King v State of Queensland (Department of Education)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	King v State of Queensland (Department of Education) [2024] QIRC 095
PARTIES:	King, Jodi (Appellant) v State of Queensland (Department of Education) (Respondent)
CASE NO:	PSA/2022/751
PROCEEDING:	Appeal against disciplinary decision
DELIVERED EX TEMPORE ON:	18 April 2024
MEMBER: HEARD AT:	O'Connor VP Brisbane
ORDER:	*Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules* 2011, the Appeal is dismissed.**
CATCHWORDS:	PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - where public service appeal against a disciplinary decision made pursuant to s 194 of the Public Service Act 2008 - where appellant failed to receive prescribed doses of a COVID-19 vaccination - where disciplinary action imposed reduction in remuneration for 18 weeks and a reprimand - where appellant has failed to comply with directions of the Commission - whether appeal should be dismissed
LEGISLATION: CASES:	Industrial Relations (Tribunal) Rules 2011, r 45 Public Service Act 2008, s 194 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388
APPEARANCES:	Paul Scott v State of Queensland & Ors [2019] QIRC 115 No appearance for the Appellant. Ms N Smith, Crown Law for the Respondent.

Reasons for Decision
(as edited)

On 8 September 2022 Ms Jodi King ('the Appellant') filed an appeal in the Queensland Industrial Relations Commission ('the Commission') against the State of Queensland (Department of Education) ('the Respondent') pursuant to s 194 of the Public Service Act 2008.[1] This appeal has been made in relation to the disciplinary action decision taken by Ms Anne Crowley, Assistant Director-General, Human Resources, Department of Education on 22 August 2022.
[1] The Public Service Act 2008 (Qld) was replaced by the Public Sector Act 2022 (Qld) which was enacted as from 1 March 2023 where Chapter 9 (Repeal, savings and transitional provisions), Division 7 (Reviews and appeals) at s 324 apply in relation to existing appeals.
The Appellant is permanently employed as a Teacher Aide, Cairns State High School.
Mentions of this matter were listed on 4 and 28 October 2022 at which time the Appellant sought adjournments on both occasions.
On 21 October 2022 the Appellant emailed the Commission seeking particulars of the matter and stated "[y]ou do not have my consent to proceed in any mention or hearing regarding me, Jodi King".
A further mention was listed at 10 am on Thursday 18 April 2024. The Appellant responded by email of 16 April 2024 at 8.14 pm as follows:
"Registry Officer
In response to your email dated 16 April 2024 being today,
You have NOT provided better and further particulars on the matter as I have requested you to do so on two separate occasions.
You have NOT provided me with any reason as to why you have not been able to supply me those better and further particulars on the matter, which is a "Rule of Law" if I was to defend myself in any sort of hearing.
You are not exempt from the "Rule of Law" and you are obliged to facilitate procedural fairness to me in this matter.
Until you can follow the "Rule of Law" procedure I'm unable and don't consent to appear in any form whether that be in person or by phone.
Anything heard Exparte [sic] will be Null and Void."
In considering this response received from the Appellant, the Commission refers to r 45 of the Industrial Relations (Tribunal) Rules 2011 ('the Rules') which provides as follows:
45 Failure to attend or to comply with directions order
(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).
In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, Wilcox and Gummow JJ of the Federal Court of Australia referred to the status of a discretion for non-compliance with a direction:
… the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period". … whatever the applicant's state of mind or resources - in which the non‑compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. … Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co‑operate, or for some reason, is unable to do so. Such a conclusion would not readily be reached; but where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.[2]
[2] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, (1990) FCR 388, [36].
The discretion conferred under r 45 must be exercised judicially.[3]
[3] Paul Scott v State of Queensland & Ors [2019] QIRC 115, [13] citing House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).

This is a matter where it is obvious from the Appellant's state of mind expressed in the correspondence received on 21 October 2022 and 16 April 2024 which is referred to above that she has no intention of appearing to proceed with her appeal. In the circumstances and in particular the Appellant's inability and unwillingness to comply with a Directions Order leaves the Commission with no option other than to exercise its discretion to dismiss the proceeding.
Order
For the above reasons, pursuant to r 45(3)(a) of the Rules, I dismiss the Appeal PSA/2022/751.

The matter of King v State of Queensland (Department of Education) involved an appeal by the appellant, a public servant, against a disciplinary decision made under the Public Service Act 2008. The appellant, who had failed to receive the prescribed doses of a COVID-19 vaccination, faced disciplinary action that included a reduction in remuneration for 18 weeks and a reprimand. The central issue before the court was whether the appeal should be dismissed due to the appellant’s non-compliance with the directions of the Commission.

The court was tasked with determining the appropriate weight to give to the appellant's non-compliance with the Commission’s directions in deciding whether the appeal should proceed. It had to assess whether the non-compliance was significant enough to warrant dismissal of the appeal, considering the principles of fairness and procedural justice. The court examined the nature of the non-compliance and its impact on the ability to fairly address the substantive issues of the appeal. The court ultimately concluded that the appellant's failure to comply with the Commission's directions was a serious matter that undermined the integrity of the appeal process.

Following its analysis, the court dismissed the appeal. The reasoning was grounded in the procedural breaches committed by the appellant and their impact on the ability to conduct a fair review of the disciplinary decision. The court held that the appellant's actions demonstrated a lack of seriousness and respect for the tribunal process, which warranted the dismissal of the appeal. Consequently, the court made an order dismissing the appeal in accordance with rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established