Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts)
[2024] QIRC 19
•7 February 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Perkins v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) [2024] QIRC 19 |
PARTIES: | Perkins, Sarah v State of Queensland (Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts) |
CASE NO.: | TD/2022/205 |
PROCEEDING: | Application in existing proceedings |
HEARING DATES: DELIVERED ON: | On the papers 7 February 2024 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
ORDER: | The Order contained in paragraph [13] of these reasons for decision. |
| CATCHWORDS: | CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – Applicant was employed by the Respondent and was dismissed – Applicant made application for reinstatement – Directions Order made for the hearing of the Applicant's application including that the parties file and serve statements of facts and contentions and lists of witnesses, and that the parties serve outlines of evidence of the witnesses – Respondent filed and served statement of facts and contentions – after the parties served outlines of witness evidence, the Respondent applied to amend its statement of facts and contentions – amendment opposed by Applicant – consideration of whether the Respondent should be permitted to amend its statement of facts and contentions – no prejudice to the Applicant by the Respondent amending its statement of facts and contentions – application granted |
LEGISLATION: | Industrial Relations Act 2016, s 539 |
Reasons for Decision
Ms Sarah Perkins was employed by the State of Queensland through, what is now, the Department of Treaty, Aboriginal and Torres Strait Islander Partnerships, Communities and the Arts ('the Department').[1] Ms Perkins was employed in the position of Project Support Officer, classification AO4. Ms Perkins was dismissed effective 5 September 2022. By application filed on 12 September 2022, Ms Perkins seeks an order that she be reinstated to her position on the basis that her dismissal was unfair.
[1] Formerly, the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships.
The hearing of Ms Perkins' application is set down for 26 and 27 March 2024.
As I understand Ms Perkins' application and the Department's response, the central issue is that in her position as Project Support Officer, Ms Perkins was required to hold a Working with Children Card, otherwise known as a Blue Card, and that there came a point in time when she did not hold a Blue Card, the consequence of which was that she was dismissed.
By earlier Directions Orders made by the Commission, the parties were directed to file and serve statements of facts and contentions and lists of witnesses they will call at the hearing; and to serve on each other outlines of evidence for each witness they intend to call at the hearing.
On 11 July 2023, the Department filed and served its statement of facts and contentions. Both parties have filed and served their lists of witnesses and, as I understand it, both parties have served outlines of evidence for each witness they intend to call.
By application in existing proceedings filed on 22 December 2023, the Department, pursuant to s 539(d) of the Industrial Relations Act 2016 ('the Act'), applied to amend its statement of facts and contentions ('the Department's application'). The Department included written submissions in support of its application.
By Directions Order dated 9 January 2024, I ordered that Ms Perkins, who is self-represented, file and serve written submissions in response to the Department's application by 12.00 pm on Friday, 2 February 2024. On Monday, 5 February 2024, Ms Perkins filed a written submission that opposed the Department's application, but gave no reasons for such opposition.
The reason for the Department's application is that it proposes:
·to abandon its first primary argument, namely, that the '…Applicant's employment was terminated by virtue of the doctrine of frustration (independent of any decision made by the Respondent).'; and
·to remove the reference to Ms Perkin's workplace conduct as a reason that her reinstatement would be impracticable.
The Department relevantly submits that by it being allowed to amend its statement of facts and contentions, Ms Perkins will suffer no prejudice because:
·it seeks to no longer rely on certain arguments (in contrast to adding an argument);
·Ms Perkins has had, and will have, reasonable notice of the amendments, given that the hearing is in late March 2024; and
·there will be no change to the witnesses it will call and no change to the outlines of their evidence that it has filed.
There is no doubt that s 539(d) of the Act confers power on the Commission to allow the Department to amend its statement of facts and contentions. In my view, any prejudice to Ms Perkins, arising from the amendments as sought, is a relevant consideration as to whether the amendments should be allowed.
Given the nature of the amendments sought by the Department to its statement of facts and contentions, I cannot see how Ms Perkins would suffer any prejudice if the amendments were allowed. This is because the Department is narrowing its defence to Ms Perkins' application or, in other words, the Department is removing particular claims it was going to make in opposition to Ms Perkins' claims that she was unfairly dismissed and that she should be reinstated. Certainly, Ms Perkins does not submit that she will suffer any prejudice from the amendments sought to be made to the Department's statement of facts and contentions.
For these reasons, I will grant the Department's application.
Order
I make the following Order:
That the Application in existing proceedings, filed by the Respondent on 22 December 2023 in Matter No. TD/2022/205, is granted.
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