Barbour v Queensland Health [2011] QIRC 64

CITATION: Debra Kwan-Lai Barbour AND Queensland Health (TD/2010/69) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Debra Kwan-Lai Barbour AND Queensland Health (TD/2010/69) DEPUTY PRESIDENT BLOOMFIELD 10 October 2011 DECISION Background [1] On 29 October 2010 Ms Debra Kwan-Lai Barbour lodged an application in the Queensland Industrial Relations Commission (the Commission) under s. 74 of the Industrial Relations Act 1999 (the Act) seeking her reinstatement as a registered nurse at the Royal Brisbane and Women's Hospital. In her application she stated she had been terminated on 17 March 2010*. Her employment was apparently terminated on this date as a consequence of the receipt by Queensland Health of advice from the Queensland Nursing Council to the effect that Ms Barbour's registration as a registered nurse had been cancelled earlier that month (the provisions of s. 123 of the (then) Nursing Act 1992 provided that a registered nurse must not be employed, or continue in employment, as a registered nurse unless the person has a current annual licence certificate). (*The application is outside the 21 day time limit at s. 74(2)(a). However, this fact is not relevant to these proceedings.) [2] A conference as required by s. 75 of the Act was conducted by Vice President Linnane on 15 November 2010. A Certificate, as required by s. 75(3), was issued by the Vice President on 17 November 2010. Subsequently, a second conference under s. 75 was conducted by Commissioner Thompson on Friday 3 December 2010. [3] As required by s. 75(3), Commissioner Thompson also issued a Certificate informing the parties that he was satisfied that all reasonable attempts to settle Ms Barbour's reinstatement application are, or are likely to be, unsuccessful for reasons set out in the Certificate. Importantly, at the end of the Certificate, the Commissioner included the following notation: "NOTE: THE APPLICANT MUST, WITHIN SIX (6) MONTHS OF 3 DECEMBER 2010, OR THE DATE OF RECEIPT OF THIS CERTIFICATE, TAKE SOME ACTION IN RELATION TO THE TO THE (sic) APPLICATION OTHERWISE THE APPLICATION LAPSES.". [4] On 7 April 2011 Ms Barbour forwarded an email to the Commission in the following terms: "Dear President Hall, I am informing you, I intend to put an application to the Commission for a Review of my case. At this stage, I am still trying to get all the relevant documents. This has been difficult as I have been told that some significant documents no longer exist. These documents are central to my case and I am concern (sic) that the documents might have been destroyed. Yours Sincerely, Debra Barbour.". [5] On 14 April 2011, by way of response, the Industrial Registrar informed Ms Barbour, inter alia: "The purpose of my email is to clarify the correct process for you to pursue your matter further. Firstly, you should not correspond directly to President Hall about the hearing of your Application for Reinstatement. Any future correspondence is required to be filed in the Industrial Registry. I note that you have attended a further conference before Commissioner Thompson and that as attempts to settle the matter by conciliation were not successful, pursuant to s. 75(3)(a) of the Industrial Relations Act -- 1 of 7 -- 2 1999, the Commission has issued you with a Certificate stating the Commission's assessment of the merits of your application. … Should you wish to proceed further, you do not have to lodge a further application [or any other documents at this stage]. However, you are required to advise the Industrial Registry, in writing, that you wish your application matter no TD/2010/69 to proceed to hearing. On receipt of your written request, your existing application will be referred to the President of the Queensland Industrial Relations Commission for allocation to a Member of the Commission for a hearing. You will then be advised by the Industrial Registry [normally a Notice of Listing or Further Directions Orders] advising you of the next step in the hearing of your matter.". [6] On 20 April 2011 Ms Barbour wrote to a Registrar of the Queensland Civil and Administrative Tribunal (QCAT), in relation to a complaint she had lodged about the cancellation of her registration to practice as a registered nurse (see paragraph [1] above), in the following terms: "I am on a deadline with the Qld Industrial Relations Commission, and was wondering whether my case … will be dealt with prior to the 3 rd of June which is when I have to be heard with the Qld Industrial Relations Commission. … Waiting to know when my case can be heard, as I am on Centrelink payments and mortgage is unpaid now for 5 months and mounting large arrears and finding the financial hardship hard to bear.". [7] After receiving advice from QCAT on 29 April 2011 that it was unlikely that her matter would be heard and determined before 3 June 2011, Ms Barbour forwarded a further email to the Industrial Registrar on the evening of 29 April 2010 in which she said: "Dear Gary Savill, Please grant me an extension of time sufficient to allow the matter to be brought before QCAT.". [8] In response, the Industrial Registrar forwarded the following email correspondence to Ms Barbour on 4 May 2011: "On 3 December 2010, the Commission issued you with a Certificate pursuant to s. 73(3) of the Industrial Relations Act 1999 stating the Commission's assessment of the merits of your application. Section 75(4) of the Act provides as follows: The application lapses if the applicant has not, within 6 months after the applicant has been informed by the commission under subsection (3) - (a) taken any action in relation to the application; or (b) discontinued the application. Therefore should you become aware that your QCAT (sic) will not be resolved before 2 June 2011, I suggest that if you then still wish to pursue your QIRC matter, you write to the Industrial Registry, before that date, requesting the matter go to a hearing. The matter would normally be sent (sic) down for mention in the first instance and at that time you could request that the Commission give consideration to adjourning the QIRC hearing to allow the QCAT matter to be finalised.". [9] Subsequently, Ms Barbour lodged a written request in the Industrial Registrar's office on the morning of 6 May 2011 in identical terms to her email of 29 April 2011 (see paragraph [7] above). [10] Nothing further was heard from Ms Barbour until 9 August 2011 when she corresponded with the Industrial Registrar as follows: "Further to my message to you 6th May, 2011, my application to QCAT, made on advice from Vice President Diane Linnane (on 17 th November, 2010). The Matter is listed for a Directions Hearing on 16 th September, -- 2 of 7 -- 3 2011. As such I am seeking a further extension of time in the event that this matter is returned to the QIRC. Can you please give me a response.". [11] On the following day the Registrar responded to Ms Barbour in the following terms: "Ms Debra Barbour I refer to your email [details below]. I also refer to my email responses of 14 April and 4 May 2011 [see attached email]. I note that you are seeking 'a further extension of time', however, no extension of time has been granted in the first instance. As per previous advice, the Industrial Relations Act 1999 provides that an application lapses, if an applicant has not taken any action within 6 months after a Certificate has been issued by the Commission. Further, I advised that should you wish to pursue your matter before the QIRC, you should request before 2 June 2011 the matter be brought on for hearing, but at the first mention of the hearing, request the Commission give consideration to adjourning the QIRC hearing to allow the QCAT matter to be finalised. Under the legislative provisions of the Industrial Relations Act 1999, your application before the QIRC has now lapsed. In the circumstances, you may wish to consider still requesting the QIRC to proceed with a hearing of your matter [as per my previous advice], stating the reasons for the delay in your request. However it will be entirely up to the Commission to determine whether to accept or decline such a request.". [12] In response to the Registrar's advice, Ms Barbour sent a further email on 10 August 2011 advising of her desire to have her reinstatement application proceed to a hearing and to "let it be known that the matter is yet to be finalised in QCAT where Vice President Linnane … referred the matter to go …". [13] Ms Barbour's request was referred to the Commission as presently constituted. In light of the material referred to above, I arranged for the matter to be Mentioned on 24 August 2011. On that occasion I informed Ms Barbour and Queensland Health that I held the preliminary view that the Commission had no jurisdiction to action Ms Barbour's request to have her matter go to trial on the basis that her application appeared to have lapsed pursuant to the provisions of s. 75(4) of the Act. [14] Rather than require Ms Barbour to respond in those proceedings, I set in place arrangements to provide her with copies of six (6) decisions of the Commission dealing with the question of lapse of applications as a result of the operation of s. 75(4) of the Act. I also provided Ms Barbour with a period of seven days to consider these decisions prior to informing myself and Queensland Health whether she intended to accept, or dispute, that her application had lapsed. In the event that she chose to argue that her application had not lapsed arrangements were made for the exchange of arguments and supporting materials in the lead up to a hearing on Friday 30 September 2011. [15] As it transpired, Ms Barbour decided to press the point that her application had not lapsed and she filed a six page submission on 9 September 2011 in support of her contention. In response, Queensland Health lodged a nine page submission in support of its position that Ms Barbour's application had lapsed on (or around) 2 June 2011, because of the effect of s. 75(4) of the Act. [16] In her written submission Ms Barbour argued:  her application had not lapsed in that she was continuing to progress it in the following ways: o firstly, the matter was "forwarded" to QCAT on the "direction" of Vice President Linnane. However, it was always her intention to keep her right of hearing in the Commission until such time as the matter before QCAT was finalised (this was said to be supported by the contents of her emails (above)); o secondly, the discovery of new information meant that this was the first occasion she was in a position to prosecute her argument;  she had been trying for some time, without legal assistance, to ensure that this matter be dealt with and finalised;  she was not warned that the way she had conducted herself would result in her right to a Commission hearing lapsing; -- 3 of 7 -- 4  in Vibe Allerup v Hecker Pty Ltd t/a Brisbane Dental Group1 the distinction was drawn between jurisdictions where procedures were regulated by rules of court and other jurisdictions, such as the Commission, where there are no detailed procedural rules; and  her application should be allowed to proceed to a hearing. [17] Ms Barbour's written submissions were expanded by Dr Kelso, who spoke on her behalf, during the proceedings on 30 September 2011. In particular, Dr Kelso argued:  there had never been a period where Ms Barbour had not been seeking to have her application determined. Her letter to the Industrial Registrar on 6 May 2011 exemplified this intention;  Ms Barbour had been "directed" by Vice President Linnane to go to QCAT, in relation to her nursing registration, and Ms Barbour understood that the QCAT process was part of the procedure to prosecute her unfair dismissal application;  there were strong public interest considerations in having Ms Barbour's application for reinstatement heard (including "the fact" Ms Barbour's competency had never been properly assessed before her registration was cancelled); and  while the authorities might have stated that the term "take any action in relation to the application" might have required Ms Barbour to write a letter in particular terms to the Industrial Registrar, that was not a "rule" of the Commission. As such, the Applicant should not be expected to have understood she was required to write to the Industrial Registrar using a particular form of words. In the circumstances, Ms Barbour's email correspondence and letter to the Industrial Registrar clearly reflected her desire to progress her application and constituted "action" within the meaning of s. 75(4). [18] The written submissions from Queensland Health highlighted earlier decisions concerning the operation of s. 75(4) of the Act (and its predecessor Act) and the consideration of that section (and its equivalent) by various Members of the Industrial Court and Commission. In the course of its submission Queensland Health referred to the following decisions:  Vibe Allerup v Heka Pty Ltd op. cit.;  David Melbourne Knowles v Logan Beaudesert District Health Service2;  Suzanne Rimland v Queensland Health3;  Wendy May Hutter v Gold Coast Arts Centre Pty Ltd4;  ALHMWU v Australasian Correctional Management Pty Ltd5;  Denis Clemenceau Schuller v Capricorn Country Club Inc6; and  Sandra Marilyn Fox-Spencer v Education Queensland7. [19] Importantly, Queensland Health said that the decisions to which it referred established the following:  because of the effect of s. 75(4) of the Act the Commission has no discretion to extend time to allow an applicant to take action. Once the application has lapsed it cannot be revived (see Knowles, Allerup and ALHMWU op. cit.);  the applicant must demonstrate that she had taken some formal action to progress her reinstatement application within six months of the receipt of the Certificate of Commissioner Thompson issued on 3 December 2010 (Knowles and Allerup op. cit.);  alleged grounds of public interest are irrelevant. Once an application has lapsed it cannot be revived on compassionate, public interest, or other grounds (Fox-Spencer citing Williams P in Knowles op. cit.); and  the applicant's emails and letter to the Industrial Registrar (see above) did not constitute taking "action" to progress the reinstatement application (ALHMWU and Hutter op. cit.). Issues raised in the submissions [20] The submissions on behalf of Ms Barbour raise three main issues which require determination, as follows:  Does the Commission have any discretion to extend the six month time limit at s. 75(4) of the Act?  Has Ms Barbour "taken any action in relation to the application" (TD/2010/69) within six months after "being informed" under s. 75(3) of the Act? 1 Vibe Allerup v Hecker Pty Ltd t/a Brisbane Dental Group (1999) 160 QGIG 112. 2 David Melbourne Knowles v Logan Beaudesert District Health Service (1999) 161 QGIG 267. 3 Suzanne Rimland v Queensland Health (2002) 171 QGIG 66. 4 Wendy May Hutter v Gold Coast Arts Centre Pty Ltd (2001) 168 QGIG 159. 5 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Australasian Correctional Management Pty Ltd (2003) 175 QGIG 19. 6 Denis Clemenceau Schuller v Capricorn Country Club Inc (2006) 181 QGIG 221. 7 Sandra Marilyn Fox-Spencer v Education Queensland (2002) 170 QGIG 369. -- 4 of 7 -- 5  Are public interest considerations relevant in determining whether an application might have lapsed in accordance with s. 75(4) of the Act? [21] These and similar questions have been considered by the Industrial Court and Commission in a number of previous cases, the majority of which are identified above. The authorities [22] In Allerup8, solicitors for the Appellant had written to solicitors for the Respondent after the conference held under the (then) equivalent of s. 75 seeking further particulars of the Respondent's assertion that the Appellant did not have a claim and seeking discovery of certain documents. The questions on appeal were whether the Commission had power to extend the six month period provided for in the equivalent of s. 75(4) and whether the letter from the Appellant's solicitor constituted the taking of any action in relation to the application for the purposes of the equivalent of s. 75(4) (i.e. s. 219(4)). [23] In the course of his decision on these points, Williams P stated: "The six month limitation period imposed by s. 219(4) is a statutory limitation which could only be extended by the Commission (or the Court) if such power was expressly conferred by the statute. There is no specific power to do so conferred by s. 219. It is interesting to contrast s. 219 with s. 218 of the Act which deals with the making of an application to remedy unlawful dismissal. Subsection 218(3) provides that such an application must be made within 21 days after the dismissal takes effect or within 'a further period the Commission allows on an application made during or after the 21 days'. That is an instance of the statute conferring a specific power on the Commission to extend a statutory time limit. The contrast between s. 218 and s. 219 is stark … … The remaining question is whether or not the sending of the letter of 16 March constituted action taken in relation to the application for the purposes of s. 219(4). The representatives of each party submitted that what was required was some action taken 'with the view of continuing the litigation'. In Spincer v Watts (1889) 23 QBD 350 Lindley LJ was concerned with a rule of court which contained the words 'before taking any other proceeding in the action'. At 353 his Lordship stated that those words meant 'taking any proceeding with the view of continuing the litigation with the person against whom the proceeding is taken'. Master Lee QC in Leach v International Portion Foods Pty Ltd (1984) 2 Qd R 152 and the Full Court in Citicorp Australia Limited v Metropolitan Public Abattoir Board (1992) 1 Qd R 592 adopted that expression as being relevant to a consideration whether or not a 'proceeding' had been taken for purposes of O.90 r.9 of the Rules of the Supreme Court. Speaking of the same rule Stable J in Kaats v Caelers (1966) Qd R 482, 499, used the words 'some step taken toward the judgment or relief sought in the action'. Generally in the context of rules such as those one is looking for something 'in the nature of a formal step in the prosecution of an action'.". [24] In another decision released on the same day (Knowles9) William P further stated: "In Allerup v Heka Pty Ltd I considered what was required in order to take 'action' for purposes of s. 219(4). For the reasons there given I concluded that what was required was that the applicant must take some formal step having the effect of moving the application toward the relief sought. That is the test that must be applied here. In the course of submissions the appellant, who appeared on his own behalf, referred to various steps he had taken either generally or before other tribunals, and under other legislative provisions, with respect to the termination of his employment by the respondent. None of those steps can satisfy the test for 'action' pursuant to s. 219(4).". [25] In ALHMWU10 Deputy President Swan also considered a claim that an application lodged by ALHMWU on behalf of a Mr Ryan had not lapsed according to s. 75(4) of the Act. The facts of this matter were as follows:  2 October 2002 - the Commission conducted a conference under s. 75 of the Act and released a Certificate under s. 75(3) on that same day; 8 Vibe Allerup v Heka Pty Ltd t/a Brisbane Dental Group (1999) 160 QGIG 112. 9 David Melbourne Knowles v Logan Beaudesert District Health Service (1999) 161 QGIG 267. 10 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Australasian Correctional Management Pty Ltd (2003) 175 QGIG 19. -- 5 of 7 -- 6  12 March 2003 - ALHMWU wrote to the Registry acknowledging that a Certificate had been issued on 2 October 2002 but advising that it did not want the matter to lapse;  19 March 2003 - ALHMWU wrote to the Registry advising that the parties were attempting to settle the matter and indicating that if these attempts were unsuccessful the Union would request the matter to be listed for Directions at the next Callover;  28 April 2003 - ALHMWU wrote to the Commissioner who had conducted the conference on 2 October 2002 requesting further assistance to settle the matter through an additional compulsory conference. [26] The question before the Deputy President was whether the steps taken by ALHMWU (immediately above) constituted the taking of "any action in relation to the application" or whether the application had lapsed pursuant to s. 75(4) of the Act. In the ultimate, the Deputy President decided that the steps taken by the Union did not constitute "action" as contemplated under s. 75(4) of the Act. In doing so, she referred to the Respondent's reliance on the decision of Williams P in Allerup11, as follows: "Reliance was placed on the decision of Vibe Allerup. In that case, it was clear that a formal step made towards progressing the application towards the final determination of the matter was necessary. That type of progression was not evident in this matter with the mere communication to the Commission that the matter not lapse. Once a time period has lapsed, that is the end of the matter unless 'action' is taken sufficient to satisfy that section of the Act.". [27] As noted above, Dr Kelso has suggested that there are strong public interest considerations in allowing Ms Barbour's application for reinstatement to be heard. However, as is made clear in Fox-Spencer12, the Commission has no discretion to allow an application to proceed if it has lapsed. In that decision Blades C stated: "To answer the final submission of the applicant regarding moral or compassionate issues, reference is made to the statement by Williams J in Knowles v Logan Beaudesert District Health Service (1999) 161 QGIG 267: 'It was also submitted that the Commission had power under s. 344(j) of the W.R. Act to extend the time period provided for in s. 219(4). As pointed out in Allerup supra a specific power to extend time would need to be conferred by the statue given the clear wording of s. 219(4). The contrast with s. 218 where express power to extend time is granted is significant. The term 'lapsed' must mean that the right created by the statute has come to an end, has terminated. As Fullagar J said in Esso Research Engineering Co v Commissioner of Patents (196) 102 CLR 347 at 350 the word lapse 'connotes finality'. If the statutory right has terminated because of lapse of time then something more than an extension of time is necessary to revive the right. The legislation would have to empower the Commission not only to extend time but also to revive the lapsed right. Section 344(j) does not go that far; it does not permit the Commission to resurrect a lapsed right. The appellant further submitted that on appeal to this court I could exercise jurisdiction under the Rules of the Supreme Court to extend time. That contention is fallacious. In the circumstances the Industrial Court is bound by the provisions of the Workplace Relations Act 1996 and the Industrial Court has no wider powers than the Commission when it comes to dealing with a lapsed application for reinstatement.' ". Conclusion [28] Whilst there is no requirement under the Act for Ms Barbour to be warned that her application might lapse if she did not prosecute it, it seems to be readily apparent, from an examination of her emails and the Industrial Registrar's advice to her of 4 May 2011, that she was aware of a time limit concerning the progressing of her application. This is exemplified in the following emails:  7 April 2011 - Ms Barbour sent an (unsolicitored) email to President Hall advising him of her intention to put "an application to the Commission for a Review of my case";  14 April 2011 - the Industrial Registrar advised Ms Barbour she did not have to lodge a further application to pursue her case, she simply had to advise the Industrial Registry in writing that she wished her application to proceed to a hearing;  20 April 2011 - Ms Barbour informed a Registrar of QCAT of the need have her matter before that body dealt with prior to 3 June 2011 "which is when I have to be heard with (sic) the Qld Industrial Relations Commission". (Importantly, the date of 3 June 2011 - being six months after Commissioner Thompson issued his Certificate - had not been mentioned by the Industrial Registrar in his correspondence. As such, it must have been a date calculated by Ms Barbour herself and demonstrates her awareness of the six month time limit); and 11 Vibe Allerup v Heka Pty Ltd t/a Brisbane Dental Group (1999) 160 QGIG 112. 12 Sandra Marilyn Fox-Spencer v Education Queensland (2002) 170 QGIG 369. -- 6 of 7 -- 7  4 May 2011 - the Industrial Registrar informs Ms Barbour that her application for reinstatement will lapse if she has not taken any action in relation to the application within six months after 3 December 2010. He specifically informs her "therefore should you become aware that your QCAT (sic) will not be resolved before 2 June 2011, I suggest that if you then still wish to pursue your QIRC matter, you write to the Industrial Registry, before that date, requesting the matter go to a hearing.". [29] In any event, Ms Barbour has not disputed that she did not receive Commissioner Thompson's Certificate under s. 75(3) within a few days of it being issued on Friday 3 December 2010. As such, the six months "clock" mentioned at s. 75(4) commenced to run from Monday 6 December 2010 (or Tuesday 7 December 2010) being the day Ms Barbour was "informed" by mail in accordance with s. 75(3) of the Act. Absent the taking of "any action in relation to the application" her application would (automatically) have lapsed at midnight on Thursday 5 June 2011 (or Friday 6 June 2011). [30] Based upon the authorities referred to above, Ms Barbour's correspondence to the Industrial Registrar on 7 April 2011 and/or 29 April 2011 and/or 6 May 2011* seeking an extension of time within which to pursue her application for reinstatement does not constitute the taking of "any action in relation to the application" as contemplated by s. 75(4) (Allerup13 and ALHMWU14). (*It is difficult to understand what Ms Barbour hoped to achieve by lodging this letter. She had already written to the Registrar in identical terms on 29 April 2011. His response was to provide a detailed explanation on 4 May 2011 as to the steps that she would need to take, before 2 June 2011, if her application was not to lapse. There was no need for him to repeat that advice after receiving her (duplicate) letter on 6 May 2011.) [31] Ms Barbour might have been attempting to progress her QCAT application in the period leading up to early June 2011 but no action was taken to progress her application in this Tribunal. In that sense, her situation is no different to the position in Knowles15, where Williams P determined that the steps taken by Mr Knowles to challenge the circumstances of his termination of employment in other Tribunals did not constitute "action" pursuant to s. 219(4) of the predecessor Act to the current Act (see paragraph [24] above). [32] For the foregoing reasons my conclusions in relation to the issues identified at paragraph [20] are:  the Commission does not have any discretion to extend the time limit at s. 75(4) of the Act;  Ms Barbour has not "taken any action in relation to the application" within six months after "being informed" under s. 75(3) of the Act; and  public interest considerations are not relevant in determining whether an application might have lapsed under s. 75(4) of the Act. [33] As such, I rule that Ms Barbour's application for reinstatement (TD/2010/69) has lapsed pursuant to the provisions of s. 75(4) of the Act. [34] I determine and order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2011 30 September Released: 10 October 2011 Appearances: Dr R. Kelso, with Ms Barbour, the Applicant. Mr M. Brady, Ms N. Hone and Ms K. McLeod for the Respondent. 13 Vibe Allerup v Heka Pty Ltd t/a Brisbane Dental Group (1999) 160 QGIG 112. 14 Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Australasian Correctional Management Pty Ltd (2003) 175 QGIG 19. 15 David Melbourne Knowles v Logan Beaudesert District Health Service (1999) 161 QGIG 267. -- 7 of 7 --