Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Street v State of Queensland (Department of Education)[2021] QIRC 399

Street v State of Queensland (Department of Education)[2021] QIRC 399

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Street vState of Queensland (Department of Education) [2021] QIRC 399

PARTIES: 

Street, Pascale Asher

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2021/324

PROCEEDING:

Public Service Appeal – Conversion to higher classification level

DELIVERED ON:

23 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)

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 564

Public Service Act 2008 (Qld), ss 149C and 194

Directive 13/20 Appointing a public service employee to a higher classification level, cl 6

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 (Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

  1. [1]
    Mrs Pascale Asher Street ('the Appellant') is permanently employed as a B02 Teacher at Merrimac State School, by the State of Queensland (Department of Education) ('the Respondent') and has been acting in the higher classification level position of H01, Guidance Officer in the Respondent's South East Region since 29 May 2019.
  1. [2]
    The Appellant appeals a deemed decision by the Respondent that her employment is to continue according to the terms of her temporary 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

  1. [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.
  1. [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 decisionmaking process associated therewith.
  1. [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 position was fair and reasonable in all of the circumstances.

Relevant provisions of the PS Act and the Directive

  1. [6]
    Section 149C of the PS Act provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (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
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

  1. (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—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (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—

  1. (a)
    the genuine operational requirements of the department; and
  1. (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.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  1. (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.
  1. (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.

  1. (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—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [7]
    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.

Grounds of Appeal

  1. [8]
    The Appellant outlined the following reasons for appeal under Part C of the appeal notice:

To whom it may concern,

I am writing to appeal the decision made under section 149C of the Public Service Act 2008.

As outlined in my application, I have been relieving above level in a substantive position since 2019.

I have been the Guidance Officer at Foxwell State Secondary College since its foundation year (2020). Prior to this, I was the Guidance Officer at Eagleby South State School.

Additionally, due to being the foundation Guidance at Foxwell, there is no permanent member awaiting return.

According to section 5.2 of the Act, I meet the requirement to be appointed at the higher classification…

Respondent's submissions

  1. [9]
    In response to the Appellant's appeal notice, the Respondent submits that the Appellant is eligible for appointment having regard to the merit principle and that the Appellant is able to appeal the deemed decision, having acted in the higher classification level position for longer than two years.
  1. [10]
    The Respondent submits that the Appellant had incorrectly calculated the 21 day appeal period to be 'business days' as opposed to 'calendar days' as claimed in the Appellant's email to the Industrial Registry on 7 September 2021. Consequently, the appeal is lodged six days beyond the 21 day statutory limit. The Respondent submits that the Commission does not have grounds to justify exercising the discretion to allow the appeal to be accepted as the Appellant has not applied for an extension or provided any explanation for the delay. The Respondent submits that it will be subject to prejudice if an extension of time is allowed.
  1. [11]
    The Respondent submits that there is no contention that any conduct of the Respondent directly caused or contributed to the delay and that the Appellant confirms in the attachment to the appeal notice that she was informed of the deeming provision and the 21 day appeal timeframe by the Respondent.

Appellant's submissions

  1. [12]
    The Appellant did not file submissions, nor did the Appellant communicate her intention with respect to filing of submissions.

Consideration

  1. [13]
    To determine the outcome of this appeal, the jurisdictional objection 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.
  1. [14]
    Section 564 of the IR Act provides the following:

564 Time limit for appeal

  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (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.
  1. (3)
    In this section—

appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—

  1. (a)
    if the decision is given at a hearing—the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar—the release of the decision; or
  1. (c)
    if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
  1. (d)
    if, under another Act, the decision is given in another way—the decision is given in the other way.
  1. [15]
    The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[5] The statutory provision was considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber'),[6] which stated:

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]

  1. [16]
    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

  1. [17]
    The deemed decision was made on 12 August 2021 and the Appellant's right to appeal lapsed 21 days later on 2 September 2021. The appeal was filed six days beyond the statutory time period on 8 September 2021.
  1. [18]
    The Appellant did not provide an explanation for the delay in the appeal notice and did not provide submissions addressing either the delay or the substantive appeal in accordance with the Directions Orders. The Industrial Registry sent an email to the Appellant requesting confirmation as to whether the Appellant intended to file submissions, however, no response was received.
  1. [19]
    The Appellant sent an email to the Industrial Registry on 7 September 2021 attaching the appeal notice. The email stated the following:

A decision was made on 12th August to refuse the request. The 21 business day is due to expire on 10/09/2021 (date inclusive).

  1. [20]
    The email indicates that the Appellant has misunderstood the appeal period as being 21 'business days' rather than calendar days. It is unclear why the Appellant formed this view, particularly in light of the clear advice provided by the Respondent in correspondence to the Appellant. The correspondence acknowledged receipt of the Appellant's conversion request and outlined the following:

…An appeal must be lodged by completing Form 89 – Appeal notice – Public Service Act 2008 within 21 days after the Deemed Conversion Decision was made.

  1. [21]
    The 21 day period was clearly outlined, in bold type, in the correspondence. In light of the lack of any explanation for the delay, I am unable to conclude that the Appellant had any reasonable explanation for filing the appeal six days beyond the statutory time period.
  1. [22]
    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

  1. [23]
    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.
  1. [24]
    The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit in keeping with the general presumption of prejudice to a respondent following such a delay.[9] The limited delay of six days does not, however, prejudice the Respondent to any great extent in this matter.
  1. [25]
    There is no evidence that the conduct of the Respondent contributed to the delay. The Respondent outlined the relevant information and time frames in the correspondence sent to the Appellant prior to the appeal period commencing. In such circumstances, the Respondent could not be expected to do any more to inform the Appellant of the requirements of the appeal.

Prospects of success

  1. [26]
    A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
  1. [27]
    The Queensland Court of Appeal considered this point in Chapman v State of Queensland,[10] stating:

…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…[11]

  1. [28]
    There is no information before me relating to the substantive matter beyond the details provided by the Appellant in the appeal notice. These details are generally reflected in the Respondent's submissions and confirm that the Appellant has been seconded to a higher classification level as a Guidance Officer for over two years and has satisfied the requirements for conversion relating to merit.
  1. [29]
    As the decision in this matter was 'deemed', there is no further information provided as to why the Appellant's request for appointment to the higher classification level was denied. The Respondent's substantive submissions addressed the jurisdictional objection only. Consequently, I am unable to consider the merits of the appeal.

Conclusion

  1. [30]
    After considering 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

  1. [31]
    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 (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] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[10] [2003] QCA 172.

[11] Ibid [3].

Close

Editorial Notes

  • Published Case Name:

    Street v State of Queensland (Department of Education)

  • Shortened Case Name:

    Street v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 399

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    23 Nov 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.