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Royle v State of Queensland (Department of Health)[2021] QIRC 142

Royle v State of Queensland (Department of Health)[2021] QIRC 142

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Royle v State of Queensland (Department of Health) [2021] QIRC 142

PARTIES: 

Royle, Suzanne

(Appellant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

PSA/2020/428

PROCEEDING:

Public Service Appeal - Temporary Employment

DELIVERED ON:

29 April 2021

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDER:

That the Appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – APPEAL – consideration of eligibility to appeal – whether the decision was a decision to convert under s 149B of the Public Service Act 2008 – whether the decision was a decision to convert under s 149 of the Public Service Act 2008 – where the Appeal was filed out of time – consideration of whether to hear the Appeal out of time

LEGISLATION AND DIRECTIVES:

CASES:

Acts Interpretation Act 1954 (Qld) s 38

Directive 07/20 Appeals cl 7.2, cl 7.3

Directive 09/20 Fixed term temporary employment cl 3.2, cl 4.3, cl 9 

Directive 12/20 Recruitment and selection

Industrial Relations Act 2016 (Qld) s 317, s 451, s 530A, s 562B, s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 3, s 147, s 148, s 149, s 149B, s 194, s 195, s 196

Public Service Regulation 2018 (Qld) sch 3

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 [2010] ICQ 35

Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers (2010) 197 IR 403

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

Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 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) [2015] QIRC 138

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

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

Reasons for Decision

  1. [1]
    Since 4 June 2012, Dr Royle has been permanently employed by the Respondent in the 0.5 full time equivalent ('FTE') role of Consultant Paediatrician (Staff Specialist/Senior Staff Specialist).
  1. [2]
    Between 27 July 2015 and 30 November 2020, Dr Royle worked an additional 0.25 FTE hours.  The reason for these additional hours was to backfill a colleague, absent on parental leave. Dr Royle claims these additional 0.25 FTE hours constituted a fixed term employment arrangement. The Respondent disagreed.
  1. [3]
    In October 2020, the colleague for whom Dr Royle had been covering, relinquished the 0.25 FTE hours component of her substantive position.
  1. [4]
    On 5 November 2020, the Australian Salaried Medical Officers' Federation Queensland ('ASMOFQ') sent a letter to Mr Jim McGowan, Board Chair at Metro North Hospital and Health Service on behalf of Dr Royle ('the Conversion Request'). That correspondence stated:

In addition to her permanent 40 hours per fortnight (0.5 FTE), Dr Royle has worked the additional 20 hours per fortnight on a temporary basis for over half a decade.  It is well known within the Department that Dr Royle was covering these hours while another employee was on maternity leave.

  1. [5]
    On 18 November 2020, Ms Michele Gardner, Executive Director at The Prince Charles Hospital sent an email to ASMOFQ, stating the additional 0.25 FTE hours would be open to expressions of interest ('EOI'). The Respondent contends this email constitutes the decision in response to the Conversion Request ('18 November 2020 Decision').
  1. [6]
    Dr Royle subsequently applied for the additional 0.25 FTE hours through the EOI process and was interviewed. However, on 30 November 2020, Dr Donna O'Sullivan, Executive Director of Medical Services and Ms Katrina Avery, HR Manager verbally advised Dr Royle that she had been unsuccessful. Dr Royle contends this conversation constitutes the decision that forms the subject of this Appeal ('the 30 November 2020 Decision').
  1. [7]
    On 17 December 2020, Dr Royle filed an Appeal against the 30 November 2020 Decision. 
  1. [8]
    This Appeal raises several jurisdictional issues including whether Dr Royle is eligible to appeal the decision, whether the decision was a conversion decision pursuant to s 149B of the Public Service Act 2008 (Qld) (the 'PS Act'), whether the decision was made under s 149 of the PS Act and whether the Appeal should be heard out of time.

Appeal principles

  1. [9]
    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".
  1. [10]
    The Appeal is not conducted by way of re-hearing,[1] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[2] 
  1. [11]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on Appeal.  Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.[3]

 What decisions can the IRC Member make?

  1. [12]
    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.

Questions to be decided

  1. [13]
    This decision turns on several questions:
  1. When did the Respondent decline the conversion request?
  1. Whether or not this Appeal should be heard out of time?
  1. Was the conversion request made under s 149B of the PS Act?
  1. Was the conversion request made under s 149 of the PS Act?
  1. Is the Respondent's 'decision under a Directive' able to be appealed?
  1. [14]
    I have determined that:
  1.  The Appeal was filed beyond the statutory time limit. 
  1.  There are not compelling reasons to extend the time limit for Appeal. 
  1.  The Respondent's decision is not appealable in this case.
  1. [15]
    My reasons follow.

When did the Respondent decline the conversion request?

 Submissions

  1. [16]
    Dr Royle submitted that the 30 November 2020 Decision is the relevant decision date because at that time the Respondent advised that "she would no longer be filling that role."
  1. [17]
    However, the Respondent's position is that the 18 November 2020 Decision is the relevant decision date.  This contention relies on the following arguments:
  • On 18 November 2020, the decision was made by Ms Gardner and notified to ASMOFQ via email in the following terms (emphasis added):

I refer to your various discussions with various people about the now vacant .25 FTE hours being awarded to Dr Royle.

As the decision maker I have considered all of the information provided to me. I have determined that we will today release an EOI for 72 hours to allow interested parties, like Dr Royle, to express their interest in these hours. This will probably not be a surprising decision as it is what I have been conveying to you in discussions and correspondence for the past 6 months. For practicality I anticipate the EOI will close around lunch on Monday. We will then review the applications and make a decision within 2-5 working days.

We will touch base with you as soon as this process is finalised to advise of the outcome. It must be noted that Suzanne will be a competitive candidate for the role and I very much welcome her expression of interest. 

  • The 18 November 2020 Decision conveyed that Dr Royle would not be awarded and converted to the additional 0.25 FTE hours permanently, but instead the additional hours would be filled through an EOI process; and
  • 30 November 2020 was "merely" the first date on which the 18 November 2020 Decision had an operational impact on the hours worked by Dr Royle.

Consideration

  1. [18]
    On its plain and ordinary meaning, the terminology in the 18 November 2020 email, including, "as the decision maker", "I have determined" and "this will probably not be a surprising decision" clearly indicate Ms Gardner's response to the Conversion Request with a degree of finality.
  1. [19]
    Ms Gardner indicated the Conversion Request had been refused and the Respondent had instead decided to select the candidate through a different process (the 'EOI process').
  1. [20]
    Although the decision suggests Dr Royle "will be a competitive candidate" for the additional hours, it was clear that was not by virtue of her Conversion Request but would rather rely on whether or not she was successful through the EOI process. Given the EOI process is entirely different to the Conversion Request, the decision made at the end of that process cannot be taken to be in response to the Conversion Request.
  1. [21]
    I conclude that the 18 November 2020 Decision is the relevant decision date.

Appeal has been filed 'out of time'

  1. [22]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (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.
  1. [23]
    The 18 November 2020 Decision was given to ASMOFQ by email on that date.
  1. [24]
    The Notice of Appeal was filed with the Industrial Registry on 17 December 2020.
  1. [25]
    The Acts Interpretation Act 1954 (Qld) ('the AI Act') provides (emphasis added):

38 Reckoning of time

  1. (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—
  1. (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
  1. (b)
    in any other case—by including the day on which the purpose is to be fulfilled.
  1. (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.
  1. (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.
  1. (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.
  1. (5)
    In this section—

excluded day—

  1. (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
  2. (b)
    otherwise—means a day that is not a business day in the place in which the thing must or may be done.
  1. [26]
    By virtue of s 38(1) of the AI Act, the first day, namely 18 November 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, s 564(3) of the IR Act 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 and the last day is not excluded from the count.
  1. [27]
    Therefore, 21 days after the decision was provided to ASMOFQ on 18 November 2020 was 10 December 2020, having excluded the first day but included the final day. The Appeal Notice was filed in the Industrial Registry on 17 December 2020.
  1. [28]
    The Appeal was filed seven days out of time.[4]

Whether or not this Appeal should be heard out of time?

  1. [29]
    Dr Royle bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal.[5]
  2. [30]
    In accordance with the Directions Order issued on 15 March 2021, the parties filed written submissions.
  1. [31]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.
  1. [32]
    I am empowered by the IR Act to extend the time for giving an Appeal Notice.[6] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.
  1. [33]
    The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion.[7] 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.[8] Several factors inform the exercise of my discretion.
  1. [34]
    In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[9]
  • 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.
  1. [35]
    Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.[10] These were usefully summarised by Thompson IC in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services),[11] which is 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.
  1. [36]
    Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). 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. 
  1. [37]
    Additionally, my discretion is informed by the purposes of the PS Act, including promoting the effectiveness and efficiency of government entities.[12] In that regard, I am guided by the commentary of French CJ in Aon Risk Services Australia 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.[13]

Length of delay

  1. [38]
    The Appeal was filed seven 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.
  1. [39]
    The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[14] Larger delays than five days have been considered to be not excessive in particular circumstances.[15] 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.
  1. [40]
    A previous decision of Deputy President O'Connor (as he then was) observed in Wantling v Department of Community Safety (Queensland Corrective Services) that the reasons provided do not amount to 'the most compelling of circumstances' nor is an extension necessary in order to 'ensure that justice is done between the parties'.[16] That may also be applied in consideration of this matter. 
  1. [41]
    Given the additional circumstances of explanation for the delay, prejudice, and the conduct of the parties considered below, I have determined seven days of delay to be significant and unreasonable in this instance.

Explanation for the delay

  1. [42]
    The Appeal Notice indicated that Dr Royle believed she was within the required timeframe for filing, taking into account the 30 November 2020 Decision as outlined above.
  1. [43]
    Subsequently, Dr Royle submitted an explanation for the delay as:
  • After receiving the 18 November 2020 Decision, ASMOFQ accepted that decision and advised the Respondent there was no longer a dispute, prior to obtaining Dr Royle's instructions;
  • ASMOFQ advised Dr Royle to proceed with the EOI process, rather than dispute the progression of the EOI process;
  • The Respondent did not directly inform Dr Royle of the decision, but instead advised ASMOFQ;
  • The Respondent failed to inform Dr Royle of her appeal rights and the 21-day time frame for filing an Appeal; and
  • After receiving the 30 November 2020 Decision, ASMOFQ advised Dr Royle that the 21-day appeal time frame ran from 30 November 2020. As Dr Royle is not legally trained, she accepted that advice.
  1. [44]
    Dr Royle also stated that ASMOFQ was acting as her industrial representative but not as her legal representative.

Consideration

  1. [45]
    I acknowledge that Dr Royle had an industrial representative, rather than a legal representative, at the relevant time. However, that is no impediment to advancing these types of matters at workplace level or in conducting a matter before the QIRC. Indeed, s 530A(2)-(3) of the IR Act permits a person only to be represented by an agent in public service appeal proceedings - not a lawyer. I accept the Respondent's submission that the industrial advocate is senior and experienced.
  1. [46]
    At the time of the 18 November 2020 Decision, Dr Royle would not have been prevented from either appealing the decision within the required timeframe or communicating her disagreement directly to the Respondent. This is true even in circumstances where ASMOFQ advised the Respondent that there was no longer a dispute.
  1. [47]
    Dr Royle has asserted that ASMOFQ advised her to proceed with the EOI process, rather than dispute it at that time. I would observe that it was open to Dr Royle to accept that strategic advice or not. Certainly, the record of the conversation with Dr Donna O'Sullivan and Ms Katrina Avery[17] made by Dr Royle on 30 November 2020 indicated that she was a strong contender for those permanent additional hours:

I was a merit listed candidate for the role (0.25 FTE) 

There was however a “higher merit listed candidate”

Therefore, I do not consider it was unreasonable to suggest to Dr Royle that she may well achieve her desired outcome by those means, on the information before me.

  1. [48]
    In circumstances where Dr Royle was represented by ASMOFQ, it was appropriate for the Respondent to communicate with her representative regarding the 18 November 2020 Decision.
  1. [49]
    I accept that the Respondent did not inform Dr Royle of her appeal rights and the timeframe in which to do so.  The most straightforward explanation for this is that the Respondent contends there is no right of appeal in this case.  It follows then that they did not inform Dr Royle of the appeal process.
  1. [50]
    Dr Royle stated she was advised by ASMOFQ that the 21-day appeal timeframe commenced from the 30 November 2020 Decision. That is unfortunate, but not determinative in this matter.  As I later explain, the 30 November 2020 Decision was not one that was open to appeal in my view.
  1. [51]
    I note that Dr Royle was the President of ASMOFQ at the relevant time.  She is certainly highly educated and has both professional experience and industrial awareness. Her filed materials chronicle her interest and energy in advancing her workplace rights. In embarking on this process, the onus rests with the Appellant to understand the inherent requirements. There is nothing before me that would indicate she was incapable of doing so.
  1. [52]
    Therefore, I am not satisfied that the circumstances described by Dr Royle are sufficient to explain the delay in this instance.

Prejudice to Dr Royle

  1. [53]
    The obvious prejudice is that Dr Royle would lose the opportunity for an independent review of the decision, and any subsequent relief.
  1. [54]
    Dr Royle has submitted she would be heavily prejudiced if the Appeal was not heard by virtue of having undertaken the additional hours for over 5 years, leading her to rely significantly on the income to assist in supporting her family.
  1. [55]
    I appreciate that outcome is not an insubstantial detriment.

Prejudice to the Respondent

  1. [56]
    The clearest prejudice to the Respondent should the Appeal be heard out of time would be that it has already awarded the additional 0.25 FTE hours to another person. That occurred as a result of the EOI process. Presumably, the Respondent does not require two people for one position.
  1. [57]
    Once the EOI process had ended, the Respondent took steps to ensure The Prince Charles Hospital continued to be served by a doctor fulfilling the duties and responsibilities of the 0.25 FTE hours position.  Seemingly, the Respondent took action proximate to 30 November 2020 to ensure such certainty.  As such, to hear this Appeal out of time would unfairly intrude on the alternative specialist staffing arrangements made by the Respondent and potentially disrupt the health service provision to the local community. 
  1. [58]
    It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[18] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[19]
  1. [59]
    For those reasons, I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the Appeal out of time.

Conduct of the Respondent

  1. [60]
    Dr Royle relied upon the conduct of the Respondent (in part) in explaining the delay in bringing the Appeal. She submitted the Respondent ought to have given her information directly about the appeal period but did not.
  1. [61]
    I have earlier found it to be reasonable for the Respondent to have liaised directly with ASMOFQ because it represented Dr Royle in this matter at that time. In fact, it would have been unreasonable for them not to do that in these circumstances.
  1. [62]
    At paragraph [49] above, I have accepted that the Respondent did not inform Dr Royle about the appeal process because they believed there was no right of appeal in these circumstances.  The provision under which both the conversion request and determination was made directly informs whether or not there is access to appeal rights.  In short, I have concluded that the 18 November 2020 Decision is not a decision given under s 149B of the PS Act. 
  1. [63]
    Therefore, this has a neutral impact on my consideration of whether or not to hear the Appeal out of time.

Prospects of success

  1. [64]
    An Appellant's prospects of success at a substantive hearing are a relevant consideration.[20] 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.[21]

  1. [65]
    In my view, the conversion request and 18 November 2020 Decision was not made under s 149B of the PS Act and so appeal rights under that provision may not be accessed here.  A decision not to convert under s 149 of the PS Act is not able to be appealed, with respect to s 195(1)(i) of the PS Act.  Further, a 'decision under a Directive' is not able to be appealed in this case either in these circumstances, with reference to s 195(3A)(c). 
  1. [66]
    The jurisdictional issues combined present hurdles that would be challenging to overcome - and so I consider that the Appeal has low prospects of success, based on the evidence before me at this time.

Is the conversion decision able to be appealed?

  1. [67]
    As outlined above, I have determined that the Respondent's response to the Conversion Request was the 18 November 2020 Decision.  A result of that finding is that this Appeal was filed out of time.  Several factors have informed the consideration of whether or not to exercise my discretion to hear this Appeal out of time.  These include the jurisdictional issues raised. 
  1. [68]
    In order to assess whether or not the conversion decision is able to be appealed, I have also considered how the conversion request was made and determined.

Submissions

  1. [69]
    The Respondent contends Dr Royle does not have standing to appeal the decision. Its reasoning can be summarised as follows:
  • Dr Royle is not eligible for review under s 149B of the PS Act nor Directive 09/20 Fixed term temporary employment ('the Directive') because she was not a "fixed term temporary employee";
  • Since 2012, Dr Royle has been employed as a general employee on tenure / permanent employee and cannot also be employed as a fixed term temporary employee by the same employer;
  • Dr Royle is a permanent employee who voluntarily undertook additional 0.25 FTE hours to fill the hours of another permanent employee; and
  • Section 148 of the PS Act does not define "fixed term employment" and regardless, does not apply to Dr Royle nor to the Respondent. 
  1. [70]
    Dr Royle submitted that:
  • Dr Royle became a fixed term temporary employee in accordance with s 148 of the PS Act as her employment for the separate 0.25 FTE hours was for a fixed term and she was performing work that was of a type ordinarily performed by a public service officer; and
  • Dr Royle was employed concurrently as an employee on tenure and as a fixed term temporary employee.

Relevant legislative provisions

  1. [71]
    Section 193 of the PS Act provides that:

  A person may appeal against a decision if -

  1. (a)
          an appeal may be made against the decision, under section 194; and
  1. (b)
          the person is entitled to appeal against the decision under section 196.
  1. [72]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. 
  1. [73]
    Section 194(1)(e) of the PS Act provides that an appeal may be made against a decision:
  1. (i)
    under section 149B not to convert the basis of employment of an employee; or
  1. (ii)
    under section 149B to convert the basis of employment of an employee in a

  circumstance provided for under a directive made under section 149B(8A).

  1. [74]
    Section 194(1)(a) of the PS Act provides that an appeal may be made against “a decision to take, or not take, action under a directive.”
  1. [75]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. 
  1. [76]
    Section 149B of the PS Act "applies in relation to a person who is a fixed term temporary employee or casual employee".
  1. [77]
    Pursuant to cl 3.2 of the Directive, "This directive applies to public service employees who are employed on a full-time or part-time fixed term temporary basis under section 147(2)(a) or section 148 of the PS Act."
  1. [78]
    Clause 147(2)(a) of the PS Act provides (emphasis added):
  1. (1)
    A chief executive may employ a person as a general employee to perform work of a type not

ordinarily performed by a public service officer.

  1. (2)
    The employment may be—
  1. (a)
    on tenure or a temporary basis for a fixed term and full-time or part-time; or
  2. (b)
    on a casual basis.
  1. [79]
    Clause 4.3 of the Directive states, "Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee."
  1. [80]
    Section 148 of the PS Act provides:

A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).

  1. [81]
    It has been submitted that items 3 and 4 of sch 3 of the Public Service Regulation 2018 (Qld) stipulate the provisions of the PS Act applicable to health service employees. Section 148 of the PS Act is not listed under these items.

Did the 0.25 FTE additional hours constitute a temporary engagement?

  1. [82]
    Section 147(2)(a) of the PS Act indicates that a general employee to which s 149B applies, may be employed on tenure or a temporary basis. This appears to support the Respondent's contention that an employee cannot be employed both on tenure and on a temporary basis.
  1. [83]
    However, the fact remains that Dr Royle's employment in her 0.5 FTE hours was certainly 'permanent', whilst the undertaking of the additional 0.25 FTE hours was not.
  1. [84]
    The Appeal Notice filed 17 December 2020 states:

This temporary position was extended on 13 separate occasions by Letter of Offer for a total period of five and a half years until 29 November 2020. The last two extensions have been on a monthly basis.

  1. [85]
    The contents of the "13 separate occasions by Letter of Offer" referred to above were not expanded upon and no further evidence was provided in the form of correspondence or a temporary agreement to demonstrate Dr Royle was employed on a fixed term temporary basis. Notwithstanding that, 13 letters of offer further supports the notion the additional 0.25 FTE hours constituted fixed term temporary employment, as those specific hours were clearly not permanent.
  1. [86]
    Noting the circumstances surrounding Dr Royle undertaking additional 0.25 FTE hours were clearly intended to be temporary,[22] I accept Dr Royle's contention that she was permanently employed in her 0.5 FTE hours and temporarily employed in her 0.25 FTE hours.
  1. [87]
    While it may not be typical, it certainly appears to be the case here that Dr Royle's 0.5 FTE hours position constitutes a permanent engagement and her additional undertaking of 0.25 FTE hours was a separate engagement of a distinctly temporary nature.

Was the conversion request made under s 149B of the PS Act?

  1. [88]
    The Respondent contends that the 18 November 2020 Decision is not a conversion decision under s 149B of the PS Act. It has submitted that conversions under s 149B of the PS Act are not made following requests such as that made by Dr Royle. Instead, conversion decisions under s 149B must be made within strict time frames as set out in s 149B(4).
  1. [89]
    In response, Dr Royle asserted that:
  • She was not excluded from exercising her right to request conversion of her temporary employment to permanent in accordance with s 149B of the PS Act; and
  • The email from ASMOFQ to the Respondent on 5 November 2020 constitutes the request for the Respondent to commence the process under s 149B and make a decision accordingly.
  1. [90]
    Section 149B of the PS Act provides (emphasis added):
  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to—
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.

 (7) If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

 …

 (9) In this section—

fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

 required period, for making a decision under subsection (3), means—

 (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 end of the period mentioned in subsection (4)(a) or (b).

 Consideration

  1. [91]
    Section 149B of the PS Act obligates the Respondent to decide whether to continue Dr Royle's employment on a fixed term temporary basis or whether to convert Dr Royle's employment to a general employee on tenure.
  1. [92]
    Dr Royle began undertaking the additional 0.25 FTE hours on 27 July 2015. In accordance with the timeframes prescribed by s 149B(4) of the PS Act, the Respondent was obligated to review Dr Royle's status as a fixed term temporary employee on 27 July 2017, being the end of a two year period of continuous employment. This obligation arose again annually thereafter on 27 July 2018, 27 July 2019 and 27 July 2020.
  1. [93]
    The latest date of review was 27 July 2020. Under cl 10 of the Directive, an employer is obligated to give notice to an employee when it commences a review of the status of the fixed term temporary employee's employment under s 149B of the PS Act. There is no evidence the Respondent provided this notice to Dr Royle, presumably because they did not consider the review fell under s 149B. Putting that issue aside, as there is no evidence of a decision being made within 28 days after the review date of 27 July 2020, a decision would have been deemed on 25 August 2021.[23] I consider that deemed decision to be the only appealable s 149B decision that relates to Dr Royle, however it is not the subject of this Appeal.
  1. [94]
    Dr Royle contends her Conversion Request was to prompt the Respondent to commence its review process under s 149B of the PS Act, however that was some four months following when the review should have occurred.
  1. [95]
    The time for which Dr Royle could have appealed those decisions, being 21 days after the decision was given under s 564(3) of the IR Act, has passed.
  1. [96]
    I find the 18 November 2020 Decision is not a decision under s 149B of the PS Act.

Was the conversion request made under s 149 of the PS Act?

  1. [97]
    The Respondent contends that the 18 November 2020 Decision was made in response to a request under s 149 of the PS Act. Its reasoning can be summarised as follows:
  • The 18 November 2020 Decision was a decision made in relation to a request by Dr Royle to convert her employment basis to general employee on tenure under s 149 of the PS Act;
  • The 18 November 2020 Decision was made in direct response to Dr Royle's request to the Chair of the Respondent, and was therefore a decision made in response to a request under s 149 of the PS Act; 
  • Section 195(1)(i) prohibits Dr Royle from appealing against decisions made under s 149 of the PS Act; and
  • In any event, Dr Royle was unable to make a conversion request under s 149 of the PS Act because s 149(4) prevents a person from making more than one request under s 149(3) in a 12-month period. Dr Royle had made a request to convert on 6 May 2020, some six months prior to the Conversion Request.
  1. [98]
    As I have elaborated above, Dr Royle disputed this position and instead asserted it was made under s 149B.
  1. [99]
    Section 149 of the PS Act provides (emphasis added):
  1. (1)
    This section applies to a person who is a fixed term temporary employee or casual employee, if the person has been continuously employed in the same department for 1 year or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The person may ask the department's chief executive to decide whether to —

 (a) continue the person's employment according to the terms of the person's existing employment; or

 (b) offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.

  1. (4)
    A person can not make more than 1 request under subsection (3) in a 12-month period.

(4A) For working out how long the person has been continuously employed in the department—

 (a) all periods of authorised leave are to be included; and

 (b)  the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 6 weeks or less in the year occurring immediately before the time when the duration of the person's continuous employment is being worked out.

  1. (5)
    In this section—

fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

 Consideration

  1. [100]
    The Respondent claimed that the 18 November 2020 Decision instead falls under s 149 of the PS Act because it was instigated by the Conversion Request. Contrary to the Respondent's contention, cl 9 of the Directive does contemplate circumstances where an employee (or their representative) may notify their employer that a review is sought under s 149B. It does not follow that Dr Royle's request was made under s 149 on that basis alone.
  1. [101]
    The Respondent proceeded to argue that Dr Royle had made a conversion request in May 2020 and therefore was unable to make another request within a 12-month period pursuant to s 149(4) of the PS Act. Notwithstanding that, I note the Respondent did not object to ASMOFQ's email request on behalf of Dr Royle on the basis of s 149(4) at the time, but instead gave consideration to it and determined not to convert her. Further, given the 0.25 FTE hours had recently become vacant, it is understandable that Dr Royle sought to pursue the issue again at that point.
  1. [102]
    I have determined that the Conversion Request was made under s 149 of the PS Act. 
  1. [103]
    I agree with the Respondent's submission that s 195(1)(i) of the PS Act prohibits Dr Royle from appealing against decisions made under s 149.

Is the Respondent's 'decision under a Directive' appealable?

  1. [104]
    In the alternate, the Appeal Notice filed 17 December 2020 indicated that Dr Royle also sought to appeal a decision made (or failed to be made) under a directive.  Specifically, Dr Royle has referenced Directive 12/20 Recruitment and selection.
  1. [105]
    Directive 07/20 Appeals lists the decision that cannot be appealed:

  7.2  Section 195(1)(k) of the PS Act states that non-appealable appointments cannot be appealed. A non-appealable appointment is an appointment:

    (a)  that is not a promotion

  …

  7.3 An appeal may also not be made under section 194(1)(a) of the PS Act where it is in relation to a decision:

    …

    (b)  about recruitment and selection, unless it is a decision not to:

     (i)  appoint an employee requiring placement because they are assessed as unsuitable

     (ii) appoint (or second) a public service employee because of their disciplinary history, or

     (iii) apply the directive relating to transfer within and between classification systems.

  1. [106]
    I find that the EOI process conducted by the Respondent to determine the candidate to whom the 0.25 FTE hours would be awarded is not able to be appealed.

Conclusion

  1. [107]
    Dr Royle filed her Appeal seven days out of time and seeks that I exercise my discretion under the IR Act to extend the time for filing that Appeal.[24]
  1. [108]
    There exists a suite of relevant considerations in exercising such a discretion, but foremost I must be satisfied that Dr Royle had a reasonable ground for extending the time.[25]
  1. [109]
    A lack of familiarity with, or knowledge of the processes of, a particular jurisdiction may be an acceptable reason for some amount of delay in initiating proceedings.[26]  However, I am satisfied that Dr Royle is a highly-educated person, with a depth of both professional experience and industrial awareness, capable of understanding the fundamental requirements of the process embarked upon.
  1. [110]
    Her explanation for that delay was that she had received poor advice and was not notified of the appeal period by the Respondent. Given I have also found that there was no obligation on the Respondent to advise of the appeal period – as none was available under s 149 - I have not accepted that to be a sufficient explanation for the delay.
  1. [111]
    Dr Royle will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time; namely, that she will lose the opportunity to be converted to permanent for the 0.25 FTE hours she has been working for many years.
  1. [112]
    However, while the prejudice to Dr Royle cannot be ignored, the Respondent will also suffer prejudice should the Appeal be heard out of time.
  1. [113]
    Were I to hear the Appeal out of time, the prejudice to the Respondent would be disruption to the alternative specialist staffing arrangements that have been made after the EOI process concluded.  I am also mindful of the potential negative impact to health services to the community through The Prince Charles Hospital, should further disturbance to specialist staffing arrangements be required.
  1. [114]
    Further, I consider that Dr Royle has poor prospects of success in successfully appealing the decision on the basis of s 149B of the PS Act.
  1. [115]
    Given I have concluded the matter should not be heard out of time, I do not consider it necessary to elaborately consider the merits of an Appeal under s 194(1)(a) of the PS Act, being the alternative ground of appeal. 
  1. [116]
    For the reasons above, I have decided not to exercise my discretion to extend time for Dr Royle to pursue her Appeal.  Dr Royle has failed to make the case that there are reasonable grounds for doing so.  
  1. [117]
    For the reasons above, I have determined not to hear the appeal out of time. It follows that the appeal is dismissed.

Order:

  1. [118]
    I make the following order:

That the Appeal is dismissed.

Footnotes

[1] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[2] Ibid s 562B(2).

[3] Ibid s 567(2).

[4] 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.

[5] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[6] Industrial Relations Act 2016 (Qld) s 564(2).

[7] Ibid s 317(2)(b).

[8] House v The King (1936) 55 CLR 499, [2].

[9] (1995) 149 QGIG 777.

[10] (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[11] [2015] QIRC 138.

[12] Public Service Act 2008 (Qld) s 3.

[13] (2009) 239 CLR 175, [30].

[14] Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.

[15] See, eg, Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138.

[16] (2013) QIRC 43.

[17] Appeal Notice, filed 17 December 2020, Attachment 1.

[18] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[20] 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.

[21] [2010] ICQ 35, [6].

[22] That is, backfilling 0.25 FTE hours of a colleague on maternity leave.

[23] Public Service Act 2008 (Qld) s 149B(7).

[24] Industrial Relations Act 2016 (Qld) s 317(2).

[25] Ibid.

[26] Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145; Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers (2010) 197 IR 403, 406.

Close

Editorial Notes

  • Published Case Name:

    Royle v State of Queensland (Department of Health)

  • Shortened Case Name:

    Royle v State of Queensland (Department of Health)

  • MNC:

    [2021] QIRC 142

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    29 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers (2010) 197 IR 403
2 citations
Jump To
Cite 1 - (2010) 197 IR 403
Cite 2 - (2010) 197 IR 403
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
3 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Cite 3 - (1999) 163 QGIG 20
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145
2 citations
Jump To
Cite 1 - (2003) 125 IR 145
Cite 2 - (2003) 125 IR 145
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
2 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
3 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Cite 3 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138
3 citations
Jump To
Cite 1 - [2015] QIRC 138
Cite 2 - [2015] QIRC 138
Cite 3 - [2015] QIRC 138
Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189
2 citations
Jump To
Cite 1 - [2009] 190 QGIG 189
Cite 2 - [2009] 190 QGIG 189
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
2 citations
Jump To
Cite 1 - [2013] QIRC 43
Cite 2 - [2013] QIRC 43

Cases Citing

Case NameFull CitationFrequency
Burchall v State of Queensland (Queensland Health) [2025] QIRC 1832 citations
Hubbard v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 1521 citation
Johnstone v State of Queensland (Queensland Health) [2021] QIRC 4333 citations
Joshi v State of Queensland (Queensland Health) [2021] QIRC 2122 citations
1

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