Pitman v State of Queensland (Department of Education)
[2021] QIRC 383
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- Unreported Judgment
- Pitman v State of Queensland (Department of Education)[2021] QIRC 383
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Pitman v State of Queensland (Department of Education)[2021] QIRC 383
Pitman v State of Queensland (Department of Education)[2021] QIRC 383
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Pitman v State of Queensland (Department of Education) [2021] QIRC 383 |
PARTIES: | Pitman, Gabrielle (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO.: | PSA/2021/286 |
PROCEEDING: | Public Service Appeal – Conversion to higher classification level |
DELIVERED ON: | 9 November 2021 |
MEMBER: | Power IC |
HEARD AT: | 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 – appeal lodged out of time – extension of time not granted – whether the appellant was eligible for review under s 149C of the Public Service Act 2008 (Qld) – jurisdiction to appeal under s 195 |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 564 Public Service Act 2008 (Qld), ss 149C, 194 and 195 Directive 13/20 Appointing a public service employee to a higher classification level, cls 6, 8 and 11 |
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
- [1]Ms Gabrielle Pitman ('the Appellant') is permanently employed as an AO4, Experienced Senior Teacher ('the substantive position'), by the State of Queensland (Department of Education) ('the Respondent') at Rochedale State School and is currently acting in higher duties classification as a H01, Guidance Officer.
- [2]The Appellant appeals a deemed decision by the Respondent that her employment is to continue according to the terms of her higher duties arrangement pursuant to s 194(1)(e)(iii) of the Public Service Act 2008 (Qld) ('the PS Act'). The deemed decision was made pursuant to s 149C(6) of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
Appeal Principles
- [3]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.
- [4]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.
- [5]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the deemed decision by the Respondent refusing the Appellant's request to be appointed at the higher classification level was fair and reasonable in all of the circumstances.
Relevant provisions of the PS Act and the Directive
- [6]Section 149C of the PS Act provides:
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee—
- (a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (3)The employee may ask the department’s chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
- (4)The department’s chief executive must decide the request within the required period.
- (4A)In making the decision, the department’s chief executive must have regard to—
- (a)the genuine operational requirements of the department; and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
- (5)If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- (a)reasons for the decision; and
- (b)the total continuous period for which the person has been acting at the higher classification level in the department; and
- (c)how many times the person’s engagement at the higher classification level has been extended; and
- (d)each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
- (6)If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
…
- (8)In this section—
continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).
required period, for making a decision under subsection (4), means—
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply—28 days after the request is made.
- [7]Section 194 of the PS Act provides:
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions—
…
- (e)a decision (each a conversion decision)—
…
- (iii)under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;
- [8]Section 195 of the PS Act provides:
195 Decisions against which appeals can not be made
- (1)A person can not appeal against any of the following decisions –
…
- (j)a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years;
- [9]The Directive relevantly provides:
6. Decision making
…
6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.
…
8. Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
8.2 In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.
Grounds of Appeal
- [10]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:
The covid lockdown and subsequent restrictions resulted in an immediate change and priority with my workload and balancing my own family online learning. I continued to service two schools from one location and ensured vulnerable students and families were receiving regular check-ins. At the same time, I had to ensure my own children in year twelve, year ten and year six, were engaged and fulfilling their requirement. Prior to lockdown I was on LSL from 19-23 June and absent from emails between 20-30th June. The focus on work is always my top priority and I was remiss in noticing the dates for appeal. I believe I am seven business days after the appeal date.
- [11]The Appellant outlined the following reasons for appeal under Part C of the appeal notice:
I believe I am eligible to have my long term temporary position converted to permanency due to the following:
I commenced the long term contract Relieving Above Level in January 2019 and the contract has been renewed each subsequent year, this being the third consecutive year. I have been working across the Metropolitan Region during these temporary positions proving that I am flexible in supporting smaller fractions in smaller schools, flexible as to my placement and able to communicate and collaborate across different educational contexts. I am a highly skilled Guidance Officer with 22 years of teaching experience prior to the Guidance Role, a Masters in Guidance and Counselling and accreditation in psychometric and educational assessments and testing. I have undertaken approximately a further one hundred hours in professional development specific to the guidance role. I am also pursuing a psychology degree. I will not be returning the classroom in a teaching capacity.
I believe it is in the best interests of my substantive teaching position at Rochedale State School to free up the position and offer it to a teacher who suits the philosophy of the school. It would also assist the administration's planning as I am still attached to the school.
Respondent's submissions
- [12]The Respondent, in its submissions, raises two jurisdictional objections.
Eligibility
- [13]The Respondent submits that the Appellant has been seconded to or assuming the duties and responsibilities of a Guidance Officer with the Respondent for a continuous period since 24 February 2020.
- [14]The Respondent submits that, whilst the Appellant had previously been seconded to or assuming the duties and responsibilities of a Guidance Officer from 29 January 2019 and that there was a period of authorised leave where the Appellant administratively returned to her substantive position during the 40 calendar days of the 2019/2020 school holidays from 14 December 2019 to 22 January 2020, the Appellant's return to her substantive position extended to 23 February 2020, being an additional 32 calendar days into Term 1 of 2020 during which the Appellant was not on authorised leave. Consequently, the Respondent submits that the period of unauthorised leave broke the Appellant's 'continuous period' in the Guidance Officer role and reset the start date of continuous period to 24 February 2020.
- [15]The Respondent submits that, the Appellant having commenced in the higher classification level on 24 February 2020, the Appellant has not been seconded to or acting at the higher classification level for a continuous period of at least two years. Accordingly, the Appellant does not have jurisdiction to appeal the deemed decision pursuant to s 195(1) of the PS Act.
Out of time
- [16]The Respondent submits that where the deemed decision could be appealed, the appeal was lodged out of time and therefore, should not be heard. The Respondent submits that the deemed decision was made on 12 July 2021 and the Appellant's right to appeal lapsed on 3 August 2021. Accordingly, the appeal which was filed on 13 August 2021 was lodged ten days beyond the statutory limit of 21 days.
- [17]The Respondent submits that the delay in filing the appeal is both significant and unreasonable in the circumstances, and that the Appellant has not provided sufficient explanation for the delay, in that:
- (a)the Appellant essentially argues that there was an existence of circumstances which created an inconvenience or other demands also requiring the person's increased time and attention;
- (b)during the 21 day appeal timeframe from 12 July 2021 to 3 August 2021, the Appellant sent the Respondent an email on 20 July 2021 enquiring as to the status of her appointment request, demonstrating that the Appellant was attending to such matters despite the lockdown, restrictions, workload and her children's online learning. This only serves to undermine any claim that the Appellant was unable to pursue her appeal in a timely manner;
- (c)the Respondent replied to the Appellant on 21 July 2021, providing the previously provided notification, which advised the Appellant of the 21 day appeal timeframe;
- (d)the Appellant's leave prior to 12 July 2021 is of no relevance to the delay; and
- (e)the Appellant's reason for the delay in that the Appellant was 'remiss in noticing the dates for appeal' is not a sufficient reason to justify that discretion should be exercised to allow the appeal to be started in the longer period.
- [18]The Respondent submits that there will be prejudice to the Respondent should the extension of time be granted and that there is no contention that any conduct of the Respondent directly caused or contributed to the delay.
Appellant's submissions
- [19]In summary, the Appellant submits that:
- (a)on the reading of the Respondent's submissions, the basis of not being granted a permanent position as a Guidance Officer has been the Appellant's lack of follow up in a timely manner. The Appellant submits that 'a more personal approach with a phone call and a look into my work history, would find that I am an employee with an impeccable record of dedication, integrity, hard work and consistency';
- (b)the Appellant has no intention of returning to her substantive position as a classroom teacher;
- (c)the Appellant is highly trained and skilled specifically for the role as a Guidance Officer and that the Appellant's educational experience and further study demonstrates further commitment to the Guidance Officer role; and
- (d)holding a substantive position in a school creates difficulties for the Respondent as the Principal would need to make arrangements to accommodate the Appellant's substantive position on a yearly basis.
Respondent's submissions in reply
- [20]The Respondent does not contest that the Appellant is eligible for appointment having regard to the merit principle. However, the Respondent raises out of time jurisdictional arguments wherever relevant, and argues they should not be allowed unless the conduct of the Respondent directly caused or significantly contributed to the delay and/or there is a substantial, acceptable and compelling explanation for the length of the delay.
- [21]The Respondent provided submissions relating to the substantive decision to not appoint the Appellant to the higher classification level on the basis that the deemed decision is a fair and reasonable decision.
Consideration
- [22]To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.
- [23]Before a decision on the substantive matter can be made, the jurisdictional issue must first be considered to determine whether discretion should be exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the IR Act.
- [24]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.
- [25]
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]
- [26]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
- [27]The deemed decision was made on 12 July 2021 and the Appellant's right to appeal lapsed 21 days later on 3 August 2021. The appeal was filed ten days beyond the statutory time period on 13 August 2021. This is not an insignificant period of time in the context of a 21 day time limit.
- [28]In the appeal notice, the Appellant outlined the explanation as to why the appeal was filed out of time, with the reasons broadly relating to professional and personal responsibilities during the covid lockdown and the Appellant's absence on long service leave. The Appellant detailed the work commitments that changed due to the covid lockdown along with the responsibility of ensuring her own children were engaged and fulfilling their requirement in years twelve, ten, and six. The covid lockdown undoubtedly resulted in changed work and home circumstances, however, I note the Appellant sent an email on 20 July 2021 enquiring as to the status of her appointment request. The Appellant's email demonstrates that she was able to progress her interests in this matter despite these other challenges and was therefore capable of filing an appeal notice within the statutory time period. 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.
- [29]I note the Appellant's submission that she was on long service leave from 19 to 23 June 2021 and absent from emails between 20 to 30 June 2021. It is unclear what relevance these absences have to the late filing of the appeal notice given that the appeal period was from 12 July 2021 to 3 August 2021.
- [30]The Appellant states that the reason for the delay is that she was 'remiss in noticing the dates for appeal'. The Respondent's correspondence to the Appellant dated 14 June 2021 states clearly that an appeal must be lodged within 21 days after the deemed conversion decision was made. To allow an extension of time in circumstances in which the Appellant was advised of the timeframe for an appeal but had simply not noticed the dates would be to render the statutory time limit meaningless.
- [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 proceed. The prejudice to the Appellant will be that the deemed decision will stand and the Appellant's appeal will not be heard and determined.
- [33]The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit. I also note that there is no suggestion that the conduct of the Respondent contributed to the delay.
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 any prospects of success on the basis of another jurisdictional barrier. Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher classification level for a continuous period of at least two years. Section 195(1)(j) of the PS Act provides that a person cannot appeal against a decision under s 149C not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher classification level for less than two years.
- [37]The Appellant has been seconded to a higher classification position of Guidance Officer for a continuous period since 24 February 2020. During the period 29 January 2019 to 13 December 2019, the Appellant was seconded to the higher classification position, and from 14 December 2019 to 22 January 2020 the Appellant administratively returned to her substantive position for the school holiday period. Clause 11 of the Directive provides a definition of continuous period as including authorised leave, and the Respondent has confirmed that the latter period is considered authorised leave which does not break the engagement.
- [38]The Respondent submits that the Appellant did not return to her substantive position until 23 February 2020, with this additional 32 days not considered authorised leave from the higher classification position. The Appellant has not disputed this submission. In these circumstances the Appellant's continuous period in the higher classification position was broken, with the period commencing on 24 February 2020 for the purposes of determining 'continuous service'.
- [39]The Appellant was eligible to make the appointment request on 14 June 2021 on the basis that she had been seconded to the higher classification position for a continuous period of at least one year and had satisfied the merit principle. However, pursuant to s 195(1)(j) of the PS Act, the Appellant is unable to appeal the decision as she had been acting in the higher classification position for less than two years.
- [40]In consideration of the jurisdictional barrier outlined in s 195(1)(j), I am not satisfied that the appeal has any prospects of success.
Conclusion
- [41]In consideration of the explanation for the delay, justice of the case and 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].