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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Casperson v State of Queensland (Department of Education)  QIRC 119
Casperson, Heidi Sarah
State of Queensland (Department of Education)
Public Service Appeal – Appointment to Higher Classification Level
8 April 2021
On the papers
That the appeal is dismissed.
INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the deemed outcome of the review was that the appellant was not permanently appointed – whether the appellant was eligible to appeal the deemed decision under s 149C – where the appeal was filed out of time – consideration of whether to hear the appeal out of time
LEGISLATION AND DIRECTIVES:
Acts Interpretation Act 1954 (Qld) s 38
Directive 13/20 Appointing a public service employee to a higher classification level cl 8
Industrial Relations Act 2016 (Qld) s 74, s 562B, s 564, s 567
Public Service Act 2008 (Qld) s 149C, s 194, s 195, s 297
Aon Risk Services Limited v Australian National University (2009) 239 CLR 175
Breust v QANTAS Airways Ltd (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Bruce Anthony Piggott v State of Queensland  ICQ 35
Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20
Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)
House v The King (1936) 55 CLR 499
Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre  170 QGIG 1010
Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services)  QIRC 138
Tonia Shelley v McRoberts Agency  190 QGIG 189
Reasons for Decision
- Ms Casperson is currently substantively employed in the role of A04 Experienced Senior Teacher. However, she has been continuously performing the duties of H01 Head of Department since 24 January 2019.
- On 12 November 2020, Ms Casperson requested permanent conversion to the higher duties position ('the Conversion Request').
- Ms Casperson was verbally advised that a decision had been made not to convert her in a conversation with Ms Elane Merkouriou, Manager of Integrity and Employee Relations at State of Queensland (Department of Education) ('the Respondent') on 1 February 2021 ('1 February 2021 Conversation').
- On 18 February 2021, Ms Casperson filed an Appeal Notice to appeal the decision verbally conveyed during the 1 February 2021 Conversation.
- The Respondent submitted the 1 February 2021 Conversation does not constitute the decision that forms the subject of the appeal because a 'deemed decision' took effect on 11 December 2020, being 28 days after the Conversion Request was made. Based on that reasoning, the Respondent further submitted:
- the 21-day time limit in which Ms Casperson was required to submit the Appeal Notice lapsed on 4 January 2021; and
- Ms Casperson filed the Appeal Notice 45 days out of time.
- In accordance with the Directions Order issued on 15 March 2021, the parties were invited to file written submissions that specifically addressed the issue of timeframe with respect to filing the Appeal Notice.
- Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'), no hearing was conducted in deciding this Appeal. The matter was decided on the papers.
- For the reasons that follow, I agree with the Respondent's submissions and am not minded to hear the appeal out of time. I have also considered whether Ms Casperson is eligible to appeal the decision. It follows that the appeal is dismissed.
- Section 149C(4) of the Public Service Act 2008 (Qld) ('the PS Act') requires the department's chief executive to decide a conversion request to a higher classification level within the 'required period', defined at sub-s (8) as being:
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply—28 days after the request is made.
- Pursuant to s 149C(6) of the PS Act, in the event the department's chief executive does not make the decision within the 'required period', the chief executive is deemed to have refused the request.
- Ms Casperson made the Conversion Request on 12 November 2020. The Respondent did not make the decision within 28 days after the Conversion Request. Therefore, on 11 December 2020, the Respondent was deemed to have refused the request ('the Deemed Decision').
- The decision subject of this appeal is the Deemed Decision not to permanently convert Ms Casperson to the higher classification level. I consider the 1 February 2021 Conversation serves as verbal confirmation of the Deemed Decision, rather than the decision that forms the subject of this appeal.
Decision against which an appeal may be made
- Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision "…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years."
- Clause 8.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('Directive') elaborates (emphasis added):
In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.
- Ms Casperson began working at the higher classification position from 24 January 2019. At the time of the Conversion Request, Ms Casperson had been working at the higher classification role for approximately 1 year and 10 months. Notably, there was a change in title, however the position itself continued.
- Ms Casperson's employment in the higher classification position falls short of the 2-year requirement. Notably, the Respondent did not raise this argument in their submissions. It may be the case that Ms Casperson had been engaged at the higher classification level but in an alternate position prior to 24 January 2019, therefore reaching the 2–year threshold. However, no evidence of this has been presented to the Commission.
- In the Appeal Notice, Ms Casperson states that she has "acted in a position at higher classification level under s 149C for a continuous period of at least two years." Ms Casperson further notes, "Despite being in the same role for a period of two years, errors in recording the title correctly on the Workplace Report Service History Records have failed to reflect this."
- Ms Casperson had been working in the role for 2 years at 24 January 2021. This is some time after the Conversion Request on 12 November 2020. At the time of filing the Appeal Notice on 18 February 2021, Ms Casperson had been working in the role for 2 years, however that is irrelevant to the timing of the Conversion Request.
- The Respondent submitted Ms Casperson had been permanently employed by the Respondent since 25 January 1996 and "had been engaged for various periods in roles at higher classification levels". The Respondent referred to 'Attachment 1' where "these higher classification level engagements are detailed". However, the higher classification level engagements detailed in Attachment 1 begin from 24 January 2019, further supporting the notion Ms Casperson had not been engaged at the higher classification level for 2 years at the time of making the Conversion Request.
- Based on the reasoning above, I am not satisfied that the Deemed Decision made by the Respondent is able to be appealed.
- Notwithstanding my conclusion that the Deemed Decision is not appealable, in the event there is evidence in existence to the contrary that has not been presented, I will proceed to determine whether or not Ms Casperson's appeal should be heard out of time.
Timeframe for appeal
- Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
- The Deemed Decision was given on 11 December 2020.
- The Acts Interpretation Act 1954 (Qld) ('the AI Act') provides (emphasis added):
- Reckoning of time
- (1)If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—
- (a)if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
- (b)In any other case—by including the day on which the purpose is to be fulfilled.
- (2)If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.
- (3)If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.
- (4)If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
- (5)In this section—
- (a)for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or
- (b)otherwise—means a day that is not a business day in the place in which the thing must or may be done.
- By virtue of s 38(1) of the AI Act, the first day, namely 11 December 2020, is excluded. The count begins from the following day. The IR Act at s 564 does not specify a number of "clear days", or "at least" a number of days. Each of those terms would provide the filing party an entitlement to the entirety of the final day, such that the last day for filing would be the following day. Rather, the IR Act at s 564(3) provides that the filing is to occur "within 21 days after (the decision was given to the appellant)". It follows that s 38(1)(a) of the AI Act does not apply, and so s 38(1)(b) does apply - the last day is not excluded from the count.
- Therefore, 21 days after the deemed decision was given on 11 December 2020 was 4 January 2021, having excluded the first day but included the final day and having excluded Saturday, 2 January 2021 and Sunday, 3 January 2021, being days on which Ms Casperson could not have filed the Appeal Notice.
- The Appeal Notice was filed in the Industrial Registry on 18 February 2021 - 45 days out of time.
- Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Industrial Commissioner may allow other evidence to be taken into account.
What decisions can the IRC Member make?
- Section 562C of the IR Act prescribes that the Commission may determine to either:
- Confirm the decision appealed against; or
- Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- Set the decision aside and substitute another decision.
Should time for filing be extended?
- I am empowered by the IR Act to extend the time for giving an appeal notice. The IR Act does not provide any criteria against which I am to determine whether or not to extend time. Foundationally, the extension of time is a discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.
- In my view, Ms Casperson bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal Notice.
- In Breust v Qantas Airways Ltd, Hall P set out the following considerations:
- The length of the delay;
- The explanation for the delay;
- The prejudice to the Appellant if the extension of time is not granted;
- The prejudice to the Respondent if the extension of time is granted; and
- Any relevant conduct of the Respondent.
- Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited. These were usefully summarised by Thompson IC in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services), as paraphrased below:
- The 21-day time limit must be respected and should not easily be dispensed with; and
- The Appellant’s prospects of success at a substantive hearing are always a relevant matter where it appears an Appellant has no, or very limited, prospects of success. In that instance, the Queensland Industrial Relations Commission would not normally grant an extension of time.
- Those cases were considering s 74(2)(b) of the IR Act. However, they were answering substantively the same question as in this case; what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion.
- Additionally, my discretion is informed by the purposes of the PS Act, including promoting the effectiveness and efficiency of government entities. In that regard, I am guided by the commentary of French CJ in Aon Risk Services Limited v Australian National University:
Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification.
Length of delay
- The Appeal Notice was filed 45 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act.
- The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances. Larger delays than five days have been considered to be not excessive in particular circumstances. However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like. There is no evidence that is the case here.
- Given the additional circumstances of explanation for the delay, prejudice, and the conduct of the parties considered below, I have determined 45 days of delay to be significant and unreasonable in this instance.
Explanation for the delay
- In her Appeal Notice, Ms Casperson conveyed a belief she was filing the Appeal Notice within the appeal period. As outline above, this is based on the misunderstanding the 1 February 2021 Conversation constituted the decision that forms the subject of the appeal, when instead it was the Deemed Decision.
- Ms Casperson's subsequent explanations for the delay can be summarised as follows:
- She was not made aware that Ms Merkouriou did not possess delegation authority;
- She was led to believe she had been formally notified of the decision during 1 February 2021 Conversation;
- Her previous director was not notified of the decision despite Ms Merkouriou stating in an email dated 9 December 2020 ('the 9 December 2020 Email') that the previous director would be notified "as soon as we have processed your application"; and
- There was an apparent lack of transparency as the Respondent omitted to notify Ms Casperson of the Deemed Decision and that the 21-day appeal period would commence from the Deemed Decision.
- The Respondent submitted the following:
- Ms Casperson has made a number of unreasonable presumptions pertaining to the interpretation of the 9 December 2020 Email and 1 February 2021 Conversation;
- The 9 December 2020 Email indicated a decision would be provided after the application had been processed;
- Ms Casperson provides no evidence to support the claim she had been led to believe Ms Merkouriou was acting as a representative of the department's chief executive;
- Ms Casperson provides no evidence to support the claim she had been denied the opportunity to speak to a higher authority;
- Ms Casperson's presumption that the 1 February 2021 Conversation formed the decision and the 21-day appeal period commenced from the date of that conversation is based on a flawed understanding of the legislative provisions; and
- The legislative provisions are clearly set out in the PS Act and the Directive.
- I consider the delay resulted from a lack of understanding with respect to the legislative provisions of the PS Act, specifically that provided under s 149C(6). The circumstances outlined by Ms Casperson are insufficient to explain her delay.
- The 9 December 2020 Email indicates the Respondent was reviewing a large volume of applications. The email acknowledged the 28-day "due date" of 11 December 2020 but did not guarantee a decision by that time. Further, I do not consider the words "we endeavour" to constitute "promissory language".
- The 9 December 2020 Email stipulated a "due date" which marked to Ms Casperson when she could expect to receive a response if one was forthcoming. If Ms Casperson understood the relevant legislative provisions, she would have understood that a refusal decision would be deemed if no formal decision had been provided by the "due date" of 11 December 2020.
- There was no obligation on the Respondent to advise Ms Casperson on the legislative provisions and requirements. I do not accept that an omission to do so explains the delay nor does it warrant an extension on the grounds of unfairness.
- Further, Ms Casperson has not provided evidence of how she was led to believe Ms Merkouriou was an acting representative of the department's chief executive. Regardless, this would not have an impact upon the Deemed Decision nor the delay in filing the Appeal Notice.
- Although it is unfortunate Ms Casperson either misunderstood or was unaware of the relevant legislative provisions, if an extension was granted on these grounds, this would open the floodgates. It is an appellant's responsibility to take the initiative to understand the process they are undertaking.
- I find that Ms Casperson has offered no adequate explanation or justification for the significant delay.
Prejudice to Ms Casperson
- Ms Casperson's submissions with respect to prejudice she might suffer should the appeal be dismissed for filing out of time turns on the reason she was allegedly given for the rejection of her application. That being, when Ms Merkouriou allegedly advised the rejection was largely due to Ms Casperson remaining in her higher classification position for 364 days rather than the required 365 days.
- Ms Casperson asserts that errors were made that ultimately led to an "unfair and unreasonable decision".
- The obvious prejudice if this appeal were to be dismissed is that Ms Casperson would lose the opportunity for an independent review of the decision, and any subsequent relief.
- That outcome is of course not an insubstantial detriment to Ms Casperson, who seeks to appeal a decision to not make her permanent in the higher duties position. That is a significant outcome.
Prejudice to the Respondent
- I find the Respondent would suffer some prejudice should I decide to exercise my discretion to hear the appeal out of time. However, that prejudice would be less than that suffered by Ms Casperson.
Conduct of the Respondent
- As outlined above, Ms Casperson heavily relied upon the conduct of the Respondent in her reasoning for the delay in bringing the appeal. The events Ms Casperson referred to occurred after the 4 January 2021 appeal deadline and therefore caused no detriment to Ms Casperson's ability to appeal within the required period.
- Further to that outlined above, Ms Casperson expresses the Respondent ought to have given her information about what constitutes a decision and about filing the appeal. There is no evidence presented by the Respondent that information was provided to Ms Casperson. However, in the absence of evidence of the Respondent deceiving Ms Casperson, I do not consider that an omission to explain the legislative requirements caused the delay in bringing the appeal.
- Ms Casperson relied upon the following submissions:
- There is a new requirement under s 297 of the PS Act that applicants be notified of the 21-day period, a notification that Ms Casperson was not afforded; and
- The explanatory notes of the Public Service and Other Legislation Amendment Bill 2020 ('the Bill') has provided that "areas of the Act such as in the case of no response from the chief executive in the required timeframe constituting a denied application and other areas of notification of decisions should be clarified to further the intent of the legislation."
- I do not consider that s 297 of the PS Act requires that applicants be notified of the 21-day period. Further, reference to the Bill and its explanatory notes are not elevated above the precise requirements of the legislative provisions.
- Notwithstanding, Ms Casperson's comments regarding transparency could certainly be taken on board by the Respondent in the future, to assist the understanding of appellants and in avoiding circumstances such as this - but is by no means required. It is certainly possible for appellants to seek advice on the process elsewhere or themselves review the relevant legislative provisions.
Prospects of success
- An Appellant’s prospects of success at a substantive hearing are a relevant consideration. However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):
In addition to these factors, 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. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.
- The Respondent has submitted that funding has been progressively reducing, resulting in a staffing reduction. The Respondent therefore does not have a present ongoing need for the higher classification level position undertaken by Ms Casperson to be performed by anyone.
- Coupled with the issue of evidence suggesting Ms Casperson was not working in the higher classification level for at least two years, I am not persuaded that Ms Casperson would have a reasonable prospect of success.
- Ms Casperson has filed an appeal against the Respondent's decision to refuse her conversion request. I have found that the decision the subject of this appeal is the Deemed Decision of 11 December 2020. As Ms Casperson's employment in the higher classification position falls short of the 2-year requirement, I have found the Deemed Decision is not appealable.
- However, even if the appeal was appealable, Ms Casperson's explanations for the delay are insufficient and appear to largely stem from a lack of awareness of the legislative provisions. I have not accepted that to be a sufficient explanation for the delay.
- I have therefore decided not to hear the appeal out of time. It follows that the appeal is dismissed.
- I make the following order:
That the appeal is dismissed.
 The IR Act does not delineate between business or non-business days in that respect, it is simply 21 calendar days. That aspect would only become a relevant consideration if the due date for filing fell on an excluded day.
 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
 Ibid s 562B(2).
 Ibid s 567(2).
 Ibid s 564(2).
 House v The King (1936) 55 CLR 499, .
 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre  170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
 (1995) 149 QGIG 777.
 (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
  QIRC 138.
 Public Services Act 2008 (Qld) s 3.
 (2009) 239 CLR 175, .
Tonia Shelley v McRoberts Agency  190 QGIG 189.
 See, eg, Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services)  QIRC 138.
 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.
 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.
 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
  ICQ 35, .
- Published Case Name:
Casperson v State of Queensland (Department of Education)
- Shortened Case Name:
Casperson v State of Queensland (Department of Education)
 QIRC 119
08 Apr 2021