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Abercrombie v State of Queensland (Department of Health)[2021] QIRC 204

Abercrombie v State of Queensland (Department of Health)[2021] QIRC 204

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Abercrombie v State of Queensland (Department of Health) [2021] QIRC 204

Abercrombie, Heather

(Appellant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

PSA/2021/165

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

7 June 2021

MEMBER:

HEARD AT:

McLennan IC

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 PUBLIC SERVICE 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 7, cl 9, cl 10, cl 15

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

CASES:

Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 11

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. [1]
    Ms Heather Abercrombie (the Appellant) has filed an appeal against a 'deemed' decision not to convert her temporary employment to permanent.
  1. [2]
    She works in the role of Protective Service Officer (OO3), Protective Services within the Operational Support Services (OSS) Department at the Sunshine Coast Hospital and Health Services (SCHHS).
  1. [3]
    On 20 October 2020, Ms Lois Craig, Director, HR Operations, Human Resources, Sunshine Coast Hospital and Health Service for the Department of Health (the Respondent) emailed correspondence to Ms Abercrombie advising her that a review of the status of her fixed term temporary employment would be conducted to determine whether she was eligible for conversion to permanent employment (the review notice).
  1. [4]
    The review notice provided to Ms Abercrombie complied with the requirements of cl 10 of Directive 09/20 Fixed term temporary employment (Directive 09/20). 
  1. [5]
    Ms Abercrombie filed her Appeal Notice on 5 May 2021. 
  1. [6]
    In the Appeal Notice, Ms Abercrombie noted that the review notice provided that "a decision would be made within 28 days, being the 17th November 2020.  (email attached).  A decision was not made by that date and has still not been made."  Further, Ms Abercrombie submitted that "To date I am still awaiting for a decision 7 months later.  I am now seeking for a decision to be made or appeal the fact that a decision has not been made in the correct timeframe."
  1. [7]
    In order for the appeal to have been made within the legislative timeframe, Ms Abercrombie should have filed by 8 December 2020.
  1. [8]
    A Directions Order was issued on 7 May 2021 requiring the parties to make written submissions.  Ms Abercrombie was asked to explain why her appeal was filed out of time:

Note: The submissions should address why the Appellant was unable to file an Appeal within 21 days of receiving the deemed decision as required under s 564(3) of the Industrial Relations Act 2016 (Qld) and why the Appeal should be heard out of time.

  1. [9]
    On 17 May 2021, Ms Abercrombie's submissions elaborated upon her explanation for filing the Appeal out of time. 
  1. [10]
    Before the question of 'whether or not the deemed decision not to convert Ms Abercrombie'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.
  1. [11]
    For the reasons that follow, I find that:
  • Ms Abercrombie has filed this Appeal approximately 5 months out of time; and
  • Ms Abercrombie has not provided a sufficient explanation that may warrant an extension of time.
  1. [12]
    Noncompliance with the statutory timeframe, coupled with there being no reasonable grounds to extend that time, has 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

  1. [13]
    The IR Act requires that an Appeal Notice be lodged within 21 days after the decision appealed against is given.[1] 
  1. [14]
    I am empowered by the IR Act to extend the time for giving an appeal notice.[2]

How long out of time was the Appeal filed?

  1. [15]
    The review notice was provided to Ms Abercrombie on 20 October 2020.
  1. [16]
    That review notice stated that a decision will be made by 17 November 2021.
  1. [17]
    The review notice addressed the possibility of a deemed decision, in the event that a decision was not provided by 17 November 2020.
  1. [18]
    The review notice explained that the decision (either 'provided' or 'deemed') may be appealed within 21 days.
  1. [19]
    The deadline for filing the Appeal was therefore 8 December 2020.
  1. [20]
    The date the Appeal Notice was filed was 5 May 2021.  That is, approximately 5 months out of time.

Should time for filing be extended?

  1. [21]
    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]
  1. [22]
    In exercising my discretion, I will consider several factors and assess whether Ms Abercrombie has a reasonable ground for that extension.
  1. [23]
    Ms Abercrombie 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]  
  1. [24]
    In Breust v Qantas Airways Ltd,[5] 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.
  1. [25]
    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.
  1. [26]
    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. [27]
    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

  1. [28]
    The Appeal was filed approximately 5 months 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.
  1. [29]
    The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[10] It is true that in some cases delays of several weeks have been considered to be not excessive.[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.
  1. [30]
    In Lockhart v Queensland Health, then Deputy President Kaufman found that 42 days beyond the statutory limit of 21 days was a significant delay.[12]
  1. [31]
    Given the additional circumstances of explanation for the delay, prejudice, and the conduct of the parties considered below, I have determined five months of delay to be significant and unreasonable in this instance.

   Explanation for the delay

  1. [32]
    In both the Appeal Notice filed 5 May 2021 and her subsequent submissions, Ms Abercrombie provided the following explanation for the delay:[13]

a) No decision has yet been made and she was awaiting such decision to be made;

b) It was being "discussed at higher levels inclusive of the union to determine a fair and equitable process";

c) She understood that her union was "in negotiations with Queensland Health therefore not requiring any action on my behalf";

d) She had made "numerous attempts to follow up on the situation";

d) She was generally unaware of the process to be followed should she wish to exercise her rights to appeal. 

  1. [33]
    Ms Abercrombie has essentially submitted that she did not understand the process requirements she had embarked upon.  She stated:[14]

…I received an email from Lois Craig, stating a decision would be made within 28 days, being the 17th November 2020.  (email attached).  A decision was not made by that date and has still not been made.  As you will see via the attached emails I followed this up, and have made numerous attempts via HR and our line manager and through the AWU union seeking a decision.

To-date I am still waiting for a decision 7 months later.  I am now seeking for a decision to be made or appeal the fact that a decision has not been made in the correct time frame.

  1. [34]
    I recognise that the review notice addressed the possibility that a decision may not be provided by 17 November 2020, in these terms (Emphasis added):

d) 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.[15]

This extract clearly foreshadowed to Ms Abercrombie that if a decision was not provided to her within 28 days, then 'no decision' means 'a decision not to convert to permanent'.  That possibility 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…[16] 

  1. [35]
    The review notice went on to explain that the decision (either 'provided' or 'deemed') may be appealed within 21 days (Emphasis added):

e) You may appeal the decision in accordance with Chapter 7 of the Public Service Act 2008, within 21 calendar days of receiving notice of the decision, or within 21 days of the date on which d) above occurs. 

That explained to Ms Abercrombie the required timeframe for appeal.

  1. [36]
    Further, the review notice particularised where to access further information regarding the appeal process should Ms Abercrombie wish to exercise her rights.  The review notice explained that:

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]

It is certainly unfortunate that the numerous email exchanges submitted to evidence Ms Abercrombie's attempts to follow up on the status of her matter did not include contact with the Industrial Registry. 

  1. [37]
    The review notice also included the name and contact details of the agency contact for the review, in accordance with cl 10.2(a) of Directive 09/20.  A series of emails attached to Ms Abercrombie's Appeal Notice evidenced that she did contact Ms Katy Forte, Senior HR Advisor, Recruitment Services, Human Resources, SCHHS on 17 November 2020 (the date the review notice stated that a conversion decision would be made).  Ms Abercrombie had asked:

To date I have not received any information regarding the status of my fixed term temporary employment as a PSO.

I wish to advise that I am still seeking for the conversion from Casual to Permanent Status.

Can you please advise me the next step forward I am to take.

  1. [38]
    In response, Ms Forte referred Ms Abercrombie to her Line Manager, Mr Adam Cook. 
  1. [39]
    Ms Abercrombie duly made contact with Mr Cook about an hour later.  However, while Ms Abercrombie's email to him included the subject heading "Notification to review the status of your fixed term temporary employment", the body of her email carried the inquiry of "Can you please advise me where I currently stand in relation to seeking my conversion from Casual to Permanent Status."  Mr Cook's promptly explained (in part):

Currently this requirement is being discussed at higher levels inclusive of the Union to determine a fair and equitable process.  As you could imagine there are numerous employees requesting the same, which obviously does have an impact on the Organisation.  I know Catherine is working really hard to come to a resolution as we discuss this regularly at our weekly meetings.

  1. [40]
    It is apparent to me that two different and separate pathways by which conversion to permanency may be achieved were underway at the SCHHS at that time.  The review notice clearly specified that Ms Abercrombie's conversion review was being conducted under Directive 09/20 – and the process peculiar to that particular pathway was included in the review notice as required.  However, also underway at the SCHHS at the same time was a different and separate process of conversions resultant from cl 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019. 
  1. [41]
    Mr Cook's email appears to update Ms Abercrombie on where the latter process was up to.  That misunderstanding may have been due in part by her initiating email to him regarding "conversion from Casual to Permanent Status." 
  1. [42]
    Nonetheless, the two separate conversion processes concurrently underway at SCHHS appear to have been conflated by many involved in my view. 
  1. [43]
    For in the same time period as Ms Abercrombie has sought to understand the fact of the 'deemed decision' on 17 November 2020, her union had also emailed advice which appears to be about the different EBA conversion process.  The union's email carried the subject heading "AWU Casual conversion Form" and included the attachment "Casual Conversion Request and Assessment Form."  That email stated (in part): "If you haven't received an offer to convert from casual to full time by the 17th as assured by HR this is the next step forward!  Please see attached the form to complete is you are still seeking conversion from Casual to Permanent Status."  It seemed the content and timing of that email had intended to highlight an alternate pathway, should an individual not obtain conversion under Directive 09/20. 
  1. [44]
    Importantly though, neither the emails from Mr Cook nor the union expressed to Ms Abercrombie that the information regarding the appeals process and timeframes contained in the review notice that were specific to her conversion review under Directive 09/20 should be dispensed with. 
  1. [45]
    While Ms Abercrombie has submitted that "It was never communicated to me that a decision had been made and therefore a timeline for me to lodge an Appeal",[17] I have explained above that it had in fact occurred.  I confirm that the review notice provided did meet all requirements for such notices under cl 10 of Directive 09/20. 
  1. [46]
    I acknowledge Ms Abercrombie's evident frustration with the process that has unfolded. 
  1. [47]
    In hindsight, if Ms Abercrombie had simply been reminded that the review notice had explained that 'no decision' was to be taken as a deemed 'decision not to convert' in response to her initial email inquiry on 17 November 2020, she may then have proceeded to also locate the information about filing processes and timeframes in that correspondence.  However, I am not persuaded that the Respondent's conduct can be considered to be causative of Ms Abercrombie's failure to file her appeal within the mandatory timeframe in circumstances where she had already been provided with detailed written advice.
  1. [48]
    In light of the clearly worded and comprehensive inclusions of the review notice, I am not satisfied that those circumstances as outlined by Ms Abercrombie are sufficient to explain the delay in this instance. The review notice issued by the Respondent clearly explained to Ms Abercrombie that she had only 21 days to file this Appeal after either a provided or deemed decision on 17 November 2020. Ms Abercrombie has not submitted that there was any extraordinary external factor impacting on her ability to file this Appeal, only that she had made numerous attempts to follow it up and that those were ultimately futile.  While I have noted that the two different and separate processes concurrently underway to facilitate conversion may well have been conflated by many involved, in circumstances where Ms Abercrombie had already been provided with clear information regarding appeal processes and timeframes, that is not a sufficient or compelling reason to arbitrarily dispense with the legislative timeframe in my view. 
  1. [49]
    Foundationally, I consider that the lengthy 5-month delay in filing Ms Abercrombie's appeal resulted primarily from a lack of diligence in carefully reading the review notice and taking steps accordingly.
  1. [50]
    As such, I find that Ms Abercrombie has offered no adequate explanation or justification for the delay.

 Prejudice to Ms Abercrombie

  1. [51]
    Ms Abercrombie 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 deemed decision, and any subsequent relief.
  1. [52]
    That outcome is of course not an insubstantial detriment to Ms Abercrombie, who seeks to appeal a decision to not make her a permanent employee.
  1. [53]
    However, I appreciate that the lengthy 5-month delay in filing the appeal also means that the next review of Ms Abercrombie's fixed term temporary status is imminent.  Section 149B Review of status after 2 years continuous employment, sub-section (4) of the PS Act prescribes that (Emphasis added):

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.
  1. [54]
    Further, Directive 09/20 states at cl 7.5:

Under section 149B(4)(b), a subsequent review must be conducted after each additional year where an employee remains continuously employed.

  1. [55]
    The Respondent's submissions note Ms Abercrombie's work anniversary is 17 October 2018.  Her next conversion review under s 149B of the PS Act would be therefore due on 17 October 2021.  Directive 09/20, cl 9 Employee's right to notify that a review is required under section 149B provides that it is open for a fixed term temporary employee (or their union / representative) to notify that a review is required under s 149B not more than three months before the review must be undertaken (so after 17 July 2021 in this case).  Information as to 'how to notify' under this clause must be set out on the agency's intranet.
  1. [56]
    While I accept that there is some prejudice to Ms Abercrombie, I do not consider that to be significant.

   Prejudice to the Respondent

  1. [57]
    The Respondent details the specific prejudice it would suffer should the Appeal be heard out of time in its submissions as:

If, despite the SCHHS's position, the Commission decides not to consider the Agreement, the SCHHS submits that prejudice on the Respondent will arise in circumstances where work towards selecting those permanent part-time employees to award additional hours will be disturbed.

  1. [58]
    The Respondent does provide a chronology of its attention to the requirements of cl 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 (the Agreement) in its submissions.  The Respondent has outlined the steps taken to essentially offer additional permanent hours to part time staff.  I note the inclusion of an email and Memorandum dated 15 February 2021 initiating this separate process, prior to the date Ms Abercrombie filed her Appeal Notice on 5 May 2021.  EOIs were sought by 18 February 2021.  The Respondent has submitted that:

The Protective Services Department is currently finalising the EOI process to allocate increased hours to the permanent part-time employees, with an expected completion timeframe of end May 2021.

In accordance with clause 11.5 of the Agreement, if vacant hours still remain unfilled following conclusion of the EOI process outlined…, the remaining vacant hours will be offered by a closed merit process, restricted to those casual and temporary employees working at the site.  Ms Abercrombie will be included in this next stage of the process.

The SCHHS submits that the requirements and intent of the Agreement should be taken into consideration.[18]

  1. [59]
    I accept that 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.
  1. [60]
    It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[19] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[20]
  1. [61]
    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

  1. [62]
    Ms Abercrombie contends that the actions of the Respondent caused or contributed to the delay in bringing these proceedings, in that it was not communicated to her that a decision had been made, she is still awaiting a decision and a timeline for filing an Appeal had not been advised. 
  1. [63]
    These contentions have been extensively considered under the heading Explanation for delay earlier in this Decision.
  1. [64]
    I have observed that the Respondent may have simply answered Ms Abercrombie's initial email inquiry in a straightforward manner on 17 November 2020.  It was unfortunate that did not occur.
  1. [65]
    However, I have earlier accepted that the Respondent informed Ms Abercrombie of her appeal rights and the relevant timeframes in the review notice.  All the information she required to progress her appeal against the deemed decision was contained therein. 
  1. [66]
    That Ms Abercrombie seemingly did not understand or perhaps appreciate the importance of the information presented to her in the review notice supplied is certainly regrettable but not a sufficient or compelling reason to dispense with the legislative timeframes for filing an appeal. 
  1. [67]
    While the Respondent's 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 Abercrombie is insufficient.[21]

   Prospects of success

  1. [68]
    An Appellant's prospects of success at a substantive hearing are a relevant consideration.[22] 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.[23]

  1. [69]
    Ms Abercrombie makes several comments regarding the unfairness or unreasonableness of the temporary employment decision, based on how she perceives other colleagues to have been treated in circumstances she asserts to be similar to her own.  I do not have any evidence that this is in fact the case.  However, I accept that these are Ms Abercrombie's genuinely held beliefs. 
  1. [70]
    Ms Abercrombie's submissions deal predominantly with chronicling her various endeavours to obtain a conversion decision. 
  1. [71]
    Despite being advised of the mandatory decision criteria in the review notice provided on 20 October 2020, Ms Abercrombie's submissions on how she meets this criteria are very brief.  The result is that I cannot make an assessment of Ms Abercrombie's prospects for conversion to permanency on the basis of the materials before me – and so her prospects are not 'clear cut', as described by the President above.
  1. [72]
    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.
  1. [73]
    The parties agree that Ms Abercrombie's merit does not present any impediment to conversion to permanency and also that there is a continuing need in the role of PSO (003). 
  1. [74]
    I observe that the Respondent appears to have stopped short of the mandatory requirement to consider conversion of Ms Abercrombie in 'substantially the same role'.  This is an essential element for inclusion in any subsequent conversion review.
  1. [75]
    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 Abercrombie has provided a limited response to that contention.  She has accepted the Respondent's account of that separate process, steps and timeline but not that "the requirements and intent of the Agreement should be taken into consideration."[24]  Ms Abercrombie's submissions on this point again conflate the conversion review process subject of this appeal with the different conversion process concurrently underway under the EBA.  As earlier explained, the two pathways to conversion have different decision criteria.  They are not one and the same.  Ms Abercrombie's comments about the delay in receiving the Respondent's decision and her perception of unequal treatment with other colleagues had limited relevance to the 'Requirements of an industrial instrument' but have been otherwise addressed in this Decision.
  1. [76]
    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 Abercrombie during the period of her continuous employment due to that provision taking effect from 14 September 2020.
  1. [77]
    Ms Abercrombie's Appeal Notice and submissions have not addressed all of the mandatory decision criteria for conversion to permanency.  That has not assisted Ms Abercrombie to present her best case. 
  1. [78]
    As such, this criterion does also inform the exercise of my discretion.

Conclusion

  1. [79]
    Ms Abercrombie filed her Appeal Notice approximately 5 months out of time and seeks that I exercise my discretion to extend the time for filing that appeal.[25]
  1. [80]
    There is a suite of relevant considerations in exercising such a discretion. Foremost, I should be satisfied that Ms Abercrombie had a reasonable ground for extending the time.
  1. [81]
    I have found that the Respondent furnished Ms Abercrombie with her rights of appeal, including the relevant timeframe. I am satisfied that Ms Abercrombie was provided with all the relevant information she required to file this Appeal within time.
  1. [82]
    Ms Abercrombie has not provided an adequate explanation for the delay.  While that is certainly unfortunate, the delay primarily resulted from Ms Abercrombie's inattention to the provisions of the review notice, and not from any factor beyond her control. That is not an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
  1. [83]
    Ms Abercrombie 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.
  1. [84]
    If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant.
  1. [85]
    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.
  1. [86]
    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

  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—

  1. (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-

  1. (iii)
    should not be heard for another compelling reason.
  1. [87]
    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).
  1. [88]
    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] Lockhart v Queensland Health (2014) QIRC 012, [25].

[13] Appellant’s submissions, filed 17 May 2021, page 1.

[14] Appeal Notice, filed 5 May 2021, page 4.

[15] Email correspondence from Ms L. Craig, Director, HR Operations, Human Resources, Sunshine Coast Hospital and Health Service to Ms H. Abercrombie, dated 20 October 2020, page 2.

[16] Cl 10.2(d).

[17] Appellant’s submissions, filed 17 May 2021, page 1.

[18] Respondent’s submissions filed 28 May 2021, page 2, [19]-[21].

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

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

[21] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [32].

[22] 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.

[23] [2010] ICQ 35, [6].

[24] Appellant’s reply submissions filed 4 June 2021, page 2; and Respondent’s submissions filed 28 May 2021, page 2, [21]-[22].

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

Close

Editorial Notes

  • Published Case Name:

    Abercrombie v State of Queensland (Department of Health)

  • Shortened Case Name:

    Abercrombie v State of Queensland (Department of Health)

  • MNC:

    [2021] QIRC 204

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    07 Jun 2021

Appeal Status

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