Perry v State of Queensland

Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Mather v Commercial and General Insurance Brokers [2005] QIRComm 18; (2005) 178 QGIG 132

Queensland Public Sector Union of Employees v Department of Corrective Services [2006] QIC 42; (2006) 182 QGIG 503

Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159

Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43

Weaver v Ipswich City Council [2021] QIRC 234

[2005] QIRComm 18; (2005) 178 QGIG 132

• [1] Mr Jason Perry commenced employment with the Queensland Reconstruction Authority ('the QRA') in the role of Regional Liaison Officer (PO6) on 24 October 2022.

• [2] Mr Perry's employment was subject to a three-month probationary period which was due to expire on 23 January 2023. However, on 19 December 2022, the QRA decided to extend Mr Perry's probationary period to 21 March 2023 ('the extended probationary period').

• [3] On 20 December 2022 Mr Perry received the following correspondence from the Acting Chief Executive Officer of the QRA, Mr Jimmy Scott:[1]

In accordance with the Public Service Act 2008 (the Act), the probationary period of your employment with the Queensland Reconstruction Authority has been extended for a further period of seven weeks to 21 March 2023.

This possibility of this extension was raised with you in a meeting with your supervisor, Mr Damian Bicknell, Director (Regional Liaison), on 8 December 2022.

This extension will provide you with additional time to perform the full range of responsibilities of the Regional Liaison Officer role.

The extension will compensate for the compulsory Christmas closure of the QRA office from 26 December 2022 to 2 January 2023 and will also allow for an appropriate period to review your performance against the measures contained in your performance and development agreement, which is scheduled to be completed 20 December 2022.

To acknowledge this extension, please sign below and return a copy to [redacted]@qra.qld.gov.au by COB Monday 19 December 2022.

• [4] Mr Perry signed the correspondence from Mr Scott to acknowledge the extension. It is fair to note that the extended probationary period was imposed on Mr Perry though nothing of relevance arises from this.

• [5] On 20 March 2023, while within the extended probationary period, Mr Perry received notification his employment had been terminated.

• [6] On 11 April 2023, Mr Perry filed a general protections application (matter GP/2023/9) ('the GP matter') in the Commission, pursuant to section 309 of the IR Act. The remedy sought by Mr Perry was:[2]

1. My grievance and request for dispute resolution is adequately heard, investigated and resolved;
2. I am afforded procedural fairness and natural justice in relation to allegations of poor performance; and
3. If required in relation to the extension of my probations, an appeal is lodged and heard in relation to a directive decision and a fair treatment decision.

• [7] The GP matter proceeded to conciliation conference on 5 July 2023. The parties were unsuccessful in reaching a resolution. The question of whether Mr Perry had any remedy available to him in respect of any alleged unfair dismissal was raised at that conference but whether Mr Perry would (or would not) elect to pursue such proceedings was a matter very much left to him.[3]

• [8] On 2 August 2023, Mr Perry filed an application to amend the GP matter ('the amended GP matter') seeking inter alia, that he be afforded an opportunity to file an application for reinstatement in circumstances where such application became a 'more appropriate' cause of action:[4]

3. That, as discussed on 5 July 2023, if this application is more appropriately considered to be a case for unfair dismissal:

1. I be afforded an opportunity to lodge a Form 12 - Application for reinstatement;
2. My attempt to have this matter heard as a general protections application be considered when assessing the delay in lodging the application for reinstatement;
3. The information disclosed and discussed as part of this general protections application be considered when hearing the application for reinstatement.

• [9] Relevantly, Mr Perry's amended pleading acknowledges his awareness of the possibility of an application for reinstatement as a cause of action from 5 July 2023. He also acknowledges such action as separate to the GP matter, including that it requires the filing of a separate application. Importantly, his pleading also acknowledges that any such reinstatement application would be affected by the delay in lodging.

• [10] The parties attended a second conciliation conference on 21 August 2023 and were once again unsuccessful in reaching a resolution.

• [11] On 12 September 2023, 22 days after the second conciliation conference, Mr Perry filed an application for reinstatement pursuant to s 317 of the IR Act (Matter TD2023/99) ('the TD application').

• [12] The TD application seeks various orders including that Mr Perry be re-employed by the QRA in another role or, in the alternative, he be paid an amount for loss of remuneration arising from the dismissal.

• [13] On 27 September 2023, the QRA raised a jurisdictional objection on the grounds that the reinstatement application was filed outside the prescribed time limit of 21 days. Notwithstanding this, there were two conciliation conferences convened in respect of the TD application on 14 November 2023 and 4 March 2024, but the matter ultimately did not resolve. It is unclear why there were two conferences, and why they were almost 4 months apart.

• [14] A certificate was issued pursuant to s 318 of the IR Act on 12 March 2024. Mr Perry then waited until 2 September 2024, almost the full length of the maximum period of 6 months prescribed by s 318(4) of the IR Act, before asking the Commission to progress the TD application. By this stage, the better part of 18 months had elapsed since Mr Perry's employment was terminated.

• [15] The matter was then allocated to me for hearing of the QRA's objection with respect to the TD application having been filed outside the prescribed time limit. The single issue for determination in this decision is whether I ought to exercise the discretion to grant an extension of time for the filing of the TD application.

• [16] Section 317(2)(a) of the IR Act provides that an application for reinstatement must be made to the Commission within 21 days after the dismissal takes effect. Section 317 of the IR Act is, relevantly, in the following terms:

(1) If it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this part.

(b) if the commission allows a further period on an application made at any time - the further period.

• [17] Section 317(2)(b) of the IR Act provides the Commission with a discretion to extend the time for filing of the application for reinstatement. The exercise of the discretion to extend time has been considered in previous decisions of the Commission and the Industrial Court.

• [18] In Queensland Public Sector Union of Employees v Department of Corrective Services,[5] President Hall said:

This Court has consistently adhered to the view that the 21 day limitation period imposed by s. 346 should be seen as an assessment by the legislature that in the ordinary category of case justice will be best be served by adhering to a 21 day limitation period, though on occasion the limitation period may defeat a perfectly good case.

• [19] In Wantling v Department of Community Safety (Queensland Corrective Services)[6] ('Wantling'), Deputy President O'Connor (as he then was) observed that the statutory time limit in section 74(2)(a) should only be departed from in the most compelling of circumstances and where necessary to ensure that justice is done between the parties.[7] Relevantly, in Wantling, Deputy President O'Connor citing President Hall in Rich v Chubb Protective Services said:[8]

His Honour President Hall outlined the effect of the limitation period set out in s. 74(2) as follows:

The view which I expressed in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109 about the counterpart provision in the Workplace Relations Act 1997 (s. 218(3)) is equally applicable here. The power to allow a further period of time within which an application about an alleged unfair dismissal may be made is vested in the Commission by statute because by statute a time limit of 21 days is imposed and because the legislature recognised "that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case", Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J (with whom Dawson J agreed). In exercising the power, the legislature's choice of a 21 day limitation period must be respected, Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060 at 1060, Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature's judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 553 per McHugh (with whom Dawson J agreed). Section 74(2)(b) should not be treated as having equal standing with s. 24(2)(a). Section 74(2) is not the equivalent of a rule of court providing that if a matter is not commenced within 21 days it may be commenced only with leave of the relevant tribunal. It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s. 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed).

• [20] In determining applications to extend the 21-day time limit pursuant to s 317(2)(b) of the Act, the Commission has previously had regard to the following factors:[9]
  1. the length of the delay;
  2. the explanation for the delay;
  3. the prejudice to the applicant if the extension of time is not granted;
  4. the prejudice to the respondent if the extension of time is granted;
  5. any relevant conduct of the respondent; and
  6. the prospects of success of the substantive application.

• [21] In Mather v Commercial and General Insurance Brokers[10] Industrial Commissioner Asbury (as she then was) observed:

All of the principles may not be relevant in all cases. The major consideration is whether in all of the circumstances of a particular case, it is equitable to extend time. This consideration has also been expressed as whether in a particular case justice requires an extension of time. In seeking to achieve an equitable outcome, the Commission will be required to give greater weight to the facts or matters considered under some principles than it does to those considered under others, depending on the facts and circumstances of each case...

• [22] While each of these factors must be considered, not all of them will be equally relevant in the circumstances of each case. The consideration requires holistic evaluation of the circumstances of each case. Mr Perry bears the onus of demonstrating that the justice of the case requires an extension of time.[11]

• [23] The parties were directed to file written submissions. The directions also invited either party to request a hearing following the filing of submissions should they wish. In the event that neither party required a hearing, the directions provided that the matter would be heard and determined on the papers.

• [24] The parties filed submissions in accordance with the directions. Neither party requested a hearing and consequently, the matter has been heard on the papers.

• [25] I have read the submission of the parties. I do not intend to replicate them in these reasons. I will refer to the salient portions of those submissions in the reasons that follow.

• [26] The extended probationary period has caused something of a distraction in this application. In those circumstances the relevant considerations to determine whether the extension of time ought to be allowed are more efficiently dealt with by firstly determining the impact of the extended probationary period on Mr Perry's right to pursue proceedings for unfair dismissal.

• [27] It is trite to note at the outset that the IR Act provides that certain classes of employees serving within the terms of a probationary period prescribed by s 315 of the IR Act are excluded from pursuing unfair dismissal proceedings.

• [28] On the facts of this matter, I can categorically conclude that Mr Perry was not amongst the class of employees excluded from bringing unfair dismissal proceedings by the IR Act.

• [29] Section 315 of the IR Act relevantly provides:

(1) Section 316 does not apply to any of the following -

(a) an employee during the first 3 months of employment with an employer (the

"probationary period"), unless the employee and employer agree in writing that the employee serve -

(i) a period of probation that is shorter than the probationary period; or

(b) an employee serving a period of probation that is longer than the probationary period, if the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment;

• [30] Mr Perry's probationary period was extended after he had commenced employment. As such s 315 of the IR Act does not operate to preclude him from bringing proceedings for unfair dismissal.

• [31] Whether the QRA held an erroneous belief about the effect of the extended probationary period is ultimately not relevant in this matter, especially given that there is no evidence of any express representation to Mr Perry by the QRA to discourage him filing an unfair dismissal application on that basis.

• [32] For completeness I note further that there is nothing improper about the extension of the probationary period from a purely contractual perspective. While I accept that this may have caused some confusion for Mr Perry when investigating his rights, his own evidence demonstrates he was more than capable of accessing informing about his rights. Despite this, it appears he ultimately misinformed himself or he was misinformed by the 'trusted individuals' that he says he sought counsel from. At the very least, it appears Mr Perry failed to fully investigate whether the extended probationary period was a barrier to dismissal proceedings.

• [33] Mr Perry was dismissed on 20 March 2023. The time limit for filing a reinstatement application expired on 10 April 2023. Mr Perry filed his application on 12 September 2023. The length of the delay is approximately 5 months.

• [34] Determining whether a delay is significant should not rest exclusively on a consideration of the number of days or weeks elapsed since the time limit expired. In keeping with the holistic nature of the consideration required, it is not difficult to contemplate scenarios where an explanation might justify a delay of many months, while there will be others where a single day outside the time limit cannot be excused.

• [35] Litigants will often cite ignorance of time limits as a starting point to explain their failure to commence proceedings. A lack of knowledge as to time limits or one's right to commence proceedings will not usually be a sufficient explanation for lengthy delay. Factors unique to each case that are asserted to have impacted the understanding of an individual as to their rights will be crucial in determining whether their ignorance or error warrants any indulgence on the prescribed time limit.

• [36] In this matter Mr Perry's explanation for the delay will aid in determining the significance of the length of the delay. There are complexities in the facts of this matter in that Mr Perry's state of knowledge about his rights to bring such an application changed between the date of his dismissal and the date he filed the TD application. In this matter, the true test of whether the 5-month delay is significant will depend inter alia on a consideration of Mr Perry's explanation as to:

• Why he did not file a reinstatement application within the prescribed time limit;

• When during the relevant timeline he realised he could file a reinstatement application; and

• What steps he took (and how quickly he took them) after he acquired that knowledge.

• [37] The explanations offered by Mr Perry are extensive and multifarious. These multiple explanations relate variously to his decision to file the GP matter in preference to the TD application at the relevant time, the timing of his decision to file the TD application, and the barriers to filing the TD application when he eventually decided to do so.
• [38] The submissions of Mr Perry filed on 30 September 2024 were supported by an affidavit of the same date which expanded on the propositions set out in his TD application. With respect to identifying explanations for delay there is something of a disconnect between the TD application, the written submissions prepared by Mr Perry's lawyers, and Mr Perry's affidavit.

• [39] In the TD application filed on 12 September 2023 Mr Perry explains his delay in filing by saying he was 'overwhelmed by personal circumstances outside of (his) control'. While he goes on to identify other explanations consistent with the content of his lawyer's submissions and his affidavit, he very plainly identifies the personal circumstances as one of the explanations for the delay.

• [40] By contrast, while his affidavit filed on 30 September 2024 provides particulars of his personal circumstances in a manner that suggests they were problematic, he does not go on to depose that they are an explanation for the delay in filing.

• [41] More problematically, the submissions prepared by his lawyers focus entirely on Mr Perry's alleged erroneous belief that he could not file dismissal proceedings.[12] The submission about the personal circumstances appears to be the explanation for why Mr Perry did not have legal representation which, in turn, appears to be an oblique explanation for why Mr Perry was apparently mistaken about his right to pursue dismissal proceedings.[13]

• [42] In all of the circumstances I intend to treat the alleged personal circumstances as an explanation for the delay offered by Mr Perry. I am assured of this approach given that they were the first thing he nominated in the TD application when asked to explain the delay.

• [43] In his affidavit Mr Perry outlines his personal and other circumstances in the 5 months that passed between the date of his dismissal and the filing of his reinstatement application and how those circumstances impacted on the timing of the filing of the TD application.

• [44] In relation to the personal issues referred to above, Mr Perry offers the following as explanations for his delay in filing the reinstatement application (in summary):

1. Between the date of dismissal and the date of filing, he had been affected by his personal circumstances, namely:[14]
   1. he is a single parent with care of two teenage children (every second week);
   2. he was preparing for mediation in the context of family law proceedings with his ex-wife which was then held on 3 May 2023;
   3. he experienced financial abuse from his ex-wife which caused him to become homeless.
2. He was a self-represented litigant, being unable to afford legal representation within the limitation period due to his personal circumstances;
3. The QRA led him to believe that, because he was on probation at the time of his dismissal, reinstatement was not available to him.[15] Further, he was advised by 'trusted individuals' to file a general protections application instead of an application for reinstatement;[16] and
4. He came to realise that an application for reinstatement was a more appropriate cause of action during the conciliation process, as a result of disclosures made by the QRA and the discussions that ensued during the conciliation process.

• [45] The various explanations offered by Mr Perry present as a complex combination of factors. The broad tenor of Mr Perry's submissions and evidence hints that these were all factors out of his control and that they either led to him filing the GP matter instead of the TD application or prevented his timely filing of the TD application (or both).

• [46] Additionally, the explanations offered by Mr Perry are respectively restricted in their relevance to various stages of the chronology. Some purport to explain why he did not file the TD application in the first instance, while others purport to explain why he delayed in filing once he resolved to do so.

• [47] To aid with clarity I will consider the explanations for delay across the relevant chronology, though it ought to be clearly understood that my consideration of the explanations offered by Mr Perry is ultimately an all-inclusive consideration.

1. Explanation re initial filing period of 21 days

• [48] An important undisputed fact in this matter is that, within 21 days of his dismissal, Mr Perry considered his options and made a conscious decision to file the GP matter instead of the TD application. The evidence reveals that Mr Perry elected to do this quite deliberately albeit for reasons he now contends were mistaken. In those circumstances, the contention that his marital and parenting issues somehow impeded him is both perplexing and contradictory. By filing the GP matter Mr Perry clearly demonstrates he had capacity to commence legal proceedings within time.

• [49] Further, while he has provided an extensive list of various factors, Mr Perry has supplied no evidence to elaborate on how his personal circumstances contributed to or explain the delay. For example, he does not elaborate on how (or if) his (part-time) parenting responsibilities impeded him from identifying and filing the TD application within time. He merely cites the co-parenting (of his own teenage children) on a week on/week off basis as some sort of apparent hardship.

• [50] In the absence of further details, I am unable to appreciate how (part-time) parenting contributed to Mr Perry's delay in filing. Such an arrangement is no different from that undertaken by countless other parents, most of whom manage their personal and professional affairs efficiently. While such arrangements will undoubtedly impact on available spare time to research and prepare for litigation, that cannot have been the case for Mr Perry. This is because his own evidence and the broader undisputed facts demonstrate that Mr Perry plainly had the time to research his rights and file the GP matter.

• [51] Mr Perry similarly supplies no additional or independent evidence (other than his testimony) to demonstrate how his wife was allegedly abusing him, or to explain why his involvement in family law proceedings impeded the filing of the TD application. The family law proceedings were plainly a demand on his time. The affidavit supplied by Mr Perry cites multiple dates on which he says his 'involvement was required'. But there is no evidence as to what aspects of the family law proceedings were being dealt with on all those various dates, or how long his involvement was required for. I note that Mr Perry has referred to having legal representation in the family law proceedings. The allegations of abuse by his ex-wife are particularly serious, and for that reason I am reluctant to give them consideration or reach conclusions in the absence of more compelling evidence. I would have thought a short affidavit from his family lawyer verifying these things would have been easy enough to obtain.

• [52] Again, it is more than apparent from his own evidence and the broader facts of this matter that, despite his involvement with family law proceedings, Mr Perry was able to research his rights and organise himself to file the GP matter.

• [53] Mr Perry also describes himself as having become 'homeless' because he was unable to find a property to rent in his own right. He blames this on his ex-wife though produces no independent or other evidence to support such a conclusion. Mr Perry describes his 'homelessness' as a period when he was living with his brother and sister on alternate weeks. Such an arrangement is not consistent with being homeless. Mr Perry had a roof over his head at all times and, despite the inconvenience and indignity he might have felt by his temporary predicament, he has failed to explain how he was impeded by it.

• [54] Again, his demonstrated capacity to commence the GP matter within the period of an identical statutory limit following his dismissal would suggest quite strongly that he was not impeded by these personal circumstances during that period.

• [55] Mr Perry's life appears to have undergone a series of unfortunate changes throughout the better part of 2023. But the mere assertion of these circumstances is not, of itself, enough. Many people endure the added responsibility of (part-time) solo parenting or the stress of acrimonious family law proceedings without losing capacity to conduct other litigation.

• [56] Independent evidence might have assisted if Mr Perry had truly wanted to assert these circumstances somehow impeded his ability to lodge the TD application. In the absence of such evidence Mr Perry's unsupported assertions in his affidavit are not satisfactory, especially when he has demonstrated the capacity to have filed the GP matter within time. Indeed, the absence of evidence in Mr Perry's affidavit gives rise to more questions than answers.

• [57] A dominant theme of the various sources of explanations supplied by Mr Perry is that he held a mistaken belief about his right to commence dismissal proceedings. He contends that he only became aware of this after the conference on 21 August 2023. Mr Perry gives evidence in his affidavit as to the reasoning behind his election to file the GP matter. In general term he contends his reasoning was impeded by various factors. It is stated in his affidavit that the reason why Mr Perry filed the GP matter (instead of the TD application) was because, having relied on his own research and the advice of those he describes as 'trusted individuals', he believed at the time that he could not file the TD application.

• [58] One of Mr Perry's explanations for what he now appears to characterise as an error is that he was self-represented. This is a familiar plea by individuals seeking an indulgence or to explain their incompetent conduct of their own proceedings.

• [59] In Gambaro v Workers' Compensation Regulator President Martin (as he then was) made the following observation about self-representation:[17]

Although the appellant is unrepresented, this does not excuse his noncompliance. A lack of legal representation is a misfortune, not a privilege. In Robertson v Hollings, Keane JA (with whom Fraser JA and Cullinane J agreed) said:

"Litigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted."

• [60] Self-representation cannot, of itself, be an explanation for delay. It goes without saying that a non-legally qualified person who represents themselves is almost always at a higher risk of making errors. That is all part of that particular misfortune afflicting such litigants.

• [61] However, Mr Perry refers in his application to receiving guidance from 'trusted individuals' but he makes no attempt to identify these individuals, disclose their qualifications, or otherwise clarify to what degree he acted on the information they gave him. If any of those 'trusted individuals' were e.g. a lawyer, and if it was their advice that Mr Perry acted on, then he might have had the benefit of relying on something akin to representative error as his explanation for delay. But an absence of details about those 'trusted individuals' leaves me with nothing to consider.

• [62] Further again, without making direct allegations, Mr Perry seeks to explain his error by alluding to having been misled by both the QRA and the Commission's website.[18] The basis for Mr Perry's alleged erroneous understanding as to his rights is best described in his own evidence where he says:

Given my own understanding of my rights, QRA's emphasis on my probationary status and the information I read on the QIRC website, my understanding that the effect of being on probation was that I was unable to bring an unfair dismissal claim...

• [63] The submission appears to suggest that the QRA and the Commission bear some responsibility for Mr Perry believing his probationary status precluded him commencing dismissal proceedings. But on this point, Mr Perry's affidavit is more revealing of the truth of the matter for what it does not say.

• [64] Mr Perry's affidavit, accompanying submissions, and attached documents, contain no trace of an overt or even tacit assertion by the QRA that, at the relevant time, the probationary status referred to in the relevant correspondence would be a barrier to an unfair dismissal application.

• [65] As a matter of law, it cannot be disputed that at the time of his dismissal Mr Perry's contractual status was that he was still on probation.[19] The termination letter provided to Mr Perry merely refers to the relevant chronology of events and performance concerns leading to the decision to terminate his employment. In setting out the chronology, the letter includes the headings 'Concerns with performance during probation' and 'Unsuccessful probation'.

• [66] While the absence of the typical public sector pre-termination procedural steps might suggest that the relevant decision makers at the QRA erroneously believed Mr Perry's probationary status barred him from bringing an unfair dismissal application, there is nothing contained in the termination letter that could be regarded (either expressly or even inadvertently) as a representation by the QRA to Mr Perry that he was precluded from bringing dismissal proceedings.

• [67] Further, the fact that the contractual probationary status was legally distinguishable from the probationary period prescribed by the IR Act was not a matter that the QRA were obliged to make clear to Mr Perry. The QRA have, in no way, misled Mr Perry.

• [68] With respect to the information obtained by Mr Perry from the Commission's website, it is extracted and reproduced in his affidavit:[20]

There are also certain circumstances in which you may not be eligible to make an application including:

• if you were on probation (generally within the first three months of employment);
• if you were a short-term casual (worked for the employer for less than one year); or
• if you were engaged for a specific period or task.

Should any of those circumstances apply to you, you should seek further advice regarding your eligibility.

An application should be made with 21 days of the dismissal taking effect.

• [69] Mr Perry's affidavit then goes on to state that he called the Commission 'for some guidance' but was (quite properly) advised that no advice would be given to him. With the exception of his reference to speaking with 'trusted individuals' Mr Perry does not say whether he sought any other advice elsewhere.

• [70] Having accessed the Commission's website, it is apparent that Mr Perry was expressly informed of two matters very relevant to him, namely: a dismissal application had a time limit of 21 days from the date of dismissal and, more importantly, that probationary employment may be a barrier to dismissal proceedings. But additionally (and more significantly), the website refers to probation as 'generally within the first three months' of employment.

• [71] At the time of his dismissal Mr Perry was in his fifth month of employment. This fact alone ought to have caused Mr Perry to question whether his probation would be a barrier to dismissal proceedings.

• [72] What is clear from his evidence is that Mr Perry had access to clear and reliable information on the Commission's website. While that information was necessarily equivocal on precise details relevant to the impact of probationary employment on his rights, it could not have reasonably left him with the impression that he was absolutely barred from filing dismissal proceedings. On the contrary, the information that he obtained via his own investigations plainly revealed the potential complexities arising from the probationary status of his employment. These are matters he could and should have investigated further had it been his preference to file dismissal proceedings.

• [73] This explanation by Mr Perry invites a conclusion that he elected to file the GP matter instead of dismissal proceedings because he erroneously considered that he was unable to start dismissal proceedings because of his status as a probationary employee. This explanation is offered in addition to the other (contradictory) explanations offered by Mr Perry in the form of his alleged difficult personal circumstances that (somehow) affected his decision or capacity.

• [74] But all of the explanations offered to this point stand in stark contrast to yet another explanation that has been offered by Mr Perry as to why he did not file dismissal proceedings within the 21-day time limit.

• [75] At a conciliation conference on 21 August 2023 in the GP matter, Mr Perry tells the Commission in his own words why he filed the GP matter:[21]

And I know we spoke last time, that's perhaps the unfair dismissal, but for this is - for me it was general protection. I genuinely believe I had the protection of the positive performance management process and natural justice, procedural fairness and that was not provided to me and when I insisted upon it...it appears that my responses and requests for natural justice, procedural fairness**,** all that sort of stuff, was then used to terminate my employment because they branded me as argumentative...

• [76] In his own words to the Commission, Mr Perry not only clearly articulates the framework of his general protections complaint, but he also appears to say that filing the GP matter was a deliberate choice. While I appreciate that the choice may have been influenced to some extent by his uncertainty about dismissal proceedings, Mr Perry tells the Commission on 21 August 2023 that he formed a view that "for me it was general protection" i.e. having considered his options, he identified (what he considered) the most suitable cause of action at that time i.e. a general protections complaint.

• [77] That explanation offered to the Commission on 21 August 2023 not only contradicts the explanation relating to the multitude of personal circumstances, but it also tends to contradict the explanation that Mr Perry was somehow dissuaded by the QRA or the Commission website from bringing dismissal proceedings.

• [78] In my view, the conflict between each of these explanations offered by Mr Perry renders all of them unreliable and unsatisfactory.

• [79] This is not a case of a self-represented litigant filing proceedings out of time because they were ignorant about time limits. Similarly, it is not a delay caused by a self-represented litigant filing proceedings e.g. in the wrong jurisdiction and then seeking to correct that error after they become aware of it. Mr Perry's evidence reveals that he gave careful consideration to his options and made enquiries in doing so. Having made that effort to inform himself of his options, Mr Perry made a clear election to commence the GP matter only.

• [80] In those circumstances I consider that the failure to file dismissal proceedings within the 21-day limit was, in all probability, a consequence of Mr Perry making a considered decision to elect to pursue the GP matter instead of the TD application. Mr Perry was not impeded by his personal circumstances to the extent that he was prevented from filing dismissal proceedings. Mr Perry was not misled by anyone or anything. While Mr Perry's choice to pursue the GP matter might have been influenced by doubts about his ability to pursue unfair dismissal proceedings, he ultimately elected not to resolve those doubts because, in his own words, "for me it was general protection".

• [81] That is the reason why Mr Perry did not file within the prescribed time limit, and it is the reason why he continued not to consider actioning the dismissal proceedings right through until after a conciliation conference was held in the GP matter on 21 August 2023 i.e. because he had elected not to pursue it.

• [82] In terms of matters relevant to the exercise of a discretion to waive a prescribed time limit, a considered, deliberate, and freely made election to pursue one type of proceeding to the exclusion of others known to be available (albeit not fully considered) is not a satisfactory explanation sufficient to justify an extension of time in my view.

• [83] While I find Mr Perry's explanation for the initial delay in filing dismissal proceedings to be unsatisfactory, I am also conscious of the fact that his decision to file the GP matter was, at least partially, influenced by his belief that dismissal proceedings were not an option for him. Notwithstanding that his belief in that regard is a consequence of his own failure to fully examine the impact of his probationary status on his rights under the IR Act, fairness dictates that I further consider Mr Perry's explanations for the delay as a whole.

• [84] I therefore turn now to consider explanations offered for the delay that occurs in the period after the expiration of the 21-day time limit.

ii. explanation - post-expiration of time limit - 5 July to 2 August 2023.

• [85] While it is not expressly stated in his evidence, it seems that Mr Perry did not further turn his mind to the viability of dismissal proceedings between April and July 2023.

• [86] On 5 July 2023 and again on 21 August 2023 Mr Perry participated in a conciliation conference before another member of the Commission in relation to the GP matter. Those proceedings were recorded, and transcripts were created.

• [87] The transcript of 5 July 2023 is useful to my consideration only for general reference to the fact that it appears to record that there was a discussion about whether Mr Perry could (or could not) file dismissal proceedings. As one might expect, without urging either way, the closing remarks of the Commissioner recorded on the 5 July 2023 transcript plainly leave the question of dismissal proceedings as a course of action for Mr Perry to consider.[22]

• [88] On 2 August 2023 Mr Perry filed an amended version of the GP matter ('the amended GP matter').[23] The relevant portion of the amendments are set out earlier in these reasons but, for convenience, ought to be reproduced here. The amendments relate to aspects of the GP matter but additionally contain the following:

That as discussed on 5 July 2023, if this application is more appropriately considered to be a case for unfair dismissal:

1. I be afforded an opportunity to lodge a Form 12 - Application for reinstatement
2. My attempt to have this matter heard as a general protection application be considered when assessing the delay in lodging the application for reinstatement
3. The information disclosed and discussed as part of this general protections application be considered when hearing the application for reinstatement

• [89] As noted earlier in these reasons, the amendments reveal three important matters with respect to Mr Perry's state of knowledge as at 2 August 2023. Firstly, Mr Perry is plainly aware that an application for reinstatement is a separate proceeding. Secondly, Mr Perry appears to have been aware of this following the conference on 5 July 2023 and thirdly, is aware there has been a delay in the filing of such an application.

• [90] The portion of the amendments extracted above does not represent a positive step towards commencing dismissal proceedings. On the contrary, it purports to defer taking such a step until someone or something decides the GP matter is 'more appropriately a case for unfair dismissal'. Mr Perry does not explain how this conclusion would be arrived at or by whom. I can only presume Mr Perry anticipated that the Commission might, somehow, at some stage, make the decision for him. Nothing about the pleading suggests he intends to do it.

• [91] The clear tenor of the amendment is that Mr Perry, while now conscious that dismissal proceedings might be possible, remains equivocal about pursuing them. The clear intent expressed by Mr Perry in the amended GP matter demonstrates he remained committed to that cause of action. He only foreshadows invoking his rights with respect to dismissal proceedings if or when it is 'more appropriately considered to be a case for unfair dismissal'.

• [92] By the end of the conference on 5 July 2023 Mr Perry had been presented with the opportunity to consider pursuing dismissal proceedings. As he did back in April 2023, Mr Perry again eschews that path in favour of maintaining his pursuit of the GP matter albeit this time, by way of the amended GP matter in which he has sought to 'hedge his bets' in the event dismissal proceedings were (somehow) deemed more appropriate.

• [93] What can relevantly be divined from all of this is that by 2 August 2023 Mr Perry appears to be aware he could potentially bring dismissal proceedings. But Mr Perry elects to defer responsibility for the decision to commence dismissal proceedings until some undefined event occurs that has the effect of rendering that proceeding 'more appropriate'.

• [94] For completeness I would note here the concerning submission at paragraph 6(c) of the reply filed by Mr Perry's lawyers on 15 October 2024. The submission extracts a carefully selected portion of transcript from 5 July 2023 to support a contention that Mr Perry was further misled about his rights to bring unfair dismissal proceedings by a 'positive assertion' made by a solicitor appearing for Crown Law. The submission is problematic for numerous reasons.

• [95] Firstly, the relevant statement is not an assertion by the solicitor. The solicitor merely agrees with the vocal musings of the Commissioner which are themselves equivocal and very much in keeping with the meandering nature of conciliation discussions. Secondly, in the context of the closing remarks by the Commissioner that are recorded on the same transcript, Mr Perry was plainly counselled to get advice on whether he has an avenue for unfair dismissal.[24] Finally, the reply submission cannot be sustained in circumstances where Mr Perry's own pleadings of 2 August 2023 reflect his enhanced understanding of the potential to file dismissal proceedings.

• [96] I consider that the use of the transcript in this manner by solicitors for Mr Perry to be concerning because, on a superficial level, it is a rather hackneyed attempt to 'cherry pick' a few lines out of 22 pages of transcript that ultimately do not assist Mr Perry's increasingly weak arguments. But what I find more troubling is that it is a submission that improperly draws a Member of the Commission into the controversy.

• [97] Despite the contention that it was the solicitor from Crown Law who makes the positive assertion (which he does not), the transcript plainly reflects that it is the Commissioner who speculatively raises the notion of unfair dismissal being excluded. Had it been put bluntly and definitively by the Commissioner to Mr Perry that he could not bring dismissal proceedings, I might consider that to be an appropriate circumstance to resort to the transcript. But, as I noted above, the language used by the Commissioner is entirely equivocal and in keeping with the necessary practices of conciliation which include exploring (by discussion) aspects of the matter being conciliated. Moreover, the closing remarks plainly leave the option of dismissal proceedings open to Mr Perry, and his own subsequent pleadings confirm he was conscious of this.

• [98] There was nothing to be gained from this very obviously flawed and arguably inappropriate submission, and the practitioner responsible for it would do well to reflect on the appropriateness of its inclusion.

iii. explanation - post-expiration of time limit - 2 August to 21 August 2023.

• [99] Following the filing of the amended GP matter, the respondents filed a formal response, and the matter was listed for further conference on 21 August 2023. In his affidavit Mr Perry relevantly says:[25]

On 21 August 2023, during conciliation..., I became aware that, in spite of my extended probation period, I was eligible to file an application for reinstatement. If I had known this earlier, I would have filed an unfair dismissal application earlier and would not have needed to pursue an unfair dismissal application.

• [100] The statement he makes in his affidavit suggests that he only became aware he could file dismissal proceedings during the conciliation conference on 21 August 2023. The statement further contends that dismissal proceedings were his preference. These contentions are contradicted by Mr Perry's own earlier evidence.

• [101] Firstly, as I have addressed above, Mr Perry gave consideration to his options in April 2023. While I accept that Mr Perry might have had some unresolved questions about the viability of dismissal proceedings, he was certainly aware that such proceedings were an option. On 5 July 2023 the possibility of bringing dismissal proceedings was again raised albeit as a possible alternative that he was responsible for considering and getting advice on.

• [102] Even if Mr Perry could fairly be said to have been labouring under some mistaken belief about the viability of dismissal proceedings, the discussion that took place on 5 July 2023 clearly should have disabused him of that idea. While the discussions at that conference (quite properly) did not rise to the level of giving Mr Perry advice, the spectre of viable dismissal proceedings had to have been enhanced in Mr Perry's mind. So much is plainly evident from the amendments he filed on 2 August 2023.

• [103] So, even if Mr Perry's explanation for the delay from April to 5 July 2023 were wholly accepted, that delay is compounded by Mr Perry's further inaction after 5 July 2023. The amended GP matter does not represent a positive step towards dismissal proceedings in my view. Unfair dismissal is not, for example, pleaded as an alternative cause of action in those proceedings. If anything, the amended GP matter represents a reaffirmation of Mr Perry's intent to pursue that cause of action.

• [104] While the idea of commencing dismissal proceedings might have been slow to fully crystalize in Mr Perry's mind, there is ample evidence from Mr Perry's own words and actions to demonstrate that he was or should have been aware of that option from (at the absolute latest) 2 August 2023. Yet even then, approximately 6 weeks pass without action to commence unfair dismissal proceedings.

• [105] In my view, what more probably occurred is that during or following the conciliation conference on 21 August 2023, Mr Perry perhaps anticipated the looming technical challenges to the amended GP matter, and only then did he resolve to start the dismissal proceedings that he must have been conscious of since at least 5 July 2023. And notwithstanding all this, even further delay ensued after 21 August 2023.

• [106] Between 5 July and 21 August 2023 there was ample information available to Mr Perry that would have reasonably caused him to appreciate the possibility the unfair dismissal proceedings were available to him. The amended GP matter plainly demonstrates he was of this view by 2 August 2023. And yet, even by the time of the conference on 21 August 2023, Mr Perry has taken no steps to commence those proceedings and still appeared intent to press the GP matter.

• [107] As I said earlier in these reasons: In terms of matters relevant to the exercise of a discretion to waive a prescribed time limit, a considered, deliberate, and freely made election to pursue one type of proceeding to the exclusion of others known to be available (albeit not fully considered) is not a satisfactory explanation sufficient to justify an extension of time in my view.

• [108] After the enlightenment he benefited from on 5 July 2023, the filing of the amended GP matter by Mr Perry on 2 August 2023 demonstrates he elected to press the general protections proceedings. The reference to dismissal proceedings in the pleadings contained in the amended GP matter is little more than a half-hearted afterthought. Nothing about the events between 2 August and 21 August 2023 rises to the level of a satisfactory explanation for the further delay in filing the dismissal proceedings.

iv. explanation - post-expiration of time limit - 21 August to 12 September 2023.

• [109] Following the second conciliation conference, a period of 22 days elapses before Mr Perry successfully files the TD application. If the earlier explanations for delay offered by Mr Perry were unsatisfactory then, by comparison, it must be said that the explanation offered for this final period is catastrophically devoid of clear or compelling detail.

• [110] In his affidavit Mr Perry states that 'as well as his work', he is involved in a 'social enterprise project on the Great Barrier Reef'.[26] It is not clear what this is and neither the affidavit nor the submissions filed by Mr Perry's lawyers provide any further insight.

• [111] While it appears the project is something distinct from his work, there is no other information supplied that might inform the Commission e.g. what the 'social enterprise project' is, how many people are involved, what Mr Perry's role is, whether participation is voluntary, what are Mr Perry's obligations with this project, and how do those obligations arise i.e. by contract, statute, or some other means?

• [112] Having furnished the Commission with no meaningful information about this 'social enterprise project' Mr Perry then goes on to depose that he was required to devote significant amounts of his time to it between February and August 2023, in various locations along the eastern seaboard. Mr Perry states he was required to attend meetings, make preparations, travel extensively, and (relevantly) spend several weeks at sea.[27]

• [113] It goes without saying that a litigant seeking the very great indulgence of the Commission to waive a statutory time limit ought to avoid shrouding their explanation for delay in mystery.

• [114] Mr Perry contends that immediately after the conference on 21 August 2023 he left Brisbane for Gladstone. It appears that Gladstone was the departure point for Mr Perry's seaborne adventures over the weeks that followed. Mr Perry does not inform the Commission (with precision) the date he went to sea. He refers to a departure date of 28 August 2023, and in the absence of any other evidence, I am left to presume that was the date he left. According to his affidavit, Mr Perry was sailing the high seas on these ventures unknown from 28 August until 16 September 2023.[28]

• [115] If 28 August 2023 is the date of departure, then Mr Perry's affidavit fails to address when (on or after 21 August 2023) he began to prepare the TD application. What Mr Perry's affidavit also fails to properly address is: if he made the decision to file the TD application on or about 21 August 2023, why was he unable to complete and file the TD application in the 6 - 7-day period that he was presumably in Gladstone.

• [116] With respect to his activities during that critical timeframe, Mr Perry alludes to 'commissioning new underwater robotic equipment and training people to use it'. As intriguing as that all sounds, without particulars in terms of what it entailed and how it occupied his time, it is impossible to conclude whether it could reasonably have impacted on Mr Perry's ability to prepare dismissal proceedings before going to sea.[29] And, when considered in conjunction with the lack of particulars as to how or why Mr Perry was obliged to be doing any of this, it falls well short of a satisfactory explanation for the (further) delay.

• [117] The conclusion of Mr Perry's wholly uninspiring, lengthy, and complex tale of conflicting explanations is that, on 4 September 2023 he attempted to file the TD application via email while at still at sea. But on 5 September 2023 he was advised by the Registry that the document was too large to file electronically. Rather than modify his document to conform with email electronic filing restrictions, Mr Perry instead decided to wait another 7 days until he was back from his maritime journey, finally filing his application on 12 September 2023.

• [118] These final actions of Mr Perry are not the actions of a litigant who, appreciating they are filing a proceeding well outside a prescribed time limit, acts with appropriate urgency to ensure filing is completed as soon as possible.

v. explanations for delay - summary of conclusions

• [119] Overall Mr Perry has offered multiple explanations relevant to different stages of the 5-month delay. The explanations are as unconvincing as they are numerous. I find Mr Perry has offered no satisfactory explanation for his delay in filing the TD application.

• [120] In general terms there will invariably be prejudice suffered by an applicant denied the opportunity to pursue a legal remedy purely by virtue of a failure to adhere to a prescribed time limit. In many such cases the opportunity denied is the only opportunity that an applicant would have to pursue a remedy. Despite this, the prejudice alone is not a basis for waiving a prescribed time limit. The prejudicial impact must be evaluated in the context of all relevant considerations in the exercise of the discretion to waive a prescribed time limit.

• [121] Similarly, a respondent to proposed proceedings commenced outside of a prescribed limitation period will equally experience prejudice. This typically takes the form of the removal of the certainty and finality a respondent was otherwise entitled to enjoy once it was apparent the applicant had not initiated proceedings. Additionally, depending on the length of the delay and the relevant antecedents to the proposed claim, a respondent can suffer a very significant prejudice by virtue of inter alia the diminution of reliable memories of material witnesses, or the loss of relevant documents.

• [122] In this matter I note that Mr Perry has had two opportunities to conciliate the TD application. I note they occurred approximately 4 months apart and that Mr Perry then waited a further period in excess of 5 months before he asked the Commission to progress the matter. None of this post-filing delay is explained by Mr Perry, particularly his failure to press the matter for over 5 months following the issue of the certificate by the Commission.

• [123] Notwithstanding this unexplained further delay by Mr Perry, I am generally not persuaded that the QRA would experience prejudice to a material degree if I extended the period for filing the TD application. Mr Perry initiated proceedings within the prescribed time limit that broadly takes issue with the circumstance of his termination. Indeed, the pleadings in the GP matter contend a denial of procedural fairness, a matter directly relevant to unfair dismissal proceedings. Given the dispute surrounding his termination was underway relatively quickly, it would require a relatively effortless pivot by the respondent to respond to unfair dismissal proceedings. But the lack of prejudice to the respondent is not reason of itself to waive the prescribed limit.

• [124] Unlike many litigants facing a similar risk of extinguishment of their rights, Mr Perry has the unique advantage in this matter of already having commenced proceedings that could address loss arising from the termination of his employment. While the amended GP matter traverses a number of issues, the loss of employment would be a significant matter relevant to the consideration of remedy by the Commission in circumstances where the QRA was found to have contravened the IR Act.

• [125] In those circumstances it is difficult to see how Mr Perry suffers any prejudice in not being allowed to press dismissal proceedings, effectively in parallel to the general protections matter, in which all the same remedies are available to him (and more).

• [126] Mr Perry's lawyers also contend in their submissions that Mr Perry initially disputed his dismissal in the 'wrong' way.[30] There was a choice of actions available to Mr Perry, and the election Mr Perry made was his own. Importantly, while he now says that his uncertainty about the impact of his probationary status on his right to bring unfair dismissal proceedings caused him to proceed with the GP matter instead, he was not necessarily 'wrong' in doing so.

• [127] At this point in time, I note that the amended GP matter remains active, albeit in abeyance. It is not clear from the submissions how Mr Perry proposes to have the Commission deal with the amended GP matter if he is allowed to pursue the TD application. While no detailed evaluation of merit can be made at this time, the pleadings evident in the amended GP matter do not immediately reveal any flaws of a type that would render it liable to be dismissed before the hearing of evidence.[31]

• [128] Mr Perry's rights with respect to the amended GP matter were exercised within time and remain protected. In my view this very much mitigates any prejudice he might suffer if the TD matter is dismissed. I am therefore not persuaded that there is significant prejudice to either party if Mr Perry is refused permission to proceed with his TD application.

• [129] Beyond matters already addressed in these reasons, Mr Perry does not make any submission of any specific conduct relevant to this factor. As I have already concluded earlier in these reasons, I reject any suggestion that the conduct of the QRA misled Mr Perry. Mr Perry misled himself.

• [130] On the relatively sparse material available it is difficult to evaluate Mr Perry's prospects of success on the TD application. There are broadly two aspects to consider in evaluating the fairness or otherwise of a dismissal: whether there was a valid reason, and whether the employee was afforded procedural fairness. On the question of valid reason, I am unable to make any evaluation of the merit or otherwise of the matters relied on by the respondent to terminate Mr Perry's employment. I must therefore assume a neutral (albeit superficial) conclusion as to the validity of grounds relied on to terminate Mr Perry.

• [131] With respect to procedural fairness, it must be said that the simplistic approach taken by the QRA would suggest they have proceeded with the termination on the basis that they had the protection of s 315 of the IR Act. They plainly did not.

• [132] To the extent the QRA might be in error it would appear that such error caused them to depart from the usual procedures adopted by the public sector in respect of the termination of an employee for performance reasons. This gives rise to a question as to whether Mr Perry was denied procedural fairness which, of itself, can render a dismissal unfair.

• [133] It is important here to clearly differentiate between adherence to procedure and procedural fairness. The role of the Commission in determining whether a termination was unfair involves a consideration of all of the circumstances. In that sense, it is entirely possible that a departure from a prescribed procedure for dismissing an employee will not, of itself, equate with a denial of procedural fairness. In particular, the nature and seriousness of a valid reason giving rise to the dismissal of an employee can inform the extent to which the employee requires the benefit of the full suite of procedures commonly requiring compliance in the public sector.

• [134] I am again unable to make any proper evaluation of the merit or otherwise of contentions about procedural fairness. While I can appreciate there is an approach taken by the QRA that appears consistent with an erroneous belief that they had the protection of s 315 of the IR Act, I am unable to be satisfied whether that might be characterised as a denial of procedural fairness that might render the termination unfair. I must therefore again assume a neutral (albeit superficial) conclusion on the question of the merits of any argument about denial of procedural fairness.

• [135] While I am unable to reach any compelling conclusion on the merits of Mr Perry's TD application, even accepting that he might have some prospects of success will not be enough. Considering the merits in conjunction with all of the other considerations addressed earlier in the reasons, his putative prospects of success are insufficient to persuade me to waive the prescribed time limit.

• [136] Having regard to all of the relevant considerations I am not persuaded to exercise my discretion to waive the prescribed time limit. I am entirely unconvinced by Mr Perry's assertions about being weighed down by personal circumstances or being misled by the respondent. Neither of these explanations were factually established.

• [137] Further, it was clear that Mr Perry had every opportunity to investigate his options, and he did. He contemplated dismissal proceedings but elected to proceed with the GP matter. However, as much as he might regret his choice of proceeding, he made that choice while fully aware he had another option, albeit an option he did not fully explore. His failing was that he prematurely dismissed the option of dismissal proceedings. That was entirely his choice. Mr Perry's unfortunate lack of legal representation is not sufficient to warrant the Commissions indulgence. Mr Perry has demonstrated he had the ability to research and consider his options. He had the assistance of 'trusted individuals.' With the benefit of all of this, Mr Perry plainly stated to the Commission on 21 August 2023 he chose the GP matter because 'for him' the GP matter was appropriate.

• [138] It would seem that the submissions of the QRA and the Commission's observations at the two conferences on 5 July and 21 August 2023 (eventually) prompted Mr Perry to the view that he ought to pursue dismissal proceedings. But even once he formed that view, he delayed acting on it.

• [139] The amended GP matter filed on 2 August 2023 demonstrates knowledge but no actual action towards advancing dismissal proceedings. Even after 21 August 2023 when he appears to have finally decided to file the TD application, he continued to conduct himself without the degree of urgency he ought to have, given that by then he undoubtedly knew he intended to file dismissal proceedings that he knew were well outside the prescribed time limit.

• [140] No prejudice to Mr Perry or merit to his claim could overcome the effect of the wholly unsatisfactory collection of contradictory or incomplete explanations he has offered for his significant delay in filing.

• [141] In all of the circumstances, because it was filed outside the prescribed time limit, I decline to allow Mr Perry's TD application to proceed.

[1] Exhibit 'OF-3' to the Affidavit of Oliver Fitzgerald affirmed on 9 October 2024, page 42.

[2] Exhibit 'OF-2' to the Affidavit of Oliver Fitzgerald affirmed on 9 October 2024, page 16.

[4] Exhibit 'OF-4' to the Affidavit of Oliver Fitzgerald affirmed on 9 October 2024, page 78.

[5] [2006] QIC 42; (2006) 182 QGIG 503.

[6] [2013] QIRC 43.

[7] Section 74(2)(a) of the Industrial Relations Act 1999 (Qld) is in the same terms as s 317 of the Industrial Relations Act 2016 (Qld).

[8] Ibid, [26]; Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159.

[9] Weaver v Ipswich City Council [2021] QIRC 234 [12]; Fletcher v State of Queensland (Queensland Police Service) [2022] QIRC 428 [9]. See also Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20.

[10] [2005] QIRComm 18; (2005) 178 QGIG 132, 2.

[11] Rich v Chubb Protective Services [2001] QIC 24; (2001) 167 QGIG 159.

[12] Submissions filed 30 September 2024 at [8]-[9].

[13] Submissions filed 30 September 2024 at [10].

[14] Affidavit of Jason Perry filed 30 September 2024, at [3]-[7].

[15] Affidavit of Jason Perry filed 30 September 2024, at [19] and [22].

[16] Application for Reinstatement filed 12 September 2024, page 4.

[17] [2017] ICQ 005 at [14].

[18] Affidavit of Jason Perry filed 30 September 2024, at [22].

[19] This is conceded in his own submissions filed on 30 September 2024 at paragraph 5.

[20] Affidavit of Jason Perry filed 30 September 2024, at [20].

[21] Exhibit 'OF 7' to the affidavit of Oliver Fitzgerald filed on 10 October 2024 at T 2-5, ll 30-45.

[22] Exhibit 'OF 8' to the affidavit of Oliver Fitzgerald filed on 10 October 2024 at T 1-22, ll 3-12.

[23] Exhibit 'OF 4' to the affidavit of Oliver Fitzgerald filed on 10 October 2024.

[25] Affidavit of Jason Perry filed 30 September 2024 at paragraph [28]. Note the reference to 'unfair dismissal' at the end of the last sentence appears to be an error. It is presumed Mr Perry intended to refer to the GP matter.

[26] Affidavit of Mr Jason Perry filed 30 September 2024 at [8].

[27] Affidavit of Mr Jason Perry filed 30 September 2024 at [9].

[28]Affidavit of Mr Jason Perry filed 30 September 2024 at [29].

[29] Affidavit of Mr Jason Perry filed 30 September 2024 at [29].

[30] Applicant's submissions filed 30 September 2024 at [14].

[31] Exhibit 'OF 4' to the affidavit of Oliver Fitzgerald filed on 10 October 2024.