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  4. Navaratnam v State of Queensland (Department of Employment, Small Business and Training) - [2021] QIRC 411

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Navaratnam v State of Queensland (Department of Employment, Small Business and Training)[2021] QIRC 411

Navaratnam v State of Queensland (Department of Employment, Small Business and Training)[2021] QIRC 411

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Navaratnam v State of Queensland (Department of Employment, Small Business and Training) [2021] QIRC 411

PARTIES: 

Navaratnam, Kathiravelu

(Appellant)

v

State of Queensland (Department of Employment, Small Business and Training)

(Respondent)

CASE NO:

PSA/2021/357

PROCEEDING:

Public Service Appeal – Appeal against a decision under a directive

DELIVERED ON:

HEARING DATES:

2 December 2021

17 November 2021

MEMBER:

HEARD AT:

Pidgeon IC

Brisbane

ORDERS:

The appeal is dismissed for want of jurisdiction.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where the appellant lodged a grievance – where the appellant lodged a complaint regarding how a grievance was dealt with – where the appellant sought an internal review of that decision – where the appellant now seeks an external review of that decision – where the appellant filed the appeal notice out of time

LEGISLATION:

Public Service Act 2008, s 194

Industrial Relations Act 2016, s 539 and s 564.

Appeals Directive 07/20

Individual employee grievances Directive 11/20

CASES:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344

Reasons for Decision

 
Appeal Details

  1. [1]
    Dr Navaratnam appeals the outcome of an internal review decision received on 1 September 2021. 
  1. [2]
    Dr Navaratnam lodged his Form 89 - Appeal notice on 1 October 2021.   In that appeal notice, Dr Navaratnam applies for an extension of time to lodge his appeal notice after 5.00pm on the 21st day after he was given the decision.  The reason he could not lodge his appeal with the 21 day time frame was:

An Internal Review decision by the Director General was provided to me on 1/09/2021.  This letter did not specify 21 days requirements.  It basically provided Directives 11/20 and 07/20.  I could not see the reference to 21 days until I tried to complete the Form 89. Since 11/02/2020, I am on sick leave.  I am receiving treatments as a result of the racial abuse, age discrimination and work related bullying and intimidations. I was not physically and mentally in a position to completely read and comprehend the context of the materials provided to me with the decisions and make timely action.

I was provided with incomplete information by DEBST. I was waiting for a decision on another administrative review conducted.  Apparently this review was concluded on 5/08/2021.  But, I did not receive the decision letter until 23/09/21.  I was awaiting for this critical information.  I request apply 21 days from 23/09/21.

  1. [3]
    The decision letter is dated 1 September 2021.  This means that the last day that Dr Navaratnam could have lodged his appeal within the timeframe would have been 22 September 2020.  Dr Navaratnam's application was lodged on 1 October 2020, eight days beyond the timeframe allowed for appeals of this nature.
  1. [4]
    On 6 October 2021, I issued a Directions Order requiring submissions to be filed by the parties.
  1. [5]
    On 7 October 2021, the Respondent requested to be heard on the jurisdictional issue of whether Dr Navaratnam's appeal should be heard out of time.   In response, I vacated the original directions order of 6 October 2021 and issued directions requiring submissions limited to the question of whether the appeal should be heard out of time.
  1. [6]
    At the hearing of the matter, I clarified the reference (in the final paragraph of the excerpt above at [2]) to the 23 September 2021 decision and confirmed that this decision was in relation to a different request for a review regarding consideration of other grievances. Following the submissions of the parties, I determined that it was not in dispute that the internal review decision was received on 1 September 2021 and that the appeal was received eight days out of time.[1]
  1. [7]
    It is the jurisdictional matter only that is addressed in this decision. 

The Legal Framework: Jurisdiction

  1. [8]
    A member of the Commission may allow an appeal to be started within a longer period.[2]
  1. [9]
    In exercising discretion to extend time to lodge an application or appeal, there are principles that have been used for guidance. Those principles are commonly:
  • 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 grant of 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
  • consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[3]
  1. [10]
    The application of statutory time limits was addressed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society.  It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.  Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal or greater than those provisions that enact limitation periods.  A limitation provision is the general rule; an extension provision is the exception to it.[4]

  1. [11]
    The Appellant bears the onus of convincing the QIRC to depart from the ordinary time limitations and hear the Appeal out of time.[5]

Submissions of the parties

  1. [12]
    The Respondent submits that no extension should be granted because:
  1. (a)
    the Appellant was, or reasonably ought to have been, aware of the filing timeframes;
  1. (b)
    the Appellant has not adequately explained the delay;
  1. (c)
    the Appellant will suffer minimal prejudice by virtue of the Appeal period not being extended;
  1. (d)
    the Respondent will be prejudiced by the Appeal period being extended; and
  1. (e)
    the Appeal is entirely lacking in merit.
  1. [13]
    The Respondent provides some background to the matter, most relevantly for this jurisdiction matter:
  • Dr Navaratnam received the Investigation Outcome Decision by letter dated 20 July 2021 attaching a copy of the Directive.
  • On 29 July 2021, Dr Navaratnam sought an extension to request an internal review of the Investigation Outcome Decision.
  • On 3 August 2021, Dr Navaratnam requested an internal review of the Investigation Outcome Decision. 
  • The Respondent conducted an internal review in accordance with the Directive.  On 1 September 2021, the Respondent wrote to Dr Navaratnam and advised him that the Investigation Outcome Decision was fair and reasonable (Internal Review Decision – the decision subject of this Appeal).
  • On 23 September 2021, the Respondent advised Dr Navaratnam he was out of time to file his public service appeal, but that he could contact the QIRC and seek an extension. 
  • Dr Navaratnam did not file his appeal for another seven days.

Reasons for the delay

  1. [14]
    The Respondent submits that Dr Navaratnam has not provided sufficient explanation for filing eight days out of time and says that the lack of a reasonable explanation for the delay ought to outweigh the extension of time.
  1. [15]
    The Respondent says that on 1 September 2021, when the Internal Review Decision was delivered, the Appellant:
  • was a long standing public service employee occupying a senior position, with expertise in reading and applying policies and procedures;
  • had been and remains on leave since 11 February 2021;
  • had been engaging in protracted correspondence with the Respondent and complying with timeframes in the Directive (including by seeking an extension within time);
  • had been provided with the Internal Review Decision, the Directive and Directive 07/20: Appeals);
  • had been advised that if he wished to appeal the Internal Review Decision, he needed to comply with relevant timeframes, and through the Appeals Directive had been referred to those exact timeframes in the QIRC Public Service Appeal Guide.
  1. [16]
    The Respondent says that being unaware of the timeframes for filing is not an appropriate basis for an extension of time.[6]
  1. [17]
    Further to this, the Respondent says that Dr Navaratnam knew or reasonably ought to have known about the relevant timeframes. The Internal Review Decision attached the Directive and the Appeals Directive and specifically stated:

If you are dissatisfied with the outcome of the internal review, you may still appeal that decision under certain conditions to an external review, provided certain conditions and timeframes are met.  The Queensland Industrial Relations Commission administers the public service appeals function under the Industrial Relations Act 2016.  I have attached the Appeals Directive 07/20 to this correspondence, which outlines appeal entitlements and requirements you need to comply with.

  1. [18]
    In reply, Dr Navaratnam says that the Respondent failed to specifically advise and explain to him the number of days limit for an appeal in the decision of 1 September 2021.   He says that according to Departmental procedure, the limit on the number of days for an appeal should have been specifically mentioned and explained.[7]
  1. [19]
    Further to this, Dr Navaratnam says that the Respondent 'misled me and withheld this crucial information from me and now it is capturing the 'out of time' opportunity to deny me of the reasonable and fair outcome.'[8]
  1. [20]
    Dr Navaratnam says that Directives 11/20 and 07/20 do not mention the 21 days limit on appeal.  He says that he only found the time limit on a Commission form with the help of a staff member from the Industrial Registry.
  1. [21]
    At the hearing, I asked Dr Navaratnam what he thought was meant by the reference in the Directives to timeframes applying to appeal rights.  Dr Navaratnam said that, as an example, 'the workers' compensation … gives you three months' and that when there was no date mentioned, 'I considered that, okay, that, you know, that unlimited time on that'.[9]
  1. [22]
    At the hearing of the matter, Dr Navaratnam confirmed that he decided that he wanted to appeal the decision.  He said, 'I always – always I wanted to, you know, make an appeal on that one'.[10]

Not 'physically and mentally' in a position to file the appeal

  1. [23]
    The Respondent says that Dr Navaratnam has been absent from work due to illness since at least 11 February 2021.  That has not prevented him from engaging in every step of the complaint, investigation and internal review process and complying with timelines throughout.
  1. [24]
    Dr Navaratnam has demonstrated that he understands that it is possible to seek an extension of time and he did so in the internal review process. No steps have been taken to seek an extension of time with respect to this appeal.
  1. [25]
    Dr Navaratnam says that if his appeal is not considered by the Commission it will 'greatly prejudice me and negatively impact me mentally, professionally and physically'.[11]
  1. [26]
    At the hearing, Dr Navaratnam handed up a medical certificate which was already in the possession of the Respondent.  It was dated some months earlier and contained no information specific to his capacity to file materials or take part in the appeals process.  Given that it is not in dispute that Dr Navaratnam has been absent from work for health reasons since February 2021, the medical certificate is of no use in establishing either Dr Navaratnam's capacity to conduct his appeal or the potential impact on his health of his appeal being dismissed.

Waiting for another decision to be issued

  1. [27]
    My understanding of Dr Navaratnam's submissions is that even though he formed a view that he wanted to appeal the decision of 1 September 2021, he was waiting for the other decision (received on 23 September 2021) has he believed it had information in it relevant to his appeal of the 1 September 2021 decision.
  1. [28]
    The Respondent says that the 'other decision' relates to an entirely separate matter that has no bearing on the internal review decision subject of this appeal and that waiting for an unrelated decision is not a reasonable excuse for filing out of time.[12]

Merits of the Appeal

  1. [29]
    The Respondent says that Dr Navaratnam's 19 page internal review request is primarily constituted by: requests for outcomes which are not available through the grievance process; re-assertions of his previous complaints; and references to matters which were beyond the scope of the internal review.
  1. [30]
    The internal review decision was only to determine whether the investigation outcome decision was fair and reasonable.[13]  The Respondent considered Dr Navaratnam's request for an internal review, and all of the relevant material, and found that the investigation outcome decision was fair and reasonable.
  1. [31]
    The Respondent says that Dr Navaratnam bears the onus of convincing the Commission that the internal review decision was unfair or unreasonable.  In his appeal notice, Dr Navaratnam has only made assertions that are: vague and unsubstantiated; outside the scope of this appeal; or a re-wordings of his initial complaints.
  1. [32]
    The Respondent says that on the basis of above the Appellant has no reasonable prospects of succeeding in the appeal.
  1. [33]
    Dr Navaratnam expressed great concern at the Respondent's submission that his appeal lacks merit, saying 'I feel I am the victim in the hands of the Department'.[14]  He said that he took that submission to be a 'pre-empted statement…indirectly advising me that okay don't – you know, go ahead with that, you know.'[15]
  1. [34]
    In submissions regarding the merits of his appeal, Dr Navaratnam largely relied on and repeated the matters raised in attachment 1 to his appeal notice where he says that the decision made by the Director-General was:
  1. Based on incomplete internal and external review and thus it is not fair and reasonable.
  2. The process followed to reach decision did not include all relevant issues and it is biased against me.
  3. There is evidence that Director General failed to validate the information provided to him and use them as face value in his decision making.  Evidence can be provided to support fabrication and lies. Thus the decision will not stand public test.
  1. [35]
    Dr Navaratnam's reasons for appeal also include 'specific reasons' which raise matters regarding: the internal investigation; concerns that 21 of 41 issues raised by him in his request for internal review were deemed 'out of scope'; concerns with the external investigation and investigator; the length of time taken to complete the investigation; matters regarding racial discrimination and age discrimination; formal complaints not being investigated; terms of reference for the external investigation; an allegation of bullying against him; an allegation that there was an attempt to remove him from Quality and Compliance; information provided to the external review by a colleague and matters regarding his sick leave and a WorkCover claim.  

Prejudice to each of the parties 

  1. [36]
    The Respondent says that Dr Navaratnam will suffer minimal prejudice if the Appeal is not heard out of time.  If the extension of time is not granted, Dr Navaratnam can return to work as normal (subject to medical clearances).
  1. [37]
    The Respondent says that it will be prejudiced if the appeal is heard out of time.  When the Appeal was not filed within time, the subject employees and the Respondent were entitled to consider the matter resolved and arrange their affairs accordingly.[16]  It would prejudice the relevant employees and the Respondent to revive the appeal out of time and allow the spectre of Dr Navaratnam's complaints to continue to hang over them.
  1. [38]
    The Appellant says that the Department have placed him 'in a position of both explicit and implicit prejudices' and says that 'prejudice is prejudice'.  He says that this 'tactic' by the Respondent is not fair and reasonable and is 'an intimidation and threat to right to appeal.'[17]
  1. [39]
    Dr Navaratnam submitted at the hearing that if time was not extended to hear his appeal, it would 'certainly end my career…certainly end my livelihood'.[18]  I clarified with Dr Navaratnam that there was nothing subject of his appeal that could prevent his return to work, for example, disciplinary matters.  Dr Navaratnam confirmed that he understood that but felt that he needed his matter to be heard in order to return to work.[19]

Request to make oral submissions

  1. [40]
    On 8 November 2021, Dr Navaratnam filed an application in existing proceedings to make oral submissions in addition to submissions already made with regard to this matter.
  1. [41]
    On 17 November 2021, a hearing of the matter was held in Brisbane to enable Dr Navaratnam to make oral submissions regarding the application for an extension of time for his appeal to be filed.

Consideration of submissions

Explanation for delay and action taken by Dr Navaratnam other than by making application

  1. [42]
    I am not satisfied that Dr Navaratnam has provided a sufficient explanation for the delay.  Dr Navaratnam confirmed that he decided to appeal the internal review decision on the day that he received it.  It then appears that he undertook no further steps in preparing the appeal until after he found out that the 21 day appeal period had lapsed. It seems that he then spent eight days preparing for his appeal.
  1. [43]
    I find it difficult to accept that Dr Navaratnam was too unwell to prepare and submit his appeal when the submissions of the parties make it clear that Dr Navaratnam has been actively participating in the grievance process by lodging requests for internal reviews, which eventually led to the receipt of the decision on 1 September 2021 that he seeks to appeal.
  1. [44]
    Dr Navaratnam is a longstanding public servant and has demonstrated an understanding of the relevant Directives and confirmed that he was aware of the related Public Service Appeals guide.  The communication to Dr Navaratnam from the Respondent provided sufficient information about his appeal rights.  Dr Navaratnam's expectation that the Respondent 'support me and do – follow up on that and guide me with…the next series of actions'[20] is not reasonable.  I find it entirely reasonable for human resources support to be available where an employee is actively seeking out information about their appeal rights and the process itself, but it is not the responsibility of the Respondent to 'guide' appellants through the appeals process once sufficient information about the process has been provided.
  1. [45]
    I understand that Dr Navaratnam may have believed that the internal review outcome of his separate grievance (dated 23 September 2021) may have been something he wished to refer to in his submissions regarding the appeal of the 1 September decision, however, this is not a valid reason for lodging his appeal eight days out of time.  Firstly, Dr Navaratnam has appeal rights in relation to the 23 September 2021 decision, and at the time of the hearing of this matter, had lodged an appeal regarding that decision.  Secondly, it is open to parties to make submissions and provide material they believe is relevant in response to directions issued after the appeal is lodged.  This would apply to a pending decision with regard to a grievance or, for example, other material the Appellant is waiting to access to support their appeal.
  1. [46]
    Dr Navaratnam has not provided a satisfactory explanation for the delay in lodging his appeal.

Prejudice to the parties

  1. [47]
    I note the Respondent's submissions regarding the prejudice it will suffer if the appeal is heard. I find that should this specific appeal be allowed eight days out of time, it is unlikely to have a significant impact on the capacity of relevant employees to 'arrange their affairs and utilise their resources on that claims can no longer be made against them.[21]  
  1. [48]
    It was confirmed at the hearing that nothing in the subject matter of the internal review outcome precludes Dr Navaratnam from returning to work once he receives medical clearance.  It seems that Dr Navaratnam feels that he is unable to return to work until his grievances are dealt with.[22]  I am unable to conclude that not hearing Dr Navaratnam's appeal will lead to the end of his career.  The Respondent have made it clear that the path is open for Dr Navaratnam to return to work when he is able. 
  1. [49]
    Dr Navaratnam produced no medical evidence to support his submission regarding the impact that not having his appeal heard will have on his health.  In circumstances where he has been on leave due to illness since February 2021, I do not consider that a decision to not extend time to allow his appeal is likely to have a significant effect on Dr Navaratnam's health.
  1. [50]
    I am not satisfied that the potential prejudice to Dr Navaratnam is not such it should displace the statutory time limitation for lodging an appeal.

Merits of the appeal

  1. [51]
    I have considered the internal review decision and the reasons for appeal outlined in the appeal notice.  the appeal notice appears to raise a number of matters beyond the scope of an appeal regarding the internal review decision.  For example, Dr Navaratnam raises an issue about sick leave and a Workcover claim he made and addresses a number of matters that appear to have been the subject of a separate review.  A public service appeal is not an opportunity for a rehearing of the matter.  It is a review of the decision being appealed against to determine if the outcome was reasonably open to the decision maker based on the information available to them.
  1. [52]
    While I do not have enough information before me to comment on the merits of the appeal, I do note that if the appeal were to be heard, the decision of the Commission would likely not provide an outcome regarding a number of the matters raised by Dr Navaratnam in his reasons for appeal.

Conclusion and order

  1. [53]
    I have considered all written and oral submissions made by the parties and for the forgoing reasons, I am not satisfied that the circumstances warrant the extension of time to allow the appeal to be heard.
  1. [54]
    The application for an extension of time to commence the appeal is refused.

Footnotes

[1] T1-11, l1-10.

[2] Industrial Relations Act 2016 s 564(2).

[3] Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344, 348 (Wilcox J) and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J). 

[4] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553.

[5] Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554.

[6] Dickson v Mornington Shire Council [2020] QIRC 106, [54].

[7] Submissions of the Appellant filed 1 November 2021 and T1-3 ll25-45.

[8] Submissions of the Appellant filed 1 November 2021, [2].

[9] T1-11, ll4-11.

[10] T1-13, ll22-26.

[11] Submissions of Appellant filed 1 November, [3].

[12] Submissions of Respondent filed 20 October 2021, [21].

[13] Directive, cl 9.2(d).

[14] Submissions of the Appellant filed 1 November 2021, [6]

[15] T1-3, ll18-23.

[16] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552.

[17] Submissions of the Appellant filed 1 November 2021, [4] and [5].

[18] T1-5, ll25-30.

[19] T1-13, ll40 - T1-14, ll10.

[20] T1-10, ll27-35.

[21] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552.

[22] T1-14, ll1-10.

Close

Editorial Notes

  • Published Case Name:

    Navaratnam v State of Queensland (Department of Employment, Small Business and Training)

  • Shortened Case Name:

    Navaratnam v State of Queensland (Department of Employment, Small Business and Training)

  • MNC:

    [2021] QIRC 411

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    02 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
6 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Cite 5 - (1996) 186 CLR 541
Cite 6 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Cullen v State of Queensland (Queensland Health) [2021] QIRC 258
1 citation
Jump To
Cite 1 - [2021] QIRC 258
Dickson v Mornington Shire Council [2020] QIRC 106
1 citation
Jump To
Cite 1 - [2020] QIRC 106
Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344
2 citations
Jump To
Cite 1 - (1994) 3 FCR 344
Cite 2 - (1994) 3 FCR 344

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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