22 May 2024
3 min read
#Workplace Relations & Safety, #Government
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In the recent decision of Stewart v State of Queensland (Queensland Health) [2024] QIRC 103 (Stewart), Industrial Commissioner Dwyer (Dwyer IC) of the Queensland Industrial Relations Commission (QIRC) affirmed that the QIRC is not bound by a decision of the Queensland Human Rights Commission (QHRC) to accept a complaint out of time and may exercise its own discretion in this regard under section 175(2) of the Anti-Discrimination Act 1991 (Qld) (Act).
Mr Stewart, a lawyer employed by the Metro North Hospital and Health Service (the Service), made several complaints against various staff which, by late 2020, amounted to 29 allegations against 11 separate people. Mr Stewart complained to the QHRC that he had been subject to alleged reprisals. While the allegations in the complaint fell outside the one year limitation period, the QHRC decided to accept the allegations in the complaint under section 138(2) of the Act on the basis that Mr Stewart had shown good cause. The complaint was subsequently referred to the QIRC.
Under the Act, the QIRC and the Queensland Civil and Administrative Tribunal (Tribunal) must accept any complaint referred by the QHRC if it is within one year of the alleged contravention. In contrast, where a complaint is lodged outside of the one-year timeframe, the effect of section 175(2) of the Act grants a discretion to the Tribunal and QIRC to deal with a statute barred complaint if “on the balance of fairness between the parties it would be reasonable to do so”.
In Stewart, Dwyer IC found that a “balance of fairness between the parties within the meaning of s 175(2) of the … Act requires the Commission to have regard to all of the relevant circumstances of each party, but arrive at a conclusion that is objectively fair notwithstanding that one party may suffer significant disadvantage.”
In deciding Stewart, Dwyer IC referred to the principles guiding when the discretion should be granted as identified in Pagura-Inglis v Minister for Education [2003] QADT 18 and adopted in Wong v Medical Board of Queensland [2006] QADT 41.
Having regard to those decisions, when deciding whether to accept a complaint out of time under section 175 of the Act, Dwyer IC found it relevant to consider:
In Stewart, one matter that Dwyer IC found to be persuasive in considering the reasons for the delay or fairness to parties was Mr Stewart’s profession as a legal practitioner. In particular, Dwyer IC found, in reference to Mr Stewart’s status as a legal practitioner:
“This fact forms an important context for the Commission’s consideration of his explanations for the delay and presentation of merit. The balance of fairness requires that Mr Stewart’s qualifications should set a higher bar for expectations as to his competence to inform himself of relevant time limits and processes. It is also an important antecedent for the evaluation of the plausibility of his explanations for delay.”
Ultimately, the QIRC exercised its discretion to not deal with Mr Stewart’s out-of-time complaint after considering all the circumstances.
The decision in Stewart is a timely reminder that when complaints are made more than one year after the alleged contravention and are referred to the Tribunal or QIRC, the QHRC’s earlier decision on whether to accept an out-of-time complaint is not binding on the Tribunal or QIRC. This is because the discretions in section 138, which pertains to complaints referred to the QHRC initially, and section 175 of the Act, which deals with complaints referred to a Tribunal or QIRC by the QHRC, are separate and independent discretions.
The separation of the discretions in this context provides litigants with another avenue to agitate out-of-time decisions if they feel aggrieved by the QHRC’s decision.
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