Brohier v State of Queensland (Queensland Health) [2023] QIRC 343

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brohier v State of Queensland (Queensland Health) [2023] QIRC 343 PARTIES: Brohier, Matthew (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO: TD/2022/108 PROCEEDING: Application for Reinstatement DELIVERED ON: 29 November 2023 HEARING DATE: On the papers MEMBER: O'Connor VP ORDER: 1. Application TD/2022/108 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 13 -- 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 Latoudis v Casey (1990) 170 CLR 534 -- 2 of 13 -- 3 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341 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 Reasons for Decision [1] Mr Matthew Brohier ('the Applicant') was employed by the State of Queensland (Queensland Health) ('the Respondent') as a Protective Services Officer, Robina Hospital, Gold Coast Hospital and Health Service ('the Health Service'). The Applicant's employment was terminated on 8 March 2022 because of his failure to comply with Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (HED 12/21). [2] On 28 March 2022 the Applicant filed an application for reinstatement. [3] This application was considered by the Commission on 22 February 2023 in Mocnik & Others v State of Queensland (Queensland Health)1 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'). [4] A conference was listed on 20 June 2023 at which the Applicant expressed a desire to have more time to consider his position. A second conference was listed for 4 July 2023 at which time the Applicant joined by telephone prior to the commencement and confirmed to my Associate he was on the line but apparently ended the call before the conference commenced. Despite multiple attempts, the Applicant could not be reconnected and has given no explanation for his non-attendance at the second conference. The Registry has received no further communication from the Applicant. [5] On 4 July 2023 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 1 [2023] QIRC 058 (Mocnik). -- 3 of 13 -- 4 Commission considers further proceedings are not necessary or desirable in the public interest by 18 July 2023. No submissions were filed by the Applicant. [6] The Respondent was required to file submissions in response by 8 August 2023. In their submissions the Respondent sought orders that the Commission ought to exercise its discretion to dismiss the application pursuant to s 541(b) of the IR Act as further proceedings are not necessary or desirable in the public interest, or alternatively pursuant to r 45 of the Industrial (Tribunal) Rules 2011 (Qld) ('the Rules') because of the Applicant's inability or unwillingness to engage with and comply with the Commission's processes.2 [7] In the Directions Order of 4 July 2023, the parties were required to file and serve on each other submissions on costs by 15 August 2023. No submissions were received from the Applicant. [8] The Respondent requested and was granted an extension of time in which to file submissions on costs. On 21 August 2023 the Respondent filed submissions 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,3 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. Whether further proceedings are necessary or desirable in the public interest [9] In his 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; 2 Respondent's submissions filed on 5 June 2023, [1.1]-[1.2]. 3 Mocnik & Others v State of Queensland (Queensland Health [2023] QIRC 058. -- 4 of 13 -- 5 The decision to dismiss premature as the Applicant was only provided a period of 7 days to respond to the proposed termination of her [sic] 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 [sic] 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. [10] The Applicant alleges the Respondent relied on demonstrably flawed data and this is denied. As the Applicant has not specified what data was flawed, or how this made his dismissal unfair, it is likely the reference is to the safety and efficacy of vaccines or harm caused by COVID-19, which relates to the reasonableness of HED 12/21. The Commission accepted expert evidence in Mocnik v State of Queensland (Queensland Health)4 where it was determined that COVID-19 causes a high risk of serious illness or death, and that requiring vaccination is a reasonably practicable control measure. This finding was followed by the Full Bench in Mackenzie v State of Queensland (Queensland Health).5 [11] The Applicant refers to multiple attempts to consult with the Respondent and for a risk assessment. In relation to consultation on employer vaccination mandates including HED 12/21, the Commission has already determined claims about consultation: (a) the Full Bench in Brasell-Dellow v State of Queensland (Queensland Police Service) found consultation is required only to the extent it is reasonably practicable, and that sufficient consultation occurred when employees were notified of the intended changes and where unions with total coverage over the workforce were consulted and agreed with the directive;6 (b) in Mocnik the Commission found there was proper consultation about HED12/21 and held there was no requirement to consult directly with each individual, that there was a high level of consultation in relation to HED 12/21 including with unions collectively with total coverage, that all employees were informed of HED 12/21 prior to and after it was issued, and that there were various staff forums, communications and opportunities to ask questions or raise concerns or enquiries;7 and (c) the Applicant has not raised any reason why the Commission should or would depart from Brasell-Dellow, Mocnik or Mackenzie.8 [12] The Respondent submits it would not be in the public interest for the Commission to again hear and determine these arguments. 4 [2023] QIRC 058, [44]. 5 [2023] QIRC 121, [55] (Mackenzie). 6 Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356, [123]-[124], [128]-[129], (Brasell-Dellow). 7 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058, [87], [91]-[93], [95]. 8 Respondent's submissions filed 8 August 2023, [3.5]. -- 5 of 13 -- 6 [13] In his application the Applicant claims he was not provided procedural fairness in relation to the workplace investigation of processes and the subsequent termination. [14] The Respondent submits that further proceedings would not be necessary or desirable in the public interest as the matters raised by the Applicant have already been litigated by the Commission in similar or the same circumstances to the Applicant and have been unsuccessful.9 The Applicant's claims have no prospects of success and it would not be in the public interest to continue proceedings, because: (a) It is not in issue that the Applicant failed to provide evidence of having received the prescribed number of doses of a COVID-19 vaccination, in breach of HED 12/21. (b) The Respondent engaged in a procedurally fair process by widely consulting about the proposed HED 12/21, providing notice on 14 October 2021 that the Applicant had not complied with HED 12/21; on 20 December 2021 providing the Applicant an opportunity to show cause in response to the allegation that they did not comply with HED 12/21; and on 19 January 2022 providing the Applicant an opportunity to show cause regarding the proposed disciplinary action of termination. The Applicant responded to the second show cause notice only. (c) The Respondent complied with the Discipline Directive 14/2010 by giving a period of at least 7 days to respond to the notice to show cause on disciplinary action, and the Applicant was granted an extension of a further 7 days to respond. (d) The Full Bench in Mackenzie11 has already determined that an almost identical process adopted by another Health Service was not procedurally unfair.12 [15] The Applicant alleges that termination was a disproportionate response. The Respondent submits this argument has no merit and that the directions of the Chief Health Officer imposed obligations where employers 'simply must comply'.13 [16] The Applicant states there was no valid reason for dismissal however the reason was clear in the termination letter sent on 7 March 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.14 The Full Bench in Brasell-Dellow15 held 'a direction must be obeyed provided compliance does not involve illegality and the directive is reasonable'.16 In Mocnik17 the Commission held that HED 12/21 was 'a direction which must be obeyed by an employee because it was 9 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058; Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 (Mackenzie); Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356. 10 As in force at the time. 11 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121, [68]. 12 Respondent's submissions filed on 5 June 2023, [3.6]. 13 Nazih Beydoun & Ors v Northern Health & Ors [2021] FWC 6341, [21]. 14 Colwell v Wellways Australia [2022] FWC 1086; Barber v Goodstart Early Learning [2021] FWC 2156, [302]. 15 Brasell-Dellow v State of Queensland (Queensland Police Service) [2021] QIRC 356. 16 Ibid, [65]. 17 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058. -- 6 of 13 -- 7 reasonable and does not involve illegality'.18 The Applicant's argument has no prospects of success and as such the public interest would not be served by further proceedings.19 [17] The Applicant has failed to comply with the Directions Order issued on 4 July 2023 as to why the application should not be dismissed. This failure alone would not be sufficient to enliven the Commission's discretion under s 541 of the IR Act. The Applicant's arguments are not novel or unique and raise no reasonable excuse as well as ventilate many arguments which have already been the subject of judicial determination not only in this Commission but elsewhere. [18] The Respondent submits the Commission ought to be satisfied that further proceedings would not be necessary or desirable in the public interest. [19] 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. Legislation [20] 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; … [21] 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 - (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and 18 Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058. 19 Respondent's submissions filed on 5 June 2023, [3.8]. -- 7 of 13 -- 8 (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). 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),20 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" 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. 20 [2019] ICQ 18. -- 8 of 13 -- 9 [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… [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,21 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 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.' [27] In my view, further proceedings in the Commission are not necessary or desirable in the public interest for the following reasons. 21 [2014] ICQ 006. -- 9 of 13 -- 10 Conclusion [28] It is well accepted that HED 12/21 is a lawful direction.22 [29] In Brasell-Dellow23 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.24 [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 Mocnik25 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 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 22 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 23 [2021] QIRC 356. 24 Ibid 25 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. -- 10 of 13 -- 11 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.26 [32] Further, in Mocnik27 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 his 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-Dellow28 and Mocnik.29 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.30 [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'.31 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 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 and the failure of the Applicant to attend or comply with directions, there are insufficient prospects of success to justify the matter progressing to hearing. Accordingly, I am of the view that further proceedings by the Commission are not necessary or desirable in the public interest pursuant to s 541(b) of the IR Act. The application is dismissed. Respondent's submissions as to costs 26Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058. 27 Ibid. 28 [2021] QIRC 356. 29 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 30 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. 31 Hospital and Health Boards Act 2011 (Qld), s 15(1). -- 11 of 13 -- 12 [37] 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 (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 … [38] 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'.32 [39] 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.33 [40] 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 Mocnik34 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. Finally, the Applicant acted unreasonably by requiring costs to be incurred by the Respondent despite the determination in Mocnik.35 Consideration [41] 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 his case and, in particular, failed to come to terms with the well settled case law. 32 Dawson v State of Queensland (Department of Premier and Cabinet) [2021] QIRC 436, [11]. 33 Ibid, [12]. 34 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 35 Ibid. -- 12 of 13 -- 13 [42] It was, on any view of the material before the Commission, objectively recognisable following the determination in Mocnik36 as one which could not succeed. [43] 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.37 [44] In my view, the discretion to award cost under s 545 of the IR Act has been enlivened. Accordingly, I make the following orders. Orders 1. Application TD/2022/108 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. 36 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. 37 Latoudis v Casey (1990) 170 CLR 534, 543. -- 13 of 13 --