Fildes v State of Queensland (Department of Education) [2022] QIRC 305

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Fildes v State of Queensland (Department of Education) [2022] QIRC 305 PARTIES: Fildes, Anthony (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2021/391 PROCEEDING: Public Service Appeal DELIVERED EX TEMPORE ON: 1 August 2022 MEMBER: Dwyer IC HEARD AT: Brisbane ORDER: 1. Pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 the appeal matter PSA/2021/391 is dismissed. CATCHWORDS: PUBLIC SERVICE – APPEAL – where the appellant failed to comply with direction to file submissions – where the appellant failed to comply with direction to attend a mention on 1 August 2022 – where appellant warned failure to attend may result in the appeal being dismissed - appeal dismissed LEGISLATION: Industrial Relations (Tribunals) Rules 2011 (Qld) r 45 -- 1 of 6 -- 2 Reasons for Decision (ex tempore) Background [1] Mr Anthony Fildes is employed as a teacher with the Department of Education ('the department'). On 15 November 2021, Mr Fildes filed an appeal against a decision, dated 21 October 2021 ('the decision'). The decision was a review decision of an earlier decision directing him to attend an independent medical examination ('IME'). [2] At the time when the department sought to refer him to an IME Mr Fildes had been absent from duty for approximately 10 months. [3] In respect of this appeal directions were issued from the Industrial Registry ('the registry') on 23 November 2021 requiring the parties to file written submissions. The department duly complied with their obligations in this regard on 20 December 2021.1 [4] Mr Fildes was due to file his submissions in this appeal by 4 pm on 18 January 2022. On 18 January 2022 Mr Fildes emailed the registry to offer an apology for his failure to comply with the direction due to what he described as 'unforeseen medical issues.' I note that no medical evidence was supplied and nor was there any commitment from Mr Fildes as to when he would comply with the direction. [5] The registry duly made a request to Mr Fildes to confirm when he would comply with the direction but from my review of the file there appears to have been no response to the registry's query from Mr Fildes. Subsequently, the matter was listed for mention on 9 March 2022. [6] At 2.19 pm on 8 March 2022 Mr Fildes sent an email attaching a medical certificate, seeking to suspend the proceedings until 30 June 2022. The listing for 9 March 2022 was vacated, notwithstanding objections by the department. A further mention was scheduled for 23 March 2022. Mr Fildes was given the option to attend that mention by telephone if he wanted to but was otherwise excused from attending. Ultimately he did not participate. [7] Following the mention on 23 March 2022, an email was sent to Mr Fildes asking him to supply a medical report from his treating practitioner outlining the nature of the condition preventing him from participating in or advancing his appeal. Mr Fildes has subsequently denied receiving that email and, relevant to that, some questions arise as to when Mr Fildes ceased to have access to his departmental email. I will deal with that further below. 1 For completeness, I note that on 22 November 2021, I called the parties to a mention to discuss what I had initially anticipated was a potential jurisdictional barrier to Mr Fildes appeal. However, that issue was clarified in submissions from the department and no barrier was alleged in respect to Mr Fildes' appeal. -- 2 of 6 -- 3 [8] When no reply was received from Mr Fildes as expected following the email of 23 March, the matter fell into a period of unintended inactivity. [9] On 6 July 2022, the department sought an update on the status of the appeal. Following the department's email on 6 July 2022, it was noted that Mr Fildes had never replied to the email of 23 March 2022. Consequently, orders were issued directing Mr Fildes to explain his noncompliance on or before 4.00 pm on 21 July 2022. [10] At 4.55 pm on 22 July 2022 (one day after he was directed to comply) Mr Fildes sent an email asserting that he had not received the email of 23 March 2022. Mr Fildes alleges that he handed his work laptop back to his base school and is now no longer able to access his work email account. He cites this (apparently) as the reason he did not receive the email on 23 March 2022 which was emailed to his departmental email address and not his personal email address. He does not say when he handed the laptop back. [11] However, I note that Mr Fildes' email of 8 March 2022 (referred to above) was sent to the Commission from his departmental email address. If it is the case that Mr Fildes ceased having access to his departmental email address then presumably this must have occurred between 8 March and 23 March 2022. No doubt there will be some record of the return of the laptop that could verify this. [12] Alternatively, there is some possibility that Mr Fildes could have accessed his departmental email address and its contents remotely and notwithstanding that he had handed back the laptop.2 If this were the case, Mr Fildes' assertions about not receiving the email of 23 March 2022 might require some further explanation. [13] Ultimately the veracity of Mr Fildes' assertions about receipt of the email dated 23 March 2022 does not need to be determined because subsequent events have occurred that overtake the relevance of any potential prejudice to Mr Fildes in failing to receive the email from the registry on 23 March 2022. [14] As a consequence of Mr Fildes' email of 22 July 2022, the matter was listed for mention on 1 August 2022 to clarify why no progress has been made in this matter and to establish an appropriate way forward. A listing notice for mention, specifying the listing date of 1 August 2022, was sent to Mr Fildes on 25 July 2022. [15] On Thursday 28 July 2022, Mr Fildes sent a lengthy email seeking an adjournment of the mention. Mr Fildes was quite anxious about not having all emails issued in the matter and concerned he would be disadvantaged at any mention.3 2 Mr Patterson who appeared for the department at the mention on 1 August 2022 made a submission to this effect though he was careful to properly qualify it by saying he had no direct information as to whether his personal experience with remote access to work emails extended to Mr Fildes. 3 I note as an aside that Mr Fildes' email (like all of his emails) was lucid, detailed, comprehensive and (importantly) gave a very clear impression that Mr Fildes is more than capable of advocating on his own behalf, at least in written form. -- 3 of 6 -- 4 [16] By reply email from the registry on 28 July 2022, Mr Fildes was assured that the mention scheduled for 1 August 2022 was simply to clarify what emails he had or had not received, and to make a plan to have this matter returned to a state whereby it could progress to conclusion. Mr Fildes was given permission to appear by telephone and, importantly, he was warned that a failure to attend this mention may result in his appeal being dismissed. The mention remained in place for 1 August 2022 at 2.30 pm. [17] On 1 August 2022 at 1.41 pm i.e. less than one hour prior to the scheduled mention, Mr Fildes emailed the registry indicating that he was unable to participate. Mr Fildes alluded to having not recovered to the extent he could advocate on his own behalf. Attached to the email, Mr Fildes produced a copy of a medical certificate dated 23 June 2022 which stated that Mr Fildes was unfit to attend a hearing until 30 August 2022. [18] I note that the medical certificate is over one month old and therefore does not provide a recent or current assessment of Mr Fildes' health. Further, it does not disclose whether Mr Fildes has capacity to participate by telephone at a mention (as opposed to a hearing). It does not appear to be medical evidence provided in contemplation of the type of proceedings of the simple nature that Mr Fildes was assured by the registry that this mention would be. [19] The registry replied to Mr Fildes shortly after 2.00 pm on 1 August 2022 confirming the mention was proceeding and his participation (by telephone) was required. No reply was forthcoming from Mr Fildes. Conclusion [20] On 1 August 2022 at approximately 2.30 pm, despite the email from the registry confirming he must participate and despite multiple attempts to contact him via telephone, Mr Fildes failed to respond to telephone calls and failed to attend the mention as ordered. [21] In the circumstances, I am not satisfied that Mr Fildes has provided an adequate explanation for his non-attendance at this mention. I am further dubious about his bona fides given the extremely late notice of his asserted incapacity to attend which I note is consistent with his previous tardiness in notifying the Commission of his failures to comply with directions. [22] It is concerning to me that, notwithstanding he filed his appeal in November 2021, Mr Fildes has not been able or prepared to file any submission or otherwise advance this matter, apparently due to his state of health. In circumstances where he is appealing a decision to refer him to an IME, this degree of delay without proper excuse and due deference displayed to the Commission is unacceptable. Mr Fildes simply cannot keep sending last minute emails with inadequate medical evidence and expect to avoid attendance before the commission to address the lack of progress of his own appeal. -- 4 of 6 -- 5 [23] Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides that the Commission may dismiss proceedings where a party fails to comply with a directions order. This does not require multiple failures. A single failure in appropriate circumstances will suffice. [24] Relevantly, rule 45 provides: (1) This rule applies if— (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and (b) the party fails to attend the hearing or conference. (2) This rule also applies if— (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and (b) the party fails to comply with the order. (3) The court, commission or registrar may— (a) dismiss the proceeding; or (b) make a further directions order; or (c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or (d) make orders under paragraphs (b) and (c). [25] Mr Fildes has failed to comply with the direction to file submissions that was issued in November of 2021. While I accept that he was given some flexibility with respect to that failure to comply, he had not been excused, and resolution of this issue was still subject to Mr Fildes providing information from his doctor to explain why he could not comply. [26] Putting to one side any issue arising with respect to whether Mr Fildes received the email of 23 March 2022, Mr Fildes has now failed to comply with a direction to attend the mention on 1 August 2022 in circumstances where he was expressly assured that the nature of the proceeding was very simple and further, in circumstances where he was warned that if he failed to attend, his appeal may be dismissed. [27] Mr Fildes' continued incapacity to engage with the commission on the simplest of matters adds overwhelming weight to the merit of the very decision that is under appeal. I am not prepared to allow Mr Fildes any further indulgences. -- 5 of 6 -- 6 Order [28] In the circumstances I make the following order: 1. Pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 the appeal in mater PSA/2021/391 is dismissed. -- 6 of 6 --