Titmarsh v Ipswich City Council - [2025] QIRC 231

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Titmarsh v Ipswich City Council [2025] QIRC 231
PARTIES:	Titmarsh, Richard Murray (Applicant) v Ipswich City Council (Respondent)
CASE NO:	TD/2025/17
PROCEEDING:	Application for reinstatement
DELIVERED ON:	2 September 2025
MEMBER: HEARD AT:	O'Neill IC On the papers
ORDER:	The application for reinstatement in matter TD/2025/17 is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – UNFAIR DISMISSAL – applicant employed by Ipswich City Council – where application for reinstatement filed by the applicant – where the application filed beyond statutory limit – length of delay – reasons for delay – prejudice to the applicant and respondent – whether the Commission should exercise discretion to grant extension – prospects of success – application dismissed.
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), s 316, s 317, s 320 Local Government Act 2009 (Qld), s 197 Local Government Regulation 2012 (Qld), s 283 Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Clare Hardgrove v Google Australia Pty Ltd [2025] FWC 1714 Erhardt v Goodman Fielder Food Services Limited [1999] QIRC 2; (1999) 163 QGIG 20 Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709 Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010 Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131 McColl v Toowoomba Regional Council [2025] QIRC 017 Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543 Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers appointed) (1996) 151 QGIG 1010 Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353 Shelley v McRoberts Agency [2009] QIRC 93 (2009) 190 QGIG 189 Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43 Weaver v Ipswich City Council [2021] QIRC 234

Reasons for Decision

Introduction

Mr Richard Titmarsh ('the Applicant') was employed by Ipswich City Council ('the Respondent') as a Construction Supervisor.
The Applicant was suspended on full remuneration on 11 July 2024 following allegations that he had breached the Respondent's Code of Conduct in relation to sexual harassment.
The allegations of sexual harassment arose from comments that the Applicant allegedly made to two female traffic controllers that had been assigned to his team. The Respondent then appointed an independent external investigator to complete an investigation into the allegations.

In a letter dated 21 November 2024, the Applicant was advised that the allegations were substantiated. The substantiated allegations were as follows:
1. On 28 June 2024, you engaged in inappropriate conducts towards Ms W[1]. Specifically, you told her that she looked like she was in a position to make a baby.
2. On 28 June 2024, you engaged in inappropriate conduct towards Ms S. Specifically you told her, "Close your knees, Captain [B]".
[1] Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules'), the names of the…

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: [2025] QIRC 231
Decision Date: 2 September 2025

CaseChat Overview and Summary

In the case of Titmarsh v Ipswich City Council, the applicant, who was previously employed by Ipswich City Council, filed an application for reinstatement beyond the statutory limit. The matter was brought before the Queensland Industrial Relations Commission, which needed to determine whether the delay was justified and whether an extension of time should be granted. The central legal issue was whether the Commission should exercise its discretion to grant an extension for the late filing of the reinstatement application, considering factors such as the length of the delay, the reasons for the delay, and the potential prejudice to both the applicant and the respondent if an extension was granted.

The Commission examined various factors to determine if an extension should be granted. Firstly, it noted the length of the delay, which was 21 days beyond the statutory time limit. The applicant did not provide a satisfactory explanation for the delay, and therefore, the Commission was not convinced that the delay was justified. Secondly, the Commission considered the prejudice to the applicant if the extension was not granted, which would prevent the applicant from proceeding with the reinstatement application. However, the applicant did not address this factor in the submissions. The Commission also considered the prejudice to the respondent if an extension was granted, which would result in the respondent incurring costs in defending the claim. The Commission accepted that the respondent would suffer some prejudice if an extension of time was granted.

After considering all relevant factors, the Commission concluded that the applicant had not provided a satisfactory explanation for the delay and that the prejudice to the respondent outweighed the prejudice to the applicant. Consequently, the application for reinstatement was dismissed.

The final order was that the application for reinstatement in matter TD/2025/17 was dismissed. The Commission held that the applicant had failed to provide a satisfactory explanation for the delay in filing the application and that the prejudice to the respondent if an extension was granted outweighed the prejudice to the applicant. As a result, the application for reinstatement was dismissed, and the applicant was not reinstated to his previous position with Ipswich City Council.

Orders

Orders of the court

The application for reinstatement in matter TD/2025/17 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant has not provided this type of medical evidence. Conclusion – Explanation for the delay It is incumbent on the Applicant to provide a basis upon which the Commission could properly exercise its discretion to extend the time in which to bring a reinstatement application. For the reasons set out above, I am not satisfied that the Applicant has put forward any satisfactory explanation for the delay in filing the application. Prejudice to the Applicant The Applicant does not address this factor in his submissions. There will clearly be prejudice sustained by the Applicant if an extension is not granted, as he will be unable to proceed to have his application for reinstatement heard and determined.[19] Prejudice to the Respondent [19] Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43, [38]. The High Court has confirmed that delay itself is considered to give rise to a general presumption of prejudice to the Respondent in the event that an extension of time is granted.[20][20] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556. The Respondent contends that it will suffer prejudice in that it will not be able to rely on the prescribed time limit and will incur costs in defending the claim if the Applicant is allowed an extension of time. I accept that the Respondent will incur possibly significant costs in defending an application where but for an extension being granted by the Commission, the Respondent would have had the benefit of the application being statute barred by the limitation period imposed by s 317 of the IR Act. I therefore accept that the Respondent will suffer some prejudice if an extension of time is granted. Conduct of the Respondent In the Applicant's submissions filed on 30 May 2025, the Applicant does not directly point to conduct of the Respondent which caused him to file his application out of time. The Applicant does raise the following complaints or concerns about the Respondent:·Nearing the end of the six month period of his suspension, the Applicant states that it became clear to him that any information supplied to him by the Respondent was possibly questionable. ·The Applicant cites, and relies upon the following examples of the Respondent's "conduct":o Mr Ryan Keast asked him to return his laptop (in the email sent on 13 January 2025) despite the fact that he handed in his laptop on the day that he was sent home.o In an email from Mr Graeme Martin from the Council dated 10 January 2025 in which he advised the Applicant of his dismissal, he also stated that a representative from the Council's nominated employee assistance program (EAP) would call him. This never happened.o The Applicant was convicted of a breach of a code that does not exist in the Respondent's employee code of conduct that Ryan Keast had sent him.o Allegation 2 that the Applicant was convicted of was changed dramatically after his interview with Workplace Edge and he was not advised of the change until the Respondent's letter dated 21 November 2024 that stated that the Applicant was convicted of that new allegation that he had not heard of.

Ratio Decidendi

Legal Principle Established

The Respondent contends that through lodging his claim with the FWC, he demonstrated that he was not so debilitated as to be unable to lodge his application, albeit in the wrong jurisdiction. Consideration In determining the preliminary issue I will address the various factors identified by Vice President Linnane in Erhardt v Goodman Fielder Food Services Ltd,[10] those being:[10] [1999] QIRC 2; (1999) 163 QGIG 20, per Linnane VP.(i)the length of the delay;(ii)the explanation for the delay;(iii)the prejudice to the applicant if the extension of time is not granted;(iv)the prejudice to the respondent if the extension of time is granted; (v) any relevant conduct of the respondent; and(vi)the prospects of success of the substantive application. In relation to those factors, Industrial Commissioner Dwyer observed in Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service)[11] ('Bingham') that:[35] The consideration of those matters is a holistic consideration. No single one of those considerations ought to be given greater weight than the other. Each of them is considered in the context of the others.[12][11] [2020] QIRC 173.[12] Ibid, [35] per Dwyer IC. The application for reinstatement was ultimately (and correctly) filed in the Industrial Registry on 21 February 2025. There is no dispute between the parties that the Applicant received the termination letter dated 8 January 2025 on 10 January 2025 as an attachment to an email of that date from Graeme Martin, Manager, Capital Program Delivery.[13] That email also refers to a telephone call between Mr Martin and the Applicant that preceded the email. It appears that the Applicant was also informed of the termination of his employment in that telephone conversation. [13] The email from Mr Martin dated 10 January 2025 and the termination letter are attachments to the Form 12 -Application for Reinstatement. This meant that the application had to be filed on or before 31 January 2025.[14] The application was filed on 21 February 2025 and as a consequence, was filed 21 days beyond the statutory time limit. [14] Section 317(2)(a) of the IR Act. The Respondent submits that the 21-day delay is significant. Vice President O’Connor observed in Weaver v Ipswich City Council[15] that the starting point for considering this factor is “the recognition that the Legislature has chosen to impose a 21-day time limit on applications for reinstatement which must be respected.”[16][15] [2021] QIRC 234.[16] Ibid, [14]. I again note the Bingham[17] decision in which Industrial Commissioner Dwyer observed:…The number of days ought not to be considered as if it is some type of number game. There is no rule as to what number of days is too little or what number of days is too many. It is something that ought to be considered in the context of the other considerations.[18][17] Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173.[18] Ibid, [36].