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Forsyth-Stewart v State of Queensland (Department of Education)[2021] QIRC 395

Forsyth-Stewart v State of Queensland (Department of Education)[2021] QIRC 395

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395

PARTIES:

Forsyth-Stewart, Damien

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2021/337

PROCEEDING:

Public Service Appeal - Application to allow appeal to be started within a longer period

DELIVERED ON:

18 November 2021

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDER:

The Appellant's application to allow his appeal to be started within a longer period is refused.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed as Deputy Principal of a State School – appellant made a stage 1 complaint about the conduct of the School's Principal – 22 allegations the subject of the complaint – stage 1 decision that the allegations were unsubstantiated – appellant sought a stage 2 internal review against the stage 1 decision – stage 2 internal review decision that no further action would be taken – appellant advised of avenues for external review of the stage 2 internal review decision, including fair treatment appeal pursuant to s 194(1) of the Public Service Act 2008 – appellant sought external review of stage 2 internal review decision with the Public Service Commission – no power for the Public Service Commission to review stage 2 internal review decision – appellant commenced appeal against stage 2 internal review decision, pursuant to s 194(1) of the Public Service Act 2008, 11 days out of time – appellant applied for an order to allow him to start his appeal 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:

Industrial Relations Act 2016, s 539 and s 564

Public Service Act 2008, s 194

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

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. [1]
    Mr Damien Forsyth-Stewart is employed in the Department of Education ('the Department') by the State of Queensland in the position of Deputy Principal at the Gordonvale State School ('the school').
  1. [2]
    In June 2020, Mr Forsyth-Stewart made a stage 1 complaint against the Principal of the school. Mr Forsyth-Stewart's stage 1 complaint was investigated and by letter dated 17 June 2021, he was advised that the allegations contained in his complaint (assessed by the investigator to consist of 22 allegations) were found to be unsubstantiated ('the stage 1 decision'). Mr Forsyth-Stewart was advised of his right to seek a stage 2 internal review of the stage 1 decision. Mr Forsyth-Stewart duly sought a stage 2 internal review.
  1. [3]
    By letter dated 16 August 2021 from Mr Duncan McKellar, the Department's Executive Director, Integrity and Employee Relations, Human Resources, Mr Forsyth-Stewart was advised that as a consequence of the stage 2 internal review of the stage 1 decision, no further action would be taken ('the decision'). In the decision, Mr McKellar advised Mr Forsyth-Stewart of the avenues for him to seek an external review of the stage 2 internal review decision which included a public service appeal pursuant to s 194 of the Public Service Act 2008 ('the PS Act').
  1. [4]
    By letter received by Mr Robert Setter, the Chief Executive of the Public Service Commission, on 25 August 2021, Mr Forsyth-Stewart requested the Public Service Commission externally review the decision. By letter dated 10 September 2021, Mr ForsythStewart was advised by Mr Setter that the Public Service Commission could not review the decision.
  1. [5]
    By appeal filed on 17 September 2021, Mr Forsyth-Stewart appeals against the decision. Mr Forsyth-Stewart's appeal was started out of time and he applies, pursuant to s 564(2) of the Industrial Relations Act 2016 ('the IR Act'), for an order that the Queensland Industrial Relations Commission ('the Commission') allow his appeal to be started within a longer period of time.
  1. [6]
    By order dated 20 September 2021, the parties were directed to file and serve written submissions in respect of Mr Forsyth-Stewart's application to allow him to start his appeal on 17 September 2021. The parties filed and served written submissions about that matter. Pursuant to s 539(c) of the IR Act, I determined Mr ForsythStewart's application for his appeal to be started within a longer period of time on the papers.
  1. [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 Forsyth-Stewart to start his appeal on 17 September 2021.

Background

  1. [8]
    In his letter to Mr Forsyth-Stewart dated 16 August 2021, Mr McKellar relevantly stated:

Avenues of External Review

Should you be dissatisfied with my decision, because you believe it is unfair and unreasonable, 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);
  • notification to the Queensland Industrial Relations Commission (QIRC) of an industrial dispute under an industrial instrument; or
  • an application to the QIRC in relation to an alleged contravention of a workplace right under Chapter 8, Part 1 of the Industrial Relations Act 2016 (IR Act); or
  • an application to the QIRC for a stop bullying order under Chapter 7, Part 4 of the IR Act; or
  • a complaint to the Queensland Ombudsman under the Ombudsman Act 2001 (must be made within one year after the day the complainant first had notice of the action); or
  • a complaint to the Queensland Human Rights Commission (QHRC) (must be made within one year after the date the alleged discrimination occurred).

However, the issues raised in a particular complaint may mean that the complaint is not eligible for external review under the above legislation. If you would like more information about these avenues, please refer to the QIRC, QHRC and/or Queensland Ombudsman website/s.

  1. [9]
    In his letter to Mr Forsyth-Stewart dated 10 September 2021, Mr Setter stated:

Request for external review of grievance to the Public Service Commission (PSC)

Thank you for your letter, received 25 August 2021, requesting external review of your employee grievance with the Department of Education (the department).

I understand from your letter that you seek external review relating to an investigation and administrative decision about a grievance you submitted in relation to unfair and unreasonable treatment by your supervisor. You suggest your human rights have been breached, and you have faced discrimination by the department in finding your supervisors' actions were fair and reasonable management action. You also outline the steps you have followed in attempting to resolve your concerns under the Managing employee complaints Directive 02/17, which was the directive in effect at the time of your original employee grievance dated 24 June 2020.

Under the now superseded directive, I have authority to handle a complaint about the chief executive of an agency. The concerns you raise to me primarily relate to the outcome of the investigation and handling of your grievance at stage 2 of the directive by a delegate of the Director-General, and not about the Director-General specifically. Unfortunately, I am not able to handle your complaint.

As you state you do not believe the outcome and handling of your grievance was fair and reasonable, the appropriate external escalation is to the Queensland Industrial Relations Commission (QIRC) as a fair treatment appeal. I am satisfied, having considered your internal review outcome letter dated 16 August 2021, you have been adequately informed about your appeal options, including that information on how to lodge an appeal is available at www.qirc.qld.gov.au or by contacting the QIRC on phone 1300 592 987.

Mr Forsyth-Stewart's grounds for seeking an extension of time and submissions

  1. [10]
    In his appeal notice, Mr Forsyth-Stewart relevantly states:

I misinterpreted the obligations of the Chief executive and instead of a fair treatment appeal submitted a stage 3 external review to the Public Service Commission. I received feedback from Commission Chief Executive Mr Robert Setter on the 13th September and have utilised the time since to rework my documentation from very large to a summary of appropriate sizing.

  1. [11]
    In his submissions, Mr Forsyth-Stewart expands on the reasons why he was unable to lodge his appeal notice with the Industrial Registrar within 21 days of receiving the decision. In summary, those reasons are:
  • he had to continually read and respond to what he describes as 'miscommunications' between himself and the Department, namely, that the Department communicated inaccurate and potentially false information '… throughout these processes' which has impacted on him timewise and, in terms of his impairment, was a significant stressor which has impacted on his ability to submit the appeal within the timeframe;
  • he has a permanent impairment, namely, a psychiatric/psychological injury, with a degree of permanent impairment of 4%, which has impacted on his ability to submit the appeal within the required timeframe;
  • he lodged his application to review the decision, within 21 days of receiving the decision, in the wrong jurisdiction, being the Public Service Commission rather than the Commission;
  • he has submitted external reviews of the decision to the Ombudsman and to the Queensland Human Rights Commission;
  • the merits of his case are such that he should be granted the extension he seeks because:
  1. the investigator of his stage 1 complaint:
  • altered and omitted allegations;
  • ignored or failed to properly consider evidence;
  • failed to contact or deliberately excluded witnesses and witness testimony;
  • included the testimony of only one witness, who had potential bias;
  • did not understand his complaint (with the consequence that the capacity of the investigator to investigate his complaint was overrated); and
  • was biased; and
  1. the fact the investigator of his stage 1 complaint found that none of the 22 allegations against the Principal were substantiated endorses behaviour that directly contradicted the Code of Conduct for the Queensland Public Service.
  1. [12]
    Mr Forsyth-Stewart concluded by submitting:
  1. The DoE's decision that 0 of 22 allegations were substantiated disadvantages me in that I can be required to meet expectations unknown to me … where dissemination of those expectations is the responsibility of another officer (General Education Act), where two employees act in exactly the same manner but the consequence of those actions is different … and where my access to leave and the safety of my dependents is impacted by protocol (Principal created) but not applied to other staff in the school …
  2. My submission to the QIRC was less than 10 days late. Given the DoE response to my complaint took more than 325 days I ask the Commission to consider any prejudice occurring by my late submission to be seen as minimal.

The Department's submissions

  1. [13]
    In summary, the Department submitted that:
  • the 21 day time limit must be respected and should not be easily dispensed with;
  • a delay of 11 days is a significant delay particularly where Mr Forsyth-Stewart has not justified the delay for reasons such as natural disasters, extraordinary personal circumstances or a major health issue or the like;
  • Mr Forsyth-Stewart's explanations for the delay (his permanent impairment and submission to the wrong jurisdiction) are not meritorious because:
  1. he did not notify the Department of the error or the intention to dispute the reasonableness of the decision within the 21 day timeframe; and
  1. in the decision, the avenues of external review were listed; and
  • the only prejudice Mr Forsyth-Stewart may suffer if he is not granted an extension of time may be limited and mitigated based on other avenues he is currently pursuing, by way of external review, as advised by Mr Forsyth-Stewart in his submissions, namely, through the Ombudsman and the Queensland Human Rights Commission.
  1. [14]
    In conclusion, the Department submitted:
  1. The Respondent submits the statutory 21-day appeal period should stand. As such, the Appellant has no standing to lodge the Appeal and, correspondingly, the Commission has no jurisdiction to hear the Appeal.
  2. In the absence of the above action being taken, the Respondent respectfully submits that the Commission ought to decide to:
  1. dismiss the Appeal for want of jurisdiction; or
  2. not hear the Appeal, pursuant to section 562A(3)(b) of the IR Act, on the basis the Appeal is misconceived or should not be heard for another compelling reason.

The power to allow an appeal to be started within a longer period

  1. [15]
    Pursuant to s 564(2) of the IR Act, I have discretion to allow the appeal to be started within a longer period.
  1. [16]
    The discretion must be exercised judicially.[1] The task at hand is the exercise of the statutory power[2] as contained in s 564(2) of the IR Act.
  1. [17]
    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]
  1. [18]
    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 to 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]

  1. [19]
    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]
  1. [20]
    I will exercise the statutory power, under s 564(2) of the IR Act, guided and assisted by the above principles.

Length of delay

  1. [21]
    Pursuant to the combined effect of s 564(1) and s 564(3)(d) of the IR Act, Mr ForsythStewart's appeal should have been started within 21 days after he received the decision. The decision, contained in the letter from Mr McKellar dated 16 August 2021, was sent to Mr Forsyth-Stewart's private email address.
  1. [22]
    Mr Forsyth-Stewart submits that his appeal was started '… less than 10 days late.' Mr Forsyth-Stewart does not, as best as I can make out, particularise the date he actually received the decision.
  1. [23]
    The Department submits that Mr Forsyth-Stewart lodged his appeal 11 days beyond the statutory time limit. Having regard to the fact that the (written) decision, dated 16 August 2021, was sent to Mr Forsyth-Stewart's private email address, it is reasonable for me to infer that Mr ForsythStewart received the decision on that date.
  1. [24]
    As such, I find that Mr Forsyth-Stewart should have started his appeal by sending his appeal notice to the Industrial Registrar on or before 6 September 2021. As referred to earlier, Mr Forsyth-Stewart did not send his appeal notice to the Industrial Registrar until 17 September 2021.
  1. [25]
    As a consequence, I find that Mr Forsyth-Stewart started his appeal 11 days out of time.
  1. [26]
    In my opinion, that is a significant delay.
  1. [27]
    Even if I am wrong and Mr Forsyth-Stewart started his appeal 10 days out of time, that is still a significant delay.

Explanation for delay and other action taken by Mr Forsyth-Stewart

  1. [28]
    Mr Forsyth-Stewart submits that the reasons for his delay were miscommunication by his employer, the illness brought about by his permanent impairment and the fact that he lodged his review in the wrong jurisdiction, namely, with the Public Service Commission.
  1. [29]
    I do not accept that Mr Forsyth-Stewart has provided an acceptable explanation for the delay. There are three reasons for this.
  1. [30]
    First, true it is that Mr Forsyth-Stewart, within 21 days of receiving the decision, lodged an application to review the decision with the Public Service Commission. In fact, this was done within nine days of the date of the decision. Mr Forsyth-Stewart's illness or issues regarding miscommunication with the Department did not prevent him from seeking such a review with the Public Service Commission within nine days of receiving the decision.
  1. [31]
    Secondly in his appeal notice, Mr Forsyth-Stewart contends that he misinterpreted '… the obligations of the Chief executive and instead of a fair treatment appeal submitted a stage 3 external review to the Public Service Commission.' The available external avenues of review of the decision were clearly set out by Mr McKellar in the decision. That included Mr Forsyth-Stewart's right to commence an appeal to the Commission pursuant to s 194 of the PS Act. Indeed, Mr McKellar expressly referred to the 21 day limitation period to commence such an appeal. Mr Forsyth-Stewart does not, in his submissions, explain what he means by the contention that he misinterpreted what he refers to as the '… obligations of the Chief executive'. Mr Forsyth-Stewart does not explain why he sought a review of the decision with the Public Service Commission and did not commence an appeal in the Commission within 21 days of receiving the decision, despite the very clear advice given by Mr McKellar in the decision.
  1. [32]
    From the above facts and from Mr Forsyth-Stewart's lack of explanation, it is reasonable to infer that Mr Forsyth-Stewart made a deliberate decision to seek an external review of the decision by the Public Service Commission and not to start an appeal to the Commission within 21 days of receiving the decision.
  1. [33]
    Thirdly, Mr Forsyth-Stewart in his appeal notice contends that he received feedback from Mr Setter on 13 September 2021, being that the Public Service Commission could not review his appeal. However, Mr Forsyth-Stewart did not start his appeal to the Commission until four days later because he states that he utilised that time '… to rework my documentation from very large to a summary of appropriate sizing.' Mr ForsythStewart did not act with any reasonable haste to start his appeal to the Commission after 13 September 2021, being the date he says he received Mr Setter's letter. Mr Forsyth-Stewart does not annex his application for external review made to the Public Service Commission so that a comparison of the size of that document may be made to his appeal notice, so that, in turn, I can assess his contention that he spent four days to rework his documentation from '… very large to a summary of appropriate sizing.'
  1. [34]
    For these reasons, my opinion is that Mr Forsyth-Stewart has not provided an acceptable explanation for the delay in starting his appeal within 21 days of 16 August 2021.

Prejudice

  1. [35]
    It is true that if I do not allow Mr Forsyth-Stewart to start his appeal within a longer period, he will suffer prejudice in that he will not be able to appeal the decision to the Commission.
  1. [36]
    No specific prejudice has been identified by the Department if I extended the time for Mr Forsyth-Stewart to start his appeal.
  1. [37]
    However, I note that Mr Forsyth-Stewart has also submitted that he has sought external reviews of the decision with the Ombudsman and the Queensland Human Rights Commission.[7] My opinion is that these facts are against allowing Mr Forsyth-Stewart to start his appeal within a longer period. Mr Forsyth-Stewart has sought those reviews within the relevant limitation periods. That is to say, Mr Forsyth-Stewart will still have an external review avenue of the decision if I do not allow him to start his appeal within a longer period.

Conduct of the Department

  1. [38]
    There is no conduct on the part of the Department that supports the view that it would be fair and equitable to allow Mr Forsyth-Stewart to start his appeal on 17 September 2021.

Merits of the appeal

  1. [39]
    Mr Forsyth-Stewart, despite being clearly aware that his prospects of success in the appeal is a relevant consideration in respect of whether or not I would allow him to start his appeal within a longer period, has not made any submissions that have any reasonable clarity as to whether or not the decision was fair and reasonable.
  1. [40]
    I have set out earlier in these reasons, Mr Forsyth-Stewart's reasons as to why he claims there is merit in his appeal.
  1. [41]
    Mr McKellar, in the decision, examined the reasons given by Mr ForsythStewart in seeking the stage 2 internal review, namely:
  • that the investigator should have investigated more than the 22 allegations, identified by the investigator, against the Principal;
  • Mr Forsyth-Stewart's dissatisfaction with the way the investigator conducted the investigation; and
  • Mr Forsyth-Stewart's disagreement with the conclusions in the investigator's report.
  1. [42]
    Mr McKellar, in the decision, then gives his reasons as to why he would not take any further action as part of the stage 2 internal review, namely:
  • Mr Forsyth-Stewart was given a reasonable opportunity to ventilate his grievance;
  • Mr Forsyth-Stewart's concerns were extensively explored by way of a managerial enquiry;
  • the managerial enquiry contained a thorough consideration of relevant issues;
  • the decision (of the stage 1 complaint) appeared to rest upon the managerial enquiry and he (Mr McKellar) considered the inquiry to be reasonable in the circumstances;
  • the time directed towards managing Mr Forsyth-Stewart's grievance was generous; and
  • the decision appears to be free from bias.
  1. [43]
    Mr Forsyth-Stewart does not provide any sound reason as to why the decision was not fair and reasonable. While he alleges that the investigator was biased, altered and omitted allegations, ignored or failed to properly consider evidence, failed to contact or deliberately excluded witnesses and witness testimony, included the testimony of a witness who was potentially biased and did not understand his complaint, he does not provide any reasonable particulars of these allegations. These allegations are at a very high level of generality.
  1. [44]
    The fact that the investigator found that none of the 22 allegations were proven, does not and cannot reasonably mean, without some specific allegation or claim, that the investigator was actually biased against Mr ForsythStewart or that the investigation faltered, as seems to be contended by Mr ForsythStewart.
  1. [45]
    In terms of the merits of his case on appeal, Mr Forsyth-Stewart makes submissions about another decision that has been made, namely, a direction that he attend an independent medical examination. However, as best as I can make out, that direction was not the subject of the decision against which he seeks to appeal. Similarly, Mr ForsythStewart seems to make submissions about a later decision (that is later to the date of his stage 1 complaint) to suspend him. Again, it seems to me that suspension decision was not the subject of the decision against which he seeks to appeal.
  1. [46]
    In my view, Mr Forsyth-Stewart simply does not like the decision and, without particularising why the decision was not fair and reasonable, wants to re-run his stage 1 complaint.
  1. [47]
    For these reasons, the merit of Mr ForsythStewart's appeal is a neutral factor as to whether he should be allowed to start his appeal within a longer period.

Considerations of fairness as between the appellant and other persons in a like position

  1. [48]
    Neither party has addressed this issue.

This is not a case where Mr Forsyth-Stewart should be allowed to start his appeal within a longer period

  1. [49]
    Mr Forsyth-Stewart 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 for the following reasons.
  1. [50]
    Mr Forsyth-Stewart's appeal was started either 10 or 11 days out of time. That is a significant delay.
  1. [51]
    For the reasons given above, Mr Forsyth-Stewart has not provided an adequate explanation for the delay in starting his appeal.
  1. [52]
    In addition, I am not persuaded that Mr ForsythStewart would suffer any irredeemable prejudice in respect of his desire to seek an external review of the decision. This is because of the other avenues of external review of the decision he has enlivened.
  1. [53]
    There has been no conduct on the part of the Department that supports the contention that it would be fair and equitable to allow Mr Forsyth-Stewart to start his appeal within a longer period.
  1. [54]
    For these reasons, Mr Forsyth-Stewart has not persuaded me that it would be fair and equitable to allow his appeal to be started within a longer period.

Conclusion

  1. [55]
    The question in this case is whether I should exercise my discretion and allow Mr ForsythStewart to start his appeal on 17 September 2021.
  1. [56]
    For the reasons given, it would not be fair and equitable to allow Mr ForsythStewart to start his appeal on 17 September 2021.

Order

  1. [57]
    I make the following order:

The Appellant's application to allow his appeal to be started within a longer period 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 PublishingLimited (1995) 67 IR 298, 299-300 (Marshall J).

[4] (1968) SASR 277, 280.

[5] Hunter Valley (n 3).

[6] Ibid, 348-349.

[7] Made clear at paragraph 10 of his written submissions where Mr Forsyth-Stewart, under the heading of 'Action taken to dispute the decision', states that he has also submitted stage 3 external review requests to the Queensland Human Rights Commission and to the Ombudsman.

Close

Editorial Notes

  • Published Case Name:

    Forsyth-Stewart v State of Queensland (Department of Education)

  • Shortened Case Name:

    Forsyth-Stewart v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 395

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    18 Nov 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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