Chen v Gold Coast Hospital and Health Service [2021] QIRC 235

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v Gold Coast Hospital and Health Service [2021] QIRC 235 PARTIES: Chen, Victor (Applicant) v Gold Coast Hospital and Health Service (Respondent) CASE NO: TD/2021/20 PROCEEDING: Application in existing proceedings DELIVERED ON: 22 June 2021 HEARING DATE: 22 June 2021 MEMBER: Industrial Commissioner Dwyer HEARD AT: Brisbane ORDER: 1. The proceedings in the matters GP/2021/27 and TD/2021/20 be joined CATCHWORDS: LEGISLATION: INDUSTRIAL RELATIONS – APPLICATION FOR REINSTATEMENT – application to join proceeding with general protections matter – facts substantially the same – application granted Industrial Relations Act 2011 (Qld) s 456 Industrial Relations (Tribunals) Rules 2011 (Qld) r 98 CASES: Reynolds v Workers Compensation Regulator & Ors [2019] QIRC 140 -- 1 of 5 -- 2 Sullaphen v Drilling Services Australia Pty Ltd & Ors; Sullaphen v Workers' Compensation Regulator [2020] QIRC 189 Reasons for Decision Delivered ex tempore on 22 June 2021 Background [1] These are my reasons in respect of the application filed by the respondent on 4 May 2021. [2] It is not controversial between the parties that Dr Chen has an employment history with the Gold Coast Hospital and Health Service (‘GCHHS’) dating back to 2014. Dr Chen has been previously employed as an interventional cardiologist on a casual basis. It is further not controversial that from about 10 December 2020, Dr Chen was not allocated further casual hours. General protections matter [3] On 23 December 2020, Dr Chen filed a general protections claim in matter GP/2020/27 (‘the general protections matter’). The general protections claim alleges adverse action: namely that Dr Chen has been injured in his employment because he filed two public service appeals in September 2020. The affidavit supporting the general protections claim refers to a broader history dating back to February 2018. [4] In the course of the proceedings on 22 June 2021, Dr Chen indicated his intent was and/or will be to incorporate those broader claims into his general protections claim. Ultimately, whether he does that (or is allowed to do that) will be a matter that will be dealt with by another member at another time. The general protections claim specifically does not include a claim with respect to dismissal. Application for reinstatement [5] On 12 March 2021, following disclosure of material in the context of the general protections matter, Dr Chen formed a view that his employment had been terminated. He consequently filed an application for reinstatement on 12 March 2021, in matter TD/2021/20 (‘the unfair dismissal matter’). Application to dismiss reinstatement proceedings [6] As a result of the filing of that application the respondent made an application in the proceedings on 4 May 2021. The application in proceedings sought that Dr Chen’s application for reinstatement be dismissed on three grounds. -- 2 of 5 -- 3 [7] The grounds were: firstly, that his employment had not been terminated and therefore, he had not been dismissed. Secondly that, had he been dismissed, his application was out of time. Thirdly, pursuant to s 456 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), that the unfair dismissal matter was effectively a duplication of matters being dealt with in the general protections claim. Mention 18 June 2021 [8] At a mention of this matter on 18 June 2021, the respondent abandoned the first two grounds of the interlocutory application. It has now been acknowledged that Dr Chen’s employment has been ‘concluded’, though the precise date and circumstances of the termination of the employment are as yet unclear. The termination has occurred some time between 10 December 2020 and 8 June 2021, which is the date upon which Dr Chen received an email from the respondent’s solicitors, confirming his employment had been concluded. [9] Also, at the mention on 18 June 2021, the respondent foreshadowed in the context of this application an alternative argument for the joinder of the reinstatement and the general protection proceedings. [10] The application pursuant to section 456 of the IR Act was to proceed today. However, as a result of preliminary discussions at the commencement of hearing, the applications main focus has shifted to the alternative position with respect to joinder of the two proceedings. The respondent applicant in the interlocutory matter presses the joinder of the two matters. Dr Chen opposes the joinder of the two matters. Relevant section of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') [11] Rule 98 of the Rules provides as follows: Joining proceedings (1) A party to a proceeding before the court or commission may apply to the court or commission for the proceeding to be joined with another proceeding. (2) The court or commission may order 2 or more proceedings to be joined if it considers— (a) substantially the same question is involved in the proceedings; or (b) the decision in 1 proceeding is likely to determine or seriously impact on the other proceedings; or (c) it is otherwise appropriate or desirable. (3) When joining proceedings, it is not necessary— (a) for a written order joining the proceedings to be made; or (b) for the parties to consent. (4) If a party claims to be adversely affected by the joining of proceedings, the party may apply to separate the proceedings by advising the registrar and any other affected party in writing before the hearing of the proceeding. -- 3 of 5 -- 4 Joinder principles [12] The principles with respect to joinder have been set out previously by me in a decision of Sullaphen v Drilling Services Australia Pty Ltd & Ors; Sullaphen v Workers' Compensation Regulator.1 In that decision I adopted the matters set out by Vice President O’Connor in the decision of Reynolds v Workers' Compensation Regulator and Aurizon Operations Limited ('Reynolds').2 [13] The questions that inform my discretion are as follows: [4] It is clear that r 98 of the IR Rules confers a broad and unfettered discretion upon the Commission to order two or more proceedings to be joined and heard together. Assistance in exercising that discretion can be gleaned from the following authorities. [5] In Humphries v Newport Quays Stage 2A Pty Ltd Besanko J said: The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows: 1. Are the proceedings broadly of a similar nature? 2. Are there issues of fact and law common to each proceeding? 3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? 5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross- admissibility of evidence? 8. Is one proceeding further advanced in terms of preparation for trial than the others? 9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time? [6] Whilst the authorities suggest that a number of factors have been considered relevant in exercising such a discretion, there are no inflexible rules. [14] Importantly, the observation arising in the Reynolds decision is that there are no inflexible rules with respect to how and when the discretion to join proceedings can be exercised. Consideration [15] Dr Chen’s primary opposition to the joinder of the proceedings appears to be (from the oral submissions that he made on 22 June 2021) that his general protections complaint is a far more complex proceeding than his unfair dismissal complaint. His concern expressed during his submissions this morning was that his simplistic dismissal 1 [2020] QIRC 189. 2 [2019] QIRC 140, [4]-[6]. -- 4 of 5 -- 5 arguments will be subsumed to his disadvantage into the complexities of the general protections matter. He also made some submissions with respect to the likelihood of incurring further costs, or greater costs, if the matters were heard together. [16] Having regard to the particulars of the general protections and the reinstatement matters, and even taking into account the broader case proposed by Dr Chen in his general protections matter, I am satisfied this is a matter in which I should exercise my discretion to join the proceedings. [17] Whilst I do not propose to step through each of the considerations set out in the Reynolds decision, I would note that the proceedings are broadly similar in nature. In particular, I am influenced by the fact that it is also likely that there will be a significant overlap in the facts in relation to each matter and a significant overlap in relation to the witnesses called in each matter. [18] While I am conscious that different statutory and legal considerations apply to each claim, I am of the view that the joinder of the proceedings will not create difficulties with respect to trial management. Indeed, on the contrary, I consider it will probably reduce those difficulties given the overlap of facts and witnesses. [19] Further, neither matter is more advanced than the other, so it is a timely opportunity to have the proceedings joined in this manner. [20] Notwithstanding the submissions made by Dr Chen with respect to his concerns, I am not satisfied that joining the proceedings will genuinely place him at any disadvantage. Indeed, I consider that in the long-term Dr Chen would be at a disadvantage with respect to delay, potential costs, and trial management if the two matters were left to be dealt with separately. Order [21] In the circumstances I make the following order: 1. The proceedings in the matters GP/2021/27 and TD/2021/20 be joined. -- 5 of 5 --