Eicens v State of Queensland (Queensland Corrective Services) [2024] QIRC 256

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Eicens v State of Queensland (Queensland Corrective Services) [2024] QIRC 256 PARTIES: Eicens, Jayhden Jon (Applicant) v State of Queensland (Queensland Corrective Services) (Respondent) CASE NO: GP/2024/12 PROCEEDING: Application in existing proceedings DELIVERED ON: 1 November 2024 MEMBER: Gazenbeek IC HEARD AT: On the papers ORDERS: The matter GP/2024/12 is dismissed for want of jurisdiction CATCHWORDS: INDUSTRIAL LAW – GENERAL PROTECTIONS APPLICATION RELATING TO DISMISSAL – where the Applicant filed a general protections application 7 days out of time – whether, having regard to s 310(2) of the Industrial Relations Act 2016 (Qld), the Applicant should be allowed a further period of time to make application to the Commission – whether Commission satisfied exceptional circumstances exist within the meaning of s 310(2) of the Industrial Relations Act 2016 (Qld) to enliven the Commission’s discretion to allow a further period of time to make application to the Commission – Commission not satisfied exceptional circumstances exist – matter dismissed for want of jurisdiction -- 1 of 22 -- 2 LEGISLATION AND INSTRUMENTS: Acts Interpretation Act 1954 (Qld) s 38 Fair Work Act 2009 (Cth) s 366 Industrial Relations Act 2016 (Qld) ss 282, 284, 285, 306, 309, 310, 316, 317, 451 Public Sector Act 2022 (Qld) s 91(1)(b) Industrial Relations (Tribunals) Rules 2011 (Qld) rr 8, 13, 14, 15, 16 CASES: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1996) 67 IR 298 Charles v Anglican Care [2016] FWC 4664 Dickson v Mornington Shire Council [2020] QIRC 106 Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 089 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 Naidoo v Scenic Rim Regional Council [2024] QIRC 134 Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 -- 2 of 22 -- 3 Singh v Gemini Logistics Pty Ltd [2024] FWC 2787 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 Thornton v State of Queensland (Queensland Health) [2020] QIRC 393 Reasons for Decision [1] Mr Jayhden Jon Eicens (‘the Applicant’) commenced employment with Queensland Corrective Services (‘the Respondent’) as a Custodial Corrections Officer on 12 October 2020. [2] On 28 July 2023, the Applicant was invited to show cause why disciplinary findings should not be made against him in relation to the following allegation:1 That between 1 March 2022 and 10 October 2022, you engaged in inappropriate workplace conduct in your verbal communications with your colleagues at Lotus Glen Correctional Centre. [3] After receiving the Applicant’s response to the first show cause notice, the Applicant was advised on 12 December 2023 that the allegation was substantiated, and that it had been determined he was guilty of misconduct pursuant to s 91(1)(b) of the Public Sector Act 2022 (Qld). In this regard, the Applicant was advised that:2 • Misconduct is inappropriate or improper conduct in an official capacity. • QCS employees are expected to treat their colleagues with courtesy and respect and be appropriate in their relationships and interactions with them. Employees are expected to refrain from behaviour that a reasonable person, having considered the circumstances, would see as intimidating or threatening. • As a result of your comments, the matter was reported to the Queensland Police Service. You were spoken to by members of the QPS and the addresses details of colleagues involved were flagged. • I am satisfied that your conduct in making comments suggestive of causing harm to your colleagues at LGCC, whether relaying a dream or otherwise, is wholly unacceptable and a deliberate departure from accepted standards. Such conduct reflects a failure to demonstrate a high standard of workplace behaviour and personal conduct. [4] In the same correspondence of 12 December 2023, the Applicant was invited to show cause why the proposed disciplinary action of the termination of his employment should not be imposed. 1 Letter of Mr G. McCahon (Deputy Commissioner, Custodial Operations) to Applicant, dated 28 July 2023, 2. 2 Letter of Mr G. McCahon (Deputy Commissioner, Custodial Operations) to Applicant, dated 12 December 2023, 13. -- 3 of 22 -- 4 [5] Following the Respondent’s receipt of a second show cause response from the Applicant, the Applicant was informed in correspondence of 22 February 2024, that his employment with the Respondent was terminated effective 26 February 2024.3 That correspondence provided the following summary of the decision to impose disciplinary action (the names of other employees have been removed):4 • To summarise, I have found that you: o Told [Person A] about having a dream where you turned up to LGCC with a shotgun and you shot people. o Told [Person B] that you felt unfairly treated, discriminated against and victimised by members of the management team at LGCC, making the comment that you would ‘kill them’ if you had the chance or saw them on the outside. o Told [Person C] about a phone call with the OSHEC, [Person D], where you told her that you would come up to her with your body worn camera on and spray her in the face with your MK3 spray and see how she felt. o Told [Person E] that you had a dream where you turned up at the LGCC gatehouse and shot all the management staff that you did not like. • Unsurprisingly, when reported, this conduct caused significant concern at LGCC and resulted in a police response; you were spoken to the [sic] by members of the Queensland Police Service (QPS) and the address details of relevant persons were ‘flagged’ by QPS for emergency response. When [Person D] was advised of your comments, she accepted the offer from QPS to flag her address as she was ‘genuinely fearful’ and she has made changes to security at home. I am satisfied that your conduct created a significant degree of risk to the health and safety of your colleagues, particularly their psychological wellbeing. • This conduct is objectively serious and I found that it was a deliberate departure from accepted standards. QCS employees and expected to treat their colleagues with courtesy and respect and be appropriate in their relationships and interactions with them. Employees are expected to refrain from behaviour that a reasonable person, having considered the circumstances, would see as intimidating or threatening. … • Ultimately, I remain of the view that notwithstanding the financial hardship and distress that termination may cause you and your family, it is the only appropriate penalty. Your colleagues should not have to deal with threats being made against them, and while you are now remorseful, I consider such remorse belated in that it has only surfaced when you were advised of the proposed termination of your employment. In the circumstances where I remain concerned about your future behaviour, noting the repeated nature of the conduct, there is no alternative disciplinary penalty that is sufficient to comply with QCS’ obligations to provide a safe workplace. • I have satisfied that termination is proportionate to the gravity of the disciplinary finding and that the termination of your employment will promote public confidence that QCS maintains high expectations for staff behaviour. [6] Following the termination of his employment, Mr Eicens applied to the Commission to deal with a general protection dispute concerning his dismissal, pursuant to s 309 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’). In the Application, Mr Eicens details 3 Letter of Mr G. McCahon (Deputy Commissioner, Custodial Operations) to Applicant, dated 22 February 2024, 4. 4 Ibid, 3-4. -- 4 of 22 -- 5 his reasons for believing his dismissal to be harsh and unreasonable and identifies reinstatement to his former position as one of the remedies sought.5 [7] While the Application is signed and dated 18 March 2024 by the Applicant, it was not filed in the Industrial Registry until 25 March 2024. [8] On 10 April 2024, the Respondent filed a response to Mr Eicens’ general protections application, in which they sought the following orders:6 (1) That the Application is dismissed pursuant to s 310 of the IR Act on the basis it is out of time; (2) Alternatively, that the Application is dismissed pursuant to s 451 of the IR Act because it is misconceived; (3) Alternatively, if the above two Orders are rejected: i. That there is no contravention of ch 8, pt 1 of the IR Act and the Commission ought to dismiss the Application; or ii. That the Application’s dismissal was not unfair. [9] At a conciliation conference before me on 24 April 2024, the Respondent again raised jurisdictional objections to the application, in line with their response of 10 April 2024:7 MR FITZGERALD: … Firstly, we’d just like to raise that the application itself is out of time. The application was filed on the 25th of March, and it was filed by way of a Form 2 general application to the Queensland Industrial Relations Commission. That application purports to be filed pursuant to section 309 of the IR Act as a general protections dispute. Pursuant to section 310 of the IR Act, a general protections application relating to dismissal – which is the case in these circumstances – must be made within 21 days after dismissal took place. Mr Eicens was dismissed on the 26th of February which means that the application must have been filed by the 18th of March. The application itself is dated the 18th of March, but it was not stamped as received by the Industrial Registry … until 25th of March, making it as filed … seven days out of time. The application does not attempt to argue why the Commission should accept it out of time, and that’s on account of the exceptional circumstances as contemplated by section 310 of the IR Act, nor does it even refer to the fact that the application is out of time at all. On that basis, Commissioner, the Respondent would submit that the Commission ought to dismiss the application as it is not filed within the 21-day timeframe as required under section 310 of the IR Act. There is no compelling reason upon which the Commission ought to exercise its discretion to allow Mr Eicens to make the application out of time. Further to that, Commissioner, if Mr Eicens was to satisfy the Commission that there are exceptional circumstances and that his application should be accepted, the Respondent submits in any event that the application should be dismissed pursuant to section 451 of the IR Act, on the basis that it is fundamentally misconceived. As I said earlier, the application was purportedly filed pursuant to section 309 of the IR Act, and that was as a general protections dispute. For Mr Eicens’ general protections dispute to succeed, however, he must prove, on the balance of probabilities, that he had a workplace right, that he exercised that workplace right, that the respondent took adverse action against him, and that the respondent took adverse action against him because he has or has exercised that workplace right. The application, however, focuses on the reasons why Mr Eicens alleges his dismissal was harsh, unjust, or unreasonable, which of course are factors relevant to the determination of an application 5 Form 2 – General Application to the Queensland Industrial Relations Commission, filed 25 March 2024, 3, 8-9. 6 Respondent’s Response to General Protections Application, filed on 10 April 2024, [44]. 7 T 1-3 l 27 – 1-4 l 16. -- 5 of 22 -- 6 for reinstatement pursuant to sections 316 and 317 of the IR Act. The application fails to particularise any contravention of the general protection provisions of the IR Act, and it ought to be dismissed pursuant to section 451 of the IR Act on the basis that it was misconceived. (emphasis added) [10] In light of the Respondent’s jurisdictional objections to the Application, I issued directions on 24 April 2024 for the filing of written submissions by the Applicant addressing the following matters:8 a. whether any reasons exist for the filing of his Application with the Industrial Registry out of time (i.e., not within 21 days after their dismissal took effect, pursuant to section 310(1)(a) of the Industrial Relations Act 2016 (Qld) (‘the Act’); b. whether any exceptional circumstances exist, pursuant to section 310(2) of the Act, for him to be granted an extension of time to file his Application with the Industrial Registry; and c. whether, pursuant to section 451 of the Act, his Application is misconceived for the reasons articulated by the Respondent in pages 2-3 of their written submissions, filed on 10 April 2024. [11] The parties agreed to have these objections dealt with on the papers following the filing of submissions in accordance with the above directions. Those submissions having now been filed by the parties, the issues for my present determination are: (a) whether the Application was filed by the Applicant outside of the prescribed 21-day time limit; (b) if (a) is determined in the affirmative, whether the Applicant has established exceptional circumstances to enliven the Commission’s jurisdiction under s 310(2) of the IR Act to depart from the 21-day time limit for the filing of the Application; (c) if (b) is determined in the affirmative and my discretion is enlivened, whether I will exercise that discretion in favour of the Applicant; and (d) if (c) is determined in the affirmative, whether the Application should otherwise be dismissed pursuant to s 451 of the IR Act because it is misconceived. Was the Application filed out of time? [12] Section 310(1)(a) of the IR Act stipulates that an application relating to dismissal must be made within 21 days after the dismissal took effect, with that time period to be calculated by excluding the day of the dismissal.9 [13] The Industrial Relations (Tribunals) Rules 2011 (Qld) also relevantly provides the following: 8 Starting proceedings (1) A proceeding must be started by an application in the approved form. 8 Directions Order, issued 24 April 2024, Order 1. 9 Acts Interpretation Act 1954 (Qld) s 38. -- 6 of 22 -- 7 … (6) A proceeding, other than a proceeding started by a notice of appeal under an appeal Act or an application for a WHS review, starts when the document starting the proceeding – (a) is filed or otherwise received under the Act or these rules … 13A Signing of particular documents for filing (1) Unless these rules or a direction order of the court, commission or registrar otherwise requires, a document, other than a written submission or an affidavit or exhibit attached to another document, for filing by a party must be dated and signed by – (a) the party; or (b) if the party has a lawyer or agent – the lawyer or agent. 14 Filing of documents (1) A document is filed when the appropriate fee (if any) is paid and the document is stamped in the registry. … 15 Ways of filing Except as otherwise provided under these rules, a document may be filed – (a) by delivering it to the registry; or (b) by posting it to the registry with a written request that the document be filed; or (c) by transmitting it to the registry by fax, email or another method, subject to the fee, if any, being paid; or (d) for an appeal from a decision of a magistrate – as required under rule 144. 16 Document becomes a record on filing (1) A document becomes a record of the court or commission, and may be used before the court, commission or registrar, only if it has been filed. (2) Subrule (1) applies unless the court, commission or registrar otherwise allows. [14] It is undisputed in the parties’ submissions that Mr Eicens was dismissed from his employment effective 26 February 2024. The 21-day period therefore commenced on 27 February 2024, and expired on 18 March 2024. [15] The Applicant submits that the Application was filed with the Industrial Registry within the 21-day period, despite the Application being received and accepted by the Industrial Registry on 25 March 2024.10 He further submits that:11 2. Filing of the application does not rely on the applicant as the applicant physically cannot file their own application. The filing application falls back onto the QIRC staff members to file and attach a number to the case (i.e Matter GP/2024/12) 3. To punish an applicant due for late delivery of an application by post would be unfair and unethical decision as the applicant does not have control over the delivery system and cannot assure that a postal delivery will be delivered on time and/or not get lost in transit. 4. I do not need to apply for an extension of the 21 days as the application was signed and sent within the 21 day timeframe. For the suggestion that the package should have been sent before 10 Applicant’s submissions, filed 8 May 2024, [1]. 11 Ibid [2]. -- 7 of 22 -- 8 the 21st day this wouldn’t have allowed the application to have a fair 21 days to collect and supply evidence. There is nothing the applicant can say or do apart from outlining that it’s being sent by post and therefore the lateness of their application solely relied upon the transport company. [16] These submissions indicate that the Applicant has erroneously conflated the effect of the Application being “signed and sent”, and the effect of the Application being filed in the Industrial Registry. As submitted by the Respondent, this distinction is significant;12 while the Applicant’s signature on the Application is dated 18 March 2024, that does not have the effect of starting the proceeding on that date. It is only upon the acceptance of the Application for filing in the Industrial Registry that the proceeding can commence, and the Application can become a record of the Commission. [17] The Application was received, accepted for filing, and stamped, by the Industrial Registry on 25 March 2024. The Applicant’s general protections proceeding therefore commenced on 25 March 2024 by virtue of an application that was made 7 days out of time. Has the Applicant established exceptional circumstances to enliven the Commission’s jurisdiction to depart from the 21-day time limit? Legislative framework and relevant caselaw [18] Section 310(2) of the IR Act provides that the Commission may allow a further period for the filing of an application relating to dismissal, if the Commission is satisfied there are exceptional circumstances for doing so. Consideration of ‘exceptional circumstances’ requires the Commission to take into account several prescribed factors, namely: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a similar position. [19] Section 310 of the IR Act is materially identical to section 366 of the Fair Work Act 2009 (Cth) (‘the FW Act’): 366 Time for application (1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). 12 Respondent’s submissions, filed 28 May 2024, [11]. -- 8 of 22 -- 9 (2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) any action taken by the person to dispute the dismissal; and (c) prejudice to the employer (including prejudice caused by the delay); and (d) the merits of the application; and (e) fairness as between the person and other persons in a like position. [20] Accordingly, authorities regarding the construction of s 366(2) of the FW Act are persuasive in respect of the construction of s 310(2) of the IR Act.13 and have accordingly been cited throughout my consideration below. [21] The meaning of ‘exceptional circumstances’ in s 366(1) of the FW Act was considered in Nulty v Blue Star Group Pty Ltd:14 [13] In summary, the expression “exceptional circumstances” has its ordinary meaning and require consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [22] It was further noted in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) that:15 [38] … the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. (emphasis added) [23] In Nichols v State of Queensland (Department of Transport and Main Roads), Deputy President Merrell noted that the test of ‘exceptional circumstances’ establishes a high hurdle for an applicant to be granted an extension.16 As established in Brisbane South 13 Dickson v Mornington Shire Council [2020] QIRC 106 [11]-[12]; Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182 [19]; Naidoo v Scenic Rim Regional Council [2024] QIRC 134 [12]. 14 [2011] FWAFB 975 [13]. 15 [2018] FWCFB 901 [38]; see also Griffiths v The Queen (1989) 167 CLR 372, 379. 16 [2023] QIRC 182 [21]. -- 9 of 22 -- 10 Regional Health Authority v Taylor, it is the applicant that bears the onus of establishing that the justice of the case requires an extension of time.17 [24] Further, the granting of an extension of time is a discretion, and the purpose of exercising it is to ensure a fair trial on the merits of the case.18 However, it is noted that “even where exceptional circumstances are found to exist, the discretion to refuse an extension remains.”19 [25] In considering whether there are “exceptional circumstances”, I have addressed the submissions of both parties on each of the matters I am required to consider pursuant to section 310(2) of the IR Act, as below. Section 310(2)(a) – reason for the delay Submissions [26] The Applicant submitted that he did not need to apply for a 21-day extension “as the application was signed and sent within the 21 day timeframe”, and that the suggestion it should have been sent before the 21st day “wouldn’t have allowed the applicant to have a fair 21 days to collect and supply evidence.”20 He further submits that “there is nothing the applicant can say or do apart from outlining that it’s being sent by post and therefore the lateness of their application solely relied upon the transport company.”21 [27] As noted by the Respondent in their submissions,22 this explanation for the delay differs from the explanation for the delay provided by the Applicant during the conference on 24 April 2024:23 MR EICENS: Yeah. Well, I guess with the application being sent seven days out, obviously, that was due to myself being admitted to hospital. And same thing, I had a few dramas in regards to [sic] that so I wasn’t able to – I obviously wasn’t in the, I guess, best state of mind to do a lot of things and – COMMISSIONER: Can I just … ask you, Mr Eicens, what date were you admitted hospital and what date did you leave the hospital? MR EICENS: Hang on. Let me just have a look. Okay. So I was admitted in hospital on the 7th of March, and I was discharged on the 9th. … MR EICENS: … I spoke to QIRC in regards to [sic] sending [the application] via post and they said, “Yeah. That’s fine. As long as you sent it before the date, if it arrives after, then that’s not a concern.” 17 (1996) 186 CLR 541. 18 Ibid. 19 Thornton v State of Queensland (Queensland Health) [2020] QIRC 393 [41], citing Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [15]. 20 Applicant’s submissions, filed 8 May 2024, [4]. 21 Ibid. 22 Respondent’s submissions, filed 28 May 2024, 2. 23 T 1-5 ll 11-46. -- 10 of 22 -- 11 [28] The Respondent submits that the Applicant has not provided a reasonable explanation for the delay in filing his application, for the following reasons:24 a. Firstly, during the conference, the Applicant stated he was hospitalised from 7 until 9 March 2024. Therefore, he had 10 days prior to being hospitalised and 9 days after he states he was discharged from hospital to prepare and file his Application. In any event, the Applicant does not rely on his hospitalisation as a reason for the delay in his written submissions and on that basis the Commission ought to place no weight on this purported explanation. b. Secondly, the Commission should not accept as fact the Applicant’s submission that he was informed by the Industrial Registry that the Application is taken to have been filed within time if it is posted before the expiration of the limitation period. There is no sworn evidence to this effect. In any event, that conversation cannot override the application of r 14 of the Industrial Relations (Tribunals) Rules 2011 (Rules), which provides that a document is filed when the appropriate fee (if any) is paid and the document is stamped in the Registry. The Application was not stamped as received by the Industrial Registry until 25 March 2024. By virtue of r 14 of the Rules, the Application was not filed until 25 March 2024. c. Thirdly, in respect to the Applicant’s submission that the Application was ‘signed and sent’ within the limitation period, and the fact that it was filed outside the limitation period ‘solely relies upon the transport company’, the Respondent notes that the Application was signed and dated on the day the limitation period expired. The Respondent submits it is implausible for the Applicant to believe that the physical copy of the Application could be posted from his postal address in far North Queensland and be received the very same day by the Industrial Registry in Brisbane. A document is not taken to be filed on the date it is sent by post or on the date on which it would be delivered to the Registry in the ordinary course of post. Consideration [29] I do not accept Mr Eicens’ attempt to place blame solely on the postal service for the delay in filing his application in the Industrial Registry. As established above, a document is not taken to be filed in the Registry on the date it is signed and/or sent by post. That the Application was filed in the Industrial Registry outside of the limitation period was inevitable in circumstances where the Applicant only posted their Application on the day the limitation period expired (i.e., on 18 March 2024). Even the most efficient postal service could not be expected to deliver the Application across Queensland to be received by the Industrial Registry on the same day. [30] In only broadly addressing postal delivery times, the explanation for the delay offered by the Applicant provides no insight into how, or why, he was prevented from posting his application to the Industrial Registry on an earlier date, so as to avoid the 7-day delay in filing. The only reason for his delay seemingly provided by the Applicant is that sending his application earlier within the 21-day limitation period (such that the application would be received by the Registry by the day that period expired) would have prevented him from having a “fair 21 days to collect and supply evidence”.25 Factoring in postal delivery times is expected of any applicant intending to send an application by post for filing within time. Instead of abiding by the 21-day limitation period that applies equally to all applicants filing applications of this nature, and of which he was apparently aware, the 24 Respondent’s submissions, filed 28 May 2024, [11]. 25 Applicant’s submissions, filed 8 May 2024, [4]. -- 11 of 22 -- 12 Applicant has attempted to extend the clear statutory limitation period for his application alone. [31] I also note the Applicant was made aware that the Respondent was considering termination of his employment when a detailed show cause process commenced in July 2023. It is too simplistic to argue that the Applicant only had 21 days to consider, e.g., the grounds on which he may file an application in the Commission, when he had been engaged in a show cause process over several months prior to his termination. [32] I also do not accept the Applicant’s submission that he was informed by Industrial Registry staff that his Application would be considered as filed in time if it was posted before the expiration of the limitation period. No evidence of this conversation has been presented so as to warrant any further consideration of this submission. Such a conversation occurring regardless cannot override the application of the Industrial Relations (Tribunals) Rules 2011 (Qld), as outlined above. [33] For completeness, I note that, as the Applicant did not seek to rely on his hospitalisation as a reason for the filing delay in his written submissions (and no medical evidence has been provided), I have not placed any weight on the initial explanation for the delay advanced by Mr Eicens at the conference on 24 April 2024. [34] Therefore, I am not satisfied that Mr Eicens has established a satisfactory reason to failing to file his application within the 21-day statutory timeframe, nor am I persuaded that Mr Eicens’ explanation for the delay points towards the existence of exceptional circumstances. Section 310(2)(b) – action taken to dispute the dismissal Submissions [35] The Applicant did not address subsection 310(2)(b) in his submissions. [36] The Respondent submits that “the Applicant has not taken any additional steps (excluding the filing of the Application, albeit out of time) to dispute his dismissal”.26 Consideration [37] Where an applicant takes action to contest a termination, other than the filing of their general protections application, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.”27 26 Respondent’s submissions, filed 28 May 2024 [13]. 27 Singh v Gemini Logistics Pty Ltd [2024] FWC 2787 [16], citing Brodie-Hanns v MTV Publishing Ltd (1996) 67 IR 298. -- 12 of 22 -- 13 [38] There is no evidence before the Commission that suggests that the Applicant had put the Respondent on notice of his intention to dispute his dismissal, or that he was “actively considering his options and taking action to contest the lawfulness of his dismissal”, during the 21-day limitation period.28 [39] It is not apparent that the Applicant took any substantive action to dispute his dismissal until the making of this application to the Commission on 25 March 2024. Given the circumstances of this matter, and the limited submissions of the parties in respect of this criterion, I take the view that consideration of this criterion is a neutral factor in my determination. Section 310(2)(c) – prejudice to the employer Submissions [40] The Applicant did not address this issue in his written submissions. [41] The Respondent submitted that allowing the commencement of an action outside of a limitation period selected by the legislature is “prima facie prejudicial to the Respondent, who would otherwise have the benefit of the limitation.”29 The Respondent further submitted that “weight must be given to the fact that the Respondent’s potential liability expired at the end of the enacted limitation period, and to extend the period may result in the imposition of a new legal liability on the Respondent”,30 and that “the Respondent should not lightly be put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate.”31 [42] Relevantly, the Respondent also submitted that “even if the prejudice in the present case goes no further than that of presumptive prejudice, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.”32 Consideration [43] The Respondent is correct to submit that there is a presumption of prejudice to it where there has been a delay in the commencement of proceedings. However, the Respondent’s submissions do not make apparent any significant prejudice to it “beyond the fact that it would have to defend a general protections application made outside of the 21-day statutory timeframe.”33 28 Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 089 [29]. 29 Respondent’s submissions, filed 28 May 2024 [14]. 30 Respondent’s submissions, filed 28 May 2024 [14]. 31 Ibid [15], citing Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 [71], and Dickson v Mornington Shire Council [2020] QIRC 106 [61]. 32 Respondent’s submissions, filed 28 May 2024, [15]. 33 Naidoo v Scenic Rim Regional Council [2024] QIRC 134 [55]. -- 13 of 22 -- 14 [44] Therefore, while I accept that the Respondent would lose the benefit of the limitation period if an extension of time was granted, I place it no higher than a neutral consideration in the present circumstances.34 Section 310(2)(d) – merits of the application General Application [45] In their general protections application of 25 March 2024, the Applicant sought a decision in the following terms:35 Reinstatment [sic] in former position without prejudice from any current and former staff members. Compensation for time, damages, lost [sic] of wages, lost [sic] of potential employment, medical bills. Exonerated for all allegations and disciplinary actions. Staff investigated into their conduct and professionalism and suspended pending a [sic] investigation. The investigation looked at correctly as I have been the target of bullying and harassment through a management process. Decision maker suspended pending a [sic] investigation. No further retaliation from any and all QCS members. [46] The Applicant outlines the first grounds of his application as being that his dismissal was harsh because: • he has had no previous disciplinary matters during his employment with the Respondent, • it has caused serious financial hardship for himself and his family; and • employment opportunities are limited in the regional location in which he resides. [47] Further, the Applicant outlines his second ground of his application as being that his dismissal was unreasonable, because (in summary): • the conduct leading to his dismissal “did not meet the threshold for misconduct”; • his health issues should have been evident to the Respondent, but were not considered throughout the disciplinary process or when disciplinary action was imposed; 34 See, e.g., Thornton v State of Queensland (Queensland Health) [2020] QIRC 393 [70], and Charles v Anglican Care [2016] FWC 4664 [32]-[33] (upheld in Charles v Anglican Care [2016] FWCFC 5502). 35 General Application, filed 25 March 2024, 3. -- 14 of 22 -- 15 • evidence shows that he was absent from the workplace at the times/dates the allegations concern; • there was no respect shown to him by the Respondent at various periods prior to his termination; and • the length of time “it takes for an investigation to be completed … is excessive and unreasonable”. Employer Response [48] On 10 April 2024, the Respondent filed a response to the Applicant’s general protections application. Relevant for present purposes is the Respondent’s submission that:36 10. Relevant to the Commission’s discretion whether to allow the Applicant to make his application out of time is the Application’s low prospects of success. The Applicant’s prospects are limited, particularly where he has filed a general protections application and he has failed to establish that he exercised a workplace right, failed to outline what the adverse action is or that there is a causal link between the workplace right being exercised and the alleged adverse action. … 12. The Application was purportedly made pursuant to s 309 of the IR Act. Section 309 relevantly provides: 309 Application for commission to deal with a dispute (1) This section applies if – (a) a person has been dismissed or has been affected by another contravention of this part; and (b) the person or an organisation that has a right to represent the industrial interests of the person claims that the person has been dismissed or has been affected by another contravention of this part. (2) The person or organisation may apply to the commission for the commission to deal with the dispute. 13. Relevantly, s 309 is found within ch 8, pt 1 of the IR Act, which deals with general protections. 14. For the Applicant to succeed in the Application and establish that the Respondent has contravened s 285 of the IR Act, he must prove, on the balance of probabilities, that the Respondent took adverse action against him as defined by s 282(1) of the IR Act and the Respondent took the adverse action against the Applicant for the reason or reasons which include the Applicant has or has exercised a workplace right as defined by s 284(1) of the IR Act. 15. Pursuant to section 306 of the IR Act, if the Applicant succeeds in establishing each of the matters set out in the preceding paragraph, the onus shifts to the Respondent to prove it did not take the adverse action against the Applicant for a prohibited reason or reasons. 16. The Respondent submits that the Application, which purports to be an application made pursuant to ch 8, pt 1 of the IR Act, is fundamentally misconceived. The Applicant focuses on the reasons why the Applicant alleges his dismissal was harsh, unjust or unreasonable 36 Respondent’s Response to General Protections Application, filed 10 April 204, [10]-[17]. -- 15 of 22 -- 16 which are factors relevant to the determination of an application for reinstatement pursuant to s 316 and s 317 of the IR Act, and the Application fails to outline: a. that the Applicant had a workplace right; b. whether the Applicant exercised a workplace right; c. the action taken constituted alleged ‘adverse action’; or d. the particular reason or particular intent with which it is said that adverse action was taken. 17. In the absence of the Applicant properly articulating a case under the s 285 of the IR Act i.e. by identifying a specific workplace right and whether the Applicant exercised that workplace right and particularising the alleged adverse action, the Respondent is unable to meaningfully respond to the Application. 18. In any event, as outlined below, the Respondent submits that the Applicant was terminated from his employment with the Respondent after a procedurally fair investigation and discipline process and there is no link to the Applicant exercising a purported workplace right and his dismissal. Applicant’s submissions [49] In his submissions of 8 May 2024, the Applicant submitted, in summary, that:37 My application was not misconceived and doesn’t just refer to being reinstatement [sic] but outlining what I’m seeking as per the application request. My workplace right to have a fair and balance investigation that is not biased in any way did not occur. As the evidence shows, Sonya has been stalking and taking notes about me ever since I started working, claiming I wrote copious amounts on note in a notebook while reading a bible, and claims that I was in possession of a stabproof vest and other things. Had this investigation been a fair and balanced investigation multiple staff members would have been selected at random to provide a written or oral statement about myself within QCS … I put it to you this is a group of females that aren’t happy with me and sort and conspired with each other to go on the attach to have myself removed from the prison, because I would report incidents about staff members not doing their job, sleeping on shift, not doing what they should be doing, throwing away evidence so they don’t have to complete reports and leaving the centre 1 to 2 hours before their shift is completing and still receiving there [sic] full shift pay. … In short I did not misconceive the application and solely state I’m just seeking reinstatement, I outlined a requested list on things to held resolve this issue of falsely alleging malice [sic] statement that have been done to cause further stress on one person (falling into a bulling and harassment). Staff have breached Code of Conduct however outline and are moving towards a corrupt organisation and have shown that unless you are friends with someone and know someone that is in a higher positions [sic] you are expendable. There are so many things wrong with the investigation that QCS are trying to have this matter closed so their own mistakes aren’t made public. Respondent’s submissions [50] In their submissions of 28 May 2024, the Respondent relevantly submitted that:38 16. The Applicant must show there is some merit to the Application for this factor to favour him. However, the inquiry into merit does not need to be to the same standard as would apply at a final hearing of the matter. Notwithstanding, the Respondent repeats and relies on [12]- 37 Applicant’s submissions, filed 8 May 2024, 1-2. 38 Respondent’s submissions, filed 28 May 2024, [16]-[18]. -- 16 of 22 -- 17 [21] of the Response and submits the Application is misconceived, and it fails to particularise any contravention of ch 8, pt 1 of the IR Act. 17. Despite the Application outlining reasons why his dismissal was allegedly harsh, unjust and unreasonable, the Applicant now alleges in his submissions, that he had a workplace right to ‘have a fair and balanced investigation that is not biased in any way’. The Applicant still fails to establish that he exercised this alleged workplace right, the action taken constituted alleged ‘adverse action’, or the particular reason or particular intent with which it is said that adverse action was taken. 18. The Application does not properly articulate a case under s 285 of the IR Act and on that basis, the Application is bound to fail. Consideration [51] In his application, Mr Eicens outlines a number of reasons why he believes his dismissal was harsh and unreasonable. Notably, in outlining these grounds for his application, the Applicant uses the following subheadings:39 • ‘what were the reasons for the dismissal, if any, given by the employer and why was the dismissal unfair?’; • ‘why the dismissal was harsh’; and • ‘why the dismissal was unreasonable’. [52] Such considerations are relevant to applications for reinstatement to the Commission pursuant to section 317 of the IR Act,40 but are not relevant to general protections applications to the Commission pursuant to s 309 of the IR Act. It is unclear to me why Mr Eicens decided to file a general protections application rather than an application for reinstatement, given that his application is worded as though it were the latter. [53] Nonetheless, Mr Eicens has chosen to file a general protections application instead of an application for reinstatement, which gives rise to a number of implications in terms of the matters he must address in order for his application to be successful.41 A general protections proceeding is “not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”,42 nor is it “intended to provide an opportunity for the appellant to raise whatever issues [he] wishes to about the validity of the steps taken before [his] dismissal.”43 39 Schedule 1 to General Application, filed 25 March 2024, 6-9. 40 I note that the wording of the subheadings used by the Applicant in his application appear to be taken from the Commission’s ‘Form 12 – Application for reinstatement’ at page 5. 41 Naidoo v Scenic Rim Regional Council [2024] QIRC 134 [97]. 42 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 [48]. This case addresses s 340 of the FW Act, an analogue of s 285 of the IR Act. 43 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 [31], which addresses a general protections application made under the FW Act. -- 17 of 22 -- 18 [54] In Nichols v State of Queensland (Department of Transport and Main Roads), Deputy President Merrell usefully outlines what must be established in an application of this nature:44 [60] Section 285(1) of the Act relevantly provides that a person must not take adverse action against another person because the other person has a workplace right, or has exercised a workplace right. [61] Pursuant to s 306(1) of the Act, if, in an application in relation to a contravention of a provision of ch 8, pt 1, it is alleged that a person took action for a particular reason or with a particular intent and taking that action for that reason or with that intent would be a contravention of the provision, then, pursuant to s 306(2) of the Act, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise. [62] The effect of the equivalent provisions in the Fair Work Act 2009 were authoritatively summarised in Alam v National Australia Bank Limited ('Alam'), where White, O'Callaghan and Colvin JJ relevantly stated: [14] Several matters bearing upon the application of s 361 in relation to s 340 are settled: (a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute "adverse action" and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55]; (b) the party making the allegation that adverse action was taken "because" of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100]; (c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a "substantial and operative" reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ). (d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43] [44]; (e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19]. (emphasis added) 44 [2023] QIRC 182 [60]-[62], citing Alam v National Australia Bank Limited [2021] FCAFC 178. -- 18 of 22 -- 19 [55] I also rely on the observations of Industrial Commissioner Dwyer in Dickson v Mornington Shire Council (‘Dickson’):45 [63] The inquiry into merit only need identify 'some' merit. The inquiry does not need to be to the same standard as would apply at a final hearing of the matter. A party should not be required to potentially run the entirety of their evidentiary case twice . [64] In general protections matters such as this, merits can be evaluated where an applicant can demonstrate the necessary elements of e.g. the exercise of a 'workplace right' and 'adverse action' within the meaning of the IR Act. If an applicant can demonstrate these elements, then a prima facie claim will be made out. (emphasis added) [56] While he does not state it in either his application or submissions, it is sufficiently clear that Mr Eicens has identified an adverse action taken against him, within the meaning of s 282 of the IR Act, in that he has been dismissed.46 However, Mr Eicens does not identify a workplace right within the meaning of s 284 of the IR Act in his application, or state that his employment was terminated because of such a right, even though doing so is “a necessary prerequisite to enliven the protection provided for in s 285 of the IR Act.”47 While he later alleges in his submissions that he had a workplace right to ‘have a fair and balanced investigation that is not biased in any way’, I agree with the Respondent’s submission that Mr Eicens “still fails to establish that he exercised this alleged workplace right, the action taken constituted alleged adverse action, or the particular reason or particular intent with which it is said that adverse action was taken.”48 [57] Mr Eicens’ application in its current form simply “does not articulate which of the many things he complains of actually forms the basis of his general protections application”.49 Rather, it sets out his employment history and “a range of grievances pertaining to his treatment during the time he was employed by the Respondent”.50 As observed by Industrial Commissioner Pidgeon in Naidoo v Scenic Rim Regional Council (‘Naidoo’), “it is not the role of the Commission to construct [the applicant’s] case for him or to go through his material to identify the elements of his cause of action.”51 At present, such an exercise would plainly be required; the Applicant has failed to refer to any sections of the IR Act relevant to a general protections application to the Commission, or particularise any contravention of ch 8, pt 1 of the IR Act, in his application. Further, his submissions fail to provide any assistance in understanding his application, or to address the deficiencies in his application as raised by the Respondent, to which he has been alerted on several occasions previously. 45 [2020] QIRC 106 [63]-[64]. 46 Industrial Relations Act 2016 (Qld) s 282(1)(a); see also Naidoo v Scenic Rim Regional Council [2024] QIRC 134 [98]. 47 Naidoo v Scenic Rim Regional Council [2024] QIRC 134 [98]. 48 Respondent’s submissions, filed 28 May 2024, [17]. 49 Ibid [104]. 50 Ibid [99]. 51 Ibid [102]-[104]. -- 19 of 22 -- 20 [58] It is possible that Mr Eicens would articulate his case in a more cogent manner in a Statement of Facts and Contentions. However, on the basis of the material presently available to me, I conclude that Mr Eicens’ application is substantially lacking in merit. I am not satisfied that the merit of his application is such that it gives rise to an exceptional circumstance warranting the granting of an extension of time, and am unable to assess this factor as favourable to the applicant. Section 310(2)(e) – fairness between the parties Submissions [59] This criterion is not addressed by the Applicant in his submissions. [60] The Respondent submits that the “absence of reasons for the delay, and the lack of merit of the Application should weigh heavily against the Applicant and in those circumstances, there is no particular unfairness occasioned to him if the Application is dismissed.”52 Consideration [61] In Dickson, Industrial Commissioner Dwyer observed the following in relation to s 310(2)(e) of the IR Act:53 [83] In Doorley, Commissioner Black observed: This consideration invites a comparison between the applicant and another employee in the position of the applicant. The purpose of this consideration is to ensure that the applicant does not obtain any forensic advantage from the delay in commencement of the proceedings. In Ballarat Truck Centre v Kerr, the Fair Work Commission Full Bench stated: [26] It appears to be clear that s.366(2)(e) should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s.365 application. A time limit for the lodgement of an application under Part 3-1 of the Act is only provided for with respect to s.365 applications. The Act imposes no time constraints on other applications available under Part 3-1. It follows that the consideration stipulated in s.366(2)(e) of the Act requires a comparison between people who are capable of bringing a s.365 application. Further, as Mr Follett submitted, if s.366(2)(e) allowed for a comparison to a person who had not been dismissed, then, as the Act imposes no time constraints on other applications under Part 3-1, that comparison would always produce comparative unfairness and it could hardly be seen to be indicative of whether there are exceptional circumstances for which a further period of time could be granted. [84] In this case the proper comparison ought to be with Mr Dickson and another employee, dismissed from their employment at the conclusion of their probationary period, who has filed outside the statutory limit. 52 Respondent’s submissions, filed 28 May 2024, [19]-[20], citing Dickson v Mornington Shire Council [2020] QIRC 106. 53 [2020] QIRC 106, citing Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 089. -- 20 of 22 -- 21 [85] Considered in isolation, in a matter like this the facts will always reveal unfairness where a person is denied an opportunity to pursue such an application. However, the considerations identified in s 310(2) require an holistic approach . [86] In this matter, the absence of evidence to support the reasons for delay, and the lack of merit weighs heavily against Mr Dickson in my view. The question of fairness ought to be considered in that context. (emphasis added) [62] Neither party has pointed to a case “where a person in a similar position to [the applicant] had or had not been given a further period to make a general protections application” to aid in my consideration of this criterion.54 However, I find Industrial Commissioner Pidgeon’s decision in Naidoo to be of some relevance; the applicant in Naidoo similarly did not provide a satisfactory explanation for their delay in filing, and “failed to identify the basis for his general protections application” such that it was found the merits of the application did not favour an extension of time.55 The applicant’s application in Naidoo for a further period to make a general protections application relating to dismissal was ultimately dismissed. [63] I am unable to identify any particular unfairness to Mr Eicens in all of the circumstances of this matter if an extension of time for filing is not granted, and have decided to treat this factor as being neutral. Conclusion [64] Having filed his general protections application in the Industrial Registry 7 days out of time, Mr Eicens needed to satisfy the Commission that there are exceptional circumstances that warrant the granting of an extension of time. However, having taken into account the matters listed in s 310(2)(a)-(e) of the IR Act, I am not satisfied that Mr Eicens has established that such exceptional circumstances exist. [65] I acknowledge that the delay in filing in this matter is a relatively short period, and that a refusal to grant the extension of time will extinguish Mr Eicens’ opportunity to seek a remedy for his termination.56 However, Mr Eicens has not identified any one factor which is exceptional, nor can the combination of all circumstances be reasonably regarded as exceptional. Further, I have ultimately determined that the absence of a reasonable explanation for the delay in filing, and the significant difficulties Mr Eicens will face in demonstrating that his application has any merit, overwhelmingly outweigh the other factors when considered as a whole. [66] Accordingly, I am not satisfied that Mr Eicens has established that there are exceptional circumstances that enliven the discretion provided for in s 310(2) of the IR Act to allow a further period for the filing of his application. 54 Nichols v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 182 [108]. 55 Naidoo v Scenic Rim Regional Council [2024] QIRC 134 [101]-[104]. 56 Dickson [90]. -- 21 of 22 -- 22 [67] As Mr Eicens’ application was made outside of the 21-day limitation period stipulated in s 310(1)(a) of the IR Act, the Commission therefore does not have jurisdiction to deal with it, and I order accordingly. Order [68] I make the following order: The matter GP/2024/12 is dismissed for want of jurisdiction -- 22 of 22 --