Cooling v State of Queensland (Queensland Health) [2023] QIRC 338

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cooling v State of Queensland (Queensland Health) [2023] QIRC 338 PARTIES: Cooling, Robyn Maree (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO: TD/2022/48 PROCEEDING: Application for Reinstatement DELIVERED ON: 29 November 2023 HEARING DATE: On the papers MEMBER: O'Connor VP ORDER: 1. Application TD/2022/48 is dismissed. 2. That the Applicant pay the Respondent's costs of and incidental to these proceedings from the date of the determination in Mocnik, on the standard basis, calculated on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999. 3. The costs be in an amount agreed, or if the parties fail to reach agreement, costs are to be assessed by the Industrial Registrar following an Application for Costs Assessment being made by the Respondent. 4. The Applicant is to pay the Respondent's costs of any assessment. 5. Any costs agreed or assessed are to be paid within 28 days of agreement or assessment. -- 1 of 15 -- 2 CATCHWORDS: INDUSTRIAL LAW - QUEENSLAND - DISMISSAL - UNFAIR DISMISSAL - application for reinstatement - where applicant claims dismissal was harsh, unjust and/or unreasonable - where applicant failed to comply with Health Employment Directive 12/21 issued under s 51A of the Hospital and Health Boards Act 2011 - where application considered by Commission under an agreed joint set of common issues - where determined none of matters made applicants' dismissals unfair - where directions issued for applicant to show cause why the Commission should not dismiss the application or refrain from hearing, further hearing or deciding the application - whether further proceedings necessary or desirable in the public interest - whether costs should be awarded LEGISLATION & OTHER INSTRUMENTS: CASES: Industrial Relations Act 2016 (Qld), s 541, s 545 Industrial Relations Act 1999, s 331 Hospital and Health Boards Act 2011, s 19, s 15, s 51A, s 51B Anti-Discrimination Act 1991 (Qld) Human Rights Act 2019 (Qld) Work Health and Safety Act 2011 Industrial Relations (Tribunal) Rules 2011, r 45 Uniform Civil Procedure Rules 1999, Ch 17A Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements Barber v Goodstart Early Learning [2021] FWC 2156 Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Colwell v Wellways Australia [2022] FWC 1086 Dawson v State of Queensland (Department of Premier and Cabinet) [2021] QIRC 436 House v The King (1936) 55 CLR 499 Kanan v Australian Postal and Telecommunications Union [1992] FCA 539 -- 2 of 15 -- 3 Kelsey v Logan City Council & Ors [2021] ICQ 011 Latoudis v Casey (1990) 170 CLR 534 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 Maher v Isaac Regional Council [2020] QIRC 191 MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 1 Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456 State of Queensland v Lockhart [2014] ICQ 006 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35 Reasons for Decision [1] Ms Robyn Maree Cooling ('the Applicant') was employed by the State of Queensland (Queensland Health) ('the Respondent') as an Enrolled Nurse, Rockhampton Hospital within the Central Queensland Hospital and Health Service ('the Health Service') as from 9 April 2018. The Applicant's employment was terminated on 28 January 2022 because of her failure to comply with Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (HED 12/21). Background [2] The Applicant being an Enrolled Nurse was categorised as an employee falling within Group 2 under s 7.1 of HED 12/21 and was therefore required to receive two doses of an approved COVID-19 vaccine. She did not apply for an exemption from compliance with HED 12/21.1 1 Respondent's submissions filed 5 June 2023, [3]-[4]. -- 3 of 15 -- 4 [3] On 12 November 2021 the Applicant was issued a First Show Cause Notice. On 23 November 2021 the Applicant advised the Respondent she had received the First Show Cause Notice and confirmed she was not vaccinated.2 [4] On 2 December 2021 the Applicant requested a copy of a risk assessment for the Medical Ward at the Rockhampton Hospital. The Respondent responded and asked the Applicant whether her correspondence was her response to the First Show Cause Notice to which she did not respond, nor did she request an extension of time to respond.3 [5] The Second Show Cause Notice was issued on 13 December 2021 in which the Applicant was advised the allegation had been substantiated and she was provided seven days to respond. No response was received and the Applicant was advised on 28 January 2022 her employment had been terminated. [6] On 14 February 2022 the Applicant filed an application for reinstatement. [7] This application was considered by the Commission on 22 February 2023 in Mocnik & Others v State of Queensland (Queensland Health)4 under an agreed joint set of common issues. In Mocnik it was determined that none of the matters would make the Applicants' dismissals unfair for the purposes of the Industrial Relations Act 2016 (Qld) ('the IR Act'). [8] A conference was listed on 10 May 2023 and the Applicant failed to attend. On even date Directions were issued for the Applicant to file submissions to show cause pursuant to s 541(b)(ii) of the IR Act why the Commission should not dismiss the application, or refrain from hearing, further hearing, or deciding the application, if the Commission considers further proceedings are not necessary or desirable in the public interest by 22 May 2023. No submissions were filed by the Applicant. [9] The Respondent was required to file submissions in response by 5 June 2023. Within their submissions the Respondent sought orders that the Commission exercise its discretion to dismiss the application pursuant to s 541(b)(ii) of the IR Act on the basis that further proceedings are not necessary or desirable in the public interest, or alternatively exercise its discretion pursuant to r 45 of the Industrial Relations (Tribunal) Rules 2011 ('the IR Rules') because of the Applicant's inability or unwillingness to attend the conference and comply with the Directions Order.5 2 Respondent's submissions filed 5 June 2023, [5]-[6]. 3 Respondent's submissions filed 5 June 2023, [7]. 4 [2023] QIRC 058 (Mocnik). 5 Respondent's submissions filed on 5 June 2023, [5.1]. -- 4 of 15 -- 5 [10] In the Directions Order of 10 May 2023, the parties were required to file and serve on each other submissions on costs by 12 June 2023. No submissions were received from the Applicant. [11] On 12 June 2023 the Respondent filed submissions on costs seeking the following orders: (a) That the Applicant pay the Respondent's costs of and incidental to these proceedings from the date of the determination in Mocnik,6 on the standard basis, calculated on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999. (b) The costs be in an amount agreed, or if the parties fail to reach agreement, costs are to be assessed by the Industrial Registrar following an Application for costs Assessment being made by the Respondent. (c) The Applicant is to pay the Respondent's costs of any assessment. (d) Any costs agreed or assessed are to be paid within 28 days of agreement or assessment. Legislation [12] Section 541 of the IR Act relevantly provides: 541 Decisions generally The court or commission may, in an industrial cause do any of the following - … (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers - (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; … [13] Rule 45 of the IR Rules states: 45 Failure to attend or to comply with directions order (1) This rule applies if - (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and (b) the party fails to attend the hearing or conference. (2) This rule also applies if - 6 Mocnik & Others v State of Queensland (Queensland Health [2023] QIRC 058. -- 5 of 15 -- 6 (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and (b) the party fails to comply with the order. (3) The court, commission or registrar may - (a) dismiss the proceeding; or (b) make a further directions order; or (c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or (d) make orders under paragraphs (b) and (c). Whether further proceedings are necessary or desirable in the public interest [14] In her application the Applicant claims the reasons for dismissal as follows: The Applicant's dismissal was harsh, unjust and/or unreasonable on the following grounds: The dismissal was predicated on demonstrably flawed data; The dismissal was based on allegations not reasonably substantiated, when factoring in the Applicant's multiple attempts to consult regarding the COVID-19 vaccine in order to make an informed decision; The decision to dismiss premature as the Applicant was only provided a period of 7 days to respond to the proposed termination of her employment. The dismissal was a disproportionate response. There was no valid reason for the dismissal. The Applicant's employer did not engage in an adequate investigation of the allegations as made. The Applicant was not provided with a genuine opportunity to defend her employment prior to the decision being made. The Applicant was not provided procedural fairness, with regard to the workplace investigation of processes and the subsequent termination. There were unreasonable delays in the Applicant's matter having progressed throughout this matter, with specific reference to the Applicant's requested information of a risk assessment. [15] The Respondent submits that further proceedings would not be necessary or desirable in the public interest as the matters raised by the Applicant have been extensively considered and determined in numerous public service appeals and the collective reinstatement matter of Mocnik.7 None of the arguments advanced by the Applicant have been supported by authorities.8 7 [2023] QIRC 058. 8 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 (Mackenzie); Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356 (Brasell-Dellow). -- 6 of 15 -- 7 [16] The Applicant alleges that termination was a disproportionate response. This argument has no merit and the directions of the Chief Health Officer imposed obligations where employers 'simply must comply'.9 [17] The Applicant alleges there was no valid reason for dismissal however the reason was clear in the termination letter sent on 28 January 2022. A failure to comply with a lawful and reasonable direction, including a vaccination requirement has been found in this and other jurisdictions to be a valid reason for termination.10 [18] The Full Bench in Brasell-Dellow v State of Queensland (Queensland Police Service)11 held 'a direction must be obeyed provided compliance does not involve illegality and the directive is reasonable'.12 In Mocnik13 the Commission held that HED 12/21 was 'a direction which must be obeyed by an employee because it was reasonable and does not involve illegality'.14 The Applicant's argument has no prospects of success and as such the public interest would not be served by further proceedings. [19] The Respondent submits the matters raised by the Applicant have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance. The Commission should exercise its discretion pursuant to s 541(b)(ii) of the IR Act and dismiss the application. [20] The Respondent further submits that the Commission has the power pursuant to r 45 of the IR Rules to dismiss the proceeding for failure to attend a hearing or conference or to comply with a directions order. [21] The Respondent submits that the Applicant has demonstrated an unwillingness to progress her application as required. The following factors are said to weigh in favour of the Commission exercising its power pursuant to r 45(3)(a) of the IR Rules to dismiss the proceeding: a. Ms Cooling did not provide any explanation for either failing to attend the conference and failing to comply with the Directions Orders to file and serve submissions on why her application should not be dismissed; b. the proceeding has been initiated by Ms Cooling. It is not for the Respondent, nor the Commission to run her matter for her. While the proceeding is on foot, the Respondent continues to incur legal costs; c. Ms Cooling's conduct imposes an unacceptable burden on the Respondent, as it is unable to progress this matter to resolution or hearing without her participation; 9 Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341, [21]. 10 Colwell v Wellways Australia [2022] FWC 1086; Barber v Goodstart Early Learning [2021] FWC 2156, [302]. 11 Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356. 12 Ibid, [65]. 13 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058. 14 Ibid, [19]. -- 7 of 15 -- 8 d. the overarching purpose of the IR Rules is to provide for the 'just and expeditious disposition of [a proceeding] … at a minimum of expense'.15 It is essential that the Commission's time and resources are used efficiently to enable the parties to have the issues between them resolved in a timely manner; and e. in the circumstances, Ms Cooling's conduct to date is fundamentally inconsistent with the overarching purposes of the IR Rules. As such, Ms Cooling ought not be given further opportunities to progress her Application, particularly given the limited prospects of success.16 Commission's power to dismiss proceedings [22] The Commission is vested with a discretion under s 541 of the IR Act to dismiss a cause, or refrain from hearing or deciding a cause if the Commission considers that further proceedings by the Commission are not necessary or desirable in the public interest. [23] In exercising the discretion, the Commission is mindful that the power to dismiss or refrain from hearing a cause is to be sparingly employed and is not to be used except in circumstances where the Commission is satisfied that on the material the matter is obviously untenable or groundless and cannot succeed. [24] In Campbell v State of Queensland (Department of Justice and Attorney-General),17 Martin J in dealing with the application of s 541 of the IR Act wrote: [27] Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows: "3 Main purpose of Act The main purpose of this Act is to provide for a framework for cooperative industrial relations that - (a) is fair and balanced; and (b) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders." [28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree. [29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" 15 Industrial Relations (Tribunal) Rules 2011, r 6. 16 Respondent's submissions filed on 5 June 2023, [19]. 17 [2019] ICQ 18. -- 8 of 15 -- 9 cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case. [30] In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission…18 [25] Section 541 of the IR Act is relevantly indistinguishable from its predecessor - s 331 of the Industrial Relations Act 1999. Section 331 relevantly provided: The court or commission may, in an industrial cause - … (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers - (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest. [26] In State of Queensland v Lockhart,19 the Industrial Court summarised the meaning of "public interest" in relation to the exercise of discretion under s 331 in the following terms: [21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'. Their Honours wrote: 'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'. [22] In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote: 'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal 18 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18. 19 [2014] ICQ 006. -- 9 of 15 -- 10 principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.'20 Consideration [27] In my view, further proceedings in the Commission are not necessary or desirable in the public interest for the following reasons. [28] It is well accepted that HED 12/21 is a lawful direction.21 [29] In Brasell-Dellow22 a Full Bench of this Commission considered the lawfulness of a direction by the Queensland Police Commissioner that staff of the Queensland Police Service be vaccinated with one of three approved COVID-19 vaccines in use in Australia. The Full Bench held: [65] A direction given to an employee does not, without more, become a term or condition of employment. This is made clear in the management prerogative cases. Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.23 [30] Moreover, the Directive is objectively reasonable. As is evident from cl 6 of the Directive, the COVID-19 virus has been shown to disproportionately affect health care workers and health support staff and pose a significant risk to Queensland Health patients and the broader community. In such circumstances, it is entirely reasonable, and necessary, that having regard to the identified risks, coupled with the workplace health and safety obligations incumbent upon the Department and employees, that the Department required employees in high-risk groups to be vaccinated against COVID-19. [31] In Mocnik24 the Commission concluded that: [19] Whilst I do not accept that the mandating of vaccinations is a 'direction' in relation to the proper management of the health services, it would nevertheless be a direction which must be obeyed by an employee because it was reasonable and does not involve illegality. [20] It is accepted that the Chief Executive's power to issue a HED is limited only by the directive being about the conditions of employment and the obligation under s 51AA of the HHB Act to consult with the health services and employees who are represented by an employee organisation. [21] Clause 7.1 of HED 12/21 states that Clauses 8 and 9 of the directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised 20 State of Queensland v Lockhart [2014] ICQ 006. 21 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 22 [2021] QIRC 356. 23 Ibid 24 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. -- 10 of 15 -- 11 in accordance with Table 1, to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of HED 12/21. [22] By virtue of s 66(1)(e) of the HHB Act, the conditions of employment for a health service employee are governed by, inter alia, health employment directives made pursuant to s 51A of the HHB Act. Under s 51E(1) of the HHB Act a health employment directive that applies to an employee of the Department is binding on the employee and the Department. [23] It is clear to me that HED 12/21 is a health employment directive about 'conditions of employment'. The legislative scheme under the HHB Act empowers the Chief Executive to issue health employment directives about the conditions of employment for health service employees. HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted. It follows therefore, that HED 12/21 is a health employee directive, about "conditions of employment", within the meaning of section 51A of the HHB Act.25 [32] Further, in Mocnik26 the Commission was called upon to determine whether HED 12/21 was inconsistent, within the meaning of section 51B of the Hospital and Health Boards Act 2011 ('the HHB Act'), with either or both the Anti-Discrimination Act 1991 (Qld); and/or the Human Rights Act 2019 (Qld). The Commission concluded that there was no inconsistency. [33] The Applicant claims the dismissal was based on allegations not reasonably substantiated in view of her multiple attempts to consult regarding the COVID-19 vaccine in order to make an informed decision. Appropriate consultation with employees and their representatives prior to implementing HED 12/21 in contravention of the Work Health and Safety Act 2011 has been previously dealt with by the Commission in Brasell-Dellow27 and Mocnik.28 In Mocnik the Commission found: [88] The evidence is that the Respondent consulted with the unions with total coverage over the workforce and agreed with it. It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership.29 [34] The underlying rationale for the Directive is that the relevant Departmental staff must be vaccinated against COVID-19 in order to minimise the effects of the virus on the relevant employees and to ensure that the Department can maintain the required number of health service employees to deliver public health services in Queensland. [35] Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.30 Section 19(1) of HHB Act provides that 'A Service's main function is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the 25 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 26 Ibid. 27 [2021] QIRC 356. 28 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 29 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 1 and Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456. 30 Hospital and Health Boards Act 2011 (Qld), s 15(1). -- 11 of 15 -- 12 Service'. It was incumbent on Dr Wakefield to take all reasonable steps to ensure the maintenance and continuation of a health service during the pandemic. [36] On any view of the material before the Commission, I have formed the view that there are insufficient prospects of success to justify the matter progressing to hearing. Accordingly, further proceedings by the Commission are not necessary or desirable in the public interest pursuant to s 541 (b) of the IR Act. [37] It was further argued by the Respondent that the Commission should exercise its discretion to dismiss the application pursuant to rule 45 of the IR Rules. Rule 45 of the IR Rules gives the Commission a discretion to dismiss the proceeding if a party fails to attend a hearing or conference listed or fails to comply with a directions order. [38] The discretion conferred under r 45 must be exercised judicially.31 The discretion to dismiss this proceeding has, in my view, been enlivened. Accordingly, having regard to the unjustified non-compliance with the directions orders, the absence of any communications and, in particular, the failure to attend the Conference on 10 May 2023 and to make any submissions in respect of this matter has demonstrated, in my mind, an unwillingness to advance the proceeding.32 [39] Appropriate grounds have been demonstrated to exercise the discretion under r 45 of the IR Rules to dismiss the proceeding. [40] For the reasons advanced above, application TD/2022/48 is dismissed. Application for costs [41] The Respondent seeks that the Commission exercise its discretion pursuant to s 545 of the IR Act to award the Respondent its costs. Section 545 of the IR Act relevantly provides: 545 General power to award costs (1) A person must bear the person's own costs in relation to a proceeding before the court or commission. (2) However, the court or commission may, on application by a party to the proceeding, order - (a) a party to the proceeding to pay costs incurred by another party if the court or commission is satisfied - (i) the party made the application or responded to the application vexatiously or without reasonable cause; or 31 House v The King (1936) 55 CLR 499, 504-505. 32 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388, 396. -- 12 of 15 -- 13 (ii) it would have been reasonably apparent to the party that the application or response to the application had no reasonable prospect of success; or … [42] The Respondent relies on s 545(2)(a)(ii) where the Commission held this limb must be assessed objectively, and is broader than the former limb as it can be triggered 'at a time subsequent to the filing of an application'.33 [43] In assessing whether there are reasonable prospects of success, the Respondent refers to the applicable principles in respect of an application under s 545 of the IR Act.34 [44] The Commission's discretion should be exercised pursuant to s 545(2)(a)(ii) of the IR Act to award the Respondent its costs following the determination in Mocnik35 as it would have been reasonably apparent that the application could not possibly succeed. Without any reasonable excuse proffered, the Applicant failed to attend the conference or file written submissions in accordance with the Directions Order issued on 10 May 2023. Finally, the Applicant acted unreasonably by requiring costs to be incurred by the Respondent despite the determination in Mocnik.36 Consideration [45] Section 545 of the IR Act displaces what might be described as the "usual rule" that costs follow the event.37 In Kelsey v Logan City Council & Ors,38 Davis J observed: [25] Section 545 and provisions like it have been the subject of analysis in various decisions. The following principles can be identified: (a) The starting point is that each party bears their own costs.39 (b) A discretion to depart from that point only arises, relevantly here, if one of the jurisdictional facts identified in s 545(2)(a)(i) or s 545(2)(a)(ii) are established.40 (c) The assessment of 'reasonable cause' in s 545(2)(a)(i) is: (i) an objective assessment;41 and (ii) made considering the facts existing as at the time of the institution of the proceedings, here the appeal.42 33 Dawson v State of Queensland (Department of Premier and Cabinet) [2021] QIRC 436, [11]. 34 Ibid, [12]. 35 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 36 Ibid. 37 Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at [97]. 38 [2021] ICQ 011. 39 Section 545(1). 40 See the opening words of s 545(2). 41 Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2015] ICQ 35 at [12]-[14] and MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 370. 42 Kanan v Australian Postal and Telecommunications Union [1992] FCA 539. -- 13 of 15 -- 14 (d) Section 545(2)(a)(ii) prescribes a separate and distinct jurisdictional fact giving rise to a discretion to award costs. In consideration of whether s 545(2)(a)(ii) is engaged, facts which arise after the commencement of the proceedings may be relevant.43 [46] As to the quantum of costs, the IR Rules relevantly provide: 70 Costs (1) This rule applies if the court or commission makes an order for costs under section 545 of the Act. (2) The court or commission, in making the order, may have regard to - (a) for a proceeding before the commission - the costs payable on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 2; or (b) for a proceeding before the court or the full bench - the costs payable on the scale of costs for the Supreme Court and District Court under the Uniform Civil Procedure Rules 1999, schedule 1; or (c) any other relevant factor. (3) The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A. [47] This is a matter in which it would have been reasonably apparent that the application had no reasonable prospect of success. The Applicant has been non-compliant in failing to prosecute her case and, in particular, failed to come to terms with the well settled case law. [48] Following the determination in Mocnik44 it was, on any view of the material before the Commission, objectively recognisable that the Applicant could not succeed. [49] An award of costs is not a penalty for the party against whom the order operates, but a recognition that a successful party should not be obliged to bear its own costs in the circumstances.45 [50] For the reasons given the Respondent has demonstrated a basis for departure from the general rule established by s 545(1) of the IR Act and accordingly they should have an award of costs. [51] In accordance with r 70(2)(a) of the IR Rules, the costs should be assessed on the scale of costs for the Magistrates Courts under the Uniform Civil Procedure Rules 1999, schedule 2. [52] I make the following orders. 43 Maher v Isaac Regional Council [2020] QIRC 191 from [59]. 44 Ibid. 45 Latoudis v Casey (1990) 170 CLR 534, 543. -- 14 of 15 -- 15 Orders 1. Application TD/2022/48 is dismissed. 2. That the Applicant pay the Respondent's costs of and incidental to these proceedings from the date of the determination in Mocnik, on the standard basis, calculated on the scale of costs for Magistrates Courts under the Uniform Civil Procedure Rules 1999. 3. The costs be in an amount agreed, or if the parties fail to reach agreement, costs are to be assessed by the Industrial Registrar following an Application for Costs Assessment being made by the Respondent. 4. The Applicant is to pay the Respondent's costs of any assessment. 5. Any costs agreed or assessed are to be paid within 28 days of agreement or assessment. -- 15 of 15 --