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Hanson v State of Queensland (Queensland Health)[2021] QIRC 68

Hanson v State of Queensland (Queensland Health)[2021] QIRC 68

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hanson v State of Queensland (Queensland Health) [2021] QIRC 068

PARTIES:

Hanson, Adam

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/44

PROCEEDING:

Public Service Appeal - Appointment to a higher classification - Application for longer period of time to start appeal

DELIVERED ON:

2 March 2021

MEMBER:

Merrell DP

HEARD AT:

On the papers

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 10 February 2021 and Appellant's written submissions filed on 24 February 2021

ORDER:

Pursuant to s 564(2) of the Industrial Relations Act 2016, the appellant's appeal is allowed to be started on 22 January 2021.

LEGISLATION:

Industrial Relations Act 2016, s 564

CASES:

Beil v Mansell (No.1) [2006] QCA 173; [2006] 2 Qd R 199

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Ulowski v Miller [1968] SASR 277

Reasons for Decision

Introduction

  1. [1]
    Mr Adam Hanson is employed by the State of Queensland through Queensland Health and is permanently appointed to the position of Project Officer, classification AO5, within the Northern Digital Partnership Team of the Customer Service Branch ('the Branch') of eHealth Queensland.  In November 2020, Mr Hanson made a request to be appointed to a higher classified position within the Branch, in which he had been acting, namely, Project Manager, classification AO6 ('the position').
  1. [2]
    By written decision dated 21 December 2020, Mr Hanson was informed that he was to continue to be engaged according to the terms of his existing higher duties arrangement ('the decision').  The decision was emailed to Mr Hanson's departmental email address on 21 December 2020.
  1. [3]
    Mr Hanson lodged an appeal notice against the decision with the Industrial Registrar on 22 January 2021.  Pursuant to the combined effect of s 564(1) and s 564(3)(d) of the Industrial Relations Act 2016 ('the IR Act'), Mr Hanson's appeal notice should have been lodged with the Industrial Registrar within 21 days of the decision being given to him, namely, on or before 11 January 2021.  As a consequence, Mr Hanson lodged his appeal notice out of time.
  1. [4]
    Mr Hanson has applied for an extension of time to start his appeal. The parties have made written submissions about whether or not I should exercise discretion and allow Mr Hanson to start his appeal on 22 January 2021.
  1. [5]
    For the reasons that follow, I will exercise my discretion in favour of Mr Hanson and allow him to start his appeal on 22 January 2021.

The power to allow a longer period of time to start an appeal

  1. [6]
    Pursuant to s 564(2) of the IR Act, I have discretion to allow an appeal to be started within a longer period than the appeal period prescribed in s 564(1) of the IR Act.
  1. [7]
    The discretion must be exercised judicially.[1] 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 a consideration of principles to guide, not in any exhaustive manner, the exercise of that discretion.[2]
  1. [8]
    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.[3]

  1. [9]
    Guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,[4] namely, that:
  • special circumstances need not be shown, but an application 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, although the mere absence of prejudice is not enough to justify the grant 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.[5]
  1. [10]
    I will exercise the statutory power, under s 564(2) of the IR Act, guided and assisted by the above principles.

The length of the delay

  1. [11]
    Mr Hanson lodged his appeal notice 11 days out of time.  This is a significant delay.

The explanation for the delay

  1. [12]
    Mr Hanson's explanation for the delay is that he proceeded on a period of approved recreation leave from 13 December 2020 to 15 January 2021 and that he returned to the workplace on 18 January 2021.
  1. [13]
    Mr Hanson states that whilst the decision was emailed to his Queensland Health email address on 21 December 2020, that occurred during a period of time when he was on approved leave and he did not read the email until his return to the workplace on 18 January 2021.  Mr Hanson then states that upon reading the email containing the decision, he contacted his Union who provided him with advice and he lodged his appeal notice on 22 January 2021.
  1. [14]
    Mr Hanson contends that he was not obligated to check his work email while he was on a period of approved recreation leave.  The Department submits that it did not require or expect Mr Hanson to access his work email account while on approved leave.

Prejudice

  1. [15]
    Mr Hanson contends that not allowing a longer period for him to start his appeal would significantly prejudice him as he would not be able to exercise his appeal right in relation to the decision.
  1. [16]
    The Department does not contend that it would be prejudiced by Mr Hanson being allowed to start his appeal within a longer period.

Conduct of the Department

  1. [17]
    There is no evidence of any conduct of the Department relevant to the exercise of my discretion.

Prospects of success

  1. [18]
    In his appeal notice, Mr Hanson attaches a schedule which sets out submissions in support of his appeal.  Mr Hanson commenced acting in the position on 18 November 2015, has been continually acting in the position since that time, and is currently engaged to continue to act in the position until 30 June 2021.
  1. [19]
    Mr Hanson contends the decision was not fair and reasonable because the decision maker did not take into account relevant considerations in making the decision, including, that in almost every area in eHealth Queensland which has a Digital Partnerships Team, a permanent Project Manager, classification AO6, is employed, but for the Northern Digital Partnership Team where he works.
  1. [20]
    It seems to me that, at the very least, given the length of time in which Mr Hanson has been acting in the position, it cannot be said that Mr Hanson's appeal lacks any objective prospects of success.
  1. [21]
    In my opinion, there is a reasonable explanation for Mr Hanson's delay in starting his appeal.  Furthermore, because there is no prejudice to the Department by the Commission hearing and determining Mr Hanson's appeal and because it cannot be said that Mr Hanson's appeal has no objective prospects of success, it is fair and equitable to allow Mr Hanson's appeal to be started within a longer period.

Conclusion

  1. [22]
    For the reasons I have given, I will allow Mr Hanson to start his appeal within a longer period, namely, on 22 January 2021.
  1. [23]
    Further directions will be issued for the hearing and determination of Mr Hanson's appeal.

Order

  1. [24]
    I make the following order:

Pursuant to s 564(2) of the Industrial Relations Act 2016, the appellant's appeal is allowed to be started on 22 January 2021.

Footnotes

[1] Biel v Mansell (No.1) [2006] QCA 173; [2006] 2 Qd R 199, [40] (Muir J).

[2] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ('Hunter Valley'), 348 (Wilcox J).

[3] [1968] SASR 277, 280.

[4] Hunter Valley (n 2), 348-349.

[5] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Hanson v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Hanson v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 68

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    02 Mar 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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