Tucker v State of Queensland (Department of Health)
[2021] QIRC 145
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- Unreported Judgment
- Tucker v State of Queensland (Department of Health)[2021] QIRC 145
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Tucker v State of Queensland (Department of Health)[2021] QIRC 145
Tucker v State of Queensland (Department of Health)[2021] QIRC 145
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Tucker v State of Queensland (Department of Health) [2021] QIRC 145 |
PARTIES: | Tucker, Courtney (Appellant) v State of Queensland (Department of Health) (Respondent) |
CASE NO: | PSA/2021/64 |
PROCEEDING: | Public Service Appeal – Temporary Employment |
DELIVERED ON: | 30 April 2021 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDER: | I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld). |
CATCHWORDS: | INDUSTRIAL LAW – APPEAL – temporary employment – where Appeal Notice filed out of time – consideration of whether to hear the Appeal out of time |
LEGISLATION AND OTHER INSTRUMENTS: | Directive 09/20 Fixed term temporary employment cl 8, cl 10, cl 15 Human Resources Policy C32 Compulsory Christmas / New Year Closure Industrial Relations Act 2016 (Qld) s 562A, s 564 Industrial Relations Act 1999 (Qld) s 74 Public Service Act 2008 (Qld) s 3, s 27, s 149A, s 149B Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 11 |
CASES: | Aon Risk Services Australia 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 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 House v The King (1936) 55 CLR 499 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 |
Reasons for Decision
Appeal Details
- [1]Ms Courtney Tucker (the Appellant) has filed an appeal against a 'deemed' decision not to convert her temporary employment to permanent.
- [2]She works in the role of Patient Support Assistant Food Services in the Catering Department of the Sunshine Coast University Hospital (SCUH).
- [3]On 2 December 2020, Mr Colin Anderson, Executive Director, People and Culture, Sunshine Coast Hospital and Health Service for the Department of Health (the Respondent) emailed correspondence to Ms Tucker advising her that a review of her temporary status would be conducted to determine whether she was eligible for conversion (the review notice).
- [4]The review notice provided to Ms Tucker complied with the requirements of cl 10 of Directive 09/20 Fixed term temporary employment (Directive 09/20).
- [5]Ms Tucker filed her Appeal Notice on 5 February 2021.
- [6]In the Appeal Notice, Ms Tucker noted that she filed out of time and submitted that this was because she did not understand the process requirements she had embarked upon.
- [7]A Directions Order was issued on 5 February 2021 inviting the parties to make written submissions.
- [8]On 16 February 2021, Ms Tucker's submission elaborated upon her explanation for filing the Appeal out of time.
- [9]Before the question of 'whether or not the deemed decision not to convert Ms Tucker's temporary employment to permanent was fair and reasonable' may be answered, I am first required to address the superseding (and in this case determinative) jurisdictional issue of the Appeal being filed out of time.
- [10]For the reasons that follow, I find that:
- Ms Tucker has filed this Appeal 9 days out of time; and
- She has not provided any sufficient explanation that may warrant an extension of time.
- [11]Noncompliance with the statutory timeframe, coupled with there being no reasonable grounds to extend that time, have compelled me to decline to hear this appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) (the IR Act).
Timeframe to appeal
- [12]The IR Act requires that an Appeal Notice be lodged within 21 days after the decision appealed against is given.[1]
- [13]
How long out of time was the Appeal filed?
- [14]The review notice was provided to Ms Tucker on 2 December 2020.
- [15]That review notice stated that a decision will be made by 6 January 2021.
- [16]The review notice explained that the decision (either 'provided' or 'deemed') may be appealed within 21 days.
- [17]The deadline for filing the Appeal was therefore 27 January 2021.
- [18]The date the Appeal Notice was filed was 5 February 2021 – that is, 9 days out of time.
Should time for filing be extended?
- [19]The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal notice is fundamentally an exercise of 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.[3]
- [20]In exercising my discretion, I will consider several factors and assess whether Ms Tucker has a reasonable ground for that extension.
- [21]Ms Tucker bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal.[4]
- [22]
- 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.
- [23]Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.[6] These were usefully summarised by Thompson IC in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services),[7] 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.
- [24]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.
- [25]Additionally, my discretion is informed by the purposes of the Public Service Act 2008 (Qld) (PS Act), including promoting the effectiveness and efficiency of government entities.[8] 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.[9]
Length of delay
- [26]The Appeal was filed 9 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 both the review notice from the Respondent and the IR Act.
- [27]The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[10] Larger delays than 5 days have been considered to be not excessive in particular circumstances.[11] 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.
- [28]Given the additional circumstances of explanation for the delay, prejudice, and the conduct of the parties considered below, I have determined 9 days of delay to be significant and unreasonable in this instance.
Explanation for the delay
- [29]In both the Appeal Notice filed 5 February 2021 and her submission filed 16 February 2021, Ms Tucker provides the same explanation for the delay: she was waiting for a decision and was generally unaware of the process to be followed should she wish to exercise her rights to appeal.
- [30]I recognise that the review notice stated that:
The decision whether to convert your temporary employment to permanent status will be made by Wednesday 6 January 2021. (Please note that the time frame has been extended to allow for the Christmas / New Year closure).[12]
- [31]Further, the review notice went on to explain:
If you do not receive a decision regarding conversion of your temporary status of employment within 28 calendar days after the date you became eligible for review, please be advised that the decision is to not convert your status of employment to permanent.
- [32]In doing so, the review notice did clearly foreshadow the possibility of a 'deemed decision'. That is, it explained that 'no decision' means 'a decision not to convert to permanent'. That is consistent with Directive 09/20 that states:
that if the chief executive does not make a decision within the required period as defined in section 149B(9), the chief executive is taken to have decided not to convert the fixed term temporary employee…[13]
- [33]In the Appeal Notice, Ms Tucker recognised that she had filed out of time and submitted that she did not understand the process requirements she had embarked upon. She stated:
I was waiting for a formal reply with the decision and their reasoning however I did not receive one. I did not understand the process properly and wasn't aware that I could make an appeal on the decision and that it had to be done within the 21 days.
- [34]On 16 February 2021, Ms Tucker's submission elaborated her reasons for filing the Appeal out of time:
I applied for a conversion to permanent status and received an email stating that I was eligible for a review in my current role and that a decision would be made by Wednesday the 6th of January. I did not receive a reply on the outcome, but was advised in an email that the lack of a reply means that the decision was made not to convert my status of employment to permanent. Without a formal reply, I have nothing in writing re rejection of my application or the reasons as to why.
- [35]However, I note that the review notice particularises that Ms Tucker has a right to appeal, the timeframe for doing so and where to access further information regarding the process in these terms:
You may appeal the decision in accordance with Chapter 7 of the Public Service Act 2008, within 21 calendar days of receiving the notice of the decision, or within 21 days of the date on which d) above occurs. Information about the public service appeals process can be obtained from the website www.qirc.qld.gov.au or by contacting the Queensland Industrial Relations Commission Registry on 3227 8060 or email: [email protected].
- [36]The review notice provided meets all requirements for such notices under cl 10 of Directive 09/20.
- [37]In light of the clearly worded and comprehensive inclusions of the review notice, I am not satisfied that those circumstances as outlined by Ms Tucker are sufficient to explain the delay in this instance. The review notice issued by the Respondent clearly explained to Ms Tucker that she had only 21 days to file this Appeal after either a provided or deemed decision on 6 January 2021. Ms Tucker has not submitted that there was any external factor impacting on her ability to file this Appeal. The delay resulted solely from a lack of diligence in carefully reading the review notice and taking steps accordingly.
- [38]As such, I find that Ms Tucker has offered no adequate explanation or justification for the delay.
Prejudice to Ms Tucker
- [39]Ms Tucker will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that she would lose the opportunity for an independent review of the decision, and any subsequent relief.
- [40]That outcome is of course not an insubstantial detriment to Ms Tucker, who seeks to appeal a decision to not make her a permanent employee. I accept that is a significant outcome.
Prejudice to the Respondent
- [41]The Respondent does not detail any specific prejudice it would suffer should the Appeal be heard out of time in its submissions.
- [42]However, the Respondent does provide some evidence of its attention to the requirements of cl 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 (the Agreement). The Respondent's submissions outlined the steps taken to essentially offer additional permanent hours to part time staff. I note the inclusion of an email dated 3 February 2021 initiating this separate process, prior to the date Ms Tucker filed her Appeal Notice on 5 February 2021. EOIs were sought by 15 February 2021. While the Respondent's submissions were only filed shortly thereafter on 19 February 2021, it is likely that some prejudice will arise in circumstances where work towards shortlisting candidates, conduct of interviews or indeed selection of those to whom additional hours have already been awarded may potentially be disturbed.
- [43]
- [44]For those reasons, I find that the Respondent would also suffer some prejudice should I decide to exercise my discretion to hear the Appeal out of time.
Conduct of the Respondent
- [45]Ms Tucker does not expressly contend that any actions of the Respondent caused or contributed to the delay in bringing these proceedings – but rather that she did not understand or perhaps appreciate the importance of the information presented to her in the review notice supplied.
- [46]I have earlier accepted that the Respondent informed Ms Tucker of her appeal rights and the relevant timeframes in the review notice.
- [47]The Respondent further advised Ms Tucker of the contact person, their email address and telephone number that she may contact about the review, in compliance with cl 10.2 of Directive 09/20.
- [48]While such conduct does not itself conclusively preclude the granting of an extension of time, it is certainly convincing evidence to support the propositions that the length of the delay was unreasonable, and that the explanation for the delay provided by Ms Tucker is insufficient.[16]
Prospects of success
- [49]An Appellant's prospects of success at a substantive hearing are a relevant consideration.[17] 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.[18]
- [50]Ms Tucker makes several comments regarding the unfairness or unreasonableness of the temporary employment decision. I accept that these are her genuinely held beliefs. For instance, on 16 February 2021 Ms Tucker submitted that:
I match all the criteria as well as being eligible for conversion. There is definitely a need for me to be employed in the role and there are enough hours for me to be granted permanent status. The current permanent staff have been told that they can apply for more hours if they wish, so there are extra hours there.
…
…I have the experience and personal qualities relevant to the job and have been in the role for over two years. I have never had any written complaints or warnings so there should not be any reason why I cannot be approved for conversion.
- [51]Even so, Ms Tucker's prospects are not 'clear cut' as described by the President above.
- [52]Clause 8.1 of Directive 09/20 contains the decision criteria for temporary employment conversions to permanent. That is:
- whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same;
- the merit of the fixed term temporary employee for the role having regard to the merit principle in s 27 of the PS Act;
- whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
- the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
- [53]In brief, it is not a matter of dispute that there is a continuing need for the role to be performed. However, the respective positions of the parties is that the Respondent has submitted they had already taken steps to fill that need prior to Ms Tucker filing her Appeal Notice and Ms Tucker did not take up the opportunity to file any further submissions in reply in which she may have elaborated on her view that there was available continuing work for her to perform.
- [54]The parties agree that Ms Tucker's merit does not present any impediment to conversion to permanency.
- [55]The Respondent has submitted that there was a relevant requirement of an industrial instrument to be complied with, namely cl 11.5 of the Agreement. Ms Tucker has not commented on that contention.
- [56]Finally, there could have been no previous decision made, or deemed to have been made, under s 149B of the PS Act relating to Ms Tucker during the period of her continuous employment due to that provision taking effect from 14 September 2020.
- [57]Ms Tucker's Appeal Notice and submission have not addressed all of the mandatory decision criteria. Further, the invitation to respond to the Respondent's submission was not taken up. That sequence did not assist Ms Tucker to present her best case.
- [58]As such, this criterion does also inform the exercise of my discretion.
Conclusion
- [59]Ms Tucker filed her Appeal Notice 9 days out of time and seeks that I exercise my discretion to extend the time for filing that appeal.[19]
- [60]There is a suite of relevant considerations in exercising such a discretion. Foremost, I should be satisfied that Ms Tucker had a reasonable ground for extending the time.
- [61]I have found that the Respondent furnished Ms Tucker with her rights of appeal, including the relevant timeframe. I am satisfied that Ms Tucker was provided with all the relevant information she required to file this Appeal within time.
- [62]Ms Tucker has not provided an adequate explanation for the delay. While that is certainly unfortunate, the delay resulted from Ms Tucker's inattention, and not from any factor beyond her control. That is not an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
- [63]Ms Tucker will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time. She will not receive an independent review of the decision on this occasion, or the subsequent relief she seeks. However, I do not consider that prejudice to be overwhelming.
- [64]If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant, though not substantial.
- [65]For the reasons above, I find that the Appeal was filed out of time, and there is no reasonable ground to extend the time for filing.
- [66]I have determined to deal with this matter pursuant to s 562A(3)(b)(iii) of the IR Act, which 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—
…
- (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-
…
- (iii)should not be heard for another compelling reason.
- [67]A lack of compliance with the statutory timeframe, without an adequate reason to extend time, is a sufficiently compelling reason to refrain from hearing this Appeal pursuant to s 562A(3)(b)(iii).
- [68]I order accordingly.
Order:
I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld).
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 564.
[2] Ibid s 564(2).
[3] House v The King (1936) 55 CLR 499, [2].
[4] 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.
[5] (1995) 149 QGIG 777.
[6] (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
[7] [2015] QIRC 138.
[8] Public Service Act 2008 (Qld) s 3.
[9] (2009) 239 CLR 175, [30].
[10]Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.
[11] See, eg, Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138.
[12] The Respondent’s Submissions filed 19 February 2021 have attached the Human Resources Policy C32 Compulsory Christmas / New Year Closure.
[13] Cl 10.2(d).
[14] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.
[16] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [32].
[17] 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.
[18] [2010] ICQ 35, [6].
[19] Industrial Relations Act 2016 (Qld) s 564(2).