation Act 1999 provided a mechanism for Ms Wanninayake to claim that her dismissal was harsh, unjust or unreasonable and for an invalid reason. The invalid reason Ms Wanninayake relied upon before the QIRC is the same reason she relies upon in this matter namely temporary absence from work. I am not satisfied that the advice she received from her lawyers to pursue this claim in the QIRC was not in error.

[45] I do not accept her evidence that had she known she could have made this application that she would have discontinued her application in the QIRC. Her QIRC application had a broader scope than this claim. It was both in relation to her claim that her dismissal was for an invalid reason and that her dismissal was harsh, unjust or unreasonable. Her claim that it was for an invalid reason is based on the same factual matrix that she pursues in this claim. Further it is clear from her own evidence that she knew of the existence of this Commission. At any time in the three years she pursued her rights in the Queensland jurisdiction she could have made inquiries about the powers of this Commission and made this application.

[46] I accept that she was not able to make this complaint while she was trying to resolve her dispute under State Law however had she decided that an unlawful dismissal claim in this Commission was a preferable way to resolve her dispute she could have discontinued the matter before Deputy President Kaufman handed down his decision and made this application. However she did not do this.

[47] The real reason for the lengthy delay in lodging this application was because Ms Wanninayake decided to pursue her rights in the Queensland system until they were exhausted. That avenue was exhausted in November 2015.

[48] Given Ms Wanninayake knew of the existence of this Commission she could have, at that time, reviewed the information on this Commission’s website or contacted this Commission to seek further information. She did not contact the Federal Minister for Employment until 10 May 2016 some five months after her proceedings in the Queensland jurisdiction were exhausted.

[49] Further Ms Wanninayake provided no reasonable explanation of why she took a further six days after receiving the Ombudsman’s letter to file this application. Once she was made aware of the unlawful dismissal provisions of the Act she was obliged to act promptly and file her application and she did not.

[50] Ms Wanninayake relied on her personal circumstances to explain some of the delay. However I am not satisfied that those circumstances prevented her from lodging this application. None of the matter she relied upon prevented her from pursuing all her rights including her appeal rights in the Queensland jurisdiction.

[51] I am not satisfied that Ms Wanninayake has a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.

(b) any action taken by the person to dispute the dismissal;

[52] Ms Wanninayake wrote a detailed letter in response to her letter of dismissal. She complained to the Queensland Ombudsman. She filed an application in the QIRC to dispute her dismissal. She appealed the decision to dismiss that application. She complained to the Queensland and Federal Governments.

[53] This weighs in favour of a finding of exceptional circumstances.

(c) prejudice to the employer (including prejudice caused by the delay);

[54] The Respondent submitted that some of its witnesses are no longer employed by the Department. However there was no evidence that, if called to give evidence, they would not make themselves available.

[55] I accept the submission that, given the length of time that has passed, memories of events may have faded. However the issues that will be before the Court or the Commission are whether Ms Wanninayake was temporarily absent from work due to illness or injury and whether she complied with the notification requirements. There is a dispute about whether Ms Wanninayake complied with her obligations under a workplace instrument to notify of her absence and to substantiate the reasons for the absence or if no such obligations existed whether she provided her medical evidence within a period of time that is reasonable in all the circumstances. These are not matters which depend on people’s memory of events.

[56] I accept however that the Respondent has been required to defend this claim before the QIRC and the court. If an extension of time is granted they will be required to further defend the claim when they were entitled to believe that the matter had been finalised in November 2016. I am satisfied that this will cause prejudice to the Respondent. Even putting aside the question of legal costs this will require the Respondent to again devote time and resources to defend its decision. While I accept that the Respondent does not lack resources that does not detract from my conclusion.

[57] I am therefore satisfied that the prejudice to the employer weighs against a finding of exceptional circumstances.

(d) the merits of the application;

[58] In the matter of Kornicki v Telstra-Network Technology Group 18 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 19

[59] For the purpose of determining whether to grant an extension of time to the applicant to file her application, the Commission “should not embark on a detailed consideration of the substantive case.” 20 

[60] There is no contest that one of the reasons Ms Wanninayake was terminated was because it was alleged that she was temporarily absent from work without authority.

[61] If this matter proceeds Ms Wanninayake will need to establish that she was absent due to illness or injury and that she satisfied the requirements of Fair Work Regulation 6.04 which sets out the notification requirements that an employee must satisfy if he or she is absent from work due to illness or injury. Ms Wanninayake provided a statutory declaration from her medical practitioner to support her claim that she had medical certificates for the days she was alleged to be on unauthorised leave. She gave evidence that she complied with the normal practices in notifying the Respondent of her absence.

[62] The Respondent relied upon the findings of Deputy President Kaufman in which he rejected Ms Wanninayake claim that she was dismissed because she was temporarily absent from work because of illness. 21

[63] There are significant factual differences between the parties about whether Ms Wanninayake, was temporarily absent from work and therefore unlawfully dismissed. I am unable to resolve those differences. I am however satisfied that Ms Wanninayake’s claim is arguable.

[64] However Ms Wanninayake’s prospects of succeeding at final hearing face a significant hurdle namely s.725 and s.732 of the Act.

[65] S.725 of the Act provides as follows:

General rule

[66] A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

[67] S.732 of the Act provides as follows:

Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the

application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application

or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.

[68] An application under s.733 of the Act is an application of the kind referred to at s.730.

[69] The Explanatory Memorandum provides the following explanation for the provisions:

“2695.This Part deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases.

2707. This Subdivision is intended to prevent a person ’double dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy…” [emphasis added]

[70] In Birch v Wesco Electrics (1966) Pty Ltd, Federal Magistrate Lucev, 22 as he was then, considered the expression “must not make” and “in relation to” in detail and I adopt his reasoning in this decision. That approach was endorsed by Full Benches of this Commission.23

[71] Ms Wanninayake submitted that these provisions had no application in this matter because her application to the QIRC was that her termination was harsh unjust or unreasonable whilst her application to this Commission is that her dismissal was unlawful. Further she submitted that her application before the QIRC was about her dismissal from the Department and her application before this Commission was about her dismissal from public sector employment. She relied upon the letter of termination which advised her that she was “dismissed from the Department of Natural Resources” and that her “employment is terminated from the Department of Natural Resources and Mines and from public sector employment.” 24 Further she submitted that her application to QIRC failed for want of jurisdiction.

[72] In both matters Ms Wanninayake made a claim that the Department of Natural Resources and Mines dismissed her. In both matters she claims she was dismissed from her employment by her employer.

[73] I am not satisfied that Ms Wanninayake has an arguable case that the claims are different such that the prohibition does not apply. The Act prohibits mutiple applications in relation to the dismissal (my emphasis). Putting aside for one moment the submissions Ms Wanninayake made to the QIRC, it is strongly arguable that Ms Wanninayake, when making a claim that her dismissal was harsh, unjust or unreasonable, made an application under Queensland Law “in relation to the dismissal.” That she, in her submissions before the QIRC, also argued that the dismissal was for an invalid reason only strengthens this submission.

[74] Her submission that her claim in the QIRC failed for want of jurisdiction is not supported by the evidence before me. In his decision Deputy President Kaufman dismissed Ms Wanninayake’s application. There was no finding in that decision that the QIRC did not have the jurisdiction to hear and determine her application.

[75] I am therefore satisfied that there is a strongly arguable case that should Ms Wanninayake be granted an extension of time, her application would be dismissed because Ms Wanninayake was not able to make this application.

[76] The Respondent further argued that Ms Wanninayake’s claim is bound to fail because Part 6-4 of the Act does not apply to the State of Queensland because of the implied limitation on Commonwealth legislative power with respect to State system employees – the Melbourne Corporation principle. 25 The Full Court of the Federal Court considered this limitation in United Firefighters’ Union of Australia v Country Fire Authority.26 It considered the development of the principle as it applied to Federal industrial relations legislation and more recent High Court considerations of the principle. It held that the “relevant question is whether those provisions imposed some special disability or burden on the exercise of the powers and fulfillment of the functions of the State of Victoria or the CFA which curtailed the State’s capacity to function as a government.”27 It is not appropriate, when the submission was not fully argued, for me to reach a conclusion on the Respondent’s submission. While it is difficult to see how a determination that the dismissal of an individual employee was unlawful could be characterised as imposing a special disability or burden or that it curtails the capacity of the State to function as a government I accept that there is an arguable case that the limitation applies.

[77] The Respondent submitted that the doctrine of issue estoppel would apply. Ms Wanninayake submitted that it did not apply because there had not been a final judgment because she had other appeal rights including her unlawful termination application to the Commission and appeals to other tribunals and courts. 28 The doctrine of issue estoppel has not traditionally been applied to Commission proceedings but has been applied in the courts. It is not appropriate, when the submission was not fully argued, for me to reach a conclusion on the Respondent’s submission. However I am satisfied that it is an arguable case that the doctrine applies.

[78] Given my conclusions about the substance of the claim and the submissions put by the Respondent as to why, independent of the substance of the claim, the claim must fail, I am satisfied that the merits of the case are a neutral consideration in determining whether there are exceptional circumstances.

(e) fairness as between the person and other persons in a similar position.

[79] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 29 considered this criterion and said “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”30

[80] Ms Wanninayake submitted that she was in a similar position to Ms Somasundarm. 31 Ms Somasundarm had been dismissed and it was found that the dismissal was unfair. However Ms Wanninayake is not in a similar position to Ms Somasundarm. Ms Somasundarm had not lodged her application out of time having had her allegation that the termination of her employment was unfair heard and determined in another jurisdiction.

[81] Ms Wanninayake submitted that if her matter is unresolved without a reasonable decision then employers could easily terminate other employees while they are on unplanned sick leave. In making this submission Ms Wanninayake misunderstands this criterion.

[82] I am not satisfied that Ms Wanninayake has made out that there are other persons in a similar position to her. I am not satisfied that this criterion weighs in favour of a finding of exceptional circumstances.

Conclusion

[83] I am not satisfied that there are exceptional circumstances which warrant granting Ms Wanninayake an extension of time. Ms Wanninayake does not have a reasonable explanation for the whole of the delay and apart from her disputing the dismissal none of the other criteria weigh in favour of a finding of exceptional circumstances.

[84] Further, the decision to grant an extension of time is discretionary and I would not have, in any event, exercised my discretion in her favour. I accept that the dismissal has caused Ms Wanninayake emotional and financial distress and that she wants to clear her name. However this is not a case where the denial of an extension of time means that Ms Wanninayake will be denied the opportunity to have her grievance about her dismissal heard and determined. She has had that opportunity. She made her case before the QIRC that her dismissal was unfair because it was done for an invalid reason. That the Act describes this as an unlawful dismissal does not change its character.

[85] Ms Wanninayake’s application for an unlawful dismissal is therefore dismissed because it was not made within the time limit set by the Act and I am not prepared to extend the time for the application to be made. An order to this effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

D. Wanninayake on her own behalf.

J. Merrell on behalf of the Respondent.

Hearing details:

2017.

Melbourne:

9 May.

 1 [2013] FCA 291 at [24]

 2   Respondents written submissions 16 October 2016 at [82]

 3   Ibid at [87]

 4   ABC Transport Pty Ltd [2012] FWAFB 3212

 5   Annexure DW06

 6   It is not contested that as Ms Wanninayake was dismissed in November 2013 that the time limit which applied to this application was 60 days.

 7   [2011] FWAFB 975

 8   Exhibit A1 at DW1.

 9   Ibid DW6

 10   Ibid at DW07

 11   Transcript QIRC TD 2013/109 at page 9 at ln 44, page 12 at ln 18-48, page 13 ln1-5

 12 [2014] QIRC 215

 13 [2015] QIRC 084

 14 [2015] ICQ 020

 15 [2015] ICQ 035.

 16   Ibid DW26

 17   DW8 and DW10

 18   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 19   Ibid

 20   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 21 [2014] QIRC 215 at [28]

 22 218 IR at 67

 23   Ms Karren Hazledine v Mr Kirk Wakerley; Mr Ben Giddings[2017] FWCFB 500 at [40] and Qantas Airways Limited v David Lawless [2014] FWCFB 3582

 24   DW1

 25   Respondent’s written submissions at [81]-[86]

 26 [2015] FCAFC 1

 27   Ibid at [207]

 28   Applicant’s submissions for 9 May 2017 hearing at [48]

 29   [2015] FWC 8885

 30   Ibid at [29]

 31   Somasundaram v Department of Education & Training [2015] FWC 6857 and [2015] FWC 4921

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