Deo v State of Queensland (Department of Health - Darling Downs Hospital and Health Service) [2020] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND CITATION: Deo v State of Queensland (Department of Health - Darling Downs Hospital and Health Service) [2020] ICQ 004 PARTIES: BHRAM DEO (appellant) v STATE OF QUEENSLAND (DEPARTMENT OF HEALTH - DARLING DOWNS HOSPITAL AND HEALTH SERVICE) (respondent) FILE NO/S: C/2019/18 PROCEEDING: Appeal DELIVERED ON: 24 March 2020 HEARING DATE: 23 October 2019 MEMBER: Martin J, President ORDER/S: [1] The application for an extension of time to appeal is dismissed. [2] If the appellant does not, within 14 days of this order, execute the deed of settlement and return it to the solicitor for the respondent, the Industrial Registrar is authorised to execute it on behalf of the appellant and to do all other things necessary to perfect the agreement. [3] Upon execution of the deed of settlement in accordance with these orders, the respondent is to pay the appellant the sum of $15,000. [4] If the respondent wishes to make an application for costs, then it must file and serve submissions in support of that application within 14 days of this order. [5] If the applicant wishes to oppose any application made for costs, then he must file and serve submissions within 28 days of this order. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – where the appellant’s employment was terminated – where the appellant commenced reinstatement proceedings – where a conciliation conference was held – where a deed of settlement was drafted but not executed – where a report from the conciliation conference was later found – where the Commission found that the application for -- 1 of 5 -- 2 reinstatement had been settled by agreement – whether the Commission erred INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where appellant lodged appeal four weeks out of time – where appellant applied for an extension of time – whether in the public interest to grant extension – whether the appellant had prospects of success Industrial Relations Act 2016, s 318 CASES: APPEARANCES: Appellant in person SA Mackie instructed by CL McPherson, Crown Solicitor for the respondent [1] Mr Deo was employed at the Darling Downs Hospital and Health Service from 27 June 2013 until that employment was terminated on 30 January 2018. He commenced reinstatement proceedings soon after and, in March of that year, took part in a conciliation conference. The issue before Commissioner Black grew out of that conference. Was the reinstatement application settled? Commissioner Black held that it was and dismissed the reinstatement application. Mr Deo appeals against that decision. [2] In order to understand the case sought to be advanced by Mr Deo, it is necessary to set out some of the history of this matter. [3] A conciliation conference was held, as required by s 318 of the Industrial Relations Act 2016 (the ‘IR Act’), on 14 March 2018 before Linnane VP. The respondent asserts that the application for reinstatement was settled on the basis of an in-principle agreement and that a deed of settlement would be executed by the parties. Linnane VP did not issue a written certificate under s 318(3) of the IR Act, which must be done if “all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful”. In the absence of such a certificate, a reinstatement application cannot proceed to arbitration. [4] Following the conciliation conference, Mr Deo contacted the respondent and raised concerns about whether his termination pay had been correctly calculated. Emails between the parties followed that. The respondent prepared a deed of settlement but Mr Deo declined to execute it. [5] In September 2018, the respondent wrote to Linnane VP and requested that the file be closed. The matter was again mentioned and referred to conciliation and another conference was held. It was unsuccessful. [6] In January 2019, the respondent filed an application seeking orders that Mr Deo’s application for reinstatement be struck out or dismissed in its entirety. The respondent relied upon ss 451(2) and 541(b)(ii) of the IR Act. -- 2 of 5 -- 3 The decision of the Commission [7] In his reasons,1 Commissioner Black said: “[21] The key issue in contention is whether a final agreement in resolution of Mr Deo’s application for reinstatement was reached during a conciliation conference presided over by Vice President Linnane on 14 March 2018.” [8] The application was heard on 22 February 2019 and the decision was reserved. In April 2019, the parties were advised that the registry of the Queensland Industrial Relations Commission had discovered a report made by Linnane VP in relation to the conciliation conference of March 2018. It is not clear from Commissioner Black’s reasons why that report had not been found earlier. In any event, the report noted that the conciliation had been successful, that the matter had been resolved by agreement, and that the agreement was in full and final settlement of any and all claims arising out of the employment or dismissal of Mr Deo. The parties were provided with an opportunity to file further submissions in relation to matters arising from that report and they did so. [9] Commissioner Black found that the application for reinstatement had been resolved by agreement reached on 14 March 2018 and dismissed Mr Deo’s application. He further ordered that the deed of settlement be executed by Mr Deo and, once executed, that the respondent pay Mr Deo the sum of $15,000 in accordance with the deed. Application for an extension of time within which to appeal [10] Commissioner Black’s decision was given on 4 June 2019. Mr Deo filed his application to appeal on 23 July 2019. An appeal to this Court against a decision of the Queensland Industrial Relations Commission must be lodged within 21 days of the delivery of the decision of the Commission.2 The appeal was, therefore, lodged four weeks out of time. [11] Mr Deo has applied for an extension of time in which to appeal. The power to extend time is found in s 564(2), and under s 565 leave must be given if, and only if, the court is satisfied it is in the public interest to do so. What is in the “public interest” is a concept which embraces many considerations. One of which is that there is a public interest in the finality of litigation. Another consideration, which is considered below, is the prospect of success. [12] Mr Deo provided no basis for his application but, at the hearing of the appeal, he submitted that he had found it difficult because he did not have a lawyer representing him. The extension of time sought is opposed by the respondent on the basis that no sufficient explanation for the delay has been given, the prospects of the appeal succeeding are low, and Mr Deo is in default of an order of the Commission made by Commissioner Black requiring him to execute the deed of settlement. The respondent could not point to any prejudice that it would suffer if an extension of time was granted. I intend to consider the prospects of success of the appeal and then determine the application for leave to extend the time. 1 State of Queensland (Department of Health – Darling Downs Hospital and Health Service) v Deo [2019] QIRC 084. 2 Industrial Relations Act 2016, s 564 -- 3 of 5 -- 4 The grounds of appeal [13] The grounds advanced by Mr Deo are 10 in number. A number of them concern the conduct of the conciliation conference. No appeal has been brought against any decision related to that conference. No decision was identified that might be capable of being the subject of an appeal. In any event, that conference took place on 14 March 2018. If a decision made at that conference could be the subject of an appeal, then the time limit expired in April 2018 and no extension of time has been sought. [14] Other grounds involved assertions relating to the credibility of the respondent’s witnesses or, possibly, to bias on the part of the respondent with respect to the creation of the deed of settlement. It was not demonstrated that any error of law attached to the Commissioner’s reliance on that evidence. As to the latter ground, it does not relate to any decision of Commissioner Black. It is not susceptible of appeal. [15] There are three grounds that appear to relate to the nature of the settlement and whether or not a binding agreement was reached. In support of that, Mr Deo says: (a) the application for reinstatement was not withdrawn, (b) all of the conditions set out in the deed of settlement were not discussed during the conference, and (c) allegations with respect to discrimination and bullying (said by Mr Deo to relate to his termination of employment), which were referred to the Anti- Discrimination Commission in October 2018, were not taken into account by Commissioner Black. [16] Commissioner Black relied upon evidence given before him by the appellant and witnesses called by the respondent. For example, the main complaint by Mr Deo was that the deed of settlement contained a general release clause. After consideration of the evidence, Commissioner Black did not accept Mr Deo’s submission that the scope of the release clause to be included in the deed of settlement remained unresolved at the end of the conference. Further, he did not accept that the evidence about what had transpired during the conference established that the release clause was a key consideration for Mr Deo during the conference. [17] These were findings of fact that are not susceptible of appeal where there is evidence to support the finding. [18] The allegations of bullying and so on were simply irrelevant to the question of whether settlement had occurred. [19] The main ground of appeal which might be construed as constituting an assertion of an error of law, is that Commissioner Black should not have accepted into evidence and placed reliance upon the report of the conference prepared by Linnane VP on 14 March 2018. Commissioner Black did rely upon that record of the conference. It was open for him to do so in accordance with s 531 of the IR Act which provides that the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. [20] The report by Linnane VP was not available to either party as it had not been found, at the time of the hearing, by the registry of the Commission. When it became -- 4 of 5 -- 5 available, each party was given the opportunity to make such submissions as they wished to with respect to that document. [21] Mr Deo did not object to Commissioner Black receiving and considering the report produced by Linnane VP. In written submissions provided to Commissioner Black, it was contended that the report was not determinative of the question before the Commission, namely, what was agreed between the parties at the conciliation conference. However, Commissioner Black did not rely upon the report as the sole source of evidence about what had occurred at the conference. Rather, he examined the evidence before him from the witnesses called and other documents and, where relevant, observed that the report of the Vice President was consistent with the evidence he found he should accept. [22] The appellant has not demonstrated that Commissioner Black erred in law in reaching his decision. Should an extension of time be granted? [23] For the reasons set out above, an appeal to this Court would enjoy insufficient prospects of success to warrant extending the time in which an application to appeal could be filed. The deed of settlement [24] On 4 June 2019, Commissioner Black ordered that the deed of settlement be executed by Mr Deo no later than 12 June 2019 and returned to the respondent no later than 19 June 2019. Mr Deo did not do that. He is in default of that order. Orders [25] In order to avoid the need for any further hearing with respect to the execution of the deed and any other matters, the following orders are made: (a) The application for an extension of time within which to appeal is dismissed. (b) If the appellant does not, within 14 days of this order, execute the deed of settlement and return it to the solicitor for the respondent, the Industrial Registrar is authorised to execute it on behalf of the appellant and to do all other things necessary to perfect the agreement. (c) Upon execution of the deed in accordance with these orders, the respondent is to pay the appellant the sum of $15,000. (d) If the respondent wishes to make an application for costs, then it must file and serve submissions in support of that application within 14 days of this order. (e) If the applicant wishes to oppose any application made for costs, then he must file and serve submissions within 28 days of this order. -- 5 of 5 --