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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Grant v State of Queensland (Queensland Health)  QIRC 228
Grant, Lisa Jane
State of Queensland (Queensland Health)
Public Service Appeal - Conversion Decision
23 December 2020
The appeal is dismissed for want of jurisdiction.
Public Service Act 2008
Industrial Relations Act 2016
Directive 09/20 Fixed Term Temporary Employment
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344
Reasons for Decision
- Ms Grant has been temporarily engaged at AO7 and AO5 roles with Digital Health Services, Office of Emergency Department Finance, Information and Digital Services, Torres and Cape Hospital and Health Service (TCHHS).
- On 13 October 2020, Ms Grant was informed that a review of her temporary employment status had taken place in accordance with Fixed Term Temporary Employment (Directive 09/20) (the Directive) and the Public Service Act 2008 (the PS Act) and that it had been determined that she would remain as a temporary employee with TCHHS.
- In lodging her appeal, Ms Grant applied for an extension of time.
- The decision letter is dated 13 October 2020. This means that the last day that Ms Grant could have lodged her appeal within the timeframe would have been 3 November 2020. Ms Grant's application was lodged on 18 December 2020, 45 days beyond the timeframe allowed for appeals of this nature.
- At the time of filing, Ms Grant's temporary engagement was due to end on 31 December 2020. Given the need for the matter to be considered in a reasonably urgent way, I determined to hold a hearing to receive oral submissions from the parties with regard to the jurisdictional issue and application for extension of time. The hearing took place on 22 December 2020.
- If I were determine to extend time for the lodging of the appeal against the decision not to convert Ms Grant from temporary to permanent, the substantive issue to be considered would be whether the decision was fair and reasonable. I heard submissions from the parties regarding both the substantive decision and the matter of jurisdiction at the hearing.
The Legal Framework: Jurisdiction
- A member of the Commission may allow for allow an appeal to be started within a longer period.
- In exercising discretion to extend time to lodge an application or appeal, there are principles that have been used for guidance. Those principles are commonly:
- Special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
- action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
- any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension;
- the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
- consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.
- The application of statutory time limits was addressed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. (553 per McHugh J with whom Dawson J agreed).
Submissions of the parties
- The reason provided by Ms Grant (in the appeal notice) as to why she could not lodge her appeal within the 21 day time frame is:
I was advised via letter and my Executive lead that my application had been declined as 'there were no permanent positions for me to go into'. I was told that there were loads of jobs coming up that I would be able to apply for. The positions that I knew of that I would have been a suitable candidate for have not yet been advertised. My work colleague Cherie (who along with my substantive Manager had encouraged me to apply), was also verbally advised by Jolean (Jo) Fegan out Acting Manager that she (Cherie) had wasted my time encouraging me to seek permanency, and reinforced to her that to qualify, a permanent position must exist. On the 9/12/2020 I was alerted that employees could be converted from temporary to permanent "not attached to a substantive position". Out of concern that I had been provided with the incorrect information by HR and Management, I contacted my union rep to confirm the correct process. Based on the information provided by them I requested commencement of an appeal.
- At the hearing, Ms Grant stated that she had understood that she had the right to appeal and that she understood the reasons for the decision, however, she decided at the time not to file an appeal. Ms Grant said that she had been assured that there were roles coming up which she would be able to apply for and which would only be made available to people currently employed by the health service. With that in mind, she decided not to appeal and to apply for these roles.
- As time went by and the roles were not advertised, Ms Grant was concerned that when her temporary engagement ended, she would cease to be an employee with eligibility to apply for the roles. It was at this time that Ms Grant decided, with approximately two weeks of her temporary appointment remaining, to lodge an appeal.
- Ms Grant said that she was lodging her appeal because she thought that the advice she had been provided with that there had to be a permanent vacancy available for her to be made permanent was incorrect.
- At the hearing, TCHHS informed the Commission that Ms Grant's temporary engagement was being extended until 17 January 2021 and that after this time she would be moved to the casual pool. TCHHS said that this would mean she remained an employee of the health service with the capacity to apply for roles which were available.
- Ms Grant stated that she was unaware of any of this and that she was being informed of the extension and the capacity to apply for roles once she was a part of the casual pool at the same time as the Commission was hearing the information.
- Submissions regarding the substantive matter were made by both Ms Grant and TCHHS. With regard to the extension of time, Ms Grant said that her decision not to appeal was based on information provided to her as outlined in her appeal notice.
- TCHHS submitted that Ms Grant had been provided with a decision explaining the reasons she had not been converted from temporary to permanent and that she was aware of her appeal rights and that the appeal should not be allowed out of time.
- TCHHS stated that there had been issues with communication and that the service would seek to remedy this following the hearing. Ms Grant agreed that TCHHS could contact her following the hearing.
- On the afternoon of 22 December 2020, the parties informed the Commission that Ms Grant had accepted the extension of her temporary engagement and had submitted expressions of interest for two roles which were currently available.
Consideration of submissions
- At the outset, I note that TCHHS has stated that there are improvements required regarding the way information has been provided to Ms Grant regarding her employment. While it was convenient that the hearing enabled the parties to clarify matters, this is not a matter for my consideration with regard to this appeal.
Explanation for delay and action taken by Ms Grant other than by making application
- The decision letter stated that pursuant to s 194(1)(e) of the PS Act, Ms Grant is entitled to appeal the decision and that her appeal must be lodged with the Industrial Registry within 21 calendar days of receipt of the letter. A link to information regarding the appeal process was included.
- While I note Ms Grant's reasons for delay outline conversations she had with a colleague and her acting manager, the substantive appeal relates to the decision of Beverley Hamerton provided to Ms Grant. Additionally, the conversations Ms Grant had with her colleagues may have led her to decide not to lodge her appeal, and then later to lodge it, but it does not appear that any of these conversations led to Ms Grant into error regarding the time limit for lodging an appeal.
- Ms Grant said that when she decided to appeal the decision, she contacted her union to confirm the correct process and then commenced her appeal.
- I am satisfied that Ms Grant understood the decision that had been provided to her and knew that she had a right of appeal. I am also satisfied that Ms Grant was aware that there was advice available to her regarding the appeal process.
- With regard to length of delay, I consider 45 days to be a significant delay in the context of an appeal period of 21 days. While I do not consider that a decision to hear the appeal would produce prejudice to TCHHS, I am of the view that statutory time limits must be observed and that any decision to extend the time limit must follow the provision of acceptable and compelling reasons.
- Ms Grant says herself that she knew she could appeal the decision but made a choice at the time not to appeal. Ms Grant has also demonstrated through her actions once she changed her mind and decided to pursue the appeal, that she understands the process and had the ability to seek advice to support her in preparing and lodging her appeal.
- In these circumstances, I do not consider a satisfactory explanation for the delay has been provided.
Prejudice to the parties
- I have already noted that I do not find that there would be any significant prejudice to TCHHS if I were to allow the extension of time.
- The prejudice to Ms Grant is clearly that if time is not extended, her appeal cannot be heard. However, one of the reasons Ms Grant decided to lodge the appeal was that she had become concerned that she would not be eligible to apply for roles which were not available at the time of the decision being provided to her but were expected to become available. Ms Grant has now been provided with an assurance that she will remain an employee of TCHHS in the casual pool and will have the capacity to apply for these roles. I do not think the prejudice Ms Grant will suffer by not having her appeal heard is such that an extension of time should be granted.
Merits of the appeal
- I have considered the decision letter, the appeal notice and attached reasons for appeal. Further, I have taken into account the relevant legislation and Directive and the oral submissions heard on 22 December 2020.
- TCHHS maintains that the decision was undertaken in accordance with the relevant parts of the Directive and that it was fair and reasonable based on the situation as it was at the time of the decision.
- The decision letter makes reference to the criteria considered and provides reasons for the decision. The decision letter outlines that Ms Grant satisfies the merit criteria but that she was backfilling the long-term leave of a substantive employee and that this constituted an appropriate use of a temporary engagement.
- The letter also references a review being undertaken of other roles with the same, or substantially the same capability requirements to those Ms Grant had been performing.
- Ms Grant's reasons for appeal challenge the decision provided to her in the letter dated 13 October 2020. However, Ms Grant made submissions at the hearing that the person she had been replacing had been absent for 16 months and TCHHS said that they were expecting the return of the substantive employee in January 2021. While I am not undertaking a review of the substantive decision, I consider that on the face of it, there is nothing about the approach TCHHS have taken that would lead me to consider that Ms Grant would have strong prospects of success should the extension of time be granted.
- For the reasons provided above, I am not satisfied that there are reasonable grounds to lead me to exercise a discretion to extend time to allow Ms Grant to file her appeal.
- The appeal was filed outside of the statutory time limit and the Commission therefore has no jurisdiction to consider the matter.
- I note that at the time I am writing this decision, Ms Grant remains employed with TCHHS, albeit in a temporary capacity which will transition to casual in the event she is not successful in securing one of the temporary project roles applied for. The clear purpose of the Directive is to encourage and maximise security of employment, and the next review of Ms Grant's temporary employment will need to take into account the reasons for the decision of 13 October 2020 taken under the Directive not to convert her to employment. Should the next review of Ms Grant's temporary employment status again result in a decision not to convert and Ms Grant chooses to appeal that decision, it is important that she seeks information and takes all necessary steps to lodge her appeal within the 21 day timeframe.
- The appeal is dismissed for want of jurisdiction.
- Published Case Name:
Grant v State of Queensland (Queensland Health)
- Shortened Case Name:
Grant v State of Queensland (Queensland Health)
 QIRC 228
Member Pidgeon IC
23 Dec 2020