Margraf v State of Queensland (Department of Energy and Public Works)
[2022] QIRC 118
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- Unreported Judgment
- Margraf v State of Queensland (Department of Energy and Public Works)[2022] QIRC 118
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Margraf v State of Queensland (Department of Energy and Public Works)[2022] QIRC 118
Margraf v State of Queensland (Department of Energy and Public Works)[2022] QIRC 118
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Margraf v State of Queensland (Department of Energy and Public Works) [2022] QIRC 118 |
PARTIES: | Margraf, Katja (Appellant) v State of Queensland (Department of Energy and Public Works) (Respondent) |
CASE NO: | PSA/2021/393 |
PROCEEDING: | Public Service Appeal – appeal against a promotion decision |
DELIVERED ON: | 23 March 2022 |
HEARING DATE: | 23 March 2022 |
MEMBER: | Hartigan IC |
HEARD AT: | Brisbane |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a promotion decision – appeal filed out of time – where appellant seeks leave for the period for filing the appeal to be extended – consideration of whether to hear the appeal out of time – where delay is significant – where grounds for extension of time are not compelling – where appellant has limited prospects of success – extension of time not granted – appeal dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B, 562C and 564 Public Service Act 2008 (Qld), ss 194 and 195 Directive 11/20 individual employee grievances, cl 6 |
CASES: | A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344 |
APPEARANCES: | The Appellant in person Mr N. Garde and Ms K. Matley of the Respondent |
Reasons for Decision (ex tempore)
Introduction
- [1]Ms Katja Margraf filed an appeal notice in the Industrial Registry on 15 November 2021. On the appeal notice, Ms Margraf states that she is appealing the position appointment 370907/21 on the ground of unfair and unreasonable treatment.
- [2]Ms Margraf has, during the course of her submissions today, confirmed that she is appealing the decision with respect to the appointment process. On that basis, I have taken the appeal to be a promotion decision appeal.
- [3]Ms Margraf is employed in the position of supervisor (006) within the building division of QBuild, Department of Energy and Public Works ('the Department').
- [4]Ms Margraf applied for a role as a senior supervisor, Far North Queensland Region, Regional Operations QBuild, Cairns. Ms Margraf was interviewed for the role but was not successful ultimately with respect to the two Cairns positions. Ms Margraf has appealed the decision of the chief executive’s delegate of 25 July 2021, which resulted in the permanent appointment to two of the four advertised senior supervisor positions, following a recruitment and selection process.
- [5]The Department submits that Ms Margraf is excluded from appealing the decision because it was filed out of time, and because the decision is excluded from appeal by the operation of section 195(3A)(c) of the Public Service Act 2008 (Qld) ('the PS Act'). However, during the course of submissions today, it was conceded by the Department that Ms Margraf is entitled to appeal at least one of the appointment decisions because it is accepted that it is a promotion decision.
Relevant provisions of the PS Act and Directive
- [6]Section 194 of the PS Act relevantly sets out the decisions which may be appealed as follows:
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions—
- (a)a decision to take, or not take, action under a directive;
- (b)a decision under a disciplinary law to discipline—
- (i)a person (other than by termination of employment), including the action taken in disciplining the person; or
- (ii)former public service employee by way of a disciplinary declaration made under section 188A , including if the disciplinary action that would have been taken was termination of employment;
(ba) a decision of the commission chief executive under section 88IA to give a direction about rectifying a defect in the procedural aspects of the handling of a work performance matter, to the extent the direction affects the employee the subject of the work performance matter;
(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);
- (c)a decision to promote a public service officer (a promotion decision);
- (d)a decision to transfer a public service officer (a transfer decision );
- (e)a decision (each a conversion decision)—
- (i)under section 149B not to convert the basis of employment of an employee; or
- (ii)under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B (8A) ; or
- (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;
(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);
- (f)decision about anything else against which another Act allows a person to appeal.
- (2)However—
- (a)if an appeal may be made under this section against a decision, other than under subsection (1) (eb), the appeal can not be made under subsection (1) (eb) ; and
- (b)an appeal can not be made against a decision if section 195 applies to the decision.
- (3)In this section—
temporary employee —
- (a)includes a general employee employed on a temporary basis; but
- (b)does not include a person employed under section 147 or 148 on a casual basis.
- [7]Section 195 of the PS Act sets out decisions against which appeals can not be made as follows:
195 Decision against which appeals can not be made
…
(3A) A person can not appeal against a fair treatment decision—
…
- (c)relating to the recruitment or selection of a public service employee; or
- [8]The purpose of Directive 11/20 individual employee grievances is to provide information on the appeal rights of public service employees under the PS Act. Clause 6 relevantly provides matters that can not be the subject of a grievance:
6.1 The following decisions, conduct or behaviour cannot be the subject of an individual employee grievance under this directive:
- (a)a decision by an agency under Chapter 5, Part 7 of the PS Act relating to mental and physical incapacity
- (b)a decision made under Chapter 6, Part 2 of the PS Act relating to discipline decisions
- (c)a decision relating to the recruitment or selection of a public service employee
- (d)a decision relating to a person’s work performance, other than a decision about the person’s work performance that is recorded in a formal way as part of a periodic performance review
- (e)a decision relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of a grievance
- (f)a decision relating to the development or performance management of a chief executive or senior executive
- (g)a work performance matter that is the subject of an existing review of a procedural matter under section 88IA of the PS Act
- (h)an investigation, suspension or discipline process that is the subject of a current internal or external review under the PS Act and relevant directive
- (i)conduct or behaviour of an employee, agent or contractor, or a decision by an agency that is already the subject of an application, or which becomes the subject of an application, by the same employee to the Queensland Industrial Relations Commission (QIRC) in relation to an alleged contravention of a workplace right under Chapter 8, Part 1 (General Protections) of the IR Act
- (j)conduct or behaviour of an employee, agent or contractor that is already the subject of a complaint, or which becomes the subject of a complaint, by the same employee to the QIRC in relation to alleged sexual harassment, racial vilification, religious vilification or vilification on the grounds of gender identity or sexuality under the Anti-Discrimination Act 1991
- (k)a decision by an agency that is the subject of an existing complaint by the same employee to the Queensland Ombudsman under the Ombudsman Act 2001 where the Ombudsman investigates the complaint.
6.2 Under the PS Act, an employee seeking to lodge a fair treatment appeal is generally required to have used their agency individual employee grievance mechanism prior to lodging an appeal.
6.3 An employee may choose not to use their agency’s complaints mechanism where they are seeking to appeal a finding by the chief executive under section 187 of the PS Act that a disciplinary ground exists for an employee. Section 195(3A)(b) of the PS Act allows the employee aggrieved by this decision to lodge a public service appeal in relation to the decision.
Consideration
- [9]Prior to determining whether a decision is fair and reasonable, I must be satisfied that I have jurisdiction to determine the appeal.
- [10]I must consider whether to exercise a discretion to hear this appeal out of time.
Ms Margraf has filed the appeal well outside of the 21 days’ time prescribed by the Industrial Relations Act 2016 (Qld) ('the IR Act').
- [11]Relevantly, the notice of appeal was filed in the Industrial Registry some 81 days after Ms Margraf was informed of the decision, or 74 days after the Gazette notification was published with respect to the appointment.
- [12]Section 564(2) of the IR Act bestows a discretion on the Commission to allow an appeal to be started outside of the time prescribed by the IR Act. In this regard, section 564(2) of the IR Act provides as follows:
564 Time limit for appeal
…
- (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.
…
- [13]Section 564(2) of the IR Act was considered by President Martin in the matter of A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 as follows:
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…
- [14]That decision establishes that the appellant bears the burden of establishing that the justice of the case is one in which the Commission’s discretion should be exercised.
- [15]In the matter of Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344, Wilcox J set out a number of principles that can be used as a guide in determining whether to exercise the discretion to extend the time to allow a person to lodge an application for an appeal. These principles should be considered, but need not be considered in an exhaustive manner.
- [16]The principles include, as relevantly summarised:
- (a)whether the appellant demonstrated an acceptable explanation for the delay and that it was fair and equitable in the circumstances to extend the time;
- (b)whether the appellant has taken any action other than by lodging an appeal which goes towards the consideration of whether an acceptable explanation for the delay has been furnished; and
- (c)whether the respondent will suffer any prejudice from the delay, and the merits of the substantive matter and fairness between the parties.
- [17]Accordingly, I will consider the exercise of the discretion as provided by section 564(2) of the IR Act, having regard to those principles.
- [18]With respect to the length and explanation of the delay, I note that the appeal was filed, as I have already stated, 81 days after Ms Margraf was informed of the decision, and 74 days after the Gazette notification was published. This is, in my view, a significant period of time. The explanation for the delay as provided by Ms Margraf is that following notification of the decision, she undertook steps to attempt to resolve the matter at the workplace. She took these steps after being advised of a personal relationship between members of the panel and the successful appointees.
- [19]However, during the course of her submissions today, she was unable to provide any direct evidence or any compelling information as to the nature of those relationships. Ms Margraf’s submission today was that once that process was exhausted, on or about the 26 October 2021, she decided to file the notice of appeal, although I note that that was done some many days after 26 October 2021.
- [20]With respect to prejudice, neither party has addressed the issue of prejudice. However, I accept that the Department will suffer prejudice associated with defending an appeal filed at least some 74 days out of time. Further, it is accepted that Ms Margraf may suffer some prejudice in that she will not be able to appeal the decision should an extension of time not be granted.
- [21]With respect to prospects of success, Ms Margraf was asked during the course of her submissions today as to whether she could point to any meaningful or compelling matters in which she could identify whether there had been an error or some other concern she had with the process associated with the appointment. She was unable to provide any concrete submissions with respect to these matters, other than to confirm that her concerns have arisen following the receipt of information by other employees whom she worked for. The nature of the complaint by Ms Margraf is more in the nature of a grievance relating to matters that have originated by way of rumour and innuendo, and consequently, the grounds that Ms Margraf relies on are not compelling.
- [22]For these reasons, I consider that Ms Margraf has limited prospects of success.
- [23]The final criteria that the authorities point to is that of fairness between the parties. Neither of the parties has specifically addressed this issue today.
- [24]Accordingly, having considered the matters referred to above, I have, on balance, determined not to exercise my discretion to extend the period for filing of the appeal. The orders I make will be that the appeal is dismissed.