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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Ryan v State of Queensland (Department of Corrective Services)  QIRC 121
State of Queensland (Department of Corrective Services)
Public Service Appeal – Fair treatment decision
DELIVERED EX TEMPORE ON:
29 March 2021
29 March 2021
Industrial Commissioner Dwyer
INDUSTRIAL LAW – Public Service Appeal – jurisdiction to deal with a fair treatment decision appeal – appeal filed out of time – consideration of whether to hear appeal out of time – no jurisdiction
Industrial Relations Act 2016 (Qld) ss 562A, 564
Public Service Act 2008 (Qld) s 196(eb)
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Reasons for Decision
- This is an appeal by Mr Murray Ryan in respect of a decision by Assistant Commissioner Richard Wittmack.
- Mr Ryan filed his appeal on 18 September 2020. The appeal purported to be a fair treatment appeal pursuant to section 196(eb) of the Public Service Act 2008 (Qld) ('PS Act'). In the Appeal Notice, the appeal identified the decision that was the subject of the appeal to be a decision received by Mr Ryan on 31 August 2020. I note that that decision is dated 6 August 2020. The decision was by Assistant Commissioner Richard Wittmack and confirmed the outcome of a show cause process to which Mr Ryan had recently been the subject. Notably, that decision confirmed that allegations that were the subject of the show cause process had not been substantiated.
- In the submissions filed by Mr Ryan with the Appeal Notice, multiple grievances were identified with respect to the Respondent’s conduct on or around 17 February 2020 and various other dates. The relevance of this date appears to be that it was at or around this time that Mr Ryan was the subject of an investigation in relation to certain complaints about his conduct from a co-worker.
- Having regard to the submissions, I held some concerns as to the validity of the appeal given that the nominated decision was not adverse to Mr Ryan and further, that many of the matters complained of in the submissions accompanying the Appeal Notice occurred many months prior to the filing of the appeal. Overall, having regard to the submissions, it was not entirely clear what aggrieved Mr Ryan in respect of the decision of Assistant Commissioner Wittmack of August 2020.
Mention on 13 November 2020
- Consequently, the matter was listed for a mention on 13 November 2020. At that time, Mr Ryan was asked to identify the decision that he sought to appeal. Bearing in mind the narrow jurisdiction that I have with respect to such appeals, it is important that the decision by which Mr Ryan is aggrieved was appropriately identified.
- Out of an abundance of concern for procedural fairness on his part, I asked Mr Ryan to provide me with particulars as to the decision that aggrieved him. In the course of the mention on 13 November 2020, Mr Ryan ultimately identified that it was a decision of Assistant Commissioner Wittmack dated 28 April 2020 to have him show cause that aggrieved him.
- It was noted during the mention that the decision of 28 April 2020 pre-dated the filing of this appeal by approximately five months and was well beyond the limitation period of 21 days prescribed in the Industrial Relations Act 2016 (Qld) ('IR Act'). My estimation is that the appeal was filed approximately 121 days out of time.
- I note, for completeness, that the time limitation of 21 days would have applied at the time of the decision of 28 April 2020 under the pre-amendment PS Act, but the same time limitation for such appeals is now prescribed by s 564 of the IR Act.
- As a consequence of these matters, Mr Ryan was invited to formally identify in writing the decision that he sought to appeal.
- In submissions filed on 19 November 2020, Mr Ryan identified the decision that he sought to appeal as the decision of Assistant Commissioner Wittmack dated 28 April 2020. Mr Ryan also, in those written submissions, pre-emptively identified the jurisdictional objection in respect of the time limitation applying to such appeals.
Mention on 7 December 2020
- On 7 December 2020, the matter was further mentioned to address the jurisdictional issue arising from the proper identification of the decision now sought to be appealed.
- At that mention, the Respondent formally raised the jurisdictional objection, namely, that the appeal had been filed out of time. The parties were then asked to file submissions specifically with reference to the jurisdictional issue.
Hearing on 29 March 2021
- The matter was listed for hearing and was heard on 29 March 2021 exclusively on the jurisdictional point. As I mentioned previously, the appeal was filed on 18 September 2020. Section 564 of the IR Act requires an appeal to be filed within 21 days after Mr Ryan received the decision. The appeal is approximately 121 days late. I have a discretion to grant an extension of time to Mr Ryan. In addition or alternatively, s 562A of the IR Act gives me a discretion to decline to hear public service appeals.
- For the reasons that follow, I decline grant an extension of time, and I decline to hear the appeal.
Relevant sections of the IR Act
- The relevant provisions of the IR Act for consideration in this appeal are set out below.
- Section 562A of the IR Act relevantly provides:
562A Commission may decide not to hear particular public service appeals
- (3)The commission may decide it will not hear a public service appeal against a decision if—
- (a)the appellant has made an application to a court or tribunal relating to the decision
whether or not the application has been fully decided; or
- (b)the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
- (i)is frivolous or vexatious; or
- (ii)is misconceived or lacks substance; or
- (iii)should not be heard for another compelling reason.
- Section 564 of the IR Act relevantly provides:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- There has been a significant delay in filing the appeal. There is no compelling evidence offered by Mr Ryan to explain this delay. On the contrary, his material indicates that he was objecting to the process as early as mid-May when he wrote to Assistant Commissioner Wittmack outlining multiple deficiencies that he alleged to have identified in the process leading to the show cause letter being issued.
- While it is not entirely clear, there was a reference also on the transcript in the mention on 7 December 2020 to Mr Ryan having had legal representation at some point during the show cause process. In any event, whether he had legal representation or not, it is apparent to me from Mr Ryan’s submissions that he was well and truly alive to matters that he alleged were of serious concern with respect to the process to which he was being subjected from as early as May 2020.
- In all of those circumstances, I do not accept that he could not reasonably have contemplated his entitlement to file a public service appeal within the relevant timeframe.
- Secondly, on the question of the merits generally, having regard to the decision that is under review, I am not convinced that the decision to commence the show cause process was unfair or unreasonable.
- The show cause process occurred in the context that Mr Ryan was the subject of a complaint. Those complaints were subsequently investigated. I am not in a position, nor am I required, to look into the mind of the investigator and to second-guess their conclusions, especially where these are based on interviews with witnesses.
- It is the conclusions of the investigator upon which Assistant Commissioner Wittmack relied. In the absence of evidence of glaring departures of procedural fairness (as opposed to the technical failings identified by Mr Ryan with respect to alleged breaches of policy or directives) I see no reason why Assistant Commissioner Wittmack was not entitled to rely on the investigation findings and proceed to have Mr Ryan show cause.
- Even if I am incorrect in my conclusions with respect to the absence of glaring departures of procedural fairness, it would seem that such departures (if they existed) have had no adverse impact on Mr Ryan, given that the show cause process resulted in the allegations being unsubstantiated.
- In the circumstances, in my view, any appeal against the decision of Assistant Commissioner Wittmack dated 28 April 2020 would have no compelling merit and ought not be the subject of an extension of time for filing.
- Thirdly, in terms of the 'justice of the case' there is no prejudice to Mr Ryan if I refuse to allow this appeal to proceed. However indignant he might feel about having to have had endured the show cause process, the allegations were ultimately not substantiated, and he has suffered no sanction or loss of entitlements. He made submissions from the bar table at the hearing with respect to the loss of his substantive position in or about May last year, but these are not matters that are the subject of this appeal.
- Significantly he remains a full-time permanent employee of the public service. In those circumstances, his status remains entirely unchanged since the period prior to the commencement of the process of which he now complains.
- In all of those circumstances, I am not inclined to exercise my discretion to extend the time for Mr Ryan to file his appeal.
- Further and alternatively, I am satisfied by his written submissions that Mr Ryan had an opportunity (in accordance with s 562A(3)(b) of the IR Act) to address the jurisdictional objection. I would therefore exercise my discretion not to hear his appeal for all of the preceding reasons.
- I make the following order:
- The appeal is dismissed for want of jurisdiction.
- Published Case Name:
Ryan v State of Queensland (Department of Corrective Services)
- Shortened Case Name:
Ryan v State of Queensland (Department of Corrective Services)
 QIRC 121
Member Dwyer IC
29 Mar 2021