Williams v State of Queensland

Public Sector Act 2022 (Qld) s 91.

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2.

Maina v State of Queensland (Queensland Health) [2022] QIRC 100.

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4.

Rich v Chubb Protective Services [2001] QIRC 34.

Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307.

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182.

Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

Turay v Workers' Compensation Regulator [2023] QIRC 1.

Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435.

Weaver v Ipswich City Council [2021] QIRC 234.

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

• [1] Mr Darren Williams was employed as an Advanced Care Paramedic within the Queensland Ambulance Service (QAS). He had 22 years of service when he resigned his employment effective 21 July 2022.

• [2] Mr Williams filed an application for reinstatement on 12 April 2024, which is 1 year, 8 months and 1 day beyond the 21-day time limit.

• [3] The questions to be determined are whether I should exercise discretion to allow the reinstatement application to be heard after such a long delay; and whether Mr Williams has standing to bring this application given his purported resignation.

• [4] Mr Williams argues his resignation was not voluntary. In his view termination was the inevitable outcome of his refusal to comply with the QAS COVID Direction,[1] combined with his impaired health caused by PTSD and his inability to cope with the disciplinary process. He explains the delay is due to waiting for the outcome of a Supreme Court challenge to the Direction, in combination with his poor health. The decision in Johnston & Ors v Carroll[2] provides his basis for now making his claim that the termination was harsh, unjust or unreasonable.

• [5] QAS argues there was no dismissal as Mr Williams was not terminated at their initiative. Rather, QAS provided Mr Williams with opportunities and time to withdraw his resignation, given his ill health, which he decided not to do. QAS states the delay cannot be reasonably explained by waiting for a decision in proceedings which he was not a party to and that in no way prevented him from making the application within the required time.

• [6] For the reasons that follow, I have determined not to exercise my discretion to grant the extension of time. Further, I determine that Mr Williams resigned his employment and has no standing to bring the substantive application.

• [7] It is not contested that Mr Williams failed to lodge his unfair dismissal claim within 21 days of his termination taking effect as required by s 317(2)(a) of the Industrial Relations Act 2016 (Qld) ('IR Act'). He seeks that I allow a further period of 1 year, 8 months and 1 day, as contemplated by s 317(2)(b) of the Act. Mr Williams must demonstrate to my satisfaction that there are reasonable grounds for that extension.

What considerations guide the exercise of discretion?

• [8] In Weaver v Ipswich City Council,[3] O'Connor VP set out the relevant considerations in the exercise of the Commission's discretion under s 317(2)(b):

[12] It is possible to distil from the relevant authorities the following principles which ought to be considered by the Commission when exercising its discretion to extend time within which to make an application for reinstatement under s 317(2)(b) of the Act:

(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.

• [9] I address each of these considerations in the context of the particulars of Mr Williams' case.

• [10] The starting point for my consideration is the recognition that the parliament has chosen to impose a 21-day time limit on applications for reinstatement which must be respected. That said, it is not simply an arbitrary cut-off point, unrelated to the demands of justice.[4]

• [11] Mr Williams has the positive burden of demonstrating the justice of the case supports an extension, given an employer's right to expect any such challenge to a dismissal would be made within the required time limit and proceed efficiently towards conclusion.[5] It is unacceptable for litigants to ignore time limits and rely on indulgence from the Commission, provided an appeal is made to natural justice and fairness.[6]

• [12] Mr Williams submits he could not have lodged the application any sooner due to the time taken to reach an outcome in the Johnston proceedings, and his own ill health.

• [13] QAS submits that the delay is significant, and that the importance of the statutory time limit should not be easily dispensed with. It argues matters before the Commission with much shorter delays have been held by the Commission to be substantial.[7]

• [14] There is no doubt that seeking an additional 610 days (or 29 additional 21-day periods) is very significant. It is reasonable to expect an applicant seeking to protect their rights and remedies under the Act will do so promptly in the terms set out by the Act. If Mr Williams sought to rely upon the Supreme Court challenge to the Direction, then the appropriate course would have been to file the substantive matter within time, then seek for the application to be placed in abeyance until the resolution of the other proceedings.[8] This was not done.

• [15] Waiting for an outcome in Johnston might explain the length of the delay, but it is not a compelling reason for the exercise of my discretion.

• [16] Mr Williams in his submissions states the length of the delay also relates to his ill health. This is not supported by the initiating application, in which the delay is solely related to the Johnston proceedings. Despite this, I consider it appropriate to review both matters further as his explanation for the delay set out in these proceedings.

Delay was due to court proceedings regarding this matter not being finalised until 27th February 2024. Please refer Supreme Court Ruling Proceeding number 11254 which indicates the vaccine mandates were unlawful. Further delays were due to the appeals process and that extrapolation of time for the Queensland Ambulance Service to appeal the decision.

• [18] There can be no doubt it was the release of the Johnston decision (with the 21-day appeal period added), combined with Mr Williams' belief about the meaning and effect of the decision on the Direction and related disciplinary process, that led him to file this application on 12 April 2024. As already indicated, I do not consider 'waiting and seeing' as an adequate or compelling response if Mr Williams truly intended to protect his future rights.

• [19] In the schedule attached to his application, Mr Williams also refers to contact made with QAS following release of the Johnston decision. In an email sent to QAS on 13 March 2024, he sought reinstatement to his former job, given the Direction had been found to be unlawful. Mr Williams indicated he would be forced to seek legal advice, given QAS is at odds with the Court's decision and public expectations:

My QAS application was made prior to the supreme court ruling indicating your disciplinary action against me leading to my resignation was unlawful. I have requested my casual position back, the position I held continuously for 22 years, ONLY resigning due to this unlawful disciplinary action. Although I have only requested my position back, the QAS have opted to ignore the court ruling and gaslight the courts ruling and those affected by this unlawful direction by not allowing us to return to my previous position. This puts the QAS at odds with the courts decision and public expectations as a result of the decision.

Although I personally have only asked for my job back, the QAS's response has left me and I assume

others with little option but to seek legal advice on the matter which may incur additional costs such

I once again ask the QAS to honour the court's ruling by reinstating those that have been affected

• [20] This outreach to seek reemployment comes 580 days after the statutory time limit expired and is the direct product of his 'wait and see' approach combined with his own view of the impact of the decision. This outreach does not alter my view that this is not an adequate or compelling reason to grant the extension.

• [21] This brings me to consideration of Mr Williams' contention that he was not well enough to have commenced the proceedings sooner than he did. In submissions Mr Williams states:

1. I Refer to my treating physician's letter. The hearing being heard out of time was that I was too unwell mentally to make and application any early. Please see my attached Physicians letter (DW15)-Dr Persley report). The Report indicates my condition. It has taken this period in order to get myself well enough to have the clarity of mind to address this matter.

• [22] Attached to those submissions is a letter from Dr Persley (Consultant Psychiatrist) dated 24 April 2023 and addressed to a claims assessor in response to questions asked that are not explained or contained in the correspondence. In it, Dr Persley advises that Mr Williams has PTSD and major depressive disorder. It discusses his procrastination and avoidance of treatment related to his denial about the seriousness of his condition. It outlines changes to medication, states he continues to report high levels of anxiety and trauma linked to his role as a paramedic and that he is unlikely to ever be able to return to a working role within his education, training and experience. He concludes that there has been a deterioration in Mr Williams' mental health since his last report.[9]

• [23] It is not contested that Mr Williams suffers from PTSD arising from his employment as a paramedic, and that from 15 September 2021 to 19 July 2022, Mr Williams was on an approved WorkCover claim.[10]

• [24] Dr Persley's letter was written nine months following Mr Williams' resignation, and twelve months before his substantive application was lodged. Whilst not clearly stated by Mr Williams, I conclude the inference I am being asked to draw is that by the time of this letter, his mental state had deteriorated, and it took him another twelve months to be 'mentally ready' to lodge his application.

• [25] The deterioration of an applicant's mental state can in certain circumstances lead to a finding that a delay is sufficiently explained. While stress, shock, anxiety and similar conditions are not exceptional circumstances in and of themselves when they arise directly from termination,[11] there is a distinction between that and objectively proven severe mental conditions.[12] An applicant must still positively demonstrate that any mental illness had an impact on mental capacity as to prevent lodging the application in time.[13]

• [26] I accept that Mr Williams has serious and ongoing medical conditions, and that at the time of Dr Persley's letter his condition had deteriorated. However, the letter was written for a different purpose. It does not confirm that Mr Williams' health was the reason he could not lodge his application within 21 days, or for the nine months leading up to the letter, or for a significant further period of time following the letter.

• [27] While I accept it is possible that Mr Williams' ongoing mental health issues may be part of the reason for the delay, I consider it probable that the first reason identified by Mr Williams was indeed the significant motivating factor for lodging the application when he did - the outcome in Johnston. Absent that decision, it is not clear on what basis the application would be brought forward, no matter how recovered Mr Williams was feeling.

• [28] Mr Williams showed no interest in contesting the termination of his employment until after the outcome in Johnston, and his view that it opened the possibility to revisit the vaccine mandate. Mr Williams has failed in my view to provide any satisfactory explanation for the delay.

• [29] Mr Williams has not specifically raised any prejudice should the extension not be granted. The prejudice to Mr Williams would be one of opportunity - the opportunity to put his case and have it determined at a hearing. This opportunity cost must be weighed against other relevant factors such as standing to bring the application and prospects of success.

• [30] I also note QAS submissions that since the repeal of the Direction effective 25 September 2023, former employees who separated due to the Direction have been able to reapply for any role within QAS for which they are suitable and medically fit. This applies to Mr Williams.

• [31] QAS has not specifically raised any prejudice should the extension be granted. The delay in this case is significant, being over 20 months. While it is not clear what evidence might need to be led in response to this claim, with the significant passage of time there is a risk of witnesses not being available and recollections fading. Whilst challenging, this is unlikely to be insurmountable for QAS.

• [32] There is no evidence in the proceeding of any conduct on the part of QAS that may have contributed to the delay of filing the application by Mr Williams.

• [33] For completeness, I note Mr Williams does state that he did not receive his separation certificate from QAS until 13 September 2022.[14] In his application, he lists this as his effective date of termination. The separation certificate lists the effective date of resignation as 21 July 2022, so has no impact on any of the required timeframes.

Prospects of success in the substantive application

• [34] The onus is on Mr Williams to demonstrate this is a matter in which I should exercise my discretion. As noted by Mackenzie P in Herwin v Flexihire Pty Ltd:[15]

I should reinforce that descent into detail and fine distinctions in relation to the evidence is not appropriate upon the hearing of an application for leave to apply out of time but if it is clear that the matter must fail as a matter of principle on the best view of the facts from the applicant's point of view, the futility of the proceedings is a fact which may be taken into account. ... [16]

• [35] In the substantive application, Mr Williams claims his separation by resignation from QAS on 21 July 2022 was a dismissal that was harsh, unjust or unreasonable. In his application he summarises the reasons for it being unfair as:

The QAS failed to consider my human rights as per their internal review outcome. The QAS provided an unlawful direction while I was on work cover.

The QAS instigated disciplinary procedures based on this unlawful direction.

As a direct result of disciplinary procedures and the process and also while I was unwell forced us to resign as termination was imminent as noted in my response and as accepted by QAS representative Andrew Hebbron.

• [36] In his submissions, Mr Williams' two main arguments are that the decision in Johnston renders the exemption and show cause process leading to his resignation unlawful, and that QAS failed in their obligations to him as an injured worker. He states he was clearly too unwell to participate in the process, was confused and felt he was left with no other option other than to resign. The resignation could not be considered valid as he was not in the correct mental state to deal with the matter.

• [37] QAS contends that Mr Williams was not dismissed, but rather he resigned. QAS argues its conduct throughout the exemption and discipline process was reasonable and within the framework of the employment relationship - not coercive or repudiatory. Mr Williams responded to the first stage of the discipline process by indicating he intended to resign. Following an email exchange between QAS and Mr Williams, he confirmed his decision to resign on 21 July 2022. At no stage did Mr Williams attempt to revoke his resignation.

• [38] In determining prospects of success, there are two significant matters which I must turn my mind to that are capable of rendering the proceedings futile: whether Mr Williams voluntarily resigned, and the implications of the decision in Johnston.

• [39] Without descending too far into detail, the factual background relevant to my consideration of this matter is set out below. It is not contested that Mr Williams had an approved WorkCover claim for PTSD during the relevant period.

• 13 September 2021 - Procedure released requiring certain groups of QAS employees to receive two doses of a COVID-19 vaccine by 31 October 2021.

• 3 November 2021 - Mr Williams applies for exemption asserting a medical contraindication. No medical evidence or Australian Immunisation Register contraindication certificate was provided.

• 31 January 2022 - the Procedure was replaced with the QAS HR Policy Employee COVID-19 Vaccination Requirements Direction. Under the Direction, Mr Williams was required to:

• Receive both the first and second dose of a COVID-19 vaccine by 27 February 2022;

• Provide evidence of receiving the COVID-19 vaccine confirming that they have received the prescribed number of doses no later than seven days after receiving each dose of the vaccine.

• 19 May 2022 - Mr Williams' second exemption application was denied and he was directed to comply with the Direction.

• 23 May 2022 - Mr Williams objected and an internal review of the decision was commenced.

• 30 June 2022 - The decision to reject his exemption was confirmed on review and he was directed to comply with the Direction.

• 4 July 2022 - Mr Williams is sent a show cause notice in relation to an allegation that he failed to follow a lawful and reasonable direction to comply with the vaccination requirements set out in the Direction. Mr Williams was provided 14 days to respond as to why he should not have been found liable to discipline.

• 7 July 2022 - Mr Williams provided the following response:

I am on sick leave and am too unwell to deal with these threatening letters, so I resign.

• 7 July 2022 - Mr Drew Hebbron, Assistant Commissioner, Gold Coast Region, wrote to Mr Williams:

I have commenced as the new Assistant Commissioner for Gold Coast this week and am sorry to hear that you are unwell at this time.

Given you are unwell, I need to ensure that you have fully considered your decision to resign your employment. I would also like to provide you with some further time to consider this decision. Should you wish to withdraw your resignation, please advise me by close of business on 21 July 2022.

If I do not hear from you before then, I will take it that you are confirming your decision to resign your employment and the QAS will progress your resignation with payroll from 21 July 2022.

If you are not already doing so, I would encourage you to access the services of the QAS Employee Assistance provider Priority One. This service is available to all QAS Employees and their immediate family to provide free confidential counselling and support services...

• 8 July 2022 - Mr Williams provides the following response:

I have a Medical Assessment meeting on the 18th of July. I will come back to you post that meeting and prior to the 21st of July in regards to my resignation. Having said that my understanding is that even if mandates were dropped at a later date I will still be subject to disciplinary procedures and have that on my file which ultimately will lead to the same conclusion. I am genuinely concerned for my health if I take another vaccine shot and I am not well enough to deal with another health issue. This is my only reason for considering resigning as I am not well enough to go through disciplinary action tainting an otherwise unblemished career with the QAS.

• 12 July 2022 - Mr Hebbron provides the following response:

Will wait to hear back from you re your resignation. Hope all goes well for your appointments.

• 15 July 2022 - The Workers' Compensation Medical Assessment Tribunal (MAT) advises Mr Williams and WorkCover Queensland that he should not return to his role.

• 20 July 2022 - Mr Williams emails Mr Hebbron the following:

Had the assessment last week and WorkCover retired us medically from the QAS anyway. I really don't want disciplinary action attached to my records so as I have been retired can we just go with that? You should have received something from WorkCover in regards to this or will do shortly.

• 21 July 2022 - WorkCover Queensland advises QAS of the MAT's decision.

• 21 July 2022 - Mr Hebbron emails Mr Williams the following:

Thanks for the email. So I just want to clarify a couple things.

The first is that you have not been medically retired from the QAS. Your Medical Assessment Tribunal (MAT) serves only to close out your WorkCover Claim and settle it with a lump sum against a % of permanent disability. As I understand it, you have accepted this offer.

WorkCover have also referred you to their Work Connect service which is designed to assist you finding other employment as I understand they have advised you would not be able to return to your QAS role (happy for you to correct me on that as I haven't got a report or anything yet).

As such, the decision now rests solely with you as to if you wish to proceed with your resignation or not. If you could let me know where you land on this as soon as you are able then I can action that either way.

• 21 July 2022 - Mr Williams provides the following response:

The whole process is quite confusing however I was definitely told I could not return to my role in the QAS by WorkCover so the decision was not solely min however either way I will not be getting another COVID vaccination so the end result will be the same as the QAS will have ticked all their boxes to get rid of us if I don't resign. If you see any way around this dilemma I would like to hear it.

• 21 July 2022 - Mr Hebbron provides the following response:

I would suggest you consult with your union or other representation regarding your options, however you are correct that the current proposed disciplinary process will continue at this stage.

I will await your decision regarding your resignation as mentioned.

You are already well aware of my options. The union is just as useless as Priority One is and you and I both know what is happening here is wrong regardless of where you stand on the issue.

So the way around this dilemma according to your response is resign or be fired and if the QAS is prepared to discipline and fire a veteran officer for a personal medical choice over not taking a vaccine that doesn't work and caused him injury then the QAS doesn't deserve to have us as an employee or anyone for that matter so allow me to make it easy for you and remove the joy out of having to fire us and take this email as my resignation.

Please note I accept your resignation as stated below and we will process your separation.

Regardless of the circumstance I would like to acknowledge your more than 20 years of serviced to the Queensland Ambulance Service. I sympathise with your very difficult decision to resign and please accept my best wishes for the future.

What a nice response. Thank you for this it made my day.

• 5 August 2022 - A letter is sent advising Mr Williams that due to his resignation the disciplinary process had been ceased with no findings having been made.

• 16 October 2023 - Mr Williams requests a statement of service.

• 17 October 2023 -QAS provides a statement of service.

• 27 February 2024 - The Johnston decision is delivered.

• 2 March 2024 - Mr Williams makes contact with QAS, seeking reinstatement.

• 12 April 2024 - Mr Williams files his unfair dismissal application.

• [40] As McLennan IC summarised in Sandhu v Wide Bay Hospital and Health Service (citations omitted):[17]

[78] There is no definition of 'dismissal' or 'constructive dismissal' provided in the IR Act. However, this Commission is generally informed on that question by jurisprudence borne from both previous Queensland legislation and Federal legislation. In that regard, a resignation is not a dismissal, absent extenuating circumstances such as coercion, or a prompt recanting of the resignation which may render the resignation a constructive dismissal.

[79] An employer is generally able to treat a clear and unambiguous resignation as a resignation. The act of resigning, even in circumstances where one may decidedly regret doing so in hindsight, is not itself tantamount to dismissal. While it has been said that an employee may recant a resignation, that must occur during a reasonable period post-resignation. Precisely what constitutes a reasonable period is situational, though is generally a short period and not a matter of days or weeks.

• [41] Mr Williams asserts he was forced to resign due to his imminent dismissal. I agree with QAS that this assertion is misconceived.

• [42] Objectively, no disciplinary findings had been made at the time Mr Williams emailed his initial resignation on 7 July 2022, or when he ultimately confirmed he was resigning on 21 July 2022. As there were no disciplinary findings, there was also no decision on disciplinary action arising from those findings. The process was at its start, with the issuing of the first show cause notice. No dismissal was determined by QAS, either imminent or otherwise.

• [43] What prompts the initial resignation is receipt of the first show cause letter. Mr Williams advises, " I am on sick leave and am too unwell to deal with these threatening letters, so I resign." It is clear in the material filed that until this point, Mr Williams was an active and articulate participant in the two exemption processes which were ongoing since 3 November 2021, as well as in the internal review process that concluded on 30 June 2022. There is no material before the Commission to suggest Mr Williams ever raised being unwell as an impediment to his participation in those processes. The first time his health is raised is in his show cause response.[18]

• [44] Appropriately, in immediate response to this concern being raised, Mr Hebbron asks Mr Williams to fully consider his decision to resign, provides an additional 14 days for that consideration, and indicates he should advise by email whether he wishes to withdraw that resignation. In Mr Williams' response the next day, he provides further insight and acknowledges he has a decision to make and will come back to QAS within the requested time and after his appointment with the MAT. This email suggests he does not wish for his longstanding record to be blemished by disciplinary procedures, and he is not well enough to deal with another illness caused by taking the vaccine.

• [45] Following the MAT meeting, Mr Williams' email dated 20 July 2022 indicates he is being medically retired from QAS and as he does not want disciplinary action on his file, asking, "can we just go with that?" In response on 21 July, Mr Hebbron clarifies that Mr Williams is not being medically retired, and that the decision regarding proceeding with his resignation or not still rested with Mr Williams. He asked to be advised so that Mr Williams' decision could be actioned either way.

• [46] In the exchange that follows, Mr Williams confirms he would not be getting any further vaccinations, and he expressed his view that this means he would be dismissed if he did not resign. He states this is confirmed by QAS, however Mr Hebbron only confirms the discipline process would continue. The exchange concludes with Mr Williams stating he would "make it easy" for QAS and "remove the joy out of" having to fire him, by resigning. He concludes by stating, "take this email as my resignation."

• [47] While it might be considered that this final email was sent in the heat of the moment, Mr Williams took no action to withdraw his resignation, even though he was not contacted again until eight days later with an email formally accepting his resignation from 21 July 2022. In response to that email and the acknowledgement by Mr Hebbron of Mr Williams' two decades of service, Mr Williams thanked him, stating, "Thank you for this it made my day."

• [48] There is nothing in this material that would rise to the level of Mr Williams being coerced into resigning, unless the consequences of his own decisions could amount to coercion. Further, his statement that he is confused and in no fit state to participate in the show cause process is not supported by his strident and focussed participation in the earlier processes. He was confused about the decision of the MAT and its impact on his QAS employment because the MAT's decision and its consequences on his employment were unknown and naturally confusing. It cannot be reasonably extrapolated from that confusion, that he was in a diminished mental state and confused about every other process he was involved in. The filed material leads me to conclude otherwise.

• [49] Mr Williams was given ample opportunity to withdraw his resignation but did not. His subsequent actions also seem consistent with a person who believes they have made a decision to resign. I summarise as follows:

• Mr Williams did not recant his resignation prior to it being formally accepted;

• He did not dispute the statement in the letter dated 5 August 2022 that disciplinary action had ceased because of his resignation;

• He did not file his unfair dismissal application by 11 August 2022,[19] challenging the nature of the termination;

• When he received his separation certificate on 13 September 2022, Mr Williams did not dispute it citing resignation as the reason for separation; and

• He did not dispute that he resigned when he phoned QAS on 16 October 2023 seeking a statement of service, or when he received it on 17 October 2023.

• [50] The material weighs in favour of Mr Williams having resigned. Mr Williams has not positively demonstrated that it is more probable than not that he was dismissed or constructively dismissed. On that basis he has no standing to bring the substantive application, and the Commission has no jurisdiction to hear it. This finding is fatal to the prospects of his substantive case.

What is the relevance of the decision in Johnston?

• [51] Even if I were wrong about Mr Williams not being dismissed, I consider he has completely misconceived the impact of the decision in Johnston.

• [52] Section 30 of the Judicial Review Act 1991 (Qld) sets out remedies available following a successful statutory order of review. They include:

• Quashing or setting aside the decision, with effect from a day specified by the court (which may be on a day before, of, or after the order);

• An order referring a matter back to the decision-maker, subject to directions by the Court for further considerations the decision-maker needs to make;

• An injunctive order directing parties to do or refrain from doing certain actions.

• [53] Mr Williams' view of the decision in Johnston misinterprets the decision as being one issuing a quashing order. Where a quashing order is made with retrospective effect, the impugned decision has no legal effect and prior actions are rendered invalid. However, as Martin J makes clear in Johnston (emphasis added):

[461] I have not held that the QPS Directions and the QAS Direction were invalid, rather I have held that they were unlawful. As each direction has been revoked, the remedies available are confined.

[462] An order setting aside or quashing the legal effects of the directions is not appropriate. As was said in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd: [20]

[28] The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights. (citation omitted)

[463] In Wingfoot Australia Partners Pty Ltd v Kocak[21] the utility of an order in the nature of certiorari was considered:

[25] The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable. (citation omitted)

• [54] The final order made by Martin J in Johnston as it relates to the QAS Direction was a declaration and injunction. The effects of that declaration and injunction are different to a quashing order. The declaration and injunction issued operated to protect the applicants in those proceedings from any liability arising from the Direction.[22] It did not, and could not, have any effect on any termination decisions following from the Direction prior to the Johnston decision, as such would be moot - the terminations had already occurred a significant amount of time before the Johnston decision was issued.

• [55] As it relates to the merits of Mr Williams' case, even if it was accepted that Mr Williams was dismissed, the dismissal itself is not in any way voided by operation of the Johnston decision. There is nothing in the Johnston decision that reaches back in time to undo the actions already taken pursuant to the Direction. This is reinforced by the injunctive relief in the Johnston decision restraining any steps with respect to enforcement of the Direction, applying from the date of the declaration.

• [56] In any event, Mr Williams was not dismissed following from disciplinary proceedings under s 91 of the Public Sector Act 2022 (Qld), on reliance of the Direction. The proceedings only went as far as issuing a show cause notice. Following receipt of that show cause notice, Mr Williams tendered his resignation. There was no dismissal under which any determination of harshness, unjustness, or unreasonableness could be based,[23] rendering any further consideration of the Johnston decision unnecessary.

• [57] Mr Williams bears the onus of providing a basis upon which I may properly exercise my discretion to extend the time in which he may bring his out-of-time unfair dismissal application. He has failed to discharge that onus. Further, I have found that he resigned his employment, and he therefore has no standing to bring the application forward and the Commission has no jurisdiction to hear it.

1. The application for an extension of time is refused.

2. The application for reinstatement in matter TD/2024/35 is dismissed.

[1] QAS HR Policy Employee COVID-19 Vaccination Requirements, 31 January 2022 ('the Direction').

[2] Mr Williams refers to the decision in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 ('Johnston').

[3] Weaver v Ipswich City Council [2021] QIRC 234.

[4] Rich v Chubb Protective Services [2001] QIRC 34.

[5] Strugnell v Workpac Light Industrial Pty Ltd [2005] ICQ 45 (2005) 180 QGIG 628.

[7] Citing Maina v State of Queensland (Queensland Health) [2022] QIRC 100 at [25].

[8] The Supreme Court application was filed 27 September 2021, many months prior to Mr Williams' effective date of resignation on 21 July 2022. The 21-day period concluded 11 August 2022.

[9] The date of the last report is not specified.

[10] Employer Response filed 6 April 2024, Sch B at [20].

[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [15], [50].

[13] See Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting [2015] FWCFB 3435, [16]. See also Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307 and Turay v Workers' Compensation Regulator [2023] QIRC 1 in relation to similar proceedings outside the scope of unfair dismissals.

[14] Application for reinstatement filed 12 April 2024, p 4.

[15] Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709.

[17] Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182.

[18] I refer to his underlying mental health conditions, not his statements regarding the effects on his health of taking the COVID vaccine.

[19] 21 days from his resignation date.

[20] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [28] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

[21] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

[23] Within the meaning of s 316 of the IR Act.