Claus v Rockhampton Regional Council [2025] QIRC 88

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Claus v Rockhampton Regional Council [2025] QIRC 088 PARTIES: Claus, Russell Applicant v Rockhampton Regional Council Respondent CASE NO: B/2025/3 PROCEEDING: Application for reinstatement DELIVERED ON: 25 March 2025 MEMBER: Caddie IC HEARD AT: On the papers ORDERS: 1. The application for an extension of time is refused. 2. The application for reinstatement in Matter B/2025/3 is dismissed. CATCHWORDS: INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – APPLICATION FOR EXTENSION OF TIME – application filed beyond statutory time limit – application filed 8 years and 4 months after statutory time limit – Commission’s discretion to extend time – factors informing discretion to extend time – reasons for delay – whether the Commission should exercise discretion to grant extension – application dismissed. LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 s 317, s 539 Industrial Relations Act 1999 s 71K, s 71KA, s 71KB, s 71KC, s 71KD, s 74 -- 1 of 11 -- 2 Industrial Relations (Tribunals) Rules 2011 Local Government Regulation 2012 reg 283 CASES: Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339 Drage v State of Queensland (Queensland Health) (No 2) [2023] QIRC 74 Goodchild v State of Queensland (Queensland Health) [2025] QIRC 046 Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709 Ingram v State of Queensland [2017] QIRC 106 Rich v Chubb Protective Services [2001] QIRC 34 Strugnell v Workpac Light Industrial Pty Ltd [2005] ICQ 45 (2005) 180 QGIG 628 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 Weaver v Ipswich City Council [2021] QIRC 234 Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294 Reasons for Decision Introduction [1] On 2 January 2025, Mr Russell Claus ('Mr Claus') filed a General Application in the Commission, seeking review of multiple actions of the Rockhampton Regional Council -- 2 of 11 -- 3 ('the Council'). Whilst the primary contention was that Mr Claus had been unfairly dismissed, the application also requested that the Commission review 'illegal activities' allegedly undertaken by the Council.1 [2] A jurisdictional concern arose regarding the power of the Commission to undertake the latter request of Mr Claus. Neither the Industrial Relations Act 2016 (Qld) ('the Act'), nor the rules of the Industrial Tribunal,2 empower the Commission to broadly review or investigate alleged unlawful actions in the way requested by Mr Claus. [3] Accordingly, on the record at a conference held on 9 January 2025, Mr Claus agreed to discontinue the elements of his claim seeking investigation into the Council for alleged illegal activities, for want of jurisdiction. It was agreed by consent of the parties that the application to be pursued was a claim for unfair dismissal in relation to his termination on 2 August 2016 and that defects in the originating application were waived pursuant to the power in s 539(e) of the Act. [4] Consequently, Mr Claus is taken to have filed an application for reinstatement on 2 January 2025, approximately 8 years and 4 months after the statutory time limit elapsed on 23 August 2016. [5] The question to be determined is whether I should exercise discretion to allow the reinstatement application to be heard after such a long delay. [6] For the reasons that follow, I have determined not to exercise my discretion to grant the extension of time. Was the application out of time? [7] It is not contested that Mr Claus failed to lodge his unfair dismissal claim within 21 days of his termination taking effect. [8] At the time of Mr Claus’s dismissal, the relevant legislation governing unfair dismissals was the Industrial Relations Act 1999 (Qld) ('the 1999 Act'). Both the 1999 Act and the current Act prescribe that the statutory time limit to commence an application for reinstatement under the unfair dismissal regime is 21 days from the date the dismissal takes effect.3 Mr Claus seeks that I allow a further period of eight years and four months as contemplated by s 317(2)(b) of the Act. Mr Claus must demonstrate to my satisfaction that there are reasonable grounds for that extension. What considerations guide the exercise of my discretion? 1 Form 2, filed 2 January 2025, 3. 2 Industrial Relations (Tribunals) Rules 2011. 3 Industrial Relations Act 1999 (Qld) s 74(2); Industrial Relations Act 2016 (Qld) s 317(2)(a). -- 3 of 11 -- 4 [9] Vice President O'Connor in Weaver v Ipswich City Council set out the relevant considerations for the exercise of the discretion under s 317(2)(b) of the Act: 4 [12] It is possible to distil from the relevant authorities the following principles which ought to be considered by the Commission when exercising its discretion to extend time within which to make an application for reinstatement under s 317(2)(b) of the Act: (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. [10] In making my decision I have considered each of these principles in the context of the submissions made and the particulars of this case. The length of the delay [11] The usual starting point for this consideration is the recognition that the parliament has chosen to impose a 21-day time limit on reinstatement applications which must be respected. As I stated in Williams v State of Queensland (Queensland Ambulance Service), 5 it is not simply an arbitrary cut off point, unrelated to the demands of justice.6 [12] Indeed, I note the clear statement of Vice President O'Connor that the time limit prescribed by s 317(2) of the Act 'should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties.' 7 [13] Mr Claus bears the positive burden to demonstrate the justice of the case supports an extension, given Council's right to expect any such challenge to the dismissal would be made within the required time limit and proceed efficiently towards conclusion. 8 It is considered unacceptable for litigants to ignore time limits and rely on indulgence from the Commission, provided an appeal is made to natural justice and fairness. 9 [14] Mr Claus acknowledges the delay is significant. He contends he has only recently become aware that certain actions of Council were illegal, and that the dismissal could be contested on that basis. He further seems to argue that the illegal conduct perpetrated 4 Weaver v Ipswich City Council [2021] QIRC 234. 5 Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294, [10]. 6 Rich v Chubb Protective Services [2001] QIRC 34. 7 Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339 [32], citing Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43, [59]. 8 Strugnell v Workpac Light Industrial Pty Ltd [2005] ICQ 45 (2005) 180 QGIG 628. 9 Ibid; Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294, [11] (IC Caddie). -- 4 of 11 -- 5 against him has continued to be perpetrated against others, bringing the conduct into the present day, as context. [15] The Council contends that the delay in this case is 'excessive', and they cannot identify any previous case where the Commission had allowed an application filed within a comparable timeframe. 10 The delay of approximately 8 years and four months should weigh heavily against Mr Claus being allowed to commence the matter out of time. 11 [16] I agree the length of the delay in this matter is objectively very significant and may well be unprecedented in this Commission.12 Matters with much shorter delays have been held by the Commission to be substantial.13 Mr Claus' application is in effect a request for an additional 145 statutory time limits to be granted. Explanation for delay [17] Mr Claus explains the delay occurred due to the shock he experienced following the dismissal and that legal advice at the time had dissuaded him from taking further action. He indicates his priority was to find new paid employment to support his family. Further, as a non-legal practitioner he felt that undertaking investigations would be unaffordable and traumatising. Due to recent advice from an unidentified source, he has reconsidered the merits of his claim. Mr Claus refutes Council's submission he simply changed his mind and says, " … What happened is that I was finally alerted to the illegality of my dismissal."14 [18] The Council submits that Mr Claus fails to establish a cogent reason for delay, arguing that shock is to be expected following a dismissal and that Mr Claus, due to obtaining legal advice, ought to have been aware of the statutory time limit attendant upon applications for reinstatement. His decision at the time, within the first 21-day period, was to not pursue the application. [19] I find that at the time of his dismissal, Mr Claus sought, received and followed legal advice. That advice was there was no utility in making an application in circumstances where he had received payment of 6 months in lieu of notice. The payment is the statutory upper limit for financial compensation if he successfully demonstrated at hearing his dismissal was unfair. 15 10 Submissions of the Respondent, filed 4 February 2025, 2. 11 Ibid. 12 I do note the Fair Work Commission recently dismissed an unfair dismissal claim 13 years out of time in Khan v NEC Australia [2025] FWC 390. 13 In Ingram v State of Queensland [2017] QIRC 106, the application was brought 131 days out of time. In Drage v State of Queensland (Queensland Health) (No 2) [2023] QIRC 74, the application was brought 1 day out of time. In Goodchild v State of Queensland (Queensland Health) [2025] QIRC 046, the application was brought 7 days out of time. In all these cases, the Commission declined to exercise the discretion to extend time. 14 Submissions of the Applicant, filed 17 February 2025, [2]. 15 Form 2, filed 2 January 2025, Letter of Mr Russell Claus, 2; T 1-4 1 46; Submissions of the Respondent, filed 4 February 2025, [9]. -- 5 of 11 -- 6 [20] I am persuaded by Council's argument, that Mr Claus did in fact make an active decision within the initial statutory time-period to not take a claim against his dismissal. To come back more than 8 years later to seek an opportunity to make a different decision requires highly compelling arguments in support of that proposition. [21] Mr Claus' main arguments relate to 'very recent' advice regarding purported illegal actions by failing to apply s 71KC notice requirements, 16 and disciplinary processes under regulation 283 of the Local Government Regulations 2012 (Qld). While these factors do explain the 'why now' component of this application which is relevant to my consideration of the explanation for the delay; they go to the heart of my consideration of prospects of success in the substantive application. I address them in detail in that part of the decision. Prejudice to Mr Claus [22] The Council submits that Mr Claus would 'suffer little to no prejudice' if the matter did not progress. 17 To support this contention, the Council notes that Mr Claus is engaged in alternative employment and characterises the possibility of reinstatement as unlikely given the alleged breakdown of the relationship between the parties and the passage of time. The Council also notes that Mr Claus received six months pay in lieu of notice upon termination and provided a pay advice demonstrating this, submitting that this amount is commensurate with the maximum compensation the Commission may order if the substantive claim should succeed. [23] Council argues there is no practical effect to the position of Mr Claus even if the matter was able to progress and even if he was ultimately successful. [24] Mr Claus on the other hand contends in response that the dismissal 'effectively ended my professional career' and that the dismissal significantly negatively impacted his retirement prospects. 18 He argues this conduct and ongoing conduct should be exposed. [25] Considering Mr Claus' response, it seems the prejudice to him is one mostly of opportunity – the opportunity to have his day in court. However, this must be weighed against prospects for success and whether there could be a justifiable use of the Commission's time if there would be no practical effect from any decision. 19 Prejudice to the Council [26] Council contends the organisation and individuals involved in the termination would be adversely impacted by the progression of the matter. Council points to the statement of authority in Brisbane South Regional Health Authority v Taylor (1996) where the High 16 Industrial Relations Act 1999 (Qld). 17 Submissions of the Respondent, filed 4 February 2025, [12]. 18 Submissions of the Applicant, filed 17 February 2025, 2. 19 Venables v State of Queensland (Queensland Health) [2022] QIRC 137, [20] – [24] (Merrell DP). -- 6 of 11 -- 7 Court articulated that while delay may occasion obvious detriment to the 'quality of justice' in a given case, the impacts of delay will often not be identifiable even by parties themselves and may result in a whittling down of available evidence. 20 [27] Mr Claus submits that the Council would not be prejudiced given 'the key personnel involved in my dismissal are still with Council and Council's records from this period are extant.'21 [28] Given the significant time delay in this matter there is a risk of recollections fading. However, the factual and legal issues in dispute seem well articulated and recollected for the purpose of this present application. Any prejudice would relate to the opportunity cost arising from the use of time and resources to defend an action it had rightly considered was concluded. [29] I weigh this factor neutrally. Any relevant conduct of the Council [30] Mr Claus contends that 'repeated violations of labour and related laws' constitute 'relevant conduct of the Council' that weighs towards agreeing to hear the application out of time.22 [31] The Council submits I should attribute neutral weight to this criterion, given that the Council did not 'inhibit or limit' the capacity of Mr Claus to commence proceedings. 23 [32] To be considered relevant to this principle, the impugned conduct must have contributed to the delay. The examples from Mr Claus tend more towards his views of the merits and righteousness of his claim and will be considered in that context below. Mr Claus argued that Council did not undertake any kind of disciplinary process, meaning he lacked details that could form the basis of his case. This argument does not explain how that contributed to the 3055 days of delay. [33] I concur with Council and find that no relevant conduct by Council has been identified. I weigh this factor neutrally. The prospects of success of the substantive application [34] The onus is on Mr Claus to demonstrate this is a matter in which I should exercise my discretion. As noted by Mackenzie P in Herwin v Flexihire Pty Ltd: 24 I should reinforce that descent into detail and fine distinctions in relation to the evidence is not appropriate upon the hearing of an application for leave to apply out of time but if it is clear that the 20 Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, 8 (McHugh J). 21 Submissions of the Applicant, filed 17 February 2025, 2. 22 Submissions of the Applicant, filed 15 January 2025, 2. 23 Submissions of the Respondent, filed 4 February 2025, 5. 24 Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709, 710. -- 7 of 11 -- 8 matter must fail as a matter of principle on the best view of the facts from the applicant's point of view, the futility of the proceedings is a fact which may be taken into account. [35] As discussed above, there are two significant factors or violations that Mr Claus now relies upon to justify the present application, and that demonstrate, in his view, the righteousness of his substantive cause. He describes the violations as "…clear and indisputable," 25 and "… if given the opportunity to hear this case that I would prevail." 26 The two stated violations are the failure to provide notice under s 71KA(1)(a) and s 71KC of the 1999 Act and the failure to adhere to disciplinary process requirements as contained in regulation 283 of the Local Government Regulations 2012. Without descending too far into the detail I will consider each of these factors separately. [36] The 1999 Act prescribed the minimum periods of notice required from employers as follows: 71KC Minimum period of notice required from Employers (1) The minimum period of notice is – (a) if the employee's continuous service is – (i) not more than 1 year – 1 week; and (ii) more than 1 year but not more than 3 years – 2 weeks; and (iii) more than 3 years, but not more than 5 years – 3 weeks; and (iv) more than 5 years – 4 weeks; and (b) increased by 1 week if the employee – (i) is 45 years old or over; and (ii) has completed at least 2 years of continuous service with the employer. [37] Having been employed from 12 September 2013 until dismissed on 2 August 2016, Mr Claus, if entitled, 27 would have been provided with a minimum of two weeks notice. Assuming he was over 45 years old that would increase the minimum notice required by one week to three weeks in total. In his application he states he was entitled to three weeks. [38] Mr Claus argues the failure to be provided with this notice prior to being terminated is illegal and would of itself render the termination invalid and unfair. He states the failure to provide the notice denied him the opportunity to understand why he was being terminated and to provide a response prior to the termination taking effect. 25 Submissions of the Applicant, filed 15 January 2025, [1]. 26 Ibid, [7]. 27 Pursuant to s 71K(f) of the 1999 Act, there is no evidence before me regarding the industrial instrument applicable to Mr Claus’ employment. Submissions and final pay advice suggest he was employed pursuant to a contract. His submission regarding the reduction of $100,000 annual income when he accepted alternate employment may also suggest he was above the salary limit in this clause. -- 8 of 11 -- 9 [39] What this submission fails to acknowledge are the other relevant provisions of the 1999 Act as they relate to employer obligations in the dismissal of an employee. In summary: • section 71KA states an employer may dismiss an employee only if the employee has been given the notice required by s 71KC; or paid the compensation required by section 71KD; and • section 71KD provides that compensation being paid in lieu of working the notice must be "…at least equal to the total of the amounts the employer would have been liable to pay the employee if the employee's employment had continued until the end of the required notice period"; with • section 71KB relevantly setting out the process to claim compensation for the notice if it is not paid, and noting the application must be made within 6 years after the day on which the employee is dismissed. [40] Council submits that Mr Claus was employed under a contract of employment (limited term). In that contract Council submits there was a provision that enabled them to bring the employment to an end without cause and required payment of six months in lieu of notice. The letter of termination dated 2 August 2016 refers to this contract and the relevant provision 16.2(f). [41] While neither party has provided a copy of this contract to the Commission Mr Claus does not contradict in any of his material that the contract exists or that it contains such a provision. He does not dispute that he received 6 months payment in lieu of notice. [42] This is relevant as Council argues they were required to, and did, pay Mr Claus 6 months payment in lieu of notice, going far beyond any minimum notice requirement set out in the 1999 Act. [43] Mr Claus contends that this consideration ought to weigh heavily in his favour, arguing the Council had failed to accord with the requirements of s 71KC.28 Council argues this claim lacks merit, submitting they exercised a contractual option to end the employment of Mr Claus and pay him six months' notice. [44] I agree this claim is completely misconceived. The 1999 Act enables an employer to provide payment in lieu of required notice and sets out a process to claim that payment within 6 years of the date of dismissal if it is not paid. Mr Claus was instead paid 6 months pay in lieu of notice pursuant to his contract and it could not be reasonably asserted it was illegal for Council to make payment rather than provide notice or to consider the 6 month payment would comply with any Act requirement to pay a minimum of three 28 Industrial Relations Act 1999 (Qld). -- 9 of 11 -- 10 weeks. Relying on this claim to support the substantive application, let alone the present application, has in my view limited to no prospects of success. [45] The second violation relates to disciplinary processes set out in the Local Government Regulations 2012 not having been applied prior to the termination of his employment. In support of this Mr Claus refers to the section of the letter of termination that states: I have decided to terminate your contract of employment … Over a period of time the employment relationship has deterioted (sic) to a point which I have determined is no longer tenable. The cessation of your contract of employment is effective immediately today.29 [46] Mr Claus indicates all he knew about the circumstances of his termination was set out in that letter. The disciplinary procedures set out in the Regulation that required usual steps related to procedural fairness were not applied. Council argues this was not a termination arising from a disciplinary process, it was a decision to end the employment pursuant to the terms laid out in clause 16.2 of his contract. On that basis the termination would not constitute a disciplinary measure and the regulation requirements do not apply. [47] In submissions in reply, Mr Claus states: "I dispute Council's interpretation of disciplinary action. If firing a person does not constitute a disciplinary measure, then what does?" 30 While I accept that may sound like common sense, the terms of the contract and how they interrelated with any requirements set out in the Regulation are legal and factual questions that I do not have the evidence in front of me to answer. However, I do note my earlier conclusion that the terms of the contract as outlined by Council have not been disputed by Mr Claus. [48] For the purpose of the second violation, I weigh it neutrally. Conclusion [49] Mr Claus has raised several matters in his submissions that he acknowledges are outside of jurisdiction and are not relevant for my consideration of this application. I have not considered those matters. [50] Mr Claus argues, referring to Rich v Chubb Protective Services, 31 that 'industry will not be best served' if rigorous adherence to the 21-day timeframe supports serial violations of the Act. 32 He argues broad tenets of government like integrity, honesty, due process and industrial relations should outweigh the arguments in support of rigorous adherence to the 21-day timeframe. [51] The claim in this matter asks me to accept a further 145 21-day periods. 29 Letter of Termination to Mr Russell Claus, dated 2 August 2016. 30 Submissions of the Applicant, filed 17 February 2025, [5]. 31 [2001] QIRC 34. 32 Submissions of the Applicant, filed 15 January 2025, [10]. -- 10 of 11 -- 11 [52] Having applied the stated principles to the exercise of my discretion I do not accept Mr Claus has discharged his onus. The significant delay has not been adequately explained, the key argument regarding notice is misconceived and there would likely be no practical effect if the application were to proceed. The arguments presented do not persuade me that this would be a justifiable use of Commission resources. [53] My decision to dismiss this application is not driven by 'strict adherence' but by the weighing of principles that do not weigh in Mr Claus' favour. [54] I order accordingly. Orders 1. The application for an extension of time is refused. 2. The application for reinstatement in matter B/2025/3 is dismissed. -- 11 of 11 --