The Australian Workers' Union of Employees, Queensland v Metro South Hospital and Health Service

[2021] QIRC 125

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

The Australian Workers' Union of Employees, Queensland v Metro South Hospital and Health Service [2021] QIRC 125

PARTIES:

The Australian Workers' Union of Employees, Queensland v Metro South Hospital and Health Service

(Appellant)

v

Metro South Hospital and Health Service

(Respondent)

CASE NO:

TD/2019/106

PROCEEDING:

Application for reinstatement

DELIVERED ON:

5 February 2021

MEMBER:

HEARD AT:

Pidgeon IC

Brisbane

ORDER:

1.       The objection to the medical certificate of Mr Chu is dismissed.

2.       The objection to the Magistrate's notes of decision is allowed.

3.       The objection to Mr Chu's police statement is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - application for reinstatement - unfair dismissal - where the respondent objects to material filed by the applicant concerning criminal proceedings - where the applicant objects to a medical evidence filed by the respondent.

LEGISLATION:

Industrial Relations Act 2016, s 541, s 544

APPEARANCES:

Mr J Harding for the Applicant

Mr M Moy for the Respondent

Reasons for Decision (Delivered Ex Tempore)

1. Now, following on from the oral submissions and discussion we had at the mention and then the written submissions that I received from the parties, I’ve considered the materials and the matters and I thought in order to keep us as close to on track as we can with the directions, although I will hear from the parties about whether you think anything needs to change, I thought it would be better for me to let you know what I’ve decided about that material this afternoon given that I’m going to be tied up with a full bench for all of next week. 

2. So with respect to the filing of the letter from Mr Chu’s medical practitioner, to the extent that that letter makes it clear that Mr Chu is not going to be available to be called as a witness and that that is due to a medical issue, I’m accepting of that letter and accepting the filing of that letter and taking it into account only to that extent.  I’m not necessarily interested in the reasons why. It’s my view that if a doctor says that someone is unable to attend and give evidence that, that is relevant information for us. 

3. In the absence of Mr Chu being able to give evidence I think that I will give consideration to the police statement that was filed, attached to that affidavit.  I think that should be admissible.  It’s not – I mean, obviously, the best evidence would be Mr Chu being here and being able to give his statement and be cross-examined, but in the absence of that, the police statement that was given at around the time of the issues and is a properly signed document, I think that we should take that into account.  But I do take into account also, Mr Harding’s submissions about the fact that Mr Chu will be unavailable for cross-examination on that statement and I will factor that into my consideration and any weight that I afford to it. 

4. With respect to the filing of the Magistrates Court, I’m going to call it the Magistrates Court’s notes of decision, I’m going to uphold the objection to that document that’s been raised by the respondent.  While we’re not bound by the rules of evidence here at the Commission, it’s not the case that they’re not a consideration in making decisions when objections are raised regarding material to come before us.  In my view, the Magistrates Court matter was with regard to criminal proceedings.  It was answering and asking a different question to the one that’s before us here at the Commission in this matter.  The matters at issue are different.  And I accept the respondent’s submission that the notes of decision can’t serve as the evidence of Mr Chu.  Only parts of the evidence are referred to in the decision and it’s the impressions formed by the Magistrate which are communicated in those notes of decision, not the evidence of Mr Chu himself.  And without the full context and the questions being asked and so on, I would find that it would be of little value to me.

5. In regard to that, the parts where Mr Harding said it would be relevant for Mr Chu’s evidence to fill in some gaps or for what he would say, it’s my view that the notes of decision don’t represent a sufficient level of relevance and probative value to these proceedings for it to be allowed in.  With regard to other parts of the Magistrate’s notes of decision Mr Harding referred to regarding the investigation and so on, it’s my view that the place to raise questions about the investigation which took place, the disciplinary process which was put in place, the fairness of that and so on, the place for those questions to be asked is this Commission and in the hearing that we’re going to hold.  And I’ll hear the evidence on that at the hearing and form my own views about the investigation and so on.

6. To avoid any doubt about that, I also want to make it clear that I won’t take into account any of the material in the – so any of the material in the magistrate’s notes of decision, which I did obviously have to review to decide whether or not they were sufficiently relevant and probative, but also, I note, Mr Harding made mention – sorry, talked at the mention about the contents of the decision.  I won’t be considering any of that – those things that were raised by Mr Harding about what’s in the decision either.