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- Hill v State of Queensland (Department of Education)[2021] QIRC 371
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Hill v State of Queensland (Department of Education)[2021] QIRC 371
Hill v State of Queensland (Department of Education)[2021] QIRC 371
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hill v State of Queensland (Department of Education) [2021] QIRC 371 |
PARTIES: | Hill, Kristin (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO.: | PSA/2021/141 |
PROCEEDING: | Public Service Appeal – Fair Treatment Decision |
DELIVERED ON: | 3 November 2021 |
MEMBER: HEARD AT: | Power IC On the papers |
ORDER: | The appeal is dismissed for want of jurisdiction. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – individual employee complaint lodged by the appellant – stage 1 local action decision – stage 2 internal review decision request made by the appellant – internal review decision determined the local action decision to be fair and reasonable – appeal of internal review decision – appeal lodged out of time – whether extension of time should be granted – extension of time not granted |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B, 562C and 564 Information Privacy Act 2009 (Qld), sch 3, principle 10 Public Service Act 2008 (Qld), s 194 Directive 11/20 Individual employee grievances, cl 9 |
CASES: | A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Chapman v State of Queensland [2003] QCA 172 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Ms Kristin Hill ('the Appellant') is employed as a Deputy Principal by the State of Queensland (Department of Education) ('the Respondent').
- [2]On 17 December 2020, the Appellant lodged a complaint with the Information Technologies Branch ('ITB') of the Respondent with respect to the conduct of Mr Jordan Burke, Principal, Moorooka State School ('the School'), in accessing the Apple ID on the school-owned Apple iPhone and Apple iPad that the Appellant was assigned as the Deputy Principal of the School, allegedly breaching the code of conduct and the Appellant's privacy. The complaint was assessed as an individual employee complaint and was referred to the Metropolitan Region for management in accordance with Directive 11/20 Individual employee grievances ('the Directive').
- [3]On 12 February 2021, the Appellant was provided with a decision of Mr Chris Hodgson, Director, Human Resources Business Partnering, Metropolitan Region ('the local action decision') who found that the conduct of Mr Burke was appropriate in accordance with his role as a Principal who is authorised to ensure that devices owned by the Respondent are able to be utilised by staff as allocated.
- [4]On 26 February 2021, the Appellant, pursuant to clause 9.2 of the Directive, requested an internal review of the local action decision. The Appellant was provided with the internal review decision on 24 March 2021, where Ms Janita Valentine, Executive Director, Integrity and Employee Relations, determined that the local action decision of Mr Hodgson was fair and reasonable in the circumstances.
- [5]By appeal notice filed on 19 April 2021, the Appellant appeals the internal review decision pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) ('the PS Act').
Appeal principles
- [6]Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
- [7]The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [8]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination, therefore, is whether the internal review decision was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
Grounds of appeal
- [9]In the appeal notice, the Appellant notes that the appeal is lodged out of time and outlined the following reasons for an extension of time to lodge the appeal:
Two days before I recieved[sic] the Stage 2 appeal letter, I was offered and accepted a position up the Sunshine Coast which starts in Term 2. I have been busy negotating[sic] with my Principal, HR etc for my release. I have also been trying to organise a rental property up the Sunshine Coast and visiting the Sunshine Coast daily to view rental homes. I have been packing my house up, as well as trying to find day care services for my 4 year old son at the Sunshine Coast. I have also been negotiating with real estate agents in the Redlands about renting my house out while I relocate until the end of the year. Something that I have never done before and that has been very stressful. These are the reasons that i[sic] have not been able to lodge my appeal in time. The QTU are also helping me with my appeal, but the QTU officer is currently on leave who has been handling my case the past 5 months. She returns next week.
- [10]The Appellant outlines the following grounds of appeal under Part C of the appeal notice:
I believe that the reasons that have been outlined in my Stage 2 appeal by the Department are not in line with several departmental policies. I have been subjected to six months of bullying by the person that I made the complaints[sic] about (these incidents are separate[sic] to this complaint) before this final incident, which is outlined[sic] in Stage 2 Internal Review. I don't think that this complaint takes into consideration, all the other incidences that have occurred[sic] before this one.
I also don't feel my complaint has been handled fairly or with reasonable understanding that the matter i[sic] have complained about, there are still no clear policies in place in regards to[sic] my matter specifically. Also the documents they sent me, are not widely known resources that employees would be aware of. I also think that the department refuting that I set up my Apple account (even though it was a generic name that i[sic] made/designed), without having any evidence that they set this up either. Regardless of the name that i[sic] used to set up the account, I also believe that KBA they have used to argue their case, is not a policy or guideline, and again not in line with policies that we are reminded of constantly within the department.
…
Relevant provisions of the Directive
- [11]Clause 9.2 of the Directive provides for stage 2 internal review of a local action decision:
9.2 Stage 2–internal review
- (a)If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
…
- (d)An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
- (e)If the chief executive or delegate is satisfied that:
- (i)the reasons for seeking an internal review are insufficient
- (ii)the request for internal review is frivolous or vexatious, or
- (iii)the employee has unreasonably refused to participate in local action to resolve the individual employee grievance
the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).
- (f)A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
- (i)the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
- (ii)where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.
…
- (h)At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
- (i)outline the action taken to review the decision made through local action
- (ii)outline the reasons for the decision, or the decision to take no further action
- (iii)outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
- (iv)outline any avenues of external review that may be available to the employee, including any relevant timeframes.
- [12]Clause 9.3 of the Directive provides for stage 3 external review:
9.3 Stage 3–external review
- (a)If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include:
- (i)a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act
…
Submissions
- [13]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.
Respondent's Submissions
- [14]The Respondent, in accordance with the Directions Order, filed submissions in response to the appeal. In summary, the Respondent submits that the Commission should decline to hear the appeal for want of jurisdiction. The Respondent further submits that:
- (a)the internal review decision took effect on 24 March 2021 and the last day the Appellant was eligible to lodge an appeal within the 21 day timeframe was 15 April 2021. The appeal was lodged on 19 April 2021, being four days out of time;
- (b)the Appellant has not provided significant reasons, explanation or justification to sufficiently justify and overcome the delay in filing the appeal. Accordingly, the Commission's discretion to allow the appeal in the longer period of an additional four days is not warranted in this case;
- (c)the Respondent would suffer general prejudice should the Commission decide to exercise its discretion to hear the appeal out of time. Should the Commission decide not to exercise its discretion, the prejudice to the Appellant will be more significant than that which is caused to the Respondent. Factors which should be taken into consideration are that the Appellant was on leave at the time of receipt of the internal review decision and, by her own admissions, was not due to commence duty on the Sunshine Coast for a period of over three weeks after receiving the internal review decision. The Appellant was sufficiently informed of her appeal rights and was reasonably able to comply with the specified timeframes for appeal;
- (d)the Appellant's avenues for external appeal, appeal rights and timeframes where appropriate was clearly communicated to the Appellant in the internal review decision. The appeal was lodged four days out of time despite the relevant information having been issued to and received by the Appellant; and
- (e)the Appellant has poor prospects of success in the event that the appeal is allowed to be started within the longer period. These poor prospects are underpinned by the Respondent complying with the Directive and the determination through internal review that the local action decision was considered fair and reasonable in the circumstances.
- [15]In the alternative, the Respondent submits that the Commission ought to confirm the decision appealed against on the basis that the internal review decision was fair and reasonable, submitting that:
- (a)both the local action decision and the internal review decision are in response to the Appellant's original grievance and do not take into consideration any complaints or incidents outside of the scope of the grievance which are referred to in Part C of the appeal notice;
- (b)as an attachment to the internal review decision, the Appellant was provided with the relevant departmental content in response to the grievance lodged, specifically, the process by which an Apple ID should be created for the use of departmental-owned Apple devices, which are readily available on the Respondent's intranet, OnePortal, through the Service Centre Online, and has been since 2017;
- (c)the internal review decision also contemplates the Appellant's use of departmental-owned devices, and that in returning the devices to the School before accessing a period of leave, the Appellant was required to return the devices so that they may be utilised by another employee undertaking the Deputy Principal role;
- (d)the internal review decision states that the Principal should not have requested the password to the Apple ID Account, but was within his rights to request access to the account so as to ensure the device was able to be utilised at its full capacity (including relevant software and applications) by another employee of the School; and
- (e)in the appeal notice, the Appellant makes comments regarding the generic email address that she 'made/designed' and that the Respondent did not provide evidence to the contrary. The email address associated with the Apple ID was created on 11 January 2015 by the Cloud Service Broker, when the Appellant was not in the role of Deputy Principal at the School, as confirmed by the Appellant's service history.
Appellant's Submissions
- [16]The Appellant, in accordance with the Directions Order, filed submissions in response to the Respondent's submissions.
- [17]The Appellant reiterates the reasons as outlined in the appeal notice with respect to filing the appeal out of time and further submits that:
- (a)the appeal notice was filed on 13 April 2021 and was lodged within the 21 day period; and
- (b)the Respondent's statement that 'the appeal is considered to have poor prospects of success' is a subjective statement.
- [18]The Appellant submits the following with respect to the internal review decision, that:
- (a)the reference to 'network use' in the internal review decision letter does not constitute access to Apple IDs and passwords by Principals;
- (b)the Respondent did not request for the Appellant to provide access to the account;
- (c)there is no documentation in any policy by the Respondent about staff, including Principals, being able to access staff Apple IDs and passwords;
- (d)the Appellant has read policies of the Respondent to ensure that the Appellant upholds the Respondent's code of conduct and standard of practice. The process outlining the creation, retention and reasonable use of Apple IDs are not part of any key policies of the Respondent and is a standalone document;
- (e)the Appellant respects the Respondent's position that the devices are only to be used for work related purposes, with limited personal use;
- (f)the mandatory staff training in 2021 made clear reference to not provide username and password to any staff member. It is contradictory for the Respondent to suggest that the Principal is able to ask for the Appellant's username and password in which the Appellant had sole use during her time at the School;
- (g)the statement in the internal review decision that relevant departmental information was available to set up the Apple ID account, being the Knowledge Bank Article ('KBA'), KBA0026601 is unfair as the article:
- (i)was developed in 2017, after the Apple ID the Appellant was using was created and could not have been referred to when the Apple ID was made, as it did not exist;
- (ii)makes no reference that a generic school based email address should not be used so as to avoid confusion of who the Apple ID belongs to;
- (iii)is not clearly documented in any key departmental policies and can be easily overlooked by staff; and
- (iv)does not provide information with respect to sharing of Apple IDs amongst staff members in the Appellant's situation, where leave is taken or departs from the School and that the Principal is allowed to access the Apple ID; and
- (h)the misinformation provided by the Respondent is in breach of the Information Privacy Act 2009 (Qld), principle 10, regarding limits on use of personal information.
- [19]In responding to the Respondent's submissions, the Appellant submits that:
- (a)several recommendations were made to the Respondent, to ensure that the Apple ID process is clearly articulated in key policies of the Respondent; and
- (b)while the Respondent has seen the recommendations, to date, have not been considered or accepted as part of the Appellant's complaint.
Respondent's submissions in reply
- [20]The Respondent filed submissions in reply to the Appellant's submissions in accordance with the Directions Order. In summary, the Respondent relies on its submissions previously filed and further submits that:
- (a)the Appellant was on a period of paid leave at the time that the internal review decision was provided on 24 March 2021 and continued to be on a period of paid leave until 18 April 2021, being the entirety of the appeal period;
- (b)the Appellant has not provided any additional information through their submissions that were not already provided in the appeal notice that may render the delay in lodgement of the appeal to be considered reasonable in the circumstances;
- (c)the Respondent has not been advised of any change of address details which would support the Appellant's contentions that she was required to move residence in order to undertake a temporary position at school on the Sunshine Coast, but confirms that the Appellant accepted a temporary role as Deputy Principal, Brightwater State School for the period 19 April 2021 to 10 December 2021, being Terms 2 to 4 of the 2021 school year;
- (d)whilst the email address was created in 2015, the Apple ID associated with the email address was not created until 21 October 2017. The Respondent confirms that the KBA was created and published on the Respondent's intranet, OnePortal, on 3 August 2017, so was available to the Appellant at the time that the Apple ID was created;
- (e)the fact that the Appellant was not aware of, and did not utilise the information contained in the KBA, is not in contention. Further, the fact that the KBA does not sit within policy and procedure is also not in contention. However, the information was available to the Appellant, should she have made enquiry or conducted a search on the Respondent's OnePortal or IT Service Centre when creating the Apple ID that is the subject of the Appellant's grievance and this appeal; and
- (f)appropriate information is available to support employees for undertaking these transactional processes within a school. This information, regardless of the form (e.g. policy, procedure, KBA, OnePortal content) was, and remains, available to support employees to undertake these tasks as may be required.
Consideration
- [21]This appeal arises following an internal review decision by Ms Valentine confirming that the local action decision of Mr Hodgson was fair and reasonable in the circumstances.
- [22]The jurisdictional issue must first be considered to determine whether discretion is exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the IR Act.
- [23]Section 564 of the IR Act provides the following:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- [24]
On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:
‘This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."[7]
- [25]The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:
In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[8]
Explanation for delay
- [26]The internal review decision was provided on 24 March 2021 and the appeal was filed on 19 April 2021. The appeal was filed four days beyond the 21 day time period.
- [27]In the appeal notice, the Appellant marked the box indicating that an extension of time was being sought and outlined the reasons that she did not file the appeal within the 21 day timeframe. In written submissions filed on 1 June 2021, the Appellant makes a puzzling submission that the appeal notice was filed on 13 April 2021 and was therefore filed within the 21 day time period.
- [28]I accept the Appellant's submission that she had responsibilities associated with moving house and locating childcare as a consequence of her accepting a role at a Sunshine Coast school at the time she received the decision. I also note the submission that the Queensland Teachers Union of Employees official who had been assisting her in this matter was on leave during this time.
- [29]The Appellant does not deny receiving the decision on 24 March 2021 nor is it denied that she understood the avenues of appeal outlined in the decision. The final page of the internal review decision includes the following paragraph:
Should you be dissatisfied with my decision, you may be able to refer your concern for External Review. Avenues for External Review may include, but are not limited to:
- A public service appeal against a decision under a directive or a fair treatment decision under section 194(1)(a) or 194(1)(eb) of the Public Service Act 2008 (must be lodged within 21 days after the day the appellant received notice of the decision appealed against).
…
[emphasis added]
- [30]It is unclear to me why the Appellant would seek an extension of time in the appeal notice and outline mitigating circumstances in support of an extension being granted, but then contend in submissions that the appeal was filed on a date within the 21 day time period. The Appellant does not dispute the date that she received the decision nor that she was aware of the appeal timeframe as outlined in that decision. In this context, the reasons provided as to why the appeal was not filed in time are not sufficiently cogent to grant an extension of time. In most circumstances, Appellants who intend to appeal a decision are required to do so in accordance with the statutory timeframe and not when their personal circumstances allow them the time to do so.
- [31]The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required in order to extend this timeframe. Such reasons are not evident in this matter.
Justice of the case
- [32]The consequence of not extending the time period is that the appeal will not be heard and determined. The prejudice to the Appellant will be that the internal review decision will stand and the Appellant's appeal will not be heard and determined. I note that the decision provides that the Principal be reminded of his obligations under the Code of Conduct. It is unclear to me the specific prejudice the Appellant will suffer if the appeal is not heard, particularly given the reference to broader matters in the appeal notice that are beyond the scope of this appeal.
- [33]The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit. Given that the appeal was filed four days outside of the time period, I do not consider the prejudice to the Respondent to be significant.
Prospects of success
- [34]A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
- [35]
…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…[10]
- [36]I do not consider that this appeal has good prospects of success for a number of reasons. First, the Appellant's appeal appears to have evolved into a different case from that which was the subject of the local action decision and internal review decision. In the appeal notice, the Appellant refers to bullying and states that she does not believe 'all the other incidences' have been taken into consideration. The internal review decision relates only to the allegation regarding the circumstances surrounding access to the Apple ID. The other matters raised are not relevant to this appeal.
- [37]Second, the Appellant outlines in the grounds of appeal that she does not believe that the KBA that the Respondent sent to her are widely known resources. No evidence was provided to support the contention that these documents are not widely known to employees. Regardless, these documents do not have to be 'widely known', they simply need to be accessible to employees. I note the Respondent's submission that the relevant documents relating to the process by which an Apple ID should be created for the use of departmental-owned Apple devices are accessible on the intranet, OnePortal, through the Service Centre Online. If the Appellant was unsure of the process, a simple inquiry would have led her to these procedural documents.
- [38]Third, the Appellant submits that the Respondent refutes her contention that she set up the Apple account even though it was a generic name without having any evidence. The Respondent submits that the email address associated with the Apple ID was created on 11 January 2015 by the Cloud Service Broker when the Appellant was not in the role of Deputy Principal at the School. The Respondent submits that the relevant email address associated with the Apple ID was for the Deputy Principal at the School. There is no evidence before me that this is not the case.
- [39]The internal review decision was that the Principal should not have requested the password to the Apple ID account but that it was reasonable for him to request access to the account linked to the Deputy Principal email so that the device was able to be utilised by the Appellant's replacement employee at the School. The decision also determined that it was reasonable to expect that the Appellant return the device to the School in such a manner so as to ensure that the relevant software and applications could be used by another employee undertaking the Deputy Principal role. I am not persuaded that the submissions provided by the Appellant are capable of demonstrating that the Respondent's decision was not fair and reasonable in these circumstances.
- [40]In consideration of the above, I am not satisfied that the appeal has good prospects of success.
Conclusion
- [41]In consideration of the explanation for the delay, the justice of the matter and the prospects of success, I do not consider it appropriate that an extension of time be granted in this matter.
Order:
- [42]I order accordingly.
The appeal is dismissed for want of jurisdiction.
Footnotes
[1] IR Act s 562B(2).
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
[4] IR Act s 562B(3).
[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[6] [2019] ICQ 16.
[7] Ibid 2.
[8] Ibid.
[9] [2003] QCA 172.
[10] Ibid [3].