Titmarsh v Ipswich City Council [2025] QIRC 231

Queensland Industrial Relations Commission|2025-09-02

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - applicant employed by Ipswich City Council - where application for reinstatement filed by the applicant - where the application filed beyond statutory limit - length of delay - reasons for delay - prejudice to the applicant and respondent - whether the Commission should exercise discretion to grant extension - prospects of success - application dismissed.

Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 173

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Clare Hardgrove v Google Australia Pty Ltd [2025] FWC 1714

Erhardt v Goodman Fielder Food Services Limited [1999] QIRC 2; (1999) 163 QGIG 20

Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709

Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010

Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131

McColl v Toowoomba Regional Council [2025] QIRC 017

Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543

Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers appointed) (1996) 151 QGIG 1010

Savage v Woolworths (Queensland) Pty Ltd [1999] QIC 64; (1999) 162 QGIG 353

Shelley v McRoberts Agency [2009] QIRC 93 (2009) 190 QGIG 189

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

Weaver v Ipswich City Council [2021] QIRC 234

[1] Mr Richard Titmarsh ('the Applicant') was employed by Ipswich City Council ('the Respondent') as a Construction Supervisor.

[2] The Applicant was suspended on full remuneration on 11 July 2024 following allegations that he had breached the Respondent's Code of Conduct in relation to sexual harassment.

[3] The allegations of sexual harassment arose from comments that the Applicant allegedly made to two female traffic controllers that had been assigned to his team. The Respondent then appointed an independent external investigator to complete an investigation into the allegations.

[4] In a letter dated 21 November 2024, the Applicant was advised that the allegations were substantiated. The substantiated allegations were as follows:

On 28 June 2024, you engaged in inappropriate conducts towards Ms W[1]. Specifically, you told her that she looked like she was in a position to make a baby.

On 28 June 2024, you engaged in inappropriate conduct towards Ms S. Specifically you told her, "Close your knees, Captain [B]".

[5] Following the substantiation of the two allegations, the Applicant was provided with the opportunity to show cause as to why the Respondent should not impose a disciplinary penalty of dismissal. The Applicant provided the Respondent with his show cause response on 4 December 2024.

[6] The Applicant was dismissed from his employment in a letter dated 8 January 2025. The dismissal took effect on receipt of the letter on 10 January 2025.

[7] On 21 February 2025 the Applicant lodged his Form 12 - Application for Reinstatement in the Industrial Registry.

[8] The Respondent lodged its Form 12A - Employer response to the application on 5 March 2025 ('the Response'). In the Response the Respondent confirmed a jurisdictional objection to the Application on the basis that the appeal had been filed beyond the

[9] The Respondent set out the basis of its jurisdictional objection in a schedule of submissions attached to the Response. In summary, the Respondent relies upon the following history:

On 13 January 2025 (three days following the Applicant receiving the termination letter), Mr Ryan Keast from the Ipswich City Council emailed the Applicant and advised him that he would need to lodge an application with the Queensland Industrial Relations Commission ('QIRC') within 21 days of the termination of his employment. The Respondent notes that this email included a link to the QIRC website.

The Applicant ignored Mr Keast's advice, and filed his application for reinstatement in the wrong jurisdiction, the Fair Work Commission. The Fair Work Commission advised the Applicant of his error on 30 January 2025.

The Applicant attempted to file his application with the correct jurisdiction, the QIRC, on 2 February 2025. He was then advised on 3 February 2025 by the QIRC, that his submission was not accepted as the application was not signed.

For reasons unknown, the Applicant delayed signing and filing the application until 25 February 2025.

The application is some 21 days late and some 42 days after the dismissal took effect.

[10] Following the matter being mentioned before me on 2 May 2025, the Commission issued Further Directions Orders dated 2 May 2025, 11 June 2025, 30 June 2025, and finally 29 July 2025 for the parties to provide submissions addressing the Respondent's jurisdictional objection and whether the Applicant should receive an extension of time to file the Application. Pursuant to those respective directions:

The Applicant filed submissions on 30 May 2025;

The Respondent filed submissions on 26 June 2025;

The Appellant filed reply submissions on 18 July 2025; and
The Respondent on 22 July 2025 sought leave to file and serve some additional reply submissions which were filed on 31 July 2025.

[11] Neither party sought leave to provide further oral submissions, and consequently the matter has been determined 'on the papers'.

[12] For the reasons that follow I have determined:

(a) That the Applicant has failed to discharge the onus placed on him to establish that the justice of this case supports the exercise of a discretion to grant an extension of time for the filing of his reinstatement application.

(b) To not exercise my discretion to extend time to the Applicant within which to lodge his application for reinstatement.

[13] Section 317(2)(a) of the Industrial Relations Act 2016 (Qld) ('the IR Act') requires an application for reinstatement to be made within 21 days after the dismissal takes effect. Section 317(2)(b) of the Act, however, allows the Commission discretion to grant an extension to the time frame to file the application.

(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.

[14] The Applicant bears the onus of establishing that the justice of the case requires an extension of time[2] and the general principles relevant to the Commission exercising a discretion to extend time are well settled.

[15] The matters to be taken into account in an extension of time application were set out by Vice President Linnane in Erhardt v Goodman Fielder Food Services Ltd[3]. The key factors identified by her Honour were:

(iii) the prejudice to the applicant if the extension of time is not granted;

(iv) the prejudice to the respondent if the extension of time is granted; and

[16] Her Honour also noted three caveats to the above approach as follows:

(a) that s 74(2)(b) vests an unlimited statutory discretion which must always be exercised;

(b) that the time limit of 21 days provided for in s 74(2)(a) must be respected; and

(c) that the applicant's prospects of success at the substantive hearing is always a relevant matter, that is, where it appears that the applicant has no, or very limited, prospects of success the commission should not grant an extension of time.[4]

[17] In Wantling v Department of Community Safety (Queensland Corrective Services)[5] ('Wantling'), Deputy President O'Connor (as his Honour then was) in also determining an application for an extension of time arising from an out of time reinstatement application observed:

[57] As was observed in Erhardt, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time.

[58] I have formed the view that the Applicant's prospects of success are both poor and clear cut.

[59] I am of the view that the statutory time limit in s. 74(2)(a) should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties.

[60] It is essential for the proper administration of justice that these matters are heard and determined as quickly as possible.[6]

[18] The application for reinstatement was filed in the Industrial Registry on 21 February 2025.

[19] The Applicant first contacted the Industrial Registry on 2 February 2025 to lodge his Form 12 - Application for Reinstatement.

[20] On 3 February 2025, the Industrial Registry responded to the Applicant's email advising that his Form 12 would not be accepted for filing as it was not signed. He was also advised that as the attachments were more than 30 pages, the Application must be filed in hard copy.

[21] On 21 February 2025, the Industrial Registry received a signed, hard copy of the Applicant's Form 12 which was subsequently accepted and filed.

[22] On 30 May 2025, the Applicant filed submissions in the Industrial Registry outlining the reasons for his delay and why an extension of time to file the application should be granted.

[23] In his submissions the Applicant outlines that his dismissal took effect on 10 January 2025 and on 26 January 2025 he applied to the Fair Work Commission for reinstatement.

[24] The Applicant submits that on 30 January 2025, he was contacted by the Fair Work Commission ('FWC') and advised in a phone call that his application was filed in the incorrect jurisdiction. The Applicant contends that he requested those details be provided to him in writing.

[25] The Applicant states that on Sunday, 2 February 2025 he emailed the FWC to again request that written confirmation regarding the jurisdictional issue be provided to him.

[26] On the same day, the Applicant contends that he sent the application for reinstatement to the Industrial Registry of the QIRC. The Applicant then submits that he was advised that the application was not accepted as the Form 12 was unsigned and larger than 30 pages which meant that it must be filed in hard copy.

[27] The Applicant submits that throughout the process of his investigation and disciplinary process, the Respondent took a number of actions that caused him to have a distrust in any information that was supplied by the Council. For these reasons, while the Applicant was advised by Mr Keast of Ipswich City Council that his application for reinstatement would need to be filed in the QIRC, he decided to make his own enquiries.

[28] The Applicant then submits that he made an internet search for 'unfair dismissal' and the FWC appeared to be the obvious choice.

[29] The Applicant submits that while the Application was stamped by the Registry on 21 February 2025, he believes he applied prior to this date due to his previous correspondence.

[30] The Applicant contends that he was unable to simply cut and paste his previous FWC application as the Forms were different and he was required to file a hard copy.

[31] The Applicant also contends that his mental health and his well-being has been affected since he was suspended in July 2024. The Applicant accessed five or six face to face sessions with the Employee Assistance Program and submits that he undertook a DASS assessment which indicated that he was suffering from severe depression, extremely severe anxiety and extremely severe stress.

[32] The Applicant contends that his deteriorating mental health was a contributing factor in him applying originally to the FWC.

[33] The Respondent contends that the Application was filed 21 days beyond the statutory timeframe.

[34] The Respondent submits that via email dated 13 January 2025, Mr Keast advised the Applicant that he would need to lodge an application with the QIRC within 21 days of the dismissal and the email included a link to the QIRC website.

[35] The Respondent submits that for reasons which remain unknown and unexplained in his submissions, the Applicant delayed in signing and filing his application until 21 February 2025 after being advised of the requirement on 3 February 2025.

[36] The Respondents cite the case of McColl v Toowoomba Regional Council[7] in which Industrial Commissioner Gazenbeek decided not to extend the timeframe for an Applicant who filed their application in the wrong jurisdiction. They also rely on the following factors to be considered:

The prejudice to the Applicant if the extension is not granted;

The prospects of success for the substantive application.

[37] The Respondent submits that the delay of 21 days in this matter is significant and resulted from the Applicant choosing to ignore the correct advice provided to him by Mr Keast, a Senior Industrial Relations employee within Ipswich City Council.

[38] The Respondent contends that after contacting the QIRC Registry and being advised of the appropriate way to file his application, there remains an unexplained delay of a further 18 days.

[39] In relation to the Applicant's reference to his mental health issues as being a possible contributing factor to his late application, the Respondent notes that it had not received any medical advice to support the Applicant's claim that he had a medical condition that impacted the Applicant's capacity to make a claim.

[40] The Respondent cites the FWC decision of Clare Hardgrove v Google Australia[8] in which Commissioner Ryan, when considering exceptional medical circumstances that may justify an out of time application, noted as follows:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);

(iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).[9]

[41] The Respondent submits that it was clear that the Applicant was able to provide:

a post termination letter to the Respondent objecting to the dismissal;

[42] The Respondent concludes that these actions demonstrate that despite some psychological stress associated with the dismissal, the Applicant was not physically or mentally incapacitated to such an extent that it prevented the Applicant from filing his application on time.

[43] In relation to the Applicant's prospects of success in the substantive matter, the Respondent contends that the dismissal was fair and that all requirements set out in s 283 of the Local Government Regulation 2012 (Qld) were met.

[44] The Applicant filed reply submissions on 18 July 2025. In those submissions in response to the Respondent's reliance on the McColl decision, the Applicant contends that his case is unique and needs to be treated as such.

[45] The Applicant submits that it was not a simple cut and paste exercise because the FWC application is different to the QIRC application. The fact that he had to provide hard copies to the Industrial Registry was another part of the delay.

[46] Regarding proof of his health issues, the Applicant submits that his DASS assessment results had been provided to the Respondent several months earlier.

[47] As to the merits of his substantive application, the Applicant only submits that on his understanding of what occurred at a conciliation conference with another member of the Commission, he believes that he has good prospects in the substantive application.

[48] As a result of the Appellant's reply submissions, the Respondent conducted a search and located the DASS assessment that the Applicant alleged he had supplied to the Respondent.

[49] In relation to the DASS assessment, the Respondent submits that the assessment is clear that the Applicant was at the time of the assessment, suffering from some symptoms associated with mental health. However, the report focuses on the Applicant's ability to parent and does not focus on whether his condition was so debilitating that he could not lodge his application to the QIRC on time.

[50] The Respondent submits that the Applicant did make submissions to the FWC in time, however, because of his distrust for Council officers, he ignored their correct advice regarding lodging his application with the QIRC within 21 days.

[51] The Respondent contends that through lodging his claim with the FWC, he demonstrated that he was not so debilitated as to be unable to lodge his application, albeit in the wrong jurisdiction.

[52] In determining the preliminary issue I will address the various factors identified by Vice President Linnane in Erhardt v Goodman Fielder Food Services Ltd,[10] those being:

(iii) the prejudice to the applicant if the extension of time is not granted;

(iv) the prejudice to the respondent if the extension of time is granted;

(vi) the prospects of success of the substantive application.

[53] In relation to those factors, Industrial Commissioner Dwyer observed in Bingham v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service)[11] ('Bingham') that:

[35] The consideration of those matters is a holistic consideration. No single one of those considerations ought to be given greater weight than the other. Each of them is considered in the context of the others.[12]

[54] The application for reinstatement was ultimately (and correctly) filed in the Industrial Registry on 21 February 2025.

[55] There is no dispute between the parties that the Applicant received the termination letter dated 8 January 2025 on 10 January 2025 as an attachment to an email of that date from Graeme Martin, Manager, Capital Program Delivery.[13] That email also refers to a telephone call between Mr Martin and the Applicant that preceded the email. It appears that the Applicant was also informed of the termination of his employment in that telephone conversation.

[56] This meant that the application had to be filed on or before 31 January 2025.[14] The application was filed on 21 February 2025 and as a consequence, was filed 21 days beyond the statutory time limit.

[57] The Respondent submits that the 21-day delay is significant.

[58] Vice President O'Connor observed in Weaver v Ipswich City Council[15] that the starting point for considering this factor is "the recognition that the Legislature has chosen to impose a 21-day time limit on applications for reinstatement which must be respected."[16]

[59] I again note the Bingham[17] decision in which Industrial Commissioner Dwyer observed:

...The number of days ought not to be considered as if it is some type of number game. There is no rule as to what number of days is too little or what number of days is too many. It is something that ought to be considered in the context of the other considerations.[18]

[60] In the context of a statutory limitation period of 21 days, I am satisfied that a delay of a further 21 days in the Applicant filing a compliant application for reinstatement should be regarded as a not insignificant delay. This weighs against the Applicant receiving an extension of time.
[61] The authorities note however, this length of delay is to be considered within the context of the remaining factors.

[62] The Applicant has put forward two explanations for the delay in filing his application for re-instatement as follows:

His error in lodging the application in the wrong jurisdiction (being the Fair Work Commission); and

[63] It will be necessary to examine both of these matters both individually and collectively to determine whether the Applicant has provided an explanation for the delay.

[64] The termination letter dated 8 January 2025 provided no information to the Applicant about his appeal rights, or where the appeal could be filed.

[65] As noted above, there is no dispute between the parties that Mr Ryan Keast, a senior member of the Respondent's HR team emailed the Applicant on 13 January 2025 and in that email he informed the Appellant of his ability to lodge an appeal to the QIRC from the termination decision. Further, Mr Keast informed the Applicant of the 21-day limitation period, and also provided a hyperlink to the QIRC website.

[66] The Applicant chose to ignore the advice of Mr Keast because he did not trust the information that the Council was providing to him.

[67] Despite being provided with a hyperlink to the QIRC website, there is no indication that the Applicant accessed the QIRC website. There is also no indication of the Applicant making contact with the Industrial Registry of the QIRC.

[68] The Applicant confirms that instead of this, he conducted his own research and was satisfied from that research that he should lodge his reinstatement application in the Fair Work Commission.

[69] The Applicant lodged the application with the FWC on 26 January 2025, some five days within the 21-day limitation period.

[70] The Applicant both in his Form 12 and in his submissions filed on 30 May 2025 confirms that he was contacted by a representative from the FWC by telephone on 30 January 2025 that he had filed in the wrong jurisdiction.

[71] The Applicant could have acted on that advice and filed his application in the QIRC on either 30 or 31 January 2025 which would have been within the 21-day limitation period.

[72] Instead, the Applicant asked the representative for confirmation in writing that he had filed in the wrong jurisdiction, and it appears that he delayed in filing whilst waiting for that written confirmation. The Applicant provides no explanation why he considered it was necessary to confirm the oral advice from the FWC.

[73] Despite receiving the advice from the FWC that he had lodged in the wrong jurisdiction, the Applicant made no attempt to contact the QIRC Registry on either 30 or 31 January 2025.

[74] I further note that as part of the information the Applicant has provided in support of his Form 12 is an email he apparently received from the FWC at or about 1:00 pm on Thursday, 30 January 2025 which attached formal notification from the FWC dated 30 January 2025 that his case has been closed. That document relevantly provided as follows:

Case name Mr Richard Titmarsh v Ipswich City Council

Richard Titmarsh has decided to discontinue their case.

This means that the case has been closed and the Commission will take no further action. You don't need to do anything else.

[75] In light of that formal advice being provided, it is not clear at all why the Applicant did not act to file in the QIRC as a matter of urgency.

[76] The Applicant belatedly attempted to file his Form 12 Application for reinstatement on Sunday, 2 February 2025. The application was not compliant because it was unsigned. As a consequence, it was not a proper application. The further difficulty was that the application was in excess of 30 pages and therefore was required to be filed as a hard copy.

[77] The Applicant was promptly informed by the Industrial Registry on Monday, 3 February 2025 that his application had not been accepted for filing. In that email the Industrial Registry stated:

However, the Registry is unable to accept your Form 12 -Application for reinstatement for filing at this time.

I also note that as per PD 3 of 2021 - Electronic filing and hard copies of documents, filings over 30 pages must be provided in hard copy.

Therefore, please submit a hard copy of the documents as soon as practicable. This· can be provided by post or delivered to our Registry counter**. I note the document will only be filed upon receipt of the hard copy.**

[78] I am satisfied that the email from the Industrial Registry could not have been clearer that the Applicant had not actually filed his reinstatement application and that it would only be filed upon the Industrial Registry receiving the hard copy of the document.

[79] The Applicant should have been well aware of the urgency in filing his reinstatement application.

[80] Instead of urgently filing a hard copy of the application with the Industrial Registry, the Applicant delayed for a further 18 days before he belatedly filed the application with the Industrial Registry.

[81] The Applicant has provided no explanation for the further 18-day delay.

[82] In those circumstances, I am not satisfied that the Applicant's self-inflicted error of filing his application in the wrong jurisdiction provides him with an acceptable explanation for the delay in filing the application for reinstatement with the QIRC.

[83] The DASS assessment form dated 8 November 2024 that the Applicant has provided to the Respondent records that the Applicant scored 24 on the depression scale which is in the severe range. The form goes on to note:

This level of depression is at a level that could interfere with their parenting. It is strongly recommended that depression be included as a component of a treatment plan. Use the PuP Parent Workbook exercises around managing emotions. Increasing daily activities is also a very good way of helping improve mood.

[84] The form goes on to confirm that the Applicant scored 20 on the anxiety scale which is in the extremely severe range. Once again, the only comment made in relation to that result was that it could interfere with the Applicant's ability to parent and warranted further assessment and treatment.

[85] In relation to stress, the form confirms that the Applicant recorded 36 on the stress scale which is in the extremely severe range. Once again, the only comment made related to the possible impact on the Applicant's ability to parent.

[86] This is the only evidence that the Applicant points to regarding the status of his mental health functioning and general health. There is no indication in the form of the Applicant's capacity to participate in the disciplinary process or prepare documentation being impacted in any way by his mental state.

[87] Further, the DASS form does not contain a diagnosis that the Applicant was suffering from a diagnosed mental health condition in November 2024. At its highest, the form indicates that the testing undertaken may point to that conclusion.

[88] As noted above, in his submissions filed on 30 May 2025 the Applicant alleges that the state of his mental health and his wellbeing have been extremely affected following his suspension in July 2024.

[89] The Applicant notes that he went to 5 or 6 face to face EAP sessions.

[90] The Applicant contends that his deteriorating mental health was a contributing factor to him originally applying to the FWC.

[91] In responding to this contention, the Respondent points to the Applicant's apparent capacity and ability during the relevant period to:

Provide a post-termination letter to the Council objecting to the dismissal; and

Prepare and file an application to the FWC and subsequently to the QIRC.

[92] The Applicant's ability to undertake the steps outlined by the Respondent is inconsistent with his contention that his mental health status impacted him in such a way that he did not have capacity to file his reinstatement application within time.

[93] I fully accept that the Applicant may have been experiencing some mental health issues during the relevant period. If the Applicant is going to rely upon those matters as providing a reasonable explanation for his failure to lodge his application within time, it is incumbent upon the Applicant to provide the Commission with cogent medical evidence that:

Confirms the diagnosis of the condition he was suffering from;

Confirms that the condition caused him to suffer from an incapacity which prevented the Application from filing his application in a timely manner; and

Provides some explanation as to how the condition prevented the application being filed within time.

[94] The Applicant has not provided this type of medical evidence.

[95] It is incumbent on the Applicant to provide a basis upon which the Commission could properly exercise its discretion to extend the time in which to bring a reinstatement application.

[96] For the reasons set out above, I am not satisfied that the Applicant has put forward any satisfactory explanation for the delay in filing the application.

[97] The Applicant does not address this factor in his submissions.

[98] There will clearly be prejudice sustained by the Applicant if an extension is not granted, as he will be unable to proceed to have his application for reinstatement heard and determined.[19]

[99] The High Court has confirmed that delay itself is considered to give rise to a general presumption of prejudice to the Respondent in the event that an extension of time is granted.[20]

[100] The Respondent contends that it will suffer prejudice in that it will not be able to rely on the prescribed time limit and will incur costs in defending the claim if the Applicant is allowed an extension of time.

[101] I accept that the Respondent will incur possibly significant costs in defending an application where but for an extension being granted by the Commission, the Respondent would have had the benefit of the application being statute barred by the limitation period imposed by s 317 of the IR Act.

[102] I therefore accept that the Respondent will suffer some prejudice if an extension of time is granted.

[103] In the Applicant's submissions filed on 30 May 2025, the Applicant does not directly point to conduct of the Respondent which caused him to file his application out of time.

[104] The Applicant does raise the following complaints or concerns about the Respondent:

Nearing the end of the six month period of his suspension, the Applicant states that it became clear to him that any information supplied to him by the Respondent was possibly questionable.

The Applicant cites, and relies upon the following examples of the Respondent's "conduct":

Mr Ryan Keast asked him to return his laptop (in the email sent on 13 January 2025) despite the fact that he handed in his laptop on the day that he was sent home.

In an email from Mr Graeme Martin from the Council dated 10 January 2025 in which he advised the Applicant of his dismissal, he also stated that a representative from the Council's nominated employee assistance program (EAP) would call him. This never happened.

The Applicant was convicted of a breach of a code that does not exist in the Respondent's employee code of conduct that Ryan Keast had sent him.

Allegation 2 that the Applicant was convicted of was changed dramatically after his interview with Workplace Edge and he was not advised of the change until the Respondent's letter dated 21 November 2024 that stated that the Applicant was convicted of that new allegation that he had not heard of.

[105] In the Respondent's submissions, it contends that it did not contribute to the late application.

[106] The Respondent contends that the late lodgement of the application was the fault of the Applicant because he ignored the (correct) advice that had been provided by Mr Keast.

[107] I have noted the Respondent's response to the four allegations the Applicant makes about the Respondent's conduct.

[108] It may well be the case that Mr Keast asked for the return of the Applicant's laptop. It appears likely to me that Mr Keast would not have been made aware that the Applicant had returned his laptop six months earlier when he was initially suspended. I accept the Respondent's submission that it was likely that Mr Keast was working from a checklist. I am not satisfied that this was conduct by the Respondent which caused or contributed to the Applicant's late filing of the application.

[109] In relation to the allegation about Mr Graeme Martin, I note that the termination letter dated 8 January 2025 provided that if required, the Council's Employee Assistance Program could be made available to the Applicant. The Applicant was provided with the name of his Safety and Wellbeing Partner to contact if he wished to do so.

[110] I accept that the Applicant is correct that in Mr Martin's email dated 10 January 2025 he does indicate that arrangements had been made by Council for a representative from the EAP to call the Applicant later that day. The fact that this did not occur does not provide the Applicant with an explanation for his failure to lodge his application within the

[111] I have reached the same conclusion in relation to the matters raised by the Applicant in the third and fourth dot point set out above.

[112] I am not satisfied that any conduct on the part of the Respondent has caused or contributed to the Applicant not lodging the application for reinstatement within the statutory time limit.

[113] Although some of the authorities have cautioned against any close examination of the merits of the case at a preliminary stage,[21] the Applicant has filed with the Form 12 - Application for reinstatement the relevant documents relied upon during the disciplinary process leading to the termination of his employment.

[114] Given this, I consider that I have some basis to assess the Applicant's prospects of success in the substantive reinstatement application.

[115] In Shelley v McRoberts Agency[22] Industrial Commissioner Fisher set out the following general principles regarding an assessment of the prospects of success:

The Commission may be prepared to dismiss an application where it was clear the substantive application could not succeed: Marston v Ocean Sky Pty Ltd & Ors (1995) 150 QGIG 1131.

However, the occasions for rejecting an application based on poor prospects of success will be few: Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709 at 710.

A conclusion that an applicant could not succeed will usually flow from an obstacle that no amount of evidence will overcome, e.g. a conclusion the respondent was not the employer or that the applicant was not an employee: Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers appointed) (1996) 151 QGIG 1010 at 1011 (Johnson).

Where an application for reinstatement had no or very limited prospects of success this could be taken into account together with other considerations in deciding whether to extend time: Petruch v Davy Kinhill Fluor Daniel Joint Venture (1996) 153 QGIG 543.

In assessing the prospects of success in an application to extend time the merits or lack thereof must be clear cut: Savage v Woolworths (Queensland) Pty Ltd [1999] QIC 64; (1999) 162 QGIG 353.

[116] The Applicant received correspondence from the Respondent dated 26 July 2024 concerning allegations that he may have breached the Council's Code of Conduct arising from conduct involving one or more female traffic control officers.

[117] On 26 August 2024 the Applicant received further correspondence from the Respondent which directed him to attend a meeting with an external investigator that had been arranged for 30 August 2024. That correspondence noted that the Applicant was able to bring a support person to the meeting and also advised him of the availability of the EAP service.

[118] As part of the material filed in support of the reinstatement application, the Applicant has provided the transcripts of his interview with Grant Barrow from Workplace Edge which occurred on 30 August 2024.

[119] In the course of that interview the Applicant essentially made admissions as to making certain comments to the two female traffic control officers during the afternoon of 28 June 2024. The Applicant also provided Mr Barrow with the background context to those comments being made, from the Applicant's perspective.

[120] I note that the interview was detailed and the transcript of the interview is 22 pages in length.

[121] I also note that in the interview five allegations were put to the Applicant to afford him the opportunity to provide his response. The second of those allegations was that he had engaged in inappropriate conduct towards a female traffic controller by nudging her with his foot and telling her to open or spread her legs.

[122] On 21 November 2024 the Respondent sent correspondence to the Applicant asking him to show cause why a disciplinary penalty of dismissal should not be imposed for the following two allegations:

On 28 June 2024, you engaged in inappropriate conduct towards Ms W. Specifically, you told her that she looked like she was in a position to make a baby.

On 28 June 2024, you engaged in inappropriate conduct towards Ms S. Specifically, you told her, "Close your knees, Captain [B]."

[123] The Applicant is correct that allegation 2 in the show cause correspondence is different to the allegation that was put to him in the disciplinary interview. In the Form 12A -Employer response, the Respondent notes that the allegation put to the Applicant in the interview was eventually linked to a different employee.

[124] The Respondent goes on to note that the proper allegation (based on the Applicant's admissions during the interview) was clearly put to the Applicant in the show cause letter and the Applicant was given an opportunity to explain his version of events surrounding this allegation.

[125] The show cause letter dated 21 November 2024 goes on to set out in some detail the basis that the decision-maker had relied upon in finding both allegations to be substantiated. The show cause letter provided the Applicant with seven days to respond to the proposed disciplinary penalty.

At a glance

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Decision date

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Judgment (249 paragraphs)

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Legislation Cited (5)

Cases Cited (1)