Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 10

INDUSTRIAL COURT OF QUEENSLAND CITATION: Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010 PARTIES: LINA SALEH AHMED ALGAHAMDI (appellant) v STATE OF QUEENSLAND (QUEENSLAND HEALTH) (respondent) FILE NO/S: C/2021/13 PROCEEDING: Appeal DELIVERED ON: 22 April 2022 HEARING DATE: 19 April 2022 MEMBER: Davis J, President ORDER/S: 1. The appeal is dismissed. 2. The respondent file and serve by email upon the appellant by 29 April 2022 any written submissions on the costs of the appeal. 3. The appellant file and serve by email upon the respondent by 13 May 2022 any written submissions on the costs of the appeal. 4. Each party have leave to file and serve by 10 June 2022 any application for leave to make oral submissions as to the costs of the appeal. 5. In the absence of any application to make oral submissions on costs of the appeal being filed by 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing CATCHWORDS: APPEAL AND NEW TRIAL - INTERFERENCE WITH JUDGE’S FINDINGS OF FACT - INTERFERENCE WITH DISCRETION OF THE COURT BELOW - where the appellant instituted proceedings in the Queensland Industrial Relations Commission (QIRC) for unfair dismissal - where there was delay in prosecuting the application - where the QIRC dismissed the application summarily - where the appellant applied to reopen the unfair dismissal application - where the QIRC dismissed that application - where the appellant alleged that she had no notice of the application to dismiss her unfair dismissal application - where the QIRC found that she did have knowledge - whether that finding was -- 1 of 16 -- 2 correct - whether that finding was reviewable - where the appellant alleged error in the exercise of discretion to dismiss the application for reopening - whether error is shown Industrial Relations Act 1999, s 72, s 73, s 74, s 79, s 80, s 81, s 331 Industrial Relations Act 2016, s 316, s 484, s 557, s 559, s 565, s 580 Industrial Relations (Tribunals) Rules 2011, r 45 Service and Execution of Process Act 1992 (Cth) CASES: Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223, related Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 61 IR 455, followed EB v CT (No 2) [2008] QSC 306, cited Fowler v Workers’ Compensation Regulator [2019] QIRC 149, cited J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, cited Lee v Lee (2019) 266 CLR 129, followed Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136, cited O’Sullivan v Farrer (1989) 168 CLR 210, cited Queensland Electricity Commission; Ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393, cited R v O’Dempsey (No 3) [2017] QSC 338, cited R v R (1989) 18 NSWLR 74, followed R v Tait & Bartley (1979) 46 FLR 386, cited Reg v Lawrence [1982] AC 510, cited State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057, related TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440, cited APPEARANCES: Dr Algahamdi appeared on her own behalf by video link from the United States of America L Grant for the respondent instructed by GR Cooper, Crown Solicitor [1] The appellant, Dr Lina Algahamdi, applied to reopen a decision of the QIRC made on 19 May 2016 (the 2016 decision).1 Dr Algahamdi also sought suppression of identifying particulars. [2] On 22 June 2021, the application to set aside the 2016 decision was dismissed, and suppression was not ordered. From those orders, she appealed. 1 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057. -- 2 of 16 -- 3 Background [3] Dr Algahamdi is a medical doctor. She was employed by the Cairns and Hinterland Hospital and Health Service (the Health Service) as a Senior House Officer. Her employment was terminated on 19 May 2015. [4] On 18 June 2015, Dr Algahamdi filed an application seeking reinstatement (the reinstatement application). Solicitors were on the record for her in that application. [5] All those events predated the Industrial Relations Act 2016 (the IR Act 2016). The relevant legislation was the Industrial Relations Act 1999 (the IR Act 1999). [6] Section 74 of the IR Act 1999 empowered an employee to make an application for reinstatement if “the employee has been unfairly dismissed”. Section 73(1) provided: “73 When is a dismissal unfair (1) A dismissal is unfair if it is— (a) harsh, unjust or unreasonable; or (b) for an invalid reason. …”2 [7] Section 73(2) of the IR Act 1999 identified various “invalid reasons” for the purposes of s 73(1)(b). Sections 79, 80 and 81 provided remedies other than reinstatement which might be appropriate in certain prescribed circumstances once unfair dismissal is established. Those remedies include payment of compensation3 and pecuniary penalties.4 [8] Section 74 only granted a right to certain employees to make application for unfair dismissal. Those were the employees not excluded by s 72. Those excluded by s 72 included those described in s 72(1)(d) as: “(d) an employee engaged for a specific period or task …” [9] On 24 February 2016, the Health Service filed an application to dismiss Dr Algahamdi’s application for reinstatement (the dismissal application). That was brought on two bases. [10] Firstly, the Health Service alleged that Dr Algahamdi was not an employee who had a right to bring an application for reinstatement under s 74 of the IR Act 1999. This, it was submitted, was because the contract of employment which Dr Algahamdi had entered into had a “commencement date” of 5 October 2014 and an “end date” of 17 January 2016. The Health Service argued that Dr Algahamdi was engaged “for a specific period” and therefore fell within the exception prescribed by s 72(1)(d) of the IR Act 1999. [11] Secondly, the Health Service argued that it was not in the public interest for the application to continue. That was because Dr Algahamdi was showing no interest in prosecuting it. 2 Similar to Industrial Relations Act 2016, s 316. 3 Section 79. 4 Sections 80 and 81. -- 3 of 16 -- 4 [12] That second argument was founded in s 331 of the IR Act 1999. It provided: “331 Decisions generally The court or commission may, in an industrial cause— (a) make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or (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; or (c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.” (emphasis added) [13] Rule 45 of the Industrial Relations (Tribunals) Rules 2011, as they then stood, authorised the QIRC to dismiss proceedings in certain circumstances. Rule 45 provided: “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 (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 -- 4 of 16 -- 5 appropriate, including, for example, a final order; or (d) make orders under paragraphs (b) and (c).” [14] The dismissal application came before Deputy President O’Connor (as the Vice President then was) on 16 March 2016. Dr Algahamdi did not appear. The reinstatement application was dismissed on 19 May 2016.5 [15] After considering a number of cases which need not be analysed here, O’Connor DP held: 1. Dr Algahamdi was not an employee “engaged for a specific period”;6 2. Dr Algahamdi was not excluded by s 72 of the IR Act 1999 from the class of employees who might make an application for reinstatement under s 74;7 3. Dr Algahamdi therefore had standing to bring an application for reinstatement. [16] As already observed, Dr Algahamdi did not appear on the dismissal application before O’Connor DP who found: 1. Dr Algahamdi’s legal representatives, who were the lawyers on the record, were served with the dismissal application on 24 February 2016;8 2. Dr Algahamdi’s legal representatives were, on 29 February 2016, informed of the date of the hearing of the dismissal application by the Registrar;9 3. Dr Algahamdi’s legal representatives advised the Health Service’s lawyers on 4 March 2016 that they no longer held instructions from Dr Algahamdi and she should be contacted directly;10 4. emails were sent to Dr Algahamdi on each of 8 March 2016, 9 March 2016, 15 March 2016 and 16 March 2016;11 5. Dr Algahamdi was therefore advised of the date of hearing of the dismissal application;12 6. Dr Algahamdi’s non-appearance was not explained.13 [17] On the basis of those findings, DP O’Connor dismissed the reinstatement application and said, “… it would not be in the public interest for [the proceedings] to continue”.14 That finding broadly follows the language of s 331 of the IR Act 1999 which forms the jurisdictional basis for the order. 5 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057. 6 At [37]. 7 At [37]. 8 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057 at [45]. 9 At [45]. 10 At [45]. 11 At [45]. 12 At [45] and [51]. 13 At [43]. 14 At [53]. -- 5 of 16 -- 6 [18] On 16 November 2020, some four and a half years after the reinstatement application was dismissed, Dr Algahamdi filed an application where she sought the following orders in relation to the 2016 decision: “1. Set aside the decision made. 2. Suppress my name and all my personal information from publication. 3. Arrange for hearing and start the process from the beginning.” [19] As the application challenging the 2016 decision was made to the QIRC, it was regarded as an application to reopen the reinstatement application,15 rather than on appeal which would be heard by this Court.16 [20] There was no application to extend time to appeal the 2016 decision. Whether or not an application to reopen the reinstatement application was the appropriate procedural step (as opposed to an appeal out of time) is a matter of some doubt. However, the parties proceeded on the basis that it was. [21] The reopening application was the subject of a directions hearing on 1 December 2020 but was not the subject of an oral hearing. The application was decided on the papers by Industrial Commissioner Dwyer on 22 June 2021.17 [22] Industrial Commissioner Dwyer made the following orders: “1. The application to reopen proceedings is dismissed; 2. The application for the suppression is dismissed; and 3. Any application as to costs is to be made within 14 days of the date of this decision.” [23] No costs application was made by either party. Industrial Commissioner Dwyer’s reasons [24] The Industrial Commissioner recorded Dr Algahamdi’s submissions as: “• She only became aware of the decision in October 2020 through ‘media’; • She was not provided an opportunity to participate in the proceedings18 as she never received any notice or details regarding the proceedings from the Commission, the respondent, or her solicitor who ceased acting for her; • She left Australia within a week of the termination of her employment due to visa requirements, which the respondent was aware of and did not disclose to the Commission; 15 Industrial Relations Act 2016, s 484. 16 Industrial Relations Act 2016, s 557. 17 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223. 18 A reference to the dismissal application. -- 6 of 16 -- 7 • As a result of the published 'biased unfair' decision and ‘unlawful defamation’, she has ‘lost many high-profile’ jobs and ‘other formal Academic degree offer’; and • Publishing her name is of no public interest and is only defamatory.”19 And: “• Service via email is not an acceptable method of service under the Industrial Relations (Tribunals) Rules 2011 (Qld) (‘the Rules’) and she should have been contacted via telephone or post; • The respondent mislead the Commission by failing to advise it that she was not in Australia; • Upon checking her inbox and junk mail, no emails were received from either the respondent or the Commission; • The outcome of the decision would have been different had she been given the chance to participate; and • She attaches various medical practicing licences which she contests are negatively affected by the ‘defamation’ through publication of the decision.”20 [25] It was common ground that Dr Algahamdi’s solicitors purported to provide Dr Algahamdi’s email address and in fact provided an incorrect address. However, the correct address was used in the attempts to reach Dr Algahamdi on 29 February 2016, 8 March 2016, 9 March 2016, 15 March 2016 and 16 March 2016.21 [26] The Industrial Commissioner made a series of factual findings against Dr Algahamdi. They were: 1. Although Dr Algahamdi had left Australia shortly after the reinstatement application was filed, she knew that the application was on foot.22 2. She took no steps to prosecute it.23 3. Dr Algahamdi received emails in 2016 and knew that the dismissal application was being made.24 [27] The Industrial Commissioner referred to a submission that the Health Service would suffer prejudice if the reinstatement proceedings were reopened.25 While no specific prejudice was pointed to, it was submitted that there was a general risk that witnesses 19 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 at [15]. 20 At [18]. 21 At [7]. 22 At [28]. 23 At [29]. 24 At [7] and [34]. 25 At [23]. -- 7 of 16 -- 8 would either be unavailable or their recollections will have decayed.26 No specific finding as to prejudice to the Health Service was made by the Industrial Commissioner. He found that there was no prejudice to Dr Algahamdi if the reinstatement application was not reopened. Of course, she would lose any right to litigate that application and that would be prejudicial. The Industrial Commissioner was clearly referring to issues of prejudice beyond that. [28] Industrial Commissioner Dwyer directed himself to the principles concerning the exercise of discretion to reopen a case as explained by Applegarth J in EB v CT (No 2)27 and by Merrell DP in Fowler v Workers’ Compensation Regulator.28 The Industrial Commissioner then exercised his discretion in favour of dismissing the reopening application, summarising the position as: “[37] I find no evidence that the interest of justice would be better served by allowing the reopening of Dr Alghamdi’s reinstatement application. On the contrary. After an unexplained delay of approximately five years, with no evidence of any prejudice flowing to Dr Alghamdi, it is my view that the interest of justice are best served by reinforcing the finality of the matter that was achieved by the respondents in 2016.”29 [29] Whether or not to make a suppression order was also a matter of discretion for the Industrial Commissioner. Section 580 of the IR Act 2016 provides, relevantly: “580 Confidential material tendered in evidence … (5) The court, commission or registrar may direct— (a) a report, or part of a report, of proceedings in an industrial cause not be published; or (b) evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search. (6) The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar. (7) The direction may be given if the court, commission or registrar considers— (a) disclosure of the matter would not be in the public interest; or 26 This is the type of general prejudice identified by Lord Hailsham in Reg v Lawrence [1982] AC 510 where his Lordship observed “Where there is delay the whole quality of justice deteriorates”. At 517, followed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551. 27 [2008] QSC 306. 28 [2019] QIRC 149 at [40]-[41]. 29 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 at [37]. -- 8 of 16 -- 9 (b) persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter. …” [30] The Industrial Commissioner directed his mind to the open justice principle30 as relevant to the consideration of the exercise of discretion. He considered Dr Algahamdi’s assertions of prejudice, in particular: “• She is aggrieved and badly affected by the decision and her career internationally is compromised; • As a result of the publication of the decision, she has lost jobs and academic degree offers; • She has lost all of her international medical licences; and • The publication of her name in a decision is of no public interest, but rather defamatory and misleads readers.”31 [31] The Industrial Commissioner ultimately considered that Dr Algahamdi did no more than point to a desire “to save [herself] from loss of privacy, embarrassment, distress, financial harm …”.32 On that basis, the Industrial Commissioner dismissed the application for a suppression order. The appeal [32] The appeal is mounted pursuant to s 557 of the IR Act 2016. It provides, relevantly: “557 Appeal from commission33 (1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of— (a) error of law; or (b) excess, or want, of jurisdiction. (2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than— (a) error of law; or (b) excess, or want, of jurisdiction. … 30 See generally R v O’Dempsey (No 3) [2017] QSC 338 at [2] and [3]. 31 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 at [39]. 32 Algahamdi v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2021] QIRC 223 at [48] following J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, in turn following R v Tait & Bartley (1979) 46 FLR 386 and Industrial Commissioner Pidgeon’s judgment in Mohr-Edgar v State of Queensland (Legal Aid Queensland) [2020] QIRC 136 at [9]. 33 A reference to the Queensland Industrial Relations Commission. Industrial Relations Act 2016, s 557(5). -- 9 of 16 -- 10 (4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2). …” [33] While Dr Algahamdi mentions that she seeks to rely on grounds beyond errors of law or excess or want of jurisdiction, she may only do that by leave. The circumstances in which leave may be given are prescribed by s 565 of the IR Act 2016 which is in these terms: “565 When leave for appeal must be given If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench— (a) must give leave if it is satisfied it is in the public interest to do so; and (b) may not give leave other than under paragraph (a).” [34] Dr Algahamdi identified public interest issues as: “14) Acting in the public interest has two separate components: •Objectives and outcomes - that the objectives and outcomes of the decision-maker process are in the public interest, and •Process and procedure - that the process adopted, and procedures followed by decision makers in exercising their discretionary powers are in the public interest. 15) This also includes any decision must be made with operating principles of procedural fairness and natural justice. 16) None of above was applied in this case which led to prejudice outcome to me. Commissioner used the exact same concept of public interest in refusing to omit my name from publication that came out of process that I never been part of. He eared in applying concept of public interest ‘selectively’.”34 [35] Considerations of “public interest” do not exclude the interests of parties to the litigation. The purpose of the reference in a statute to “public interest” is to ensure that private interests are not the only matters taken into account.35 The public has an interest in the system of resolving industrial disputes being conducted properly.36 [36] However, both the 2016 decision and the decision under appeal evidence completely conventional approaches by the Industrial Commissioners who decided the applications. Dr Algahamdi, in her written submissions,37 suggests bias by Dwyer 34 Emphasis in original. The submissions are quoted directly, inclusive of spelling and grammatical errors. 35 Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 61 IR 455 a 479. 36 Queensland Electricity Commission; Ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393 at 395 per Mason CJ, Wilson and Dawson JJ and see generally O’Sullivan v Farrer (1989) 168 CLR 210 at 216. 37 But not in relation to any of the six stated grounds. -- 10 of 16 -- 11 IC. There is no evidence to suggest any such thing. The present appeal raises no issues beyond those between the parties to the appeal. I refuse leave under s 557(2) of the IR Act. Dr Algahamdi’s appeal is limited to grounds establishing error of law.38 [37] In her written submissions, Dr Algahamdi identified six grounds of appeal. They are: Ground 1 (Anti-Discrimination Act and Fair Work Act) were totally ignored in this decision; Ground 2 Standard of evidence evaluation by commissioner; Ground 3 Service and Execution of Process Act (SEPA); Ground 4 Publication of decision; Ground 5 Unpaid wages claim (case B/2021/37); Ground 6 Amendment of unlawful dismissal application. [38] These grounds are explained in Dr Algahamdi’s submissions. Schedule 1 to these reasons contains the relevant parts of her submissions. [39] Ground 1 is misconceived. At best, these arguments could only be relevant to the reinstatement application itself. What is under consideration here is the decision not to reopen the reinstatement application. [40] Ground 2 is self-evidently concerned with only factual errors. [41] Ground 3 is misconceived. The Service and Execution of Process Act 1992 (Cth) concerns the service of proceedings within Australia. The dismissal application was validly served on solicitors on the record for Dr Algahamdi in Queensland. After service of the application, they sought to withdraw, and one consideration in the dismissal application was whether or not Dr Algahamdi knew of the hearing date for the application so she could arrange for some appearance on her behalf. The Industrial Commissioner found that she did know of the dismissal application. [42] Ground 4 again raises the Anti-Discrimination Act which is not relevant to the appeal. The publication of a judgment is not “defamatory”. [43] Ground 5 concerns an unpaid wages claim which is also irrelevant to the appeal. In oral submissions before me, Dr Algahamdi submitted that issues concerning her unfair dismissal will arise on her unpaid wages claim. Therefore, it is pointless, she submitted, to not allow the unfair dismissal claim to proceed. That submission should be rejected. The issue here is whether Dwyer IC committed legal error. Any Industrial Commissioner hearing the unpaid wages case will rule on the effect on that case of the dismissal of the reinstatement application. [44] Ground 6 concerns an amendment to the principal application, being the reinstatement application. That is not relevant to the matters on the current appeal. [45] In supplementary submissions, Dr Algahamdi makes a number of allegations, including an apprehension of bias, various matters going to the merit of the 38 There being no suggestion that the decision was without or beyond jurisdiction. -- 11 of 16 -- 12 reinstatement application, and various allegations that the International Covenant on Civil and Political Rights has been breached. As to the suppression aspect, Dr Algahamdi mentions that she had been blackmailed. She also makes allegations of criminal conduct against Queensland Health. None of these things are relevant to the exercise of discretion by Dwyer IC. [46] As observed earlier, the Industrial Commissioner made findings of fact against Dr Algahamdi. They included that she received the emails notifying her of the hearing date for the dismissal application. The Industrial Commissioner found that she knew that the reinstatement application was on foot but did nothing for four and a half years to prosecute it. Those findings are inferences drawn from the evidence. The Industrial Commissioner did not hear witnesses so I am in as good as position as him to draw those inferences (or not). Had this been an appeal by way of rehearing, the question would have been whether I considered those inferences ought to be drawn.39 [47] However, the appeal here is one only on error of law or excess or want of jurisdiction. Therefore, the issue is whether the drawing of the inferences was legally open on the evidence before the Industrial Commissioner.40 Here, those inferences were clearly open. [48] Once it is accepted that Dr Algahamdi ignored the dismissal application and indeed ignored the whole proceedings for four and a half years, the exercise of discretion against reopening is not only well open, but almost inevitable. [49] No error in exercise of the discretion is shown. [50] There is also no error shown in relation to the dismissal of the suppression application. The Industrial Commissioner: 1. turned his mind to the relevance and importance of the open justice considerations; 2. considered the alleged prejudice to Dr Algahamdi. In relation to the references in the 2016 decision to restrictions in Dr Algahamdi’s registration, he observed that was a matter of public record no matter what was decided in the QIRC. In relation to the reference in the 2016 decision to the grounds of termination of her employment, he observed that they were not asserted in the 2016 decision to be proved allegations;41 3. balanced those factors and, in exercise of discretion, did not make a suppression order. Conclusions [51] Dr Algahamdi has not shown error in the decision under appeal and the appeal ought to be dismissed. 39 Lee v Lee (2019) 266 CLR 129 at [55] followed in TRG v Board of Trustees of the Brisbane Grammar School (2020) 5 QR 440 at [39]. 40 R v R (1989) 18 NSWLR 74. 41 State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057 at [9]; reference to “according to the applicant”: the applicant was the Health Service. -- 12 of 16 -- 13 [52] Directions should be made as to costs. Orders 1. The appeal is dismissed. 2. The respondent file and serve by email upon the appellant by 29 April 2022 any written submissions on the costs of the appeal. 3. The appellant file and serve by email upon the respondent by 13 May 2022 any written submissions on the costs of the appeal. 4. Each party have leave to file and serve by 10 June 2022 any application for leave to make oral submissions as to the costs of the appeal. 5. In the absence of any application to make oral submissions on costs of the appeal being filed by 10 June 2022, the question of costs will be decided on any written submissions filed and without further oral hearing. -- 13 of 16 -- Schedule 1 17) Grounds of this appeal Ground 1 (Anti discrimination Act and Fair work Act) were totally ignored in this decision. a) Commissioner totally ignored that I was hired by QLD health as a visa holder (457 Skilled Immigrant visa) that was sponsored by and cancelled by my employer QLD health, who is the respondent in this case. I am also of racial distant who was hired by a known racist medical director. b) This make my case is governed by different rules and Acts such, Fair work Act and anti discrimination Act. QLD health who terminated my employment (unlawfully and before minimum required time) did capitalize on the fact that they cancelled my visa which lead to obstruct me from participating in decision made by QIRC in 2016. b) QLD health, upon termination of my employment, reported cancellation of visa to Department of Home Affairs’ (DoHA), given that they were my sponsor. QLD knew that I will not be able to remain in Australia in order to participate in the case. Commissioner decision did total ignorance of this fact. c) Commissioner had evidence before him that I did participate effectively in early stage of action when I was in Australia (during 28 days period before I must leave) yet he totally ignored this fact. This evidence was brought up in submission of respondent. d) (E.g) Webster v Mercury College (2011). In this case, The FWC found that in addition to a lack of procedural fairness (Mr Webster was not given an opportunity to respond to the allegations of gross misconduct). e) Commissioner failed to address all of above in his reasoning and he even failed to hypothetically propose alternative options to my unique situation in terms of following up on the case. Ground 2 Standard of evidence evaluation by commissioner a) Commissioner erred in demanding, beyond reasonable doubt evidence, that unlawful defamation of my name led to years of career damage and even educational opportunity loss. He gave no weight to clear letter from chiropractic collage that I submitted as evidence and the letter clearly linked my defamed name by QIRC publication to decision made by collage in terminating my acceptance as a student. The letter also required I sign no discloser in exchange for refunding me $500. f) The stander of evidence I provided in this industrial “civil dispute” was of more likely than not type and on balance of properties which should suffice or at least to be given some weight as evidence. This wasn’t the case. g) On the opposite extreme, commissioner accepted the false allegation that I was served with dates of hearing of this matter in 2016 “which never been the case” by relying on email address and one affidavit. Commissioner used kind of attenuated evidentiary requirements to proffer that I was served which is not exist in rules of serving. -- 14 of 16 -- 2 h) Commissioner and respondent could never proof that I was “effectively” served with procedure listing via emails. Burden of proof of service is on respondent and QIRC, not on me. Commissioner did serious error in law by shifting burden of proof to me. i) Finally on this issue, I am submitting exhibit 1 in this submission as further new evidence shows that I am currently subject of blackmail by a lawyer of a defendant “in another matter and another country” who I am suing for assault and battery. The lawyer is referring to QLD published “baseless” defamation asking that I drop the case against his criminal defendant. Ground 3 Service and Execution of Process Act (SEPA) 3) Serving mode is not discretionary but rather it must follow the rule that is designed for service on person in another country. There is only one accepted way of serving which I raised in my submission. Service and Execution of Process Act 1992 is the only way of serving in my case. “Serve proceedings in another state will render service entirely invalid unless the strict requirements of ss 9 and 10 of SEPA are adhered to”. 4) Commissioner eared in ignoring this “mandatory” way of serving and in fact he even avoids reflecting on this argument all together. Ground 4: publication of decision a) Commissioner erred in totally ignoring the fact that my proceeding is under Anti discrimination Act. In fact terminating employment of 457 visa holder alone is considered harsh and unfair dismissal as per fair work Act. Additionally, terminating employment without any reason then cancel visas of employee is at the extreme of harshness. b) Publication of decision and my name is an act of defamation, given no procedural steps were followed such as notice, report to AHPRA. c) Industrial Relations Bill 2016 addressed the situation in which publication is not supposed to be in full for procedures that are under Anti Discrimination Act. Practically, there is no requirement for the QIRC to provide written reasons for not publishing my name if it was decided. However, commissioner erred in relying on public interest matter (only) and ignoring Anti Discrimination Act. He did not balance rights and obligations. There are competing rights in this situation and mine wasn’t considered. Ground 5: unpaid wages claim (case B/2021/37) I have ongoing, unpaid wages claim at QIRC that I filed recently, within 6 years allowed timeframe. This claim is very contingent to case of unfair dismissal in order to decide about the category of unpaid wages to be claimed (breach of contract or unpaid wages for work or theft wages for sham contracting) . This means that if case not heard “re-opened” no fare decision or even any “unpaid wages” claim can be addressed. This make further dismissal of the case without full hearing is of very aggravated prejudice outcome because it will impact my, within time and jurisdiction, unpaid wages application. -- 15 of 16 -- 3 This will be a serious violation of natural justice and total ignorance of basic procedural fairness. Practically “'unpaid wages” claim was listed for hearing on 19/7/2021 but it was adjourned pending on result of this appeal. Unpaid wages I am claiming are: a) within principle in Tweddell and b) claim for damages for breach of contract, which can only be heard by Industrial Magistrate under the combined effect of s 5.3(a)(vi) and s 17.20 of the Industrial Relations Act 1990 (“the 1990 Act'”. Both necessitate the matter to be heard as pre-request to “clearly and fairly” proceed with un paid wages claim. Ground 6 Amendment of unlawful dismissal application: Application made in 2016 by a lawyer from “Avant - Medical Indemnity Insurance for doctors”, without me sighting his submission, It is likely that he addressed unfair dismissal but he did not address “unlawful termination of contract” and discrimination issue. Fixing this issue can only happen through amendment which is within the jurisdiction of court not commission. I would like to request full hearing and allow the following amendment in addition to unfair dismissal: a) Breach of general protections b) Unlawful termination and c) Sham contracting -- 16 of 16 --