Natoli v McInnes Wilson Lawyers - [2021] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Natoli v McInnes Wilson Lawyers [2021] QIRC 041
PARTIES:	Natoli, Danielle Applicant v McInnes Wilson Lawyers Respondent
CASE NO:	B/2020/65
PROCEEDING:	Application for proportionate payment of long service leave
DELIVERED ON:	5 February 2021
HEARING DATES:	On the papers
MEMBER: HEARD AT:	McLennan IC Brisbane
ORDERS:	1. That the application filed by Ms Natoli on 2 September 2020 is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – LONG SERVICE LEAVE – where the applicant was directed to file materials and failed to do so – consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld)
LEGISLATION: CASES:	Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 45 Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144 Cooper v. Hopgood & Ganim [1998] QCA 114 House v R (1936) 55 CLR 499 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73 Quinlan v Rothwell & Anor [2001] QCA 176 Seymour v Workers' Compensation Regulator [2017] QIRC 061 Treanor v State of Queensland [2019] QIRC 146 Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405 Workers' Compensation Regulator v Varga [2019] QIRC 028 Workers’ Compensation Regulator v Bero [2019] QIRC 36

Reasons for Decision

Ms Danielle Natoli (the Applicant) filed a Form 14 – Application for proportionate payment of long service leave (the Application) on 2 September 2020. In brief, the Application relates to Ms Natoli’s claim that she terminated her employment because of illness, and so is entitled to proportionate payment of long service leave under s 95(4) of the Industrial Relations Act 2016 (Qld).[1]
[1] ‘the IR Act’.
The matter was conferenced before Commissioner Hartigan on 10 September 2020. The Application did not resolve at conference, and so was referred to me for hearing.

A Further Directions Order was issued to the parties on 21 September 2020 requiring the parties to file a Statement of Facts and Contentions (‘SOFC’) and a list of witnesses to be called and notifying the parties that the matter would be mentioned once that had occurred. Those Directions were sent to the two email addresses which Ms Natoli had used throughout these proceedings to communicate with the Commission and Industrial Registry. Those were also the email addresses Ms Natoli provided as her contact email on the Application.
That Further Directions Order required Ms Natoli to file her SOFC by 4pm on 6 October 2020. That did not occur.
By way of emails from my Associate dated 26 October 2020 and 4 November 2020, Ms Natoli was asked to explain why the delay had occurred, and to advise what the status of her matter was.
On 5 November 2020, Ms Natoli replied to those correspondences. In short, she said she had been busy with her job, that she would like some further information about the matter from the Respondent (by way of references to what is said to have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QIRC 41
Decision Date: 5 February 2021

CaseChat Overview and Summary

Natoli v McInnes Wilson Lawyers was a matter heard in the Queensland Industrial Court. The applicant, Ms Natoli, sought to have her application for long service leave reinstated. The application had been dismissed by the Registrar for failure to comply with a direction to file materials. Ms Natoli sought to have this decision reviewed. The central legal issue was whether the Industrial Relations (Tribunals) Rules 2011 (Qld) permitted the Registrar to dismiss the application in the circumstances presented. Specifically, the court needed to determine if Rule 45 was correctly applied by the Registrar in dismissing Ms Natoli’s application for non-compliance with a filing direction. The court examined Rule 45, which deals with the consequences of failing to comply with procedural requirements such as filing deadlines. It was established that the rule provides for the Registrar to dismiss an application if the applicant does not comply with a direction to file materials. The court found that the Registrar had followed the rule correctly and that the dismissal of Ms Natoli’s application was justified. The court also considered the nature and seriousness of the procedural breach, noting that Ms Natoli had not provided a satisfactory explanation for her non-compliance. The application was dismissed, and no further orders were made.

Orders

Orders of the court

1. That the application filed by Ms Natoli on 2 September 2020 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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