Chen v Gold Coast Hospital and Health Service (No. 6) [2026] QIRC 45

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v Gold Coast Hospital and Health Service (No. 6) [2026] QIRC 045 PARTIES: Chen, Victor (Applicant) v Gold Coast Hospital and Health Service (Respondent) CASE NOS: GP/2020/27 & TD/2021/20 PROCEEDING: Application in existing proceedings DELIVERED ON: 20 February 2026 HEARING DATE: 17 February 2026 DATES OF WRITTEN SUBMISSIONS: Respondent's submissions, 4 February 2026 Applicant's submissions in reply, 16 February 2026 MEMBER: HEARD AT: Industrial Commissioner Pidgeon Brisbane ORDERS: The orders contained at paragraph [135] of these reasons CATCHWORDS: INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL – INTERLOCUTORY APPLICATIONS – application to amend application – application to amend statement of facts and contentions – application made late in proceedings – consideration of justice between the parties – -- 1 of 28 -- 2 consideration of the effect of delay – consideration of the prospects of success of the amendments – consideration of whether one category of amendments sought to be made are an abuse of process – consideration of the explanation provided for the delay in amending – consideration of prospective employee pursuant to s 282 of the Industrial Relations Act (2016) Qld – consideration of the sham contracting provisions of the Industrial Relations Act (2016) Qld – where various provisions of the amended application are struck out – where various provisions of the Applicant's amended statement of facts and contentions are struck out LEGISLATION: Industrial Relations (Tribunals) Rules 2011 (Qld) rr 6, 23 Industrial Relations Act 2016 (Qld) ss 282, 284, 286, 302, 304, 310(1), 531(3), ch 8, div 3 CASES: Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278 Byrne v State of Queensland (Queensland Health) [2022] QIRC 13 Chen v Gold Coast Hospital and Health Service [2024] ICQ 1 Chen v Gold Coast Hospital and Health Service [2024] QCA 241 Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339 Rich v Chubb Protective Services (2001) 167 QGIG 159 -- 2 of 28 -- 3 APPEARANCES: Dr V Chen, the Applicant himself Mr PM Zielinski of counsel, instructed by MinterEllison for the Respondent. Reasons for Decision [1] Following the conclusion of several appeals lodged by Dr Chen,1 the matter has returned to me for hearing. At that point, case management to progress the matter to hearing recommenced and the Respondent filed its Amended Statement of Facts and Contentions on 7 November 2025. Amended Application [2] On 1 December 2025, Dr Victor Chen ('the Applicant') sent email correspondence to the Industrial Registry which sought to amend his amended application the subject of GP/2020/27 filed in the Industrial Registry on 14 September 2022. On 5 December 2025 Dr Chen sought to file a Draft Yet Further Amended Statement of Facts and Contentions ('DAYFASC') which sought to amend the previous iteration filed on 14 September 2022. [3] The Respondent objects to certain parts of that amended application and I must determine whether Dr Chen is granted leave to amend the application and his statement of facts and contentions pursuant to r 23 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules'). I have also been asked to set aside several attendance notices issued by Dr Chen. Those matters will be dealt with in a separate decision. [4] A number of Dr Chen's amendments are described by the Respondent as submissions, evidence or irrelevant factual contentions. The Respondent has taken the position that to have Dr Chen's substantive matter heard as soon as possible, it will not take issue with those aspects of his amendments. GCHHS says that it will treat those as replies to its RSAFC and asks that it be given liberty to deal with those matters in oral evidence where necessary. I appreciate that approach and those matters may be addressed at hearing. 1 This decision assumes familiarity with the following decisions which have been made with respect to this matter: Chen v Gold Coast Hospital and Health Service [2021] QIRC 235; Chen v State of Queensland (Queensland Health) [2021] QIRC 249; Chen v State of Queensland (Queensland Health) [2021] QIRC 369; Chen v State of Queensland (Queensland Health) [2022] ICQ 15; Chen v Gold Coast Hospital and Health Service [2022] QIRC 422; Chen v Gold Coast Hospital and Health Service (No. 2) [2023] QIRC 002; Chen v Gold Coast Hospital and Health Service (No. 3) [2023] QIRC 012; Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 128; Chen v Gold Coast Hospital and Health Service (No. 5) [2023] QIRC 226; Chen v State of Queensland (Queensland Health) (No 2) [2023] ICQ 21; Chen v Gold Coast Hospital and Health Service [2024] ICQ 001; Chen v State of Queensland (Queensland Health) [2024] QCA 42; Chen v State of Queensland (Queensland Health) [No 2] [2024] QCA 63; Chen v State of Queensland (Queensland Health) [2024] HCASL 174; Chen v Gold Coast Hospital and Health Service [2024] QCA 241; Chen v Gold Coast Hospital and Health Service [2025] ICQ 017. -- 3 of 28 -- 4 [5] On that basis, I am content to grant leave to Dr Chen to make those amendments which the Respondent has not objected to the subject of this interlocutory decision. [6] In Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278, Deputy President Merrell set out the relevant considerations that apply to an application to amend:2 (a) the object is to do justice between the parties according to law;3 (b) having regard to r 6 of the Rules, important considerations are the effect of the delay and costs;4 (c) the point the litigation has reached;5 (d) the nature and importance of the amendment to the applying party;6 (e) whether the amendment is brought in good faith;7 and (f) the explanation given by the party seeking the amendment weighed against the effects of any delay and the objectives of the Rules.8 [7] Rule 6 of the Rules states: The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense. [8] The Respondent says that those principles set out above presuppose that the relevant amendments have some merit.9 [9] In its written submissions, and at hearing, the Respondent has grouped the amendments it objects to into categories. Those categories have been adopted by Dr Chen in his submissions. It is convenient for me to adopt those categories here: • The 2018 dismissal; • That the 2020 'disciplinary process' was adverse action; • The allegations against Barrister Y; • Adverse action post-dating termination; and 2 ASMOFQ v Queensland Health [2021] QIRC 278, [25]. 3 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ('Aon'), [30] (French CJ). 4 Ibid [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 5 Ibid. 6 Ibid. 7 Aon [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 8 Ibid. 9 Respondent's submissions filed in the Industrial Registry on 4 February 2026, [9]. I note that the Respondent refers to s 531(3) of the Industrial Relations Act 2016 (Qld). -- 4 of 28 -- 5 • Allegations of sham contracting and related matters. [10] The submissions focus on the further amendments to Dr Chen's Statement of Facts and Contentions, however, findings I make on those objections will have a bearing on amendments to the application. At the conclusion of these reasons for decision, I will identify the amended parts of both documents which are to be struck out. The alleged 2018 dismissal [11] The relevant amendments to Dr Chen's Statement of Facts and Contentions the Respondent objects to are [6A] and related [31AA(a)] which state:10 6A. On 21 February 2018, the Respondent did not follow due processes such as described in GCHHS Procedure Document PRO1984 and instead dismissed the Applicant when the Applicant refused to sign a temporary fixed term contract. … 31AA. In regards paragraph 31 of the RASoFC, the Appellant says further that adverse action, within the meaning of section 282 of the IR Act, was against the Applicant: a. when the Applicant was dismissed — by reasons of factual particulars at paragraph 6A above when on 21 February 2018, when the Respondent did not follow due processes such as described in GCHHS Procedure Document PRO1984 and when the Respondent reiterated dismissal as the Applicant had refused to sign a temporary fixed term contract on that day. … Respondent's submissions [12] The Respondent says that [6A] contends for the first time in the extensive history of proceedings, that Dr Chen's employment was terminated on 21 February 2018. [13] The Respondent says that apart from being inconsistent with paragraphs 2, 3 and 5 of his Statement of Facts and Contentions as to Dr Chen's alleged continuous period of employment with the Respondent, leave to amend should be refused for two reasons. [14] First, the Respondent says that no relevant protected attribute or workplace right is alleged to have motivated Dr Chen's earlier dismissal. The Respondent says that the protection against adverse action is 'not at large' and that an employee must allege the workplace right or protected attribute that they say motivated the adverse action.11 The Respondent says that properly alleging the workplace right or protected attribute said to have motivated the action is a fundamental element which must be clearly articulated to 10 Where sections of Dr Chen's DAYFASC are excerpted in this decision, underlined portions relate to amended material not included in the most recent iteration of Dr Chen's Statement of Facts and Contentions. Likewise, portions that have been struck through refer to sections that Dr Chen seeks to remove should I grant leave for him to amend his Statement of Facts and Contentions. 11 Respondent's submissions (n 9) [13]. -- 5 of 28 -- 6 allow the Respondent procedural fairness.12 The Respondent says that this is especially the case where civil penalties are sought.13 The Respondent also says that a clear pleading of the workplace right that was exercised is a precondition for the reverse onus. [15] The Respondent says that to the extent that Dr Chen alleges that his decision not to sign a fixed term temporary contract was the exercise of a workplace right, that contention does not grapple with the meaning of that term pursuant to s 284 of the IR Act. [16] The Respondent's second reason is that the proposed amendments Dr Chen seeks to make are out of time. In the circumstances, the Respondent says that the Commission cannot grant the proposed amendments. In the alternative, the Respondent says that if the Commission does have discretion to permit the amendments, it should not exercise it. [17] The Respondent also notes that s 310(1) of the IR Act provides that an application relating to an alleged dismissal general protections contravention must be made within 21-days of the dismissal taking effect, and s 310(2) provides a discretion to extend time in such cases, provided the Commission is satisfied that there are exceptional circumstances. There is no discretion to extend time for a non-dismissal general protections contravention application. [18] The Respondent says that if I have a discretion to extend time, I should not exercise that discretion on the basis that:14 (a) the proposed amendment concerns a set of alleged facts that have no real connection to the factual matters already raised in the proceeding; (b) no satisfactory explanation has been given for the extraordinarily late proposed amendments, much less any exceptional circumstances shown to warrant leave; (c) there is no allegation (much less evidence) that any action was taken by Dr Chen to challenge his purported 2018 dismissal; (d) an obvious prejudice will accrue to GCHHS in seeking to engage and defend alleged conduct that occurred eight years ago, noting of course that the motivations of the relevant decision maker/s would be critical to discharging the reverse onus (were it ultimately engaged). Dr Chen's submissions [19] On the matter of his amendment to include a dismissal in 2018, Dr Chen submits that he has consistently made submissions as to unfair dismissal adverse action on 21 February 2018 since his submissions in PSA/2019/157 filed on 11 September 2019. 12 Ibid citing Byrne v State of Queensland (Queensland Health) [2022] QIRC 13, [13]–[15]. 13 Ibid citing Sabapathy v Jetstar Airways (2021) 283 FCR 348, [42]. 14 Ibid [17]. -- 6 of 28 -- 7 Dr Chen says that he made 'precisely the same allegation' in GP/2020/27 filings on 23 December 2020.15 [20] I note that in that original application, it was said at [14]:16 In that meeting, I was requested to sign a temporary contract on 21 February 2018 by Dr Nick Buckmaster, Clinical Director. After I refused to sign the temporary contract, my roster was changed and all shifts reassigned to a locum that same day. I was later reinstated to the roster after my representative at AMAQ raised the threat of a general protections claim. [21] Dr Chen says that his submissions (I take that to mean amendments) are at the heart of the matter and merits of the case. To this end, Dr Chen submits that the heart of the matter is the repeated unlawful conduct on the part of the Respondent (pursuant to s 282(1)(a)-(d) of the IR Act). Dr Chen submits that the Respondent acted materially for the operative reason that Dr Chen filed applications for permanency since 18 February 2018 and 'sought the right to the benefit…of an industrial law, instrument' and that the Respondent knew, at all times, the factual circumstances that there was a continuing need for someone to be employed in Dr Chen's role or a role substantially the same, that there were genuine ongoing requirements, that he was suitable to perform the role and that there were no adverse 'merit' issues.17 [22] Dr Chen says he has argued consistently that the dismissal on 21 February 2018 was particularised as proscribed adverse action. Dr Chen says that this conduct is evidence of a continued pattern of behaviour adverse to his interests.18 [23] Dr Chen says there are demonstrable facts that the Respondent knowingly unlawfully acted breaches of local policy and procedure, Government policy, legislation and directives aimed to maximise security of employment in the public service.19 [24] With regard to the pattern of adverse action starting on 21 February 2018, Dr Chen says he acknowledges that the remedy of reinstatement was provided on 7 March 2018, however, he says that the Respondent has not observed his basic employment rights.20 Consideration [25] Dr Chen's amended 6A and associated 31AA(a) seek to add an action for adverse action dismissal to his application. To the extent that those amendments seek to do so, they are significantly out of time given that the time limitation for an adverse action dismissal application is 21-days. 15 Dr Chen's submissions filed in the Industrial Registry on 16 February 2026 [3]. 16 Affidavit of Dr Victor Chen filed in the Industrial Registry on 23 December 2020. 17 Dr Chen's submissions (n 15) [3]. 18 Ibid. 19 Ibid [3](d). 20 Ibid [3](e). -- 7 of 28 -- 8 [26] I understand that the affidavit accompanying Dr Chen's originating application mentions his refusal to sign the temporary contract and what he perceives to be retributive roster changes, however, it does not refer to a dismissal or include a cause of action pursuant to s 282 of the IR Act. I am of the view that that reference is not and has not at any time during the proceedings been considered to be an allegation of an adverse action dismissal. In the circumstances, I disagree with Dr Chen that the amendments he seeks to make at 6A and 31AA(a) simply represent his consistently held position. [27] In those circumstances, as they relate to adverse action dismissal and there is a statutory time period for such applications, I will turn to consider whether I should extend time for those amendments to be made. [28] Considering the principles to be taken into account when considering whether to extend time,21 I note that: • Dr Chen has not provided any cogent explanation for the delay of some eight-years in alleging an adverse action dismissal said to have occurred in February 2018. • There is nothing before me to suggest that Dr Chen sought to challenge a dismissal at the time. Rather, it seems his representative questioned the roster changes, and that he was reinstated to the roster soon thereafter. • I understand that Dr Chen alleges that he was seeking permanent conversion at the time of his alleged unfair dismissal in 2021 and the alleged adverse action the subject of the substantive applications. Dr Chen's capacity to pursue those matters is not impacted if he is unable to pursue an adverse action dismissal he says occurred in February 2018. • It is unclear what workplace right Dr Chen relies upon in arguing that adverse action dismissal was taken against him in 2018. • I accept the Respondent's submission that it would suffer an obvious prejudice in being required to defend conduct that occurred eight years ago, particularly in circumstances where if Dr Chen were able to establish a cause of action, it may be required to lead evidence as to the decision maker/s motivations in order to discharge the reverse onus. • I am unable to identify any circumstances which would warrant the granting an exception to the statutory 21-day timeframe for lodging such an application. 21 For example, Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339 [31] citing Rich v Chubb Protective Services (2001) 167 QGIG 159, 160. -- 8 of 28 -- 9 [29] The above matters also militate against granting the general application to amend. Additionally, in their current form, those amendments do not satisfactorily particularise a cause of action. Should I allow the amendments sought by Dr Chen, I anticipate that there would be further delay while the Respondents would likely seek further particulars to enable them to respond to this new allegation. [30] For the preceding reasons, paragraphs [6A] and [31AA(a)] of Dr Chen's DAYFASC are struck out. That the 2020 'disciplinary process' was adverse action [31] The next category of proposed amendments the Respondent objects to relate to an allegation that the 2020 disciplinary process was adverse action. This category extends paragraph [15], and adds [15AB] and [31AA(b)] of the DAYFASC. These paragraphs are extracted here: 15. On 21 April 2020, the Respondent informed the Applicant that it was commencing a disciplinary process against him in relation to the incident pleaded at paragraph 13, and that it would not reconsider his application for conversion until the disciplinary process had been finalised. This disciplinary process was sham and breached natural justice due process where the Respondent did not keep the Applicant informed of any ongoing disciplinary or investigation processes after 14 February 2020 — instead the Respondent rostered the Applicant for multiple extra high risk and acuity duties after hours and weekends — breached natural justice due process where the Respondent's HR Senior Director wrote to the QIRC via email on 9 April 2020 descibing (sic) process to defeat the Applicant's right to tenure by enacting a disciplinary process — whilst not including the Applicant in this correspondence to the QIRC. Had the Applicant been aware on 9 April 2020 of this Respondent correspondence to the QIRC, the Applicant would have had cause and would filed a General Protections claim at that time. … 15AB. The Applicant thus says that at 23 April 2020 any disciplinary process was sham and was Industrial Relations Act 2016 (Qld) proscribed adverse action owing to facts of serious breaches of natural justice due process by the Respondent. … b. when the Applicant underwent a disciplinary process not undertaken in good faith — by reasons of factual particulars at 30AA — that the Respondent's disciplinary process was factually objectively doomed to fail with multiple serious material breaches of natural justice due process — that would have been objectively manifest to the Respondent on 9 April 2020 — when failure to obtain further witness statements when the QIRC identified a fresh show process was required to make any relevant factual findings (paragraph 60 PSA/2020/224 handed down on 23 July 2021). … -- 9 of 28 -- 10 Respondent's submissions [32] The Respondent submits that previous iterations of Dr Chen's Statements of Facts and Contentions have always included reference to an incident involving himself and another staff member, who complained about his conduct in January 2020. The Respondent says that Dr Chen has also criticised, in general terms, the disciplinary process which commenced in April 2020 which followed an investigation into this incident. The Respondent notes that Dr Chen brought a public service appeal in respect of the incident, with mixed success, and that he did not appeal the outcome.22 [33] The Respondent says that it has always relied upon the disciplinary process, and the adverse findings made against Dr Chen as part of it, to partly explain why Dr Chen's application for casual conversion was not accepted. [34] The Respondent says however, that Dr Chen's amended paragraphs the subject of this category allege for the first time in the history of the proceedings that the disciplinary process was a sham and, further, that this was proscribed adverse action. [35] The Respondent submits that those amendments should be refused as Dr Chen has not explained why he has waited almost six-years to pursue this part of his claim; and that allowing it will necessitate the calling of additional evidence, given that Mr Grant Brown is not the only person within the GCHHS with responsibility for or involvement in the disciplinary process.23 Dr Chen's submissions [36] Dr Chen says that the position of the Respondent that one of the reasons it refused Dr Chen's application for casual conversion was the disciplinary findings only arose on 7 November 2025, and that this is a substantive change when reference is made to its previous employer response and its Statement of Facts and Contentions. Dr Chen says that previously, the reason given for the alleged adverse actions was operational requirements.24 [37] Dr Chen says that prior to 7 November 2025, the Respondent made no reference to its consideration of the impact of the disciplinary process on decision-making, and relied upon operational requirements, budgetary restrictions, and the need for alternative SMOs with different qualifications. [38] Dr Chen says that he seeks to amend his application in light of the Respondent's 'altered position' in its amended Statement of Facts and Contentions filed in the Industrial Registry on 7 November 2025 that disciplinary findings were part of the reason the 22 Respondent's submissions (n 9) [18]. 23 Ibid [19(b)]. 24 Dr Chen's submissions (n 15) [4]. -- 10 of 28 -- 11 alleged adverse actions were taken. Dr Chen says that he now particularises that the disciplinary action and disciplinary contentions were a sham and were enacted unlawfully by the Respondent because Dr Chen had sought a right to convert to permanent employment. [39] Dr Chen says that these amendments are within the stipulated 6-year time limit.25 [40] Dr Chen says that the current process would be a 'pointless nullity' and fail to have regard to the substantial merits of the case if the Respondent's claims are admitted by the Commission unchallenged but the Commission disallows the Applicant to file his amendments.26 [41] Dr Chen says that he already suffered breaches of natural justice, due process and being subject to 'wastage of time' and prejudice when Mr Grant Brown wrote to Industrial Commissioner Dwyer on 9 April 2020 and did not copy that correspondence to Dr Chen.27 [42] Dr Chen says that had he been aware of the contents of that correspondence and had the Respondent revealed their true position as to discipline motivating adverse action when they filed their Statement of Facts and Contentions on 17 March 2022, he would have 'rightfully and reasonably' filed the relevant general protections claim from 9 April 2020 onwards and also after 17 March 2022. Consideration [43] I have reviewed the Respondent's Statement of Facts and Contentions filed in 2022. That Statement of Facts and Contentions states that the Respondent assessed that Dr Chen's conversion to permanent employment would not be appropriate in circumstances where the disciplinary process relating to the disciplinary decision appeal remained on foot. [44] Dr Chen is not correct to say that the Respondent has changed its position in this regard. It is clear that one aspect of its reasoning for taking the alleged adverse action was the disciplinary matter. I am of the view that one of the motivating factors for Dr Chen seeking to make this amendment now is that he has had the benefit of the Respondent's Further Amended Statement of Facts and Contentions and now seeks to address what he has assessed as deficiencies in his own application and his Statement of Facts and Contentions. 25 Ibid [8]. 26 Ibid [9]. 27 Ibid [10]. -- 11 of 28 -- 12 [45] Dr Chen was clearly aware of the disciplinary matter at all relevant times, as he was the subject of it. Dr Chen appealed the disciplinary decision and while he was partially successful, there remains a disciplinary finding against him. Dr Chen's reliance on the decision of Industrial Commissioner Knight to support an argument that the disciplinary process was doomed to fail is misguided and, in fact, a misrepresentation of that decision's findings. [46] While Industrial Commissioner Knight upheld Dr Chen's appeal in part, she confirmed the decision-maker's finding that the second Allegation against Dr Chen had been substantiated. Relevantly, the allegation that was found to have been substantiated was that on 31 January 2020 at around 10.00am, Dr Chen inappropriately applied force to a Registered Nurse, without her consent during a procedure in the Cardiac Catheter Suite. Industrial Commissioner Knight set aside the original decision that this allegation gave rise to grounds for discipline pursuant to s 187(1)(b) of the Public Service Act 2008 (Qld) in that it was misconduct. Industrial Commissioner Knight substituted a decision that grounds for discipline arose pursuant to s 187(1)(f)(ii) in that Dr Chen had failed to comply with the Code of Conduct. [47] The fresh show cause process Industrial Commissioner Knight ordered was only with regard to the disciplinary penalty to be applied to Dr Chen. It was not with regard to undertaking further investigations regarding the allegations. [48] I accept that until it was disclosed to him, Dr Chen was not aware of the correspondence sent to Industrial Commissioner Dwyer on 9 April 2020 which explained that a review of his casual employment ordered by the Commissioner could not be completed while his disciplinary matter remained unresolved. However, on 21 April 2020, Dr Chen was directly informed that the reassessment of his application for conversion to permanent employment would be held over until the disciplinary process had been concluded.28 [49] I do not accept Dr Chen's submission that had he known about the letter Mr Grant Brown sent to Industrial Commissioner Dwyer, he would have lodged an adverse action complaint at that time. Dr Chen was informed of the same information regarding the decision to hold over consideration of his application for conversion to permanent in the correspondence later in April 2020 and did not seek to make a complaint of adverse action at that time. [50] Dr Chen had also complained to Industrial Commissioner Knight that the disciplinary penalty decision resulted in a decision to place his application for conversion from casual to permanent on hold, pending the outcome of the appeal before her. He was obviously aware of the interaction between the disciplinary process and the review of his request for conversion back at a time prior to his dismissal. 28 Exhibit 4. -- 12 of 28 -- 13 [51] In any case, since the filing of the Respondent's Statement of Facts and Contentions on 17 March 2022, Dr Chen has been on notice that the disciplinary finding formed part of the reasoning for not granting his application for conversion. [52] In his application and his Statement of Facts and Contentions, Dr Chen was required to set out the elements of his cause of action. Dr Chen identified the adverse actions he said were taken against him because he exercised a workplace right. In doing so, Dr Chen did not suggest that the disciplinary process was a sham and instigated as a form of adverse action against him. [53] I am not persuaded by Dr Chen's explanation for not pleading that the disciplinary process was an adverse action was because he was not aware of the Respondent's case. This is not a situation where the Respondent has suddenly and in the final stages before hearing changed their case. All the Further Amended Statement of Facts and Contentions filed in November 2025 did was further particularise a matter that had already been established in the Respondent's 2022 Statement of Facts and Contentions. [54] I am further concerned that seeking to amend his application and statement of facts and contentions at this late stage in proceedings will give rise to further delays as it may necessitate further discovery and additional witnesses along similar lines to the delays outlined at paragraph [29] of these reasons. [55] Further to this, I am concerned as to the merit of Dr Chen's allegation that the disciplinary process constituted proscribed adverse action for the purposes of the IR Act. At the interlocutory hearing, Dr Chen appeared to allege that the disciplinary process was instigated as a result of Industrial Commissioner Dwyer's decision released on 12 March 2020, that Dr Chen's application for conversion to permanent be reconsidered. [56] The workplace conduct subject of the disciplinary process occurred on 31 January 2020. It seems to me that upon receiving the complaint about the interaction between Dr Chen and the employee, the Respondent took steps to investigate the matter. The early stages of the process and investigation were well underway by the time of Industrial Commissioner Dwyer released his decision. The Show Cause notice refers to information being gathered in early February 2020. I find it unlikely that Dr Chen would be successful in demonstrating that the disciplinary process was a 'sham' or that it was commenced at a time after and in response to Industrial Commissioner Dwyer's decision. [57] In circumstances where Dr Chen has known the elements of the Respondent's case in reply to his application since at least March 2022, I am unwilling to allow the amendments as: I find they have limited prospects of success; Dr Chen has not provided an adequate explanation for the long delay in pleading this cause of action; and to allow the amendment will likely cause delay in hearing the substantive matters and incur further costs. -- 13 of 28 -- 14 [58] The amendment at the end of paragraph [15] of the DAYFASC; [15AB] and [31AA(b)] are struck out. The allegations against Barrister Y [59] This category of Dr Chen's DAYFASC which the Respondent objects to relates to paragraph [15AC] which reads: 15AC. The Applicant also further says reasonable apprehension of breaches of natural justice due process that the disciplinary process being sham has heightened since July 2021 when the Applicant discovered that a barrister [Barrister Y] had already been engaged by the Respondent's executive and HR Senior Director Ms Hannah Bloch and Mr Grant Brown — but [Barrister Y] changed sides during August 2020 to accept a brief to advise the Applicant without providing disclosure of this prior conflict of interest. [Barrister Y's] conduct was to cause the Applicant to lose coverage from his indemnity insurer for legal costs to appeal the Respondent's disciplinary action to the QIRC around September 2020 — [Barrister Y] has latterly refused to respond and provide any explanation for these circumstances whereby there are now processes undertaken by the Queensland Crime and Corruption Commission and Legal Services Commission to address these probity concerns. The Applicant has also noted to the QIRC and will note by filing this YFAASoFC that the Public Interest Disclosure Act (Qld) 2010 has provision for Commissioners to make referrals such as to the Crime and Corruption Commission who has the power to hold hearings where no privilege against self- incrimination. Respondent's submissions [60] The Respondent submits that this proposed amendment persists in making baseless allegations against Dr Chen's former barrister, Barrister Y. The Respondent says that those amendments ought to be rejected for two straightforward reasons:29 (a) They are not directly related to any cause of action against GCHHS; and (b) The same allegations have been raised with, considered and rejected by the Court of Appeal.30 Dr Chen's continued pursuit of those matters is an abuse of process. Dr Chen's submissions [61] Dr Chen says that the submissions above are prejudicial and should be disregarded where he says there are ongoing and on foot processes before the Queensland Crime and Corruption Commission, Legal Services Commission and the Full Bench of the Industrial Court of Queensland. [62] Dr Chen believes that Barrister Y has now made submissions to the Commission admitting facts that there was an obvious conflict of interest. Dr Chen says that Barrister Y does not describe that any form of consent was obtained from the Applicant or 29 Respondent's submissions (n 9) [21]. 30 The Respondent cites Chen v Gold Coast Hospital and Health Service [2024] QCA 241, [24]-[25], [33]. -- 14 of 28 -- 15 Ms Bloch or Mr Brown to have been retained by both himself and the Respondent around August 2020. Dr Chen says Barrister Y does not explain in their submissions difficulties their conduct has created given they objectively benefited Ms Bloch and Mr Brown where they have fundamental duties as an officer of the court. Dr Chen says Barrister Y accepted his brief whilst knowing that they were already fiduciarily and contractually bound not being able to act against Ms Bloch and Mr Brown around August 2020.31 Consideration [63] It is unclear to me why Dr Chen has doggedly pursued a cause of action pertaining to Barrister Y in circumstances where Barrister Y has no relevance to the cause of action Dr Chen alleges against the Respondent. [64] There is no evidence whatsoever that Barrister Y has at any time acted for the Respondent with regard to Dr Chen's employment matters. There is no evidence whatsoever of wrongdoing on the part of Barrister Y or of Barrister Y sharing confidential information regarding Dr Chen with the Respondent. [65] That Barrister Y, at one point, provided legal advice to Dr Chen with respect to his disciplinary matter, does not preclude them from engagement with the Respondent in different and unrelated matters. [66] It appears that Dr Chen is pursuing Barrister Y through a number of complaints or reports to various bodies. Those matters are not relevant to his unfair dismissal and adverse action matters before the Commission. [67] That Dr Chen did not receive legal funding from his insurer for his public service disciplinary matter is not relevant to the matters before me for determination which are, relevantly, his unfair dismissal or adverse action dismissal matters. In any case, there is no legal representation allowed in public sector appeals. [68] I addressed Dr Chen's concerns and allegations with regard to Barrister Y in a previous interlocutory matter and noted that he was pursuing his allegations against Barrister Y through other avenues. That decision was appealed.32 In that appeal decision, Deputy President Hartigan noted that Dr Chen had produced no evidence to support the serious allegations made against Barrister Y.33 Dr Chen appealed Her Honour's decision to the Court of Appeal.34 The Court of Appeal noted that Dr Chen had produced no evidence whatsoever to support his assertion that Barrister Y had provided confidential 31 Ibid [14]. 32 See Chen v Gold Coast Hospital and Health Service [2024] ICQ 1. 33 Chen v Gold Coast Hospital and Health Service [2024] ICQ 1 [21]. 34 Chen v Gold Coast Hospital and Health Service [2024] QCA 241. -- 15 of 28 -- 16 information to the Respondent's solicitors. The Court of Appeal noted that Dr Chen had made a serious allegation in the absence of relevant evidence.35 [69] Dr Chen has now repeatedly attempted to use these proceedings to pursue his grievances against Barrister Y. At no point has Dr Chen produced any evidence to support his serious allegations. [70] The amendment is not relevant to Dr Chen's application, particularly in light of the allegation that the discipline process was a sham is being struck out. It is not a matter that needs to be considered by the Commission in order to determine his matters; and represents an abuse of process as it seeks to continue prosecuting matters which have been dealt with in the Industrial Court of Queensland and the Queensland Court of Appeal. Paragraph [15AC] is struck out. Adverse action post-dating termination [71] The next category of Dr Chen's amendments objected to by the Respondent relate to paragraphs [15E], [15F], [15G], [30B] and [31B] and relate to alleged adverse action which post-dates Dr Chen's termination. These paragraphs are excerpted here: 15E. Further and/or alternatively, the role Dr Vo was employed in was the same, or substantially the same, as the role being performed by the Applicant when Dr Vo continued employment after November 2021. 15F. Further and/or alternatively, the employment of Dr Vo as SMO after November 2021 reduced the continuing need for the Applicant's role or a role that was substantially the same within the meaning of s. 149A of the Public Service Act 2008 (Qld). 15G. Further and/or alternatively, the employment of Drs Simon Kang, Avadhesh Saraswat, Max Maffey, Naim Mridha as SMOs from 2023 reduced the continuing need for the Applicant's role or a role that was substantially the same within the meaning of s. 149A of the Public Service Act 2008 (Qld) and under s. 317 of the Public Sector Act 2022 (Qld) the Applicant "asked a chief executive for a review of the person's employment status under the repealed Act, section 149; and the review had not been decided." … 30B. Further and/or alternatively, by reason of the matters pleaded at paragraphs 15A, 15B 15E and 15F and 15G, the Respondent's conduct in employing Drs Vo, Kang, Saraswat, Maffey, Mridha amounted to the Respondent taking adverse action, because it constituted an adverse deterioration of an advantage enjoyed by the Applicant being: a. the consideration of his application for casual conversion in circumstances where there was an ongoing need for his role or a role that was substantially the same; and/or b. further and/or alternatively, the opportunity to employed in be his role or substantially the same role, thereby altering the Applicant's position to his prejudice. 35 Chen v Gold Coast Hospital and Health Service [2024] QCA 241 [33]. -- 16 of 28 -- 17 c. the Respondent's conduct was "something beyond unreasonable" when Drs Vo, Kang, Saraswat were hired in 2023 notwithstanding Hearing submissions on 15 March 2023 (para 34 of the decision, also at the Hearing T 1-54, ll 18-21) that "… putting in Dr Chen – or any other interventional cardiologists that are not there already – will detract from other services that need to be prioritised because of the waitlists that apply to those services…" — yet advertising for interventional cardiologists was released on 23 June 2023 and Drs Vo, Kang, Saraswat were hired who do not treat any waiting list patients beyond any credentials the Applicant holds. 31B. A substantial or operative reason for the taking of the adverse action pleaded at paragraph 30B above was that: (a) the Applicant exercised the workplace right pleaded at paragraphs 6 to 9; and at paragraph 27; and/or (b) further and/or alternatively, the Applicant exercised the workplace right pleaded at paragraph 27A. Particulars The Respondent's reasons for acting can be inferred from the matters pleaded at paragraphs 4 to 27 above. The Applicant also relies upon sections 305 and 306 of the IR Act to establish the Respondent's reasons for acting. Respondent's submissions [72] The Respondent notes that Dr Chen asserts the re-engagement of Dr Vo in late 2021 and the engagement of Drs Kang, Saraswat, Maffev and Mrdiha in 2023 were themselves counts of unlawful adverse actions.36 By way of context, the Respondent says that [31B] incorporates a pre-existing assertion that Dr Vo's engagement in 2020 during Dr Chen's extant employment was unlawful adverse action. The Respondent raises no objection with respect to that aspect of Dr Chen's pleadings. However, the Respondent says that there are difficulties with Dr Chen's submissions regarding Dr Vo's re-engagement and the engagement of the other doctors in 2023. [73] The Respondent says that each of those engagements post-dated Dr Chen's termination of employment. The Respondent notes that s 282(1) of the IR Act prohibits adverse action taken by an employer against an employee. While s 282(2) extends some protections to prospective employees, these are narrowly confined. [74] At hearing, the Respondent directed me to a decision of the Federal Court which considered the meaning of prospective employee.37 In that matter, it was determined that an individual was a prospective employee as the employer had advertised for a position, the individual had had submitted an application for the position and his application was considered. 36 Respondent's submissions (n 9) [22]. 37 Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893. -- 17 of 28 -- 18 [75] The Respondent says that Dr Chen's allegation that the engagements of the named doctors following his dismissal constituted an adverse deterioration of advantages he enjoyed as an employee does not make sense.38 [76] On this point, the Respondent also says that the employment of the other doctors has not been the subject of evidence filed by GCHHS.39 The Respondent says that permitting the proposed amendments would necessarily expand the scope of documents that might be discoverable in the proceeding and will require GCHHS to lead additional evidence, thereby risking the adjournment of the current hearing dates. [77] The Respondent says that it is in the interests of all parties and in the interests of justice more broadly, that Dr Chen's already extraordinarily delayed proceedings are heard as soon as reasonably practicable.40 Dr Chen's submissions [78] In his submissions, Dr Chen appears to claim that he is a prospective employee and that ss 282(2) and 286 of the IR Act applies to him. [79] Dr Chen says that his longstanding position has been that Respondent took adverse action when it dismissed him and then established the same or substantially the same roles filled by Drs Jawad Mazar, Chris Broyd, Tony Vo, Simon Kang, Avadhesh Saraswat, Max Maffey, Nairn Mrdihya (and others).41 [80] Dr Chen goes on to make submissions about employment decisions that the GCHHS was making in 2023. Consideration [81] The first thing to note is that action set out in s 282(1) of the IR Act taken after Dr Chen's dismissal cannot be adverse actions taken against him. At the relevant time, Dr Chen was no longer 'an employee'. [82] Dr Chen is not a prospective employee for the purposes of ch 8, div 3 of the IR Act. He was previously an employee, he had been dismissed and the causes of action he has commenced are an unfair dismissal application and a general protections dismissal application. As a matter of common sense, a dismissed employee seeking reinstatement cannot simply revert to being a prospective employee with the benefit of the protections set out in s 282(2) of the IR Act. If Dr Chen's submissions with respect to his status as a prospective employee were followed, it would be the case that an employer would take 38 Respondent's submissions (n 9) [24]. 39 Ibid [25]. 40 Ibid. 41 Dr Chen's submissions (n 15) [17]. -- 18 of 28 -- 19 adverse action against a person they had dismissed if the employer merely refused to reinstate them. There may be a circumstance where a former employee applies to return to work with an employer and that they may be considered a 'prospective employee', however I cannot accept that a former employee who was dismissed and is currently litigating an unfair dismissal or general protections application is a prospective employee. [83] In any case, even if Dr Chen were found to be a 'prospective employee', s 282(2)(a) of the IR Act is likely not enlivened in circumstances where there is no evidence that Dr Chen applied for work and was refused employment (noting that Dr Chen did seek interlocutory reinstatement which the Respondent opposed and that Dr Chen has repeatedly indicated his availability to return to work). Further, s 282(2)(b) is likely not enlivened as there is no evidence that Dr Chen was offered employment and therefore, such an offer could not have discriminated against him in the terms or conditions offered to him. [84] Even if Dr Chen were a prospective employee after his dismissal, the adverse actions set out in s 282(1) of the IR Act would not apply to him. This means that even if the employment of those other employees injured Dr Chen or prejudicially altered his position, he is not entitled to seek protection from the adverse actions that may be taken against 'an employee' pursuant to s 282(1). [85] I consider the only alleged actions taken against Dr Chen that can properly form a part of these proceedings are those matters which occurred prior to and upon his termination. Accordingly, as the Respondent notes, it would have been open to Dr Chen to allege that Dr Vo's employment prior to Dr Chen's dismissal was an adverse action. [86] Dr Chen has a Public Sector appeal regarding his application for conversion to permanency which will only be re-enlivened if he is reinstated as a casual employee in the event he is successful in proceedings before me and I order his reinstatement. I do not find this makes him a 'prospective employee' for the purposes of s 282(2) of the IR Act. [87] I am of the view that there is limited merit in Dr Chen's allegation that adverse action was taken against him post-dating his termination. For that reason, I will not allow the amendments regarding the re-engagement of Dr Vo in late 2021 and the engagement of the other doctors in 2023. [88] Even if I were to consider there was some merit in Dr Chen's amendments with respect to this category, I am concerned that if the amendments are allowed and act to expand his claim, there will be a need for further discovery, for evidence to be led regarding the other appointments and further costs will be incurred. Such an amendment would also likely necessitate vacating the current hearing dates, and for those reasons I would not allow the amendments. -- 19 of 28 -- 20 [89] For the above reasons, the paragraphs [15E], [15F], [15G], [30B] and [31B] of Dr Chen's DAYFASC are struck out.42 Allegations of sham contracting and related matters [90] The paragraphs relevant to the final category which the Respondent objects to are: 30AA. By reason of the matters pleaded by the RASoFC at paragraph 3(a), the Applicant pleads that the Respondent has contravened ss. 302 to 304 of the Industrial Relations Act 2016 (Qld) (the IR Act) and has contravened the Applicant's fundamental workplace rights and Award conditions to maintain normal work and the status quo during a dispute (at cl 7.1 (b) Medical Officers (Queensland Health) Award – State 2015). 31AA … (c) by reason of particulars that the Respondent has discriminated between the employee and other employees of the employer in insisting the Applicant is a VMO and an "non-industrial instrument employee" as has been reiterated in the RASoFC paragraph 30A(b). … 31BA A substantial or operative reason for the taking of the proscribed action of sham contracting pleaded at paragraph 30AA above was that; (a) the Applicant exercised the workplace right pleaded at paragraphs 6 to 9; and at paragraph 27; and/or (b) further and/or alternatively, the Applicant exercised the workplace right pleaded at paragraph 27A. Particulars The Respondent has the onus to prove that the Applicant contractually agreed to be a 'non-industrial instrument employee" and has to overcome uncontroversial legal principal in Australia that parties cannot contract outside of Award conditions. Respondent's submissions [91] The Respondent submits that Dr Chen's proposed amendments misunderstand the elements of the sham contracting provisions. The Respondent does not dispute that at all times, Dr Chen was a casual employee of GCHHS.43 The Respondent says that there is some dispute about Dr Chen's starting date but that it is accepted that his employment ended on 21 May 2021. [92] The Respondent submits that there is a peripheral dispute as to whether Dr Chen was employed as an SMO or VMO, and what might flow from that, however that goes to the character of his employment. The Respondent says that ss 302 and 304 of the IR Act are directed to the conduct of an employer which misrepresents an employment relationship 42 Noting that references in [31B] to Dr Vo's employment before Dr Chen's dismissal have not been struck out. 43 Respondent's submissions (n 9) [27]. -- 20 of 28 -- 21 as being that of principal and independent contractor, dismisses an employee to engage them as an independent contractor or makes false statements to induce an employee to become an independent contractor.44 The Respondent says that Dr Chen's allegations with respect to the sham contracting provisions have no reasonable prospect of success. [93] The Respondent turns to cl 7.1(b) of the award at the relevant time, the Medical Officers (Queensland Health) Award – State 2015, which mandates that workplace rights and Award conditions are to maintain the status quo during an industrial dispute. The Respondent submits that it is unclear what dispute relevant to the award Dr Chen had raised.45 Dr Chen's matters arise from the IR Act rather than a provision of the Award. [94] At paragraph [31AA(c)] of Dr Chen's DAYFASC, by reason of particulars, Dr Chen now seeks to plead that the Respondent has discriminated between the employee and other employees of the GCHHS in insisting that Dr Chen is a VMO and a 'non-industrial instrument employee' as has been reiterated at his paragraph [30A(b)]. [95] The Respondent says that the 'discrimination' limb of s 282(1)(d) of the IR Act only relates to conduct that occurred during an extant employment relationship. The Respondent says that if Dr Chen is referring to earlier statements by GCHHS during his employment to the effect that he was a VMO (or related conduct in that regard), he has not pleaded that and no relevant workplace right or other protected attribute is alleged as motivating that particular conduct.46 [96] In the event Dr Chen is referring to earlier conduct, the Respondent submits that the allegation that 'sham contracting' was adverse action is misconceived given the meaning of the term in ss 302–304 of the IR Act and that the allegation does not grapple with the definition of 'adverse action' in s 282. Dr Chen's submissions [97] Dr Chen's submissions in reply to the Respondent's objections relate to what he says is a denial of the provisions of the Award and of his basic employment rights as a result of previous statements regarding his engagement as a VMO.47 [98] Neither in his submissions nor at hearing did Dr Chen explain with any precision what 'basic employment rights' he was denied if engaged as a VMO beyond the 'status quo' provision applying in the circumstance of an industrial dispute pursuant to cl 7.1 of the Award, to which he also failed to explain why this provision should pertain to him and the details of any industrial dispute he had raised. 44 Ibid [27]. 45 Ibid [28]. 46 Ibid [29]. 47 Dr Chen's submissions (n 15) [31]. -- 21 of 28 -- 22 [99] Dr Chen seeks to amend his application to include sham contracting matters on the basis that he has been denied basic industrial and award protections which he says were provided to other employees. I am not satisfied that this matter has been sufficiently particularised, despite the opportunity afforded to Dr Chen to do so in his submissions or at the oral hearing of this interlocutory matter. [100] Dr Chen's reasoning for seeking to include these matters at this very late stage in proceedings is that the matters arise from what he has gleaned from the Respondent's Amended Statement of Facts and Contentions. Consideration [101] It appears that as a result of the discovery process and the Respondent's Further Amended Statement of Facts and Contentions, that Dr Chen has identified further grievances about his working conditions and the nature of his employment during the time he was employed. His unfair dismissal application and general protections application are not the appropriate avenue to pursue broader unspecified industrial disputes about his workplace rights. [102] It remains entirely unclear to me which specific 'basic industrial instrument rights' and Award protections Dr Chen believes he has been denied or how he has been 'unlawfully disadvantaged' in his public service employment. The one specific protection Dr Chen refers to is cl 7.1(b) of the Medical Officers Award. There is no evidence that Dr Chen had attempted to access or invoke the dispute provisions of the Award such that the status quo provision would be enacted or applicable. [103] Whether Dr Chen was an SMO or a VMO is a matter for consideration at the hearing of the substantive matter. The example put forward by Dr Chen about discussions he had in 2018 including his engagement as a locum seem, on their face, to be representative of one way in which doctors may be employed. There are references to the currency of VMO Agreements and employment arrangements. None of these matters would appear to have a reasonable prospect of engaging ss 302-204 of the IR Act. [104] Even if Dr Chen were an employee afforded the protection of cl 7.1(b), neither his general protections matter, nor his unfair dismissal matter are addressed by way of the dispute procedure set out in the Award. Clause 7.1(b) has no application to Dr Chen's matters. [105] The Respondent admits that the status and working conditions of VMOs has changed over time and that there has been some confusion, which the Respondent says it has attempted to address in its Amended Statement of Facts and Contentions. [106] With regard to Dr Chen's submissions that he has been discriminated against pursuant to s 282(1)(d) of the IR Act, if this is a reference to the way that doctors are now employed following Dr Chen's termination, that section has no application. To the extent that -- 22 of 28 -- 23 Dr Chen refers to the period of time he was employed, I am unable to identify how Dr Chen says that discrimination occurred or what the complete cause of action is for an adverse action discrimination complaint. If the discrimination arises from his complaints of sham contracting, this has not been made clear and in any case, Dr Chen has not adequately established a cause of action relating to ss 302–304. [107] There are a number of reasons why I will not exercise discretion to allow Dr Chen to include the sham contracting category of amendments. Primarily, Dr Chen has failed to properly particularise this cause of action. Further, Dr Chen was aware of the circumstances of his employment upon making his application and throughout a period when he was legally represented. On this basis, he has had ample time and opportunity to make an application on the basis of ss 302–304 of the IR Act. He has not done so and I do not think it appropriate that he do so this late in the proceedings given the potential for further delay. [108] By virtue of the lack of particularity with which Dr Chen has pled this cause of action, it is also unclear how the allegations regarding sham contracting relate to his substantive complaints of unfair dismissal and adverse action, beyond a view that not having access to the 'status quo' provisions of the Award has disadvantaged him in some nebulous way. In considering the balance of the submissions before me, any action related to ss 302– 304 by Dr Chen has very little prospect of success. This is particularly in circumstances where Dr Chen is concerned that he should have had access to 'status quo' provisions of the Award, however, there is no identifiable reason how this provision would have been enlivened or would provide a benefit to Dr Chen in the circumstances of this case. [109] For the abovenamed reasons, paragraph [30AA] of Dr Chen's DAYFASC is struck out. (I note Dr Chen has included two paragraphs [30AA]. This particular aspect of my reasons refers to the [30AA] addressing sham contracting. [31AA(c)] is also struck out. [31BA] is struck out. To be clear, in the event that references to sham contracting remain after the paragraphs subject of the objection are struck out, those matters will not be heard. The Further Amended Application Respondent's submissions [110] For the reasons it has addressed in its submissions with regard to Dr Chen's DAYFASC, the Respondent says that leave ought be similarly refused in respect of the following proposed amendments to Dr Chen's application:48 (a) draft order 4 in the '[d]etails of decision sought', and the second FAA [5EEE], because they refer to Dr Chen's misconceived references to sham contracting (see paragraphs 26 and 27 above); 48 Respondent's submissions (n 9) [30]. -- 23 of 28 -- 24 (b) FAA [5EE], because it is a duplicate of FAA [5E]; (c) the first FAA [5EEE] because it: (i) deals with Dr Chen's contention that the 2020 disciplinary process was adverse action (see paragraphs 18 and 19 above); and (ii) asserts additional categories of adverse action that are not pleaded as such in the DAYFASC ('not notifying the Applicant of the existence of any disciplinary processes after 14 February 2020; rostering the Applicant heavily for a roster of high risk and acuity duties; also not notifying the Applicant when not copying the Applicant into correspondence from Mr Grant Brown to the Commission dated 9 April 2020'); and (d) the new sentence in FAA [SF] ('then further employed Dr Tony Vo via unadvertised internal expressions of interest during 2021' and FAA [SHH] 14 because they relate to Dr Chen's misconceived post-termination alleged adverse action (see paragraphs 22 to 25 above)). Dr Chen's submissions [111] Dr Chen's submissions on the amendments to the application relating to sham contracting, the disciplinary process, and the 'prospective employee' protections are reflective of his submissions in support of his Further Yet Amended Statement of Facts and Contentions. [112] Dr Chen submits that his amendments must be accepted in toto and filed by the Commission 'lest current processes be a pointless nullity and "fail to have regard to the 'substantial merits' of the case"'.49 [113] Dr Chen says that the amendments are necessary to respond to the 'discovery of new Respondent factual positions' revealed in their Amended Statement of Facts and Contentions filed 7 November 2025. Consideration – Amended Application [114] For the same reasons as I have given above, I will strike out the amendments to Dr Chen's application which the Respondent objects to. [115] The amended additional 'details of decision sought' number 4 is struck out as it seeks a declaration about sham contracting provisions and I have determined those amendments are struck out. [116] Amended paragraph [5EE] is struck out. It is a duplicate of the existing [5E]. [117] The first amended paragraph [5EEE] is struck out. It refers to the struck-out amendments regarding the disciplinary process. 49 Dr Chen's submissions (n 15) [37]. -- 24 of 28 -- 25 [118] The second amended paragraph [5EEE] is struck out. It refers to the struck-out amendments referring to sham contracting. [119] The amended final sentence of [5F] '…then further employed Dr Tony Vo via unadvertised internal expressions of interest during 2021' is struck out. This is because it post-dates Dr Chen's employment and for the reasons given above, it cannot constitute an adverse action taken against him. Likewise, amended paragraph [5HH] is struck out as it post-dates Dr Chen's employment. [120] Paragraph 5I will now be read to the effect that the reference to paragraphs [5F] and [5HH] have been struck out. Conclusion [121] I have had regard to Dr Chen's submissions that it is necessary to accept his amendments in toto to enable him to respond to 'new factual positions' set out in the Respondent's Amended Statement of Facts and Contentions. I accept the Respondent's reply submissions that it has not advanced 'new positions' in its Amended Statement of Facts and Contentions. The Amended Statement of Facts and Contentions appears to clarify and further particularise certain matters following document disclosure and Dr Chen's Amended Statement of Facts and Contentions which was filed on 14 September 2022 after leave was granted to do so. [122] Dr Chen had previously sought and been given leave to file an amended Statement of Facts and Contentions, however, the Respondent had not had the opportunity to file a further response. Leave was granted for the Respondent to file a Further Amended Statement of Facts and Contentions in November 2025. This was because the matter returned to me for case management after several years of appeals. As I have already observed, it appears that having read the Respondent's Further Amended Statement of Facts and Contentions in November 2025 in preparation for the hearing of the matters set down from 29 April 2026, Dr Chen has identified further causes of action he now wishes to pursue. [123] There is no doubt that granting leave for Dr Chen to make the extensive and expansive amendments he seeks will lead to the current hearing dates being vacated. This is because he seeks to add additional causes of action which will necessitate further discovery and additional evidence to be led at the hearing. [124] Dr Chen's general protections matter was filed in 2020. His unfair dismissal matter was filed in 2021. [125] The object of the IR Act is to do justice between the parties according to law. There are serious issues which arise from extensive delays in matters such as this where the -- 25 of 28 -- 26 evidence will largely involve the recollections of individuals about the events and about the actions taken. In a case where the reverse onus is invoked, this leads to prejudice for the employer, not only with regard to the delay in bringing matters contained in the originating application to hearing, but especially with regard to amendments seeking to add matters which occurred up to eight years ago. [126] I have considered the nature and importance of the amendments the Respondent objects to and the impact on Dr Chen if those amendments are not allowed. While it is the case that Dr Chen will be unable to pursue those matters at hearing, he remains able to have his unfair dismissal matter and adverse action matter heard. The Respondent has not objected to amendments which appear to provide further detail or submissions in support of existing causes of action. I am not satisfied that the Respondent's Further Amended Statement of Fact and Contentions contained significant changes to its position on the matters in question such that Dr Chen was required make such expansive changes to his application and Facts and Contentions. [127] The dates for the hearing of the matter in late April and May of 2026 have been set down for some time. By way of case management, I issued extensive directions to enable the best opportunity possible for the hearing to go ahead on those dates to provide certainty to the Applicant, Respondent, witnesses and the Commission. This interlocutory hearing was planned in advance in anticipation of applications to set aside certain attendance notices. Following Dr Chen's unilateral filing of the extensively Yet Further Amended Statement of Facts and Contentions and the Further Amended Application, it was necessary for this hearing to address that matter as well. [128] I appreciate the position taken by the Respondent in not objecting to certain parts of Dr Chen's Yet Further Amended Statement of Facts and Contentions which appeared to be more of the nature of submissions on substantive matters. I understand the Respondent have taken that position with a view to having the best possible chance of this matter being dealt with promptly and maintaining the hearing dates. [129] With regard to the point the litigation has reached, the parties should be in the final stages of preparation for hearing. As has been noted above, allowing the amendments will mean further disclosure and the probability of further affidavit material. Even if evidence may be gathered in time for the listed hearing dates, additional witnesses may lead to the matter being part heard, creating further delay as additional hearing dates are found for later in the year or in 2027. [130] It is unclear to me whether Dr Chen's amendments are brought in good faith. It seems to me that Dr Chen must be aware that allowing his amendments will cause the hearing dates to be lost. Dr Chen purports to be keen to be reinstated, and yet reinstatement is only possible if the matter is heard and decided. With specific reference to the amendment seeking to bring Barrister Y into the proceedings, in circumstances where this matter has been extensively dealt with by various courts and Dr Chen is pursuing the -- 26 of 28 -- 27 matter through other avenues, I do not accept that the amendment is made in good faith. It appears to be an attempt to use these proceedings as an avenue to address an unrelated grievance Dr Chen is determined to maintain, and to that extent is an abuse of process. [131] Finally, I am not of the view that Dr Chen has provided a satisfactory explanation for the extensive and expansive amendments he seeks at this late stage in proceedings. Having noted the Respondent's Amended Statement of Facts and Contentions has not fundamentally changed its position, I do not find that the filing of that document in November 2025 is a reasonable explanation warranting the granting of leave for those amendments to be made. [132] It is time these matters are heard and decided. [133] The objections to the amendments as outlined by the Respondent are granted. [134] Dr Chen is granted leave to file the Further Yet Amended Statement of Facts and Contentions and his Further Amended Application that he sent to the Registry on 1 and 5 December 2025 with the matters listed in these orders struck out. Orders [135] I make the following orders: 1. With regard to the draft amended application dated 1 December 2025: (a) Details of Decision Sought [4] is struck out. (b) [5EE] is struck out. (c) The first [5EEE] is struck out. (d) The second [5EEE] is stuck out. (e) The amended final sentence of [5F] '…then further employed Dr Tony Vo…' is struck out. (f) [5HH] is struck out. (g) Paragraph [51] will be read to reflect that [5F] and [5HH] have been struck out. 2. With regard to the DAYFASC dated 5 December 2025: -- 27 of 28 -- 28 (a) Amendments alleging an adverse action termination on 21 February 2018 are struck out: Amended [6A]; [31AA(a)] (b) Amendments alleging the disciplinary process was an adverse action are struck out: All amended additional sentences in [15] from 'This disciplinary process…'; Amended [15AB]; Amended [31AA(b)]; the second amended [30AA] which discusses the disciplinary process; (c) The amendment relating to Barrister Y (and the disciplinary process) is struck out: Amended [15AC] (d) The amendments relating to the employment of doctors post-dating Dr Chen's termination are struck out: [15E]; [15F]; [15G]; [30B]; [31B] to the extent it relates the employment of individuals after Dr Chen's termination. (e) The amendments relating to sham contracting are struck out: Amended paragraph [30AA] appearing under the heading Sham Contracting on page 11; [31AA(c)]; [31BA]. Any remaining references to sham contracting are not to be read as allowing sham contracting to be a part of the application. (f) Other parts of the document which make reference to the struck out paragraphs are to be read to reflect that those paragraphs do not form part of the document. 3. Dr Chen's DAYFASC and Further Amended Application are accepted for filing on the basis of the orders above. -- 28 of 28 --