Cullen v State of Queensland (Queensland Health)
[2021] QIRC 258
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- Unreported Judgment
- Cullen v State of Queensland (Queensland Health)[2021] QIRC 258
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Cullen v State of Queensland (Queensland Health)[2021] QIRC 258
Cullen v State of Queensland (Queensland Health)[2021] QIRC 258
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Cullen v State of Queensland (Queensland Health) [2021] QIRC 258 |
PARTIES: | Cullen, Wayne Paul (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2021/203 |
PROCEEDING: | Public Service Appeal - Appeal against a discipline decision |
DELIVERED ON: | 29 July 2021 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | The appellant's application to extend time to allow him to start his appeal on 3 June 2021 is refused. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 – appeal against disciplinary action – appeal started outside period provided for in s 564(1) of the Industrial Relations Act 2016 – appeal started 42 days out of time – appellant made application for appeal to be started within a longer period – consideration of whether, in the circumstances, it is fair and equitable to allow the appellant to start his appeal within a longer period – circumstances are not that it is fair and equitable to allow the appellant to start his appeal within a longer period – application by appellant to allow him to start his appeal within a longer period refused |
LEGISLATION: | HR Policy B1: Recruitment and Selection Industrial Relations Act 2016, s 539 and s 564 Public Service Act 2008, s 188 |
CASES: | Biel v Mansell (No.1) [2006] QCA 173; [2006] 2 Qd R 199 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Ford v La Forrest [2001] QCA 455; [2002] 2 Qd R 44 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Ulowski v Miller (1968) SASR 277 |
Reasons for Decision
Introduction
- [1]Mr Wayne Paul Cullen is employed by the State of Queensland in the position of Operational Services Coordinator within Facilities, Infrastructure and Support Services of the Townsville Hospital and Health Service ('the Health Service'). The classification of Mr Cullen's position is OO4 and he is presently paid at pay-point 3 of that classification level.
- [2]By letter dated 31 March 2021 from Mr Stephen Eaton, Chief Operating Officer of the Health Service, Mr Cullen was informed, in respect of an earlier disciplinary finding made by Mr Eaton that, pursuant to s 188(1) of the Public Service Act 2008 ('the PS Act'), Mr Eaton was imposing on Mr Cullen the disciplinary action of a reprimand and a reduction in his remuneration level from OO4(4) to OO4(3) for a period of 12 months.
- [3]Mr Eaton further informed Mr Cullen that as Mr Cullen was currently seconded into an alternative role, the penalty imposed would be implemented upon Mr Cullen's return to his substantive OO4 role for either a continuous period of 12 months or, in the event Mr Cullen did not return to his OO4 role for a continuous 12 month period, then a cumulative period of 12 months ('the decision').
- [4]By appeal notice filed on 3 June 2021, Mr Cullen, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision. Mr Cullen received the decision by email on 1 April 2021. Having regard to the date Mr Cullen received the decision, then pursuant to the combined effect of s 564(1) and s 564(3)(d) of the Industrial Relations Act 2016 ('the IR Act'), Mr Cullen should have made his appeal on or before 22 April 2021. As a consequence, Mr Cullen's appeal is 42 days out of time.
- [5]Mr Cullen has made an application for an extension of time to start his appeal. The issue for my determination is whether, pursuant to s 564(2) of the IR Act, I should exercise my discretion and allow Mr Cullen to start his appeal on 3 June 2021.
- [6]By order dated 7 June 2021, the parties were directed to file and serve written submissions in respect of Mr Cullen's application to allow him to start his appeal on 3 June 2021. The parties filed and served written submissions about that matter. Pursuant to s 539(c) of the IR Act, no hearing was conducted.
- [7]In my view, for the reasons that follow, this is not a case where I am persuaded that I should exercise my discretion to allow Mr Cullen to start his appeal on 3 June 2021.
Background
- [8]By letter dated 18 December 2020, Mr Eaton informed Mr Cullen that there was a ground to take disciplinary action against him. Mr Eaton found that during the course of a recruitment process, of which Mr Cullen was the recruitment panel chair, Mr Cullen falsified a referee report and failed to follow the appropriate recruitment processes outlined in HR Policy B1: Recruitment and Selection. Mr Eaton found that Mr Cullen's conduct fell short of the ethical standards expected of him when fulfilling his duties as a recruitment panel chair and warranted the imposition of a disciplinary penalty.
- [9]Mr Eaton further advised Mr Cullen that he was proposing to implement the disciplinary action of a reprimand and a reduction of one pay-point for 12 months from OO4(4) to OO4(3). Mr Eaton invited Mr Cullen to respond, in writing, why that disciplinary action should not be taken against him pursuant to s 188(1) of the PS Act.
- [10]Mr Cullen responded on 31 December 2020. Upon consideration of Mr Cullen's response, Mr Eaton made the decision.
- [11]In making the decision, Mr Eaton informed Mr Cullen that if Mr Cullen believed his decision was unreasonable, then Mr Cullen could lodge a fair treatment appeal under the appeal provisions of the PS Act and provided the email address and telephone numbers of the Registry of the Queensland Industrial Relations Commission. Mr Eaton informed Mr Cullen that the Registry would be able to provide further information about public service appeal procedures.
The power to allow an appeal to be started within a longer period
- [12]Pursuant to s 564(2) of the IR Act, I have discretion to allow the appeal to be started within a longer period.
- [13]
- [14]It has generally been the case that where an unfettered discretion is conferred to extend time to allow an applicant or an appellant to lodge an application or an appeal, that is carried out by consideration of principles to guide, not in any exhaustive manner, the exercise of that discretion.[3]
- [15]In Ulowski v Miller, Bray CJ relevantly held:
It must be remembered that we are dealing here with a discretion and in my view it ought not be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation. [4]
- [16]Guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,[5] namely, that:
- special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
- action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
- any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the granting of an extension;
- the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
- considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[6]
- [17]I will exercise the statutory power, under s 564(2) of the IR Act, guided and assisted by the above principles.
Length of delay
- [18]Mr Cullen's appeal was started 42 days out of time.
- [19]In my view, this is a significant period of time.
Explanation for delay and other action taken by Mr Cullen
- [20]Mr Cullen submits that '… [a]s per the directions outlined in the Disciplinary Outcome Letter' he emailed Mr Greg Finlay (Acting Senior Industrial Relations Officer)' on 20 April 2021 '… to ascertain clarification of disciplinary outcome including paypoint deduction.' Mr Cullen then submitted that he received a response from Mr Finlay on 20 May 2021 and that the response from the Health Service '… prevented the appellant to appeal the decision within the appeal timeframe.' Mr Cullen then says that he received correspondence and related documentation from '… the Release of Information department post 21 days of the disciplinary outcome.'
- [21]In fact, according to the attachments to Mr Cullen's submissions, by email sent on 19 April 2021 to Mr Finlay, Mr Cullen stated:
Thank you for your time today on the phone, your feedback and support is much appreciated.
As per our phone conversation, I don't agree with the financial penalty and although I have the option to appeal this decision, I don't believe I have the mental strength to do so as this matter has already negatively impacted me emotionally and psychologically. Any appeal process would only engross further adverse impacts on me and potentially my family. To that end, could I please request clarification regarding the financial penalty:
- When does it commence
- When I return to my substantive 004 [sic] role FT / PT
- At the conclusion of contract in Medical Imaging
- [22]By email to Mr Cullen from Mr Finlay dated 20 May 2021, Mr Finlay attached a letter from Ms Sharon Kelly, Acting Executive Director of Human Resources and Engagement of the Health Service. In that letter, Ms Kelly, after reproducing the paragraph in Mr Eaton's letter dated 31 March 2021 where he determined the disciplinary action he was imposing, Ms Kelly stated:
I am aware that you requested clarification from Mr Greg Finlay, Senior Industrial Relations Officer, as to when the 12 month period commences and if it will apply during any period where you may work less than full-time in the OO4 Role.
The decision from Mr Eaton clearly sets out that the 12 month period commences upon your return to the OO4 role. It does not distinguish between part-time or full-time employment.
As the appeal period has lapsed and you have accepted the penalty, I have advised Payroll to implement the decision in accordance with the terms of Mr Eaton's decision.
I now consider this matter to be closed.
- [23]In my opinion, Mr Cullen has conflated the period of time in which he had to start his appeal, which was within 21 days after he received Mr Eaton's decision on 1 April 2021, and the date the disciplinary penalty would be implemented. The two are not the same. Mr Eaton's letter referred to Mr Cullen's ability to appeal the decision under the appeal provisions of the PS Act and directed Mr Cullen to the Registry of this Commission in respect of further information about public service appeal procedures. Mr Eaton also provided the Registry's contact details. There is no evidence that Mr Cullen attempted to contact the Registry of the Commission at any time about his ability to appeal Mr Eaton's decision.
- [24]Further, Mr Eaton's letter was sent to Mr Cullen by covering email from Mr Finlay which stated that if Mr Cullen had any questions he was to contact Mr Finlay or another officer. Mr Cullen's email to Mr Finlay dated 19 April 2021 did not make any enquiry about when the appeal period was to lapse.
- [25]As the Health Service has submitted, while Mr Cullen, in his submissions, refers to documents he received under a Release of Information process, he does not state the precise date he received those documents or indeed the content of those documents.
- [26]In my view, Mr Cullen has not provided an acceptable explanation for the delay in making his appeal within 21 days of 1 April 2021.
Prejudice
- [27]It is true that if I do not allow Mr Cullen to start his appeal within a longer period, he will suffer prejudice in that he will not be able to appeal the decision.
- [28]The Health Service submits that because Mr Cullen has not satisfied the Commission that grounds exist for it to exercise its discretion to extend time for the appeal, there has been no justification for the prejudice to be suffered by the Health Service in having to expend resources in defending the appeal.
- [29]In my view, the prejudice that Mr Cullen may suffer is a consideration in favour of extending the time for Mr Cullen to start his appeal notice on 3 June 2021.
Conduct of the Health Service
- [30]There is no conduct on the part of the Health Service that supports the view it would be fair and equitable to allow Mr Cullen to start his appeal within a longer period.
Prospects of success
- [31]Generally, an extension of time to appeal will not be granted where it is considered the appeal is plainly hopeless.[7]
- [32]Mr Cullen has not, in his submissions, addressed the prospects of success in his appeal against the decision. The Health Service submits that Mr Cullen's appeal has limited prospects of success as the decision was both fair and reasonable having regard to all the evidence.
- [33]However, at this particular point in time, I cannot assess Mr Cullen's prospects of success such that I can form the view that his appeal would be plainly hopeless.
Considerations of fairness as between the appellant and other persons in a like position
- [34]Neither party has addressed this issue.
This is not a case where Mr Cullen should be allowed to start his appeal within a longer period
- [35]Mr Cullen has the onus of demonstrating that it is fair and equitable for me to allow his appeal to be started within a longer period. In my view, he has not discharged that onus.
- [36]Mr Cullen's appeal was started 42 days out of time. That is a significant delay.
- [37]Further, for the reasons given above, Mr Cullen has not provided an adequate explanation for the delay in starting his appeal. Indeed, having regard to his email to Mr Finlay sent on 19 April 2021, Mr Cullen clearly indicated to the Health Service, at a point in time prior to the appeal period expiring, that he was not going to appeal the decision for the reasons that he gave in that email.
- [38]Whilst Mr Cullen will suffer prejudice if he is not allowed to start his appeal within a longer period, and even though I cannot say, at this point in time, that his appeal has no prospects of success, his failure to provide an adequate explanation for the significant delay in starting his appeal outweighs those considerations, such that it is not fair and equitable in the circumstances to allow Mr Cullen to start his appeal on 3 June 2021. Furthermore, there has been no conduct on the part of the Health Service that supports the contention that it would be fair and equitable to allow Mr Cullen to start his appeal within a longer period.
- [39]Mr Cullen has not persuaded me that it would be fair and equitable to allow his appeal to be started within a longer period.
Conclusion
- [40]The question in this case is whether I should exercise my discretion and allow Mr Cullen to start his appeal on 3 June 2021.
- [41]For the reasons given, it would not be fair and equitable to allow Mr Cullen to start his appeal on 3 June 2021 because he has not provided an adequate explanation for his significant delay in starting his appeal.
Order
- [42]I make the following order:
The appellant's application to extend time to allow him to start his appeal on 3 June 2021 is refused.
Footnotes
[1] Biel v Mansell (No.1) [2006] QCA 173; [2006] 2 Qd R 199, 207 [40] (Muir J).
[2] Breust v Qantas Airways Ltd (1995) 149 QGIG 777, 778 (Chief Industrial Commissioner Hall).
[3]Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 ('Hunter Valley'), 348 (Wilcox J) and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J).
[4] (1968) SASR 277, 280.
[5] Hunter Valley (n 3), 348-349.
[6] Ibid.
[7] Ford v La Forrest [2001] QCA 455; [2002] 2 Qd R 44, 45 [4] (Thomas JA).