Hart v State of Queensland (Department of Education)
[2024] QIRC 237
•20 September 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hart v State of Queensland (Department of Education) [2024] QIRC 237 | |
PARTIES: | Hart, Silvia v State of Queensland (Department of Education) | |
CASE NO: | D/2024/61 | |
PROCEEDING: | Notice of Industrial Dispute | |
| DELIVERED ON: | 20 September 2024 | |
MEMBER: | Dwyer IC | |
ORDER: | Pursuant to the Industrial Relations Act 2016 (Qld) matter D/2024/61 is dismissed for want of jurisdiction | |
| CATCHWORDS: | INDUSTRIAL LAW ¾ QUEENSLAND –JURISDICTION TO DEAL WITH INDUSTRIAL DISPUTE – where the notifier claims to be employed as a caretaker of land leased by the respondent in exchange for residency – where the respondent denies the existence of employment relationship – where proceedings commenced in the Supreme Court to remove the notifier from the property – where the Supreme Court made orders compelling the notifier to vacate the property – where the notifier is unable to produce evidence that she was engaged as caretaker – where jurisdiction of the Commission to deal with industrial disputes is confined to disputes between employers and employees – notifier is not an employee and lacks standing to bring notice of industrial dispute – Commission has no jurisdiction to deal with industrial dispute – notice of industrial dispute dismissed | |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) s 261 | |
Reasons for Decision
Delivered ex tempore, revised from transcript
Ms Silvia Hart filed a Notice of Industrial Dispute (‘NOD’) with the Industrial Registry on 12 July 2024. Notably, the first paragraph of the particulars of the dispute alluded to a somewhat vague description of an employment relationship with the Department of Education (‘the Department’). The first paragraph concluded with the declaration:
I have multiple emails that confirm my employment status as a caretaker.
None of the ‘multiple emails’ alluded to were attached to the NOD.
S 261 of the Industrial Relations Act
Section 261 of the Industrial Relations Act 2016 (Qld) confines the jurisdiction of the Commission to deal with industrial disputes to disputes that are between employers and employees. That section relevantly provides:
261 Notice must be given to registrar
(1) Subsection (2) applies if an industrial dispute––
(a) exists between––(i) an employer organisation or employer; and
(ii) an employee organisation or employee; and
(b)remains unresolved after the parties have genuinely attempted to settle the dispute.
(2)Each party to the dispute must immediately give the registrar written notice of the dispute.
…
(Emphasis added)
After reading the material accompanying Ms Hart’s NOD, I found no evidence to support her assertion of employment. I formed a preliminary view that there may be a jurisdictional barrier to the proceedings namely, that Ms Hart was not an employee.
Determination of Ms Hart’s employment status
The matter was listed for mention on 19 July 2024. At that mention, I took the opportunity to go into more detail with Ms Hart and develop an understanding of the circumstances of Ms Hart’s alleged employment with the Department.
Ms Hart explained, in a rather convoluted fashion, that she was privy to an arrangement with the (former) principal of the Kingaroy State High School that allowed her access to land leased by the Department at Archookoora (a type of outdoor education facility). That land was leased, but not currently being used, by the Department. Ms Hart went on to assert that she had some form of agreement with the former principal to serve as caretaker on the property in return for free accommodation.[1]
[1] T 1-3, ll 5-15.
Representatives of the Department in attendance at the mention confirmed that it was their position that Ms Hart was not, at any time relevant to this matter, an employee of the Department. Moreover, I was advised that Ms Hart’s permission to access the land in question did not include permission to reside there (as she had apparently been doing), and that the Supreme Court of Queensland had recently made orders which had the effect of compelling Ms Hart to vacate the property.[2]
[2] In the Supreme Court of Queensland, Matter No.2729 of 2024 (Order dated 9 July 2024).
As a consequence of this information, I gave Ms Hart the opportunity to demonstrate proof of her employment relationship. Given her NOD referred to her having ‘multiple emails’ that confirmed her employment status, I requested she supply them and any other evidence proving the relationship within seven days. In the alternative, I invited Ms Hart to withdraw the proceedings.
Ms Hart did not withdraw. On 31 July 2024, in compliance with my direction, Ms Hart filed an eclectic bundle of documents, including some electronic messages exchanged between her and the (then) principal of Kingaroy State High School.[3] I do not intend to descend into a detailed analysis of the content of the numerous documents supplied by Ms Hart. Suffice to say, the documents in the bundle contained no evidence of an employment relationship between Ms Hart and the Department.
[3] Exhibit 1.
The closest that the documents come to even a hint of such a relationship is found in a short series of messages exchanged between the former principal of the Kingaroy State High School and Ms Hart in April 2021.
In a message dated 19 April 2021 Ms Hart relevantly communicates with the (then) principal as follows:[4]
Hi Ashley and Phillip,
As per our phone conversation we are more than happy to take on a Caretaker Position at Archookoora Campsite while we organise the re-assignment of the lease.
We are able to take on the position at your earliest convenience. Once the current caretaker/squatter has been removed we will start repairing the toilet blocks before moving up.
…
[4] Exhibit 1, Appendix 4.
The (then) principal briefly replies on the same day that he will be in contact ‘shortly’. The following day on 20 April 2021, Ms Hart messages the principal again relevantly:[5]
…Having said this, it would be great to commence the caretaker role soon, so we can meet with Same and Edwina on-site…
[5] Exhibit 1, Appendix 5.
On 22 April 2021, the (then) principal messages Ms Hart and relevantly says:[6]
…In relation to you being able to move in as a care carer (sic), I am awaiting advice from central office. I am also trying to organise insurance to cover the liability for having a care taker.
[6] Exhibit 1, Appendix 6.
This exchange represents the full extent of the recorded discussions between Ms Hart and the (then) principal. There is no evidence supplied by Ms Hart that the arrangement was ever formalised, what the role of caretaker involved, or if it involved her being an employee.
To the extent anything can be gleaned from speculation about his reply message, it would appear the (then) principal had some other form of relationship in mind given his contemplation of ‘insurance’. An employee would be covered by the workers compensation scheme and would not require insurance.
Notably, the former principal later furnished an affidavit in the proceedings before the Supreme Court which was sworn in 2024 in which he attested:[7]
I left my position of school principal in August 2021. By this time, I do not recall that there was any lease or caretaker agreement in place with the respondent.
[7] Exhibit 1, Appendix 22.
The assertion by Ms Hart that there are ‘multiple emails’ proving the employment relationship plainly cannot be sustained. Whatever aspirations Ms Hart may have held in that regard, there is no evidence that they ever evolved into any relationship of employment with the Department. That is more than evident from the material that she herself has supplied.
For completeness, I note that the Department maintained its position throughout i.e., that Ms Hart was never an employee.
The Department was also directed to file, in the Industrial Registry, material relevant to the question of whether Ms Hart was an employee or not. Under cover of email dated 9 August 2024, the Department supplied extensive affidavit and other material that had been relied on in the Supreme Court proceedings.[8]
[8] Collectively, Exhibit 2.
Those documents where considered by Justice Applegarth in proceedings on 9 July 2024. The ex tempore reasons for his decision are found on the transcript of those proceedings and relevantly conclude that:[9]
· Ms Hart initially became interested in accessing the property at Archookoora via some form of lease in or around March 2021. Her intention was apparently to create some form of community facility there.
· She began negotiations with the Department to enter into a hire facility agreement, though no such agreement was ever finalised.
· From May 2021 Ms Hart took up occupation at the property and there appeared to be occupation of the property in anticipation of a hire facility agreement being concluded, but there was no concluded agreement.
· Whatever informal agreement might have existed with respect to access to the property, it was terminated on 15 February 2023 when Ms Hart was requested to vacate the property.
[9] T 1-13 to T 1-18.
These materials included an order of Justice Applegarth dated 9 July 2024, granting possession of the property to the Department. As noted above, the effect of that order is that Ms Hart vacate the premises.
The transcript of proceedings before Justice Applegarth and his ex tempore decision on 9 July 2024 make several insightful observations as to the lack of evidence supporting Ms Hart’s right to be on the property and the ambiguity around her asserted role as ‘caretaker’.[10]
[10] T 1-13, ll 45-48.
I note that Ms Hart was legally represented throughout the Supreme Court proceedings. I note there was extensive correspondence exchanged between Ms Hart’s lawyers and the Department throughout the leadup to those proceedings on 9 July 2024. I note that the suggestion of Ms Hart being an employee of the Department was not raised in that dispute until very late in those proceedings and at a time when it would have been more than apparent that the Department was intent on taking back possession of the property.
From the commencement of those recovery proceedings in the Supreme Court, Ms Hart was beset with a series of misfortunes that caused repeated delays and adjournments in the finalisation of the Department’s application for possession. The transcript of the proceedings on 9 July 2024 deals with yet another request by Ms Hart for an adjournment, which was ultimately refused by the Court.
The affidavits filed by the Department in those proceedings attach clear evidence of the history of the relationship between Ms Hart, the land in question, and the Department.[11] There was clearly some form of informal permission from the Department for Ms Hart to access the land, though whether that was granted with the full knowledge or authority of the Department is another question. But importantly, there was no evidence she was ever employed as a caretaker (or at all) by the Department at the relevant time.
[11] Exhibit 2 (see especially Affidavit of David Thomson).
To the extent it was dealt with in the Supreme Court proceedings, Justice Applegarth was equally unable to be satisfied that there was any form of employment relationship between Ms Hart and the Department.
In all of those circumstances, I consider that Ms Hart was not, at any time in the relevant period, an employee of the Department and as such, the Commission has no jurisdiction to deal with the NOD.
Post-script
Subsequent to the ex tempore delivery of this decision on 20 September 2024, Ms Hart emailed the Industrial Registry as follows:
On my submission to the QIRC I requested that the QIRC determine if I was an employee or an independent contractor with regards to my employment relationship with Kingaroy State High School at Archookoora.
…
In light of your decision on 20.09.2024, I would appreciate if you could please also address if you deem my role with KSHS at Archookoora to have been that of an Independent Contractor.
If this is not possible, can you please advise if I should appeal your decision or resubmit a Form 10 to confirm my status as an Independent Contractor.
It is somewhat unconventional to address such a request following the delivery of reasons, however, given it appears Ms Hart is labouring under a number of misconceptions about the role of the Commission, some further comment is necessary.
Contrary to what she has asserted in her recent email, these reasons are not issued in response to any request from Ms Hart to determine whether she was an employee. These reasons are in response to the identification (by me) of a potential jurisdictional barrier, namely the absence of an employment relationship. The only relevant issue for my determination in these proceedings was whether Ms Hart was an employee.
For all of the reasons set out above I have determined that Ms Hart was not an employee. As a consequence of that conclusion, the Commission does not have jurisdiction to deal with her NOD and the matter must be dismissed.
Ms Hart now seems to be requesting advice from the Commission about inter alia whether she was an independent contractor. Ms Hart appears to misunderstand the functions of the Commission and in particular, that the Commission does not furnish advice to litigants. But to the extent an answer to her question might alleviate Ms Hart’s confusion, I would simply observe that whether she was (or was not) an independent contractor is of no relevance to the question of whether Ms Hart was an employee, and therefore not a matter I need to determine.
To be absolutely clear: the singular issue in this matter relevant to whether the Commission had jurisdiction to deal with the NOD was whether Ms Hart was an employee. She was not.
Order
Accordingly, I make the following order:
Pursuant to the Industrial Relations Act 2016 (Qld) matter D/2024/61 is dismissed for want of jurisdiction.
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