Gapsa v State of Queensland (Department of Transport and Main Roads)
[2015] QIRC 56
•24 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gapsa v State of Queensland (Department of Transport and Main Roads) [2015] QIRC 056 |
PARTIES: | Gapsa, Stephen v State of Queensland (Department of Transport and Main Roads) |
CASE NO: | TD/2013/51 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 24 March 2015 |
HEARING DATE: | 23 to 26 September 2014 |
MEMBER: | Industrial Commissioner Thompson |
ORDERS : | The Respondent is able to file additional limited submissions. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Issue regarding submissions in reply - Approval to file additional submissions. |
| CASES: | Industrial Relations Act 1999, ss 72, 74, 320, 331 |
| APPEARANCES: | Mr J. Dwyer of Counsel, instructed by Sciacca's Lawyers Pty Ltd for the Applicant. Mr M. Healy of Counsel, instructed by Crown Law, for the Respondent. |
Decision
On 19 March 2015 Ms Melinda Marincowitz, a Senior Principal Lawyer Workplace Law at Crown Law forwarded an email to my Chambers in which a request was made to allow the Respondent to be granted leave to provide a very short reply to matters contained within the submission in reply on behalf of the Applicant that had not been restricted to matters of law.
The matters in question were identified as paragraphs 3 to 8 (inclusive):
"3. At paragraph 10 of the Respondent's submissions the Respondent identifies 'the case he now seeks to conduct'. The Respondent refers to the assertions made by the Applicant in written submissions as to the invalid nature of his termination within the meaning of s 72(2)(e) and/or (f) of the Act.
4. The Respondent correctly identifies, at least up to a point, that the 'conspiracy theory' was unsupported. It was unsupported and therefore unable to be actively pursued. That is, until Mr Marsden gave his evidence.
5. In evidence at the 'eleventh hour' in the proceedings Mr Marsden revealed a meeting he attended with Mr Cridland, the board of management team members and possibly Ms Wood. Mr Cridland had called the meeting. Mr Marsden attended the meeting, he said, to discuss the Applicant who was said to be 'causing some levels of disruption' and 'impacting on the work team'.
6. For the first time, on the giving of this evidence in the dying moments of the hearing of evidence, the Applicant heard evidence that his superiors were considering his termination for reasons which appear to be entirely unrelated to the grounds upon on which they relied.
7. In particular, the reference to 'levels of disruption' has no bearing whatsoever on the stated reasons for dismissal and can only relate to the Applicant's objection to the ERP process and the appeal lodged with the Queensland Industrial Relations Commission. Ms Wood and Mr Cridland confirmed in the hearing that the Applicant's initial period as an ERP was taken into consideration in the decision to terminate his employment.
8. This evidence was unavailable to the Applicant until it was put on record by Mr Marsden in response to a question by Counsel for the Respondent. But upon such evidence being given by Mr Marsden, it added an entirely new perspective to the conduct of the Respondent, and one which the Applicant is entitled to pursue now."
In addition there was said to be an assertion of fact at paragraph 14 of which could be addressed succinctly as could issues identified at paragraphs 19 and 20.
Solicitors acting for the Applicant in an email (dated 19 March 2015) forwarded to my Chambers contained the following:
"The Applicant disagrees with the basis upon which the Respondent relies in making its request for leave to make further submissions.
The factual matters referred to between paragraph 3 and 8 are included in the submission to place in context the basis upon which the Commission by operation of S 331 can and would make a finding not previously sought. It is in direct response to the Respondent's submission to the effect that the Commission could not. It is a matter of law, namely, the powers to make orders given by S 331.
The matters raised at paragraph 14 are raised similarly for context on a submission of law with respect to the Jones v Dunkel issue.
The matters at 19 and 20 are responses - not to a response submission, but to a specific objection as to content in the Applicant's primary submission. Even the Respondent would appreciate that where an objection is raised, the opposing party must be given an opportunity to respond."
The Applicant requested that if the Respondent continued to press its position then the matter be relisted.
The Respondent submitted if the matter was to be relisted it would eventuate in the parties incurring further unnecessary costs and that the Commission determine the matter on the papers currently before the Commission.
On 20 March 2015 Solicitors for the Applicant agreed to have the issue of whether the Respondent be given leave to make a further submission should be dealt with on the papers.
Conclusion
At the conclusion of the substantive hearing of the application on 26 September 2014 it was agreed that the parties would provide written submissions within a timeframe commencing upon receipt of transcript.
The submissions were filed with the Industrial Registrar as follows:
· Applicant on 10 December 2014;
· Respondent on 13 February 2015; and
· Applicant in reply on 13 March 2015.
The Commission at the time of discussions with the parties around the arrangement for written submissions made the following comment regarding the submission in reply "And then, if there's any matters of law arising, a week before reply" [Transcript p. 4-127].
Counsel for the Applicant acknowledged the position of the Commission without question or descent.
I accept the argument of the Respondent that the Applicant's submission in reply had dealt with matters that in all likelihood were matters that were outside the general meaning of "matters of law" and as such consideration of paragraphs 3 to 8 (inclusive) by the Commission in the absence of an opportunity for the Respondent to address such matters would be in my view unreasonable.
The Commission in hearing applications of this nature must do so in accordance with the provisions of the Industrial Relations Act 1999 (the Act) and in particular s 320(2)(a), (b) and (3)(a) and (b):
"(2) In proceedings, the commission or Industrial Magistrates Court -
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)may inform itself on a matter it considers appropriate in the exercise of its jurisdiction.
(3) Also, the commission or Industrial Magistrates Court is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of -
(a) the persons immediately concerned; and
(b) the community as a whole."
Accordingly I determine that the Respondent is able to file additional submissions limited to the content of paragraphs 3, 4, 5, 6, 7, 8, 14, 19 and 20 of the Applicant's submission in reply.
The additional submissions are to be filed no later than 4.00 p.m. on Tuesday 31 March 2015.
I order accordingly.
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