Smith v State of Queensland [2025] QIRC 313 | Case summary

Queensland Industrial Relations Commission|2025-11-21

INDUSTRIAL LAW - application for unpaid wages - partial over-payment deducted from final pay on termination - applicant alleges no evidence of overpayment - application in existing proceedings to dismiss claim - whether the Commission should refrain from hearing the application pursuant to s 541 of the Industrial Relations Act 2016 because further proceedings are not necessary or desirable in the public interest - consideration of public interest - consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 - whether Applicant has failed to comply with Directions - whether discretion to dismiss proceedings is enlivened - application to dismiss substantive application is granted because further proceedings are not necessary or desirable in the public interest.

Amerena and Ors v Queensland Teachers Union of Employees and Ors [2023] QIRC 302

Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2005) 239 CLR 175

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266

House v R (1936) 55 CLR 499

Kelsey v Logan City Council & Ors [2022] QCA 238

Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388

Murray v State of Queensland (Queensland Health) [2023] QIRC 339

O'Sullivan v Farrer (1989) 1 [1989] HCA 61; 168 CLR 210

Spears v Quantum Trading Enterprises Pty Ltd [2024] QIRC 081

Triplow v Leidos SAR Services Pty Ltd [2024] QIRC 12

[1] The Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development ('the Department') has filed an application seeking orders that Ms Brittany Smith's application to recover unpaid wages is dismissed, on the grounds that Ms Smith has failed to comply with directions of the Commission and that further proceedings are not in the public interest.[1]

[2] It is useful to summarise the history of the matter before the Commission.

[3] On 27 June 2024, Ms Brittany Smith filed an application to recover unpaid wages ('the Application') from the Department.[2]

[4] Ms Smith filed the application after the Department declined to waive a purported overpayment of wages in its entirety and instead decided to deduct a portion of the overpayment from her annual leave accrual at the time of her resignation.
[5] The table below, based on materials provided by the Department, sets out the details of each overpayment it is said that Ms Smith received during her employment:[3]

Ms Smith commenced a part-time work pattern which was not approved until after payment had been processed, resulting in an overpayment of two days.

On Wednesday 30 June 2021, Ms Smith was paid for the pay period ending Friday 2 July 2021. Leave applications for this period were required to be submitted by close of business Monday 21 June 2021.

Leave applications for absences from work during this period were submitted on Wednesday 7 July 2021. The leave was processed as sick leave without pay for the following dates:

On Tuesday 29 June 2021, Ms Smith was absent for 5 hours.
On Wednesday 30 June 2021, Ms Smith was absent for 4 hours, and 45 minutes.
On Thursday 1 July 2021, Ms Smith was absent for 7 hours and 15 minutes.

Ms Smith had insufficient leave balances to cover this absence, which resulted in the generation of an overpayment.

On Wednesday 11 August 2021, Ms Smith was paid for the pay period ending Friday 13 August 2021. Leave applications for this period were required to be submitted by close of business Monday 2 August 2021.

Leave applications for absence from work during this period were submitted on Tuesday 10 and Thursday 12 August 2021. The leave was processed as sick leave without pay for the following dates:

On Tuesday 10 August 2021, Ms Smith was absent for 1 hour and 15 minutes.
On Wednesday 11 August 2021, Ms Smith was absent for 2 hours and 15 minutes

Ms Smith had insufficient leave balances to cover this absence, which resulted in the generation of an overpayment.

Ms Smith was seconded to the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships from 27 August to 8 October 2021, before returning to her substantive role on 9 October 2021.

Pay period ending 17 December 2021 and pay period ending 31 December 2021

On Wednesday 15 December 2021, Ms Smith was paid for the pay period ending Friday 17 December 2021. The following fortnight Ms Smith was paid on Wednesday

Leave applications for the first period were required to be submitted by close of business Monday 6 December 2021, and for the second period by Monday 20 December 2021.

6 January 2022, leave applications were submitted for Ms Smith's absence from the workplace during both pay periods. The leave was processed as sick leave without pay for the following dates:

On Wednesday 8 December 2021, Ms Smith was absent for 7 hours and 15 minutes.
On Friday 10 December 2021, Ms Smith was absent for 7 hours and 15 minutes.
Between Monday 13 December 2021 and Monday 3 January 2022 Ms Smith was absent.

Ms Smith had insufficient leave balances to cover her absence, which resulted in the generation of an overpayment.

Between 7 and 9 December 2021, Ms Sutton contacted Ms Smith to advise she had outstanding leave applications and requested these to be corrected.

Ms Sutton contacted Ms Smith during January 2022 and requested leave applications to be submitted for processing.

On Wednesday 1 June 2022, leave applications were submitted on Ms Smith's behalf for her absence from the workplace during November 2021. This leave was processed as sick leave without pay for the following dates:

On Monday 1 November 2021, Ms Smith was absent for 5 hours.
On Thursday 4 November 2021, Ms Smith was absent for 2 hours.
On Wednesday 10 November 2021, Ms Smith was absent for 5 hours.
On Monday 15 November 2021, Ms Smith was absent for 5 hours.

Ms Smith's leave balances were insufficient to cover her absence, which resulted in the generation of an overpayment.

[6] Ms Smith received communications from the Department's payroll provider, Queensland Shared Services ('QSS'), about the overpayments on 13 July 2021, 6 October 2021,

18 November 2021, 12 January 2022 and 13 June 2022.[4]

[7] On 4 and 18 October 2022, Ms Smith was provided with audit materials detailing the outstanding overpayments.[5]

[8] While the Department maintains the total salary overpayment amounted to $4,723.85,[6] it is submitted that during her employment, Ms Smith repaid a sum of $750.00.[7] Accordingly, the remaining balance of the overpayment was $3,973.85.[8]

[9] Prior to her separation from the Department, Ms Smith contacted the Deputy Director-General, Lands, requesting her salary overpayment be waived.[9] On 24 May 2023, Ms Smith was advised that the Deputy Director, Lands, had agreed to waive the remaining salary overpayment, less any accrued leave paid upon Ms Smith's separation.[10] The total amount waived by the Department equated to $2,892.19[11] and a residual amount of $1081.66 was offset against Ms Smith's existing annual leave accrual at the time of her separation from her role on 9 May 2023. [12]

[10] Displeased with the Department's decision not to waive the entire amount of the overpayment, Ms Smith filed an application for unpaid wages in the Industrial Registry on 27 June 2024. Pursuant to s 475 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), Ms Smith sought to recover the residual amount that was offset against her annual leave accrual through the Commission.[13]

[11] The matter was conferenced before another Member of this Commission in the second half of 2024. By late 2024 it became apparent the matter could not be resolved through conciliation,[14] and the application was referred to my Chambers for arbitration.[15]

[12] On 6 November 2024, a Notice of Listing ('NOL') was issued for a Mention to be held at 9.30 a.m. on 19 November 2024 to progress the determination of Ms Smith's claim.[16]

[13] Both parties attended the Mention, whereafter a Directions Order was issued requiring the parties to file written submissions in respect of the Application to recover wages.[17]

[14] The Order was emailed to the address Ms Smith has utilised throughout these proceedings when communicating with the Commission. The Order directed Ms Smith to file written submissions in support of her application by Wednesday, 8 January 2025.[18] This did not occur.

[15] On 22 January 2025, the Department emailed the Industrial Registry requesting Ms Smith's Application for recovery of wages be dismissed due to her failure to file and serve written submissions by the nominated date.[19]

[16] Ms Smith, in an email to the Industrial Registry subsequently requested the Commission grant her an extension on the grounds that she 'thought the due date was February 8.'[20] The Department was not included on the email.

[17] Ms Smith's failure to include the Department in her request for an extension prompted the Registry to provide her with a copy of the Commission's Code of Conduct.[21] She was also encouraged to engage with the Department regarding the request for an extension, before returning to the Commission.[22]

[18] No further correspondence was received by the Registry from Ms Smith in relation to the proposed extension. Nor did Ms Smith file submissions in relation to the application to recover wages, either in accordance with the Directions Order or at any later time.

[19] On 7 February 2025, the Department took steps to formalise its earlier email request that the Commission dismiss Ms Smith's application by filing a Form 4 - Application in existing proceedings, seeking orders that the Application for the recovery of wages be dismissed.[23]

[20] Ms Smith forwarded correspondence to the Industrial Registry on 7 February 2025 stating:[24]

I'm sorry for this oversight. Thank you for your email, can I please request that this matter be put on hold? I can't remember the exact terminology, but I am keen to place the matter on hold if possible, please.

As noted, I will provide the payslips and bank statements as further evidence of the overpayment, I'm just experiencing health and personal matters at the moment.

I am also keen, as always, to come to an agreement with the department outside of the QIRC and will approach the new DG to seek my unpaid recreation leave.

[21] Ms Smith did not provide the Commission with any additional information or supporting documentation concerning the medical or personal issues she relied on as the basis for seeking the adjournment. Nor did she acknowledge the failure to file submissions in accordance with the earlier Directions Order.[25]

[22] A NOL was sent to both Ms Smith and the Department confirming that a Mention in respect of the matter would be held on Thursday, 27 March 2025.[26]
[23] The Mention was convened to better understand; (a) the reasons Ms Smith had failed to comply with the Directions Order to file submissions; (b) the reasons for the proposed adjournment; and (c) to discuss the progression (or otherwise) of the Department's application to dismiss the substantive proceeding.

[24] Both Ms Smith and the Department attended the Mention.

[25] Observing there had been a recent change in government, Ms Smith expressed an interest during the Mention in participating in further discussions with the Department in the hope that the dispute about her annual leave could be resolved.[27] However, the Department pressed its application, submitting it was not in the public interest for the application to be heard, observing that Ms Smith had failed to file submissions in support of her application.[28]

[26] At the conclusion of the Mention and having regard to her comments during the proceeding, the Commission provided Ms Smith with some additional time to consider her position and come back to the Commission and the Department in the following week to confirm whether she still intended to pursue her original wage recovery application. [29]

[27] Ms Smith did not come back to the Commission or the Department with an indication of how she wished to proceed, within the specified timeframe.

[28] On Thursday, 3 April 2025 my Chambers, through the Industrial Registry, forwarded correspondence to Ms Smith:

Following the Telephone Mention before Industrial Commissioner Knight on 27 March 2025, you were to provide an update to the Commission as to how you would like to proceed by COB Monday, 31 March 2025.

As of the time of writing, no response has been received by the Industrial Registry.

Please advise the Industrial Registry how you would like to proceed at the latest by 12:00 PM, Friday 4 April 2025.

If no response is received by this time, Directions will be issued with respect of the Respondent's Application in Existing Proceedings.

[29] When no response was received, the Industrial Registry took steps to contact Ms Smith by phone to enquire as to whether she intended to pursue her application.[30] The Industrial Registry advised my Chambers that Ms Smith agreed during the phone call that she would correspond with the Commission in writing the following day.[31]

[30] Ms Smith did not forward any correspondence to the Commission the following day.

[31] In the continued absence of any contact from Ms Smith, the matter was again listed for Mention on 15 April 2025.[32] The proceeding was set down for an in-person appearance because of the earlier challenges the Commission had encountered obtaining a clear response from Ms Smith.

[32] On 10 April 2025, Ms Smith emailed the Industrial Registry and advised she would not be able to attend the Commission in person 'whatsoever'. Ms Smith raised other concerns in the email, unrelated to appearing at the Mention.[33]

[33] A response was sent to Ms Smith via the Industrial Registry on 10 April 2025, wherein her email was acknowledged, and she was advised that any other concerns she held could be addressed during the Mention.[34] In the event Ms Smith did not intend to attend the Mention, she was requested to provide reasons for this by 12 noon on Friday,

[34] The Registry took steps to contact Ms Smith via telephone on Friday 11 April 2025, however Ms Smith did not respond to any of these calls.[36]

[35] A Further Directions Order (2) was subsequently issued by the Commission wherein Ms Smith was directed to update her address, in circumstances where her application to recover unpaid wages nominated a Brisbane postal address, but subsequent correspondence to the Registry suggested she no longer resided in Brisbane.[37] This was relevant in circumstances where parties can apply for leave to attend certain Commission proceedings by telephone, where they reside outside of Brisbane.

[36] The Order again requested Ms Smith provide to the Industrial Registry any reason(s) she wished to rely on, in the event she was unable to attend the Mention on 15 April 2025.

[37] In an email to the Commission dated 14 April 2025, Ms Smith advised she would not be 'giving [her] personal details away'. Ms Smith went on to observe that her 'literal only comfort is saying that there's some justice in the department spending more money on this than actually paying me my rightfully owed annual leave.'[38]

[38] Ms Smith did not comply with Further Directions Order (2).[39] Nor did she attend the Mention which was listed on 15 April 2025.

[39] A Further Directions Order (3) was subsequently issued in relation to the Department's application to dismiss the substantive proceedings.[40] The Further Directions Order (3) required the parties to file in the Industrial Registry written submissions in respect of the Department's application to dismiss Ms Smith's initial application to recover wages.[41]

[40] The Department filed written submissions in support of its application to dismiss the substantive proceedings on 19 May 2025.[42] Ms Smith failed to file submissions, in non-compliance with Further Directions Order (3).

[41] Relevantly for this decision, Ms Smith did not file any materials in respect of the substantive matter, apart from her initial application. Further, Ms Smith has not filed submissions in response to the Department's application to dismiss Ms Smith's wage recovery application.

[42] The issue to be determined is whether the Commission should dismiss the proceedings pursuant to either s 541(b)(ii) of the IR Act or r 45 of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules').

[43] Section 541(b)(ii) of the IR Act relevantly provides:

The court or commission may, in an industrial cause do any of the following -

(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -

(ii) further proceedings by the court or commission are not necessary or desirable in the public interest.

Commission's power to dismiss proceedings pursuant to s 541(b)(ii) of the IR Act

[44] The Commission has a discretion under s 541 of the IR Act to dismiss a matter where further proceedings are not necessary or desirable in the public interest.[43] The applicant bears the onus of persuading the Commission to exercise its discretion and depart from the prima facie right of a party who seeks relief within the Commission's jurisdiction, to have their matter heard and determined.[44]

[45] In O'Sullivan v Farrer Mason CJ, Brennan, Dawson and Gaudron JJ considered the meaning of 'in the public interest'. Their Honours stated (footnotes omitted):[45]

Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons [pronounced] definitely extraneous to any objects the legislature could have had in view'.

[46] In Amerena and Ors v Queensland Teachers Union of Employees and Ors,

Deputy President Merrell in considering what constitutes 'the public interest' wrote:[46]

It may also be the case that the ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and will very much be a question of fact and degree.

Section 541(b)(ii) of the IR Act recognises that in a particular case, the public interest may displace a litigant's normal right to have a case heard and determined.

[47] Further, in Murray v State of Queensland (Queensland Health), in dealing with the application of s 541 of the IR Act, Vice President O'Connor observed:[47]

In exercising the discretion, the Commission is mindful that the power to dismiss or refrain from hearing a cause is to be sparingly employed and is not to be used except in circumstances where the Commission is satisfied that on the material the matter is obviously untenable or groundless and cannot succeed.

[48] Relevantly, in a decision which has been extensively cited by this Commission, the Full Bench of Fair Work Australia in GlaxoSmithKline Australia Pty Ltd v Makin ('GlaxoSmithKlin') observed that:[48]

Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

The process for consideration of an application under s 541

[49] Adopting the principles articulated in GlaxoSmithKlin and in respect of the application of s 541 of the IR Act (and its predecessor, s 331 of the Industrial Relations Act 1999), President Martin in Campbell v State of Queensland (Department of Justice and Attorney-General) observed:[49]

As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials ...

[50] His Honour also stated that '[in] considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission.'[50]

[51] Having regard to earlier authorities, which emphasise that the public-interest inquiry must be anchored in the statutory framework and the available evidence, it is necessary to consider the legislative basis of the underpayment claim, together with the material currently before the Commission.

[52] Although the powers conferred on the Commission by s 541(b)(ii) of the IR Act, are broad,[51] it is essential to approach this task with due caution, ensuring the relevant circumstances are considered.[52]

Relevant legislative provisions - recovery of unpaid wages

[53] The application by Ms Smith to recover unpaid annual leave is made in accordance with s 475 of the IR Act, which provides:

475 Power to recover unpaid wages and superannuation contribution etc.

(1) On application by a person under section 476_,_ the commission may order payment of the following for the period of 6 years before the date of the application -

[54] Relevantly, s 476 of the IR Act provides that an Order mentioned in s 475 may only be made if the total amount claimed is $100,000 or less. Further, the application must be made within 6 years after the amount claimed became payable.

[55] There is no dispute in this matter that Ms Smith is claiming an amount for unpaid leave which is less than $100,000. In addition, the application has been filed within six years of the amount becoming payable.

[56] Section 38 of the IR Act provides for payment of annual leave on termination of employment as follows -

38 Payment for annual leave on termination of employment

(1) This section applies if an employee's employment is terminated by the employee or employer.

(2) If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day).

(3) The employer must pay the employee for the annual leave not taken, including -

(a) any public holiday during the period the employee is presumed to have taken the leave; and

(b) any annual leave loading the employee is entitled to under section 36.

(4) If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36.

(5) The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise.

[57] Section 371 (Division 3 - Paying and recovering wages) of the IR Act provides that wages are to be paid without deduction, other than where authorised, namely:

(1) If an employer employs an employee to perform work for a fixed rate, the employer must pay the employee the fixed rate without deduction, other than a deduction authorised by -

(5) If an employee's consent authorising a deduction to be made from wages is not written, before making the deduction, the employer must give the employee written acknowledgement of the consent.

(6) A contract or authority is void to the extent it provides for a deduction to be made from wages in contravention of this section.

[58] Schedule 5 of the IR Act provides the following definition of wages:

(i)work performed, or to be performed, by the employee; or

Relevant legislative provisions - recovery of salary overpayments

[59] A general obligation to recover public monies overpaid to, or otherwise owed by, employees arises under the Financial Accountability Act 2009 (Qld) ('the FA Act').
[60] The FA Act prescribes the strategic financial management and reporting obligations with which agencies must comply. The recovery of debts owed to departments form an important aspect of discharging those obligations.

[61] Section 376 (Division 3 - Paying and recovering wages) of the IR Act and Part 6 of the Industrial Relations Regulation 2018 ('IR Regulation'), provide a separate a mechanism, other than through authorised deductions, enabling State Government departments to recover overpaid wages through the withholding of certain entitlements, namely:

(1) This division does not prevent an employer recovering an amount paid to an employee that the employee is not entitled to because of absence from work.

(2) Without limiting the employer's right to recover, the employer may recover an amount to which the employee is not entitled by deducting amounts from the employee's wages for a subsequent pay period or periods.

(b)may extend over a period of 6 years after the payment.

(3) A deduction cannot be made in an amount that would reduce the wages payable to the employee for a pay period to less than an amount prescribed by a regulation.

[62] In an affidavit filed by Ms Hocking, in support of the Department's application to dismiss Ms Smith's claim, she contends that while still employed by the Department, Ms Smith entered into an agreement to repay the amounts that had been overpaid, resulting in Ms Smith repaying $750.00 of the total debt.[53]
[63] Archived records from QSS attached to Ms Hocking's affidavit contain records of email correspondence between QSS representatives and Ms Smith in respect of the overpayments. The correspondence includes an email record of Ms Smith agreeing on 1 February 2022 to repay the debt in fortnightly instalments and a subsequent acknowledgement by QSS in relation to the repayment arrangements.[54]

Ms Smith's submissions - over-payment and recovery of debt

[64] As noted earlier in this decision, other than the original application to recover wages, Ms Smith did not file any submissions either in relation to the original application for unpaid wages, or in response to the Department's application to dismiss the substantive proceedings.

[65] However, in her application to recover wages,[55] Ms Smith claims she is owed annual leave in the amount of $1081.66. Under the heading of 'Decision Sought', Ms Smith contends the Department has 'not provided evidence of how the debt occurred' and she 'worked all hours [she] was paid.'[56]

[66] As best I understand based on the limited materials before me, Ms Smith primarily takes issue with the calculation of the overpayments and maintains there is no evidence to support the substantiation of the debt.[57]

The Department's position - application to dismiss proceedings

[67] The Department contends there is sufficient evidence before the Commission to conclude Ms Smith was overpaid and maintains, having regard to the relevant legislation, that the decision to deduct a portion of Ms Smith's overpayment from her recreation leave balance at the time of her resignation was reasonable.[58]
[68] In an affidavit accompanied by a detailed chronology and supporting materials addressing each of the five alleged salary overpayments and the recovery of the purported debt,[59] on behalf of the Department Ms Tina Hocking observes:[60]

The circumstances in which each of Ms Smith's 5 (five) salary overpayments arose were largely due to insufficient leave balances to cover her absences from the workplace and have been detailed below.

Due to the automation of the Department's payroll system, employees are compensated for their standard hours on a fortnightly basis, with any leave being reconciled in the following fortnight based on available balances. This process is applicable when leave applications are submitted after the payroll processing deadlines. In the case of Ms Smith, there were no available leave balances to be reconciled.

[69] Annexed to Ms Hocking's affidavit are a series of attachments, including:[61]

Detailed summaries of each salary overpayment, including relevant dates and amounts.

Records of pay processing periods and periods of sick leave, relevant to each over-payment.

Instances of insufficient leave balances resulting in the generation of over-payments.

Archived Queensland Shared Services records documenting communications with Ms Smith about the overpayments, her agreement to repay the amounts by instalments, acknowledgement of this agreement and subsequent audits undertaken in response to her requests for further information about the calculations.

Detailed list of attachments within the archives relevant to the over-payment claims, including correspondence and records of audits forwarded to Ms Smith in the relevant period.

Payroll records demonstrating the calculation of the overpayments with reference to Ms Smith's hours worked and other entitlements for the relevant period; and

Building access records for Ms Smith covering the period 1 June 2021 to 9 December 2021.

[70] The Department maintains the over-payments highlighted in the materials before the Commission are recoverable from Ms Smith in accordance with the Financial Accountability Act 2009, the Industrial Relations Act 2016 and the Industrial Regulations 2018. It further submits that when Ms Smith agreed to make repayments in accordance with the 'Declaration and Repayment Agreement', she authorised the Department to deduct any outstanding debt from her termination pay.[62]

[71] Ms Hocking states that around the time of her resignation, Ms Smith wrote to the Executive Manager, Office of the Deputy Director-General, Lands, requesting her salary overpayment of $3973.85, be waived.[63]

[72] According to Ms Hocking, on 24 May 2023, Ms Smith was advised that the Deputy Director-General, Lands, had considered her request and was amenable to waiving the remaining salary overpayment, less any accrued leave paid upon Ms Smith's separation.[64]

[73] In further support of its position, the Department provided the Commission with a chronology describing how the initial decision to waive Ms Smith's remaining salary overpayment, less any accrued leave, was reviewed by multiple decision-makers, each of whom reached the same conclusion.[65]

[74] The chronology includes the original decision from the Deputy Director-General.[66] Unsatisfied with this outcome, Ms Smith escalated her concerns to the then Director-General of the Department.

[75] On 27 June 2023, the Director-General advised Ms Smith he was satisfied the Deputy Director-General's decision was made in good faith and had regard to Ms Smith's interests and therefore, would take no further action.[67] On 24 August 2023, this decision was reiterated by the Director-General following further correspondence from Ms Smith.[68]

[76] On 23 August 2023, Ms Smith escalated her concerns to the

Minister for Resources and Critical Minerals.[69] On 20 September 2023, Ms Smith was advised by a representative of the Minister that given her concerns involved the conduct of the Director-General, the matter would be referred to the Deputy Director-General, Business and Corporate Partnership, for response.[70]

[77] On 4 October, the Deputy Director-General, Business and Corporate Partnership, wrote to Ms Smith with a response to her concerns.[71] In that correspondence, the Deputy Director-General, in reaching her decision, advised she had considered the circumstances of each overpayment and information about how the overpayments were calculated.[72] The Deputy Director-General advised she was satisfied Ms Smith's recreation leave balance was appropriately applied to the outstanding overpayment.[73]

Should Ms Smith's application be dismissed pursuant to section 541 of the IR Act?

[78] In the performance of its functions, the evaluative process conferred on the Commission by section 541 of the IR Act is broad in scope.[74]

[79] The proper exercise of the discretion in this case involves weighing the consequences for Ms Smith in losing the opportunity to pursue her unpaid wages claim, the strength of her claim (as against any apparent lack of merit), the likely delay in resolving the matter through a hearing, the prejudice which may be incurred by the Department due to any delay and the cost to the public should the matter proceed.

[80] I am satisfied, having regard to the materials filed in respect of this matter, that this is a case where I should exercise my discretion to dismiss Ms Smith's application pursuant to s 541 of the IR Act, because further proceedings are not necessary or desirable in the public interest.

[81] It is the Department's case that there is sufficient evidence before the Commission to conclude Ms Smith was overpaid and that it was reasonable, having regard to the relevant legislation, for a portion of the overpayment to be deducted from Ms Smith's accrued recreation leave balance, upon termination.

[82] In addition, the Department contends that having failed to resolve the matter at conciliation, Ms Smith has since repeatedly failed to comply with the Directions of the Commission in its attempts to resolve the matter through arbitration.

[83] For these reasons, the Department argues Ms Smith's application for wage recovery should be dismissed.

[84] While I do not have the benefit of any reply submissions from Ms Smith, it appears, having regard to the application that was originally filed, that she did not accept she had been overpaid.

[85] In support of its application that the Commission dismiss Ms Smith's claim to recover wages, the Department relies on an affidavit of Ms Tina Hocking, Director of Workplace Relations and Injury Management.[75]

[86] Ms Hocking's affidavit describes the circumstances in which each of the five over-payments arose and sets out, in some detail, the relevant pay periods, dates and correspondence that accompanied each instance of overpayment. Ms Hocking states the overpayments arose primarily due to insufficient leave balances to cover Ms Smith's absences from the workplace and in circumstances where Ms Smith's applications for leave were submitted after pay processing deadlines.

[87] Annexed to the affidavit are payroll records, which include calculations in respect of the over-payments, email correspondence between QSS and Ms Smith about the over-payments, a record of an agreement by Ms Smith to repay the over-payment amount in instalments, and further correspondence and records related to audits which were undertaken by the Department in response to Ms Smith's requests for further clarification as to how the over-payments were calculated.

[88] Ms Hocking's affidavit also outlines several instances where Ms Smith has failed to comply with Directions of the Commission in its attempts to either resolve or arbitrate the matter.[76]

[89] The strength of a case is a relevant consideration when determining whether further proceedings are necessary or desirable in the public interest.

[90] Regrettably, Ms Smith has not filed submissions in response to the Department's application, or to the materials it has relied on in the calculation of overpayments. Similarly, Ms Smith has not responded to Ms Hocking's statements in relation to her failure to comply with Directions issued by the Commission.

[91] In Triplow v Leidos SAR Services Pty Ltd, Commissioner Dwyer recently observed:[77]

While it is important not to take the respondent's case 'at its highest' when contemplating the discretion given by s 541 of the IR Act, there is equally no requirement to take their case at its lowest. In a balanced consideration of interests, unless there was some compelling contradictory evidence, there should be no reason why the Commission could not rely on relevant contemporaneous correspondence as evidence of the reasons why a respondent took certain action.

[92] Having regard to the materials that have been filed in the Commission, including the payroll summaries and records attached to Ms Hocking's affidavit,[78] it seems more likely than not that Ms Smith was overpaid during her employment with the Department.

[93] In addition, there are no submissions or evidence before the Commission that contradict the Department's contention that its decision to recover the overpayment was made in accordance with the relevant legislation. Nor is there any material challenging the Department's position that the recovery, in any event, occurred pursuant to an earlier agreement with Ms Smith to repay the debt, including by deduction from her final termination pay. In those circumstances, it would be difficult to conclude that Ms Smith has a strong case.

[94] The absence of any submissions or evidence that could effectively counter the materials relied on by the Department, coupled with the limited grounds advanced in the original application, suggests Ms Smith's prospects are, at best, marginal.

[95] The Department also relies on Ms Smith's repeated failure to comply with Directions as a further reason that the Commission should dismiss Ms Smith's wage recovery application.

[96] In her Affidavit, Ms Hocking highlights Ms Smith's non-compliance with Directions issued by the Commission, and failure to respond to procedural requests, as a further basis for dismissal of the wage recovery application.

[97] It is correct that following the mention of the matter on 27 March 2025, the Commission took repeated steps to determine how Ms Smith wished to proceed. The efforts to communicate with Ms Smith were either met with no response or feedback that was unhelpful when determining whether she intended to continue to engage with the process.

[98] There is no question that Ms Smith's lack of engagement with the Commission and dilatory conduct impeded the orderly progression of the matter.
[99] In that respect, consideration of public interest also encompasses the efficient administration of justice and the proper use of public resources. It is not served by allowing proceedings to remain on foot where an applicant fails to comply with Directions and is seemingly unwilling to meaningfully engage with the process.
[100] A balanced consideration, in a case such as this, involves weighing the consequences of Ms Smith losing the opportunity to pursue an order for the recovery of annual leave against the apparent weakness of the grounds advanced, the likely delay in resolving the matter, and the prejudice to the Department and the cost to the State.
[101] This is not a case where the application to dismiss the proceedings was brought prematurely, such as before conciliation or prior to Ms Smith being afforded an opportunity to file evidentiary material in support of her claim.
[102] It seems to me, that having identified Ms Smith's marginal prospects of success based on the current grounds within her application and the materials filed in the Commission, that it would be an inefficient use of public resources to continue to allow Ms Smith to pursue the claim at this juncture.
[103] This is especially so given her apparent unwillingness to comply with Directions, file submissions, and respond in a meaningful way to reasonable inquiries from the Commission. I am also satisfied that allowing the proceeding to continue would give rise to unnecessary delay and expense.
[104] In these circumstances, I am of the view that further proceedings are neither necessary nor desirable in the public interest within the meaning of s 541(b)(ii) of the IR Act.

The Application of Rule 45(3) of the Industrial (Tribunals) Rules

[105] Even if I were to be wrong in respect of my earlier conclusion that further proceedings are not in the public interest, I am satisfied the events described in [14] to [41] would justify the dismissal of Ms Smith's complaint, pursuant to r 45(3) of the Tribunal Rules.

[106] Rule 5 provides that the Tribunal Rules apply to a proceeding before the Commission.[79] Rule 6 relevantly provides that the purpose of the Tribunal Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense.[80]
[107] In my view, r 6 recognises the obligation on the Commission (and implicitly the parties) to facilitate the just and expeditious disposition of matters before it.

[108] Rule 45 of the Tribunal Rules states:

45 Failure to attend or to comply with directions order

(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.

(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and

(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or

[109] Rule 45(3)(a) gives the Commission a power to dismiss the proceedings in circumstances where there is a failure to attend or comply with directions.[81]

[110] The power under r 45(3)(a) involves an exercise of discretion. Importantly, discretionary powers must be 'exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.'[82]

[111] This approach has been affirmed by the Court of Appeal (Qld) in Kelsey v Logan City Council & Ors:[83]

As observed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, there is a need for exceptional caution in exercising the power to summarily dismiss a proceeding whether it be inherent or under statutory rules. While it is appropriate to exercise the power in circumstances where the proceeding amounts to an abuse of process or is vexatious, the court must otherwise take "great care" if it exercises a discretion to terminate proceedings.

Smith v State of Queensland

At a glance

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Decision date

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Judgment (267 paragraphs)

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Legislation Cited (5)

Cases Cited (5)