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  4. Moxey v State of Queensland (Queensland Ambulance Service) - [2022] QIRC 254

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Moxey v State of Queensland (Queensland Ambulance Service)[2022] QIRC 254

Moxey v State of Queensland (Queensland Ambulance Service)[2022] QIRC 254

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Moxey v State of Queensland (Queensland Ambulance Service) [2022] QIRC 254

PARTIES:

Moxey, Robert

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2022/46

PROCEEDING:

Public Service Appeal

DELIVERED ON:

30 June 2022

MEMBER:

HEARD AT:

Power IC

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 against a disciplinary finding decision – allegations substantiated – appeal lodged out of time – whether extension of time should be granted – extension of time not granted

LEGISLATION:

Ambulance Service Act 1991 (Qld), s 18A

Industrial Relations Act 2016 (Qld), s 564

Industrial Relations (Tribunals) Rules 2011 (Qld), r 97

Public Service Act 2008 (Qld), s 194

CASES:

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

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

Chapman v State of Queensland [2003] QCA 172

Hill v State of Queensland (Department of Education) [2021] QIRC 371

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Robert Moxey ('the Appellant') is employed as an Advanced Care Paramedic ('ACP') by the State of Queensland (Queensland Ambulance Service) ('the Respondent').
  1. [2]
    On 4 November 2021, the Appellant was issued with a notice to show cause by Mr Chris Draper, Acting Assistant Commissioner, Gold Coast Region, requesting that the Appellant show cause to the following allegations:[1]

Allegation One

That between October and December 2020, at the Helensvale Ambulance Station, Advanced Care Paramedic (ACP) Robert Moxey said to [the subject officer], when referencing her same sex relationship, words to the effect, "As a Muslim, how do your parents react to your lifestyle?"

…

Allegation Two

That between February and March 2021, at either the Robina Hospital or Gold Coast University Hospital, ACP Robert Moxey, during an exchange with work colleagues when referencing [the subject officer], stated words to the effect, "If it wasn't for the way she is, she would be Mrs Moxey."

…

Allegation Three

On 15 March 2021, ACP Robert Moxey whilst travelling together in an ambulance vehicle and when referencing [the subject officer]'s acceptance into the Supported Pathway Program, said to [the subject officer] words to the effect, "You only got into the program because you're a female and you're in a same-sex relationship, so you tick more boxes than me."

…

  1. [3]
    On 2 December 2021, the Appellant provided a response to the notice to show cause.
  1. [4]
    On 20 December 2021, the Appellant was issued with a disciplinary finding decision letter ('the decision') by Mr Peter Warrener ASM, Assistant Commissioner, Gold Coast Region, advising that allegations one and two had been substantiated on the balance of probabilities and that allegation three had not been substantiated. The Appellant was also advised that consideration was being given to proposed disciplinary action of a reprimand and transfer at level to Nerang Ambulance Station along with a number of administrative actions. The Appellant was provided with the opportunity to respond to the proposed penalties by close of business on 4 January 2022.
  1. [5]
    By appeal notice filed on 18 January 2022, the Appellant appeals the decision pursuant to s 194 of the Public Service Act 2008 (Qld) ('the PS Act'). The appeal notice indicates that the Appellant is applying for an extension of time to lodge his appeal after the 21 day statutory time limitation period. Accordingly, I will first consider and determine the jurisdictional issue as to whether discretion should be exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the Industrial Relations Act 2016 (Qld) ('IR Act').
  1. [6]
    For the reasons contained herein, an extension of time is not granted.

Legislative framework

  1. [7]
    Section 564 of the IR Act provides for the time limit for appeal:

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.

The appeal notice

  1. [8]
    In an attachment to the appeal notice, the Appellant outlined the following reasons for delay:
  1. I received a copy of the Disciplinary Decision on 20 December 2021 via email.
  2. On 21 December 2021 I contacted my Union Representative for assistance with responding to the Disciplinary Decision. My Union Representative was unable to provide me with advice or representation within the timeframe stipulated in the Disciplinary Decision (namely on or before 4 January 2022).
  3. Further to this, given that Christmas and standard business shut down was imminent, it was not possible for me to obtain alternative advice or representation through a lawyer or other industrial advocate until business resumed in the week commencing 10 January 2021.
  4. As a result, my Union Representative wrote to the author of the Disciplinary Decision Letter (Mr. Peter Warrener, Assistant Commissioner) on 21 December 2021 requesting an extension of time in which I could respond to the Disciplinary Decision.
  5. On 21 December 2021, my Union Representative informed me that an extension of time had been granted until 21 January 2022.
  6. I am submitting this Appeal Notice within 21 days of the permitted extension.
  7. Further or in the alternative, if the Commission deems that the permitted extension for responding to the Disciplinary Decision does not have the effect of automatically extending the deadline permitted for lodging an Appeal Notice, I note that the period of delay in question is limited to 8 days (or 7 business days). The Disciplinary Decision is dated 20 December 2021, 21 days from 20 December 2021 was 10 January 2022.
  8. I took immediate steps to obtain advice upon the resumption of business in the week commencing 10 January 2022. Upon receiving this advice, I took immediate steps to prepare and submit this Appeal Notice.
  9. I submit that there exists (sic) reasonable grounds for extending the time limit on appealing the Disciplinary Decision in question.
  1. [9]
    For completeness, the Appellant appeals the decision on the basis that the decision was not fair or reasonable and could not have been made based on the evidence before the decision maker at the time the decision was made.
  1. [10]
    The Appellant outlined the following reasons as to why the decision to substantiate allegation one was not fair or reasonable, that:
  1. (a)
    the Appellant's response to allegation one has not been considered in the context of relevant facts and evidence. The context is of the upmost importance when considering standard 1.5 of the Code of Conduct for the Queensland Public Service ('the Code of Conduct');
  1. (b)
    it is unclear as to why the Appellant's comment has been held to a higher standard than the comments of other ACPs who participated in the conversation where the comments made were similar in nature;
  1. (c)
    no reasons have been provided by the Respondent to explain why the Appellant's comment was found to breach standard 1.5 of the Code of Conduct; and
  1. (d)
    if the comment made did breach standard 1.5 of the Code of Conduct, the comment made was not without 'reasonable excuse' pursuant to s 18A of the Ambulance Service Act 1991 (Qld) ('the AS Act').
  1. [11]
    The Appellant outlined the following reasons as to why the decision to substantiate allegation two was not fair or reasonable, that:
  1. (a)
    there is insufficient evidence to substantiate allegation two;
  1. (b)
    the Respondent did not inspect the rosters for the subject officer and the Appellant for the relevant period;
  1. (c)
    there is no consistency with the evidence relied upon to substantiate allegation two; and
  1. (d)
    the delegate cannot be 'reasonably satisfied' based on the evidence that the Appellant has contravened s 18A of the AS Act.

Submissions

Respondent's Submissions

  1. [12]
    The Respondent submits, with respect to the jurisdictional issue, that the Appellant has not discharged the burden as outlined in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber')[2] and merely states that 'there exists reasonable grounds'. The Respondent submits that:
  1. (a)
    the Appellant was specifically advised that he may lodge a fair treatment appeal within 21 calendar days of receiving the delegate's decision;
  1. (b)
    the Appellant contacted his union the day following receipt of the decision for 'assistance with responding to the disciplinary finding' and not concerning the appeal. The Appellant's union representative secured an extension of time for the Appellant to respond to 'the disciplinary decision' until 21 January 2022. However, no response to the decision has been received and instead, an out of time appeal has been lodged;
  1. (c)
    in the week commencing 10 January 2022, the day before the appeal deadline elapsed, the Appellant allegedly sought and received advice which he then relied upon to file the appeal;
  1. (d)
    it is inconceivable to accept that the Appellant's application is the result of any competent advice allegedly received on 10 January 2022; and
  1. (e)
    the extension of time to respond to the decision could never impact on the statutory 21 day appeal time frame.
  1. [13]
    The Respondent submits that while a decision to hear the appeal would not prejudice the Respondent, statutory time limits should be observed and that any decision to extend the time limit must follow the provision of acceptable and compelling reasons by the Appellant. The Respondent submits that such reasons have not been provided by the Appellant.
  1. [14]
    The Respondent submits that the Commission has previously decided against exercising its discretion where an appeal was lodged four or six days out of time, in circumstances where significant reasons, explanation or justification has not been provided to sufficiently justify and overcome the delay in filing an appeal.[3] Accordingly, the Respondent submits that the discretion to allow the Appellant's appeal to be lodged in the longer period of seven days is not warranted.
  1. [15]
    The Respondent submits, with respect to allegation one, that:
  1. (a)
    the matter was determined on the evidence, admissions and not on inferences unreasonably drawn. The delegate carefully considered all information available to him;
  1. (b)
    the Appellant's response demonstrated an admission to asking the subject officer about her sexuality, what her parents view was and how the subject officer was taken aback by the question;
  1. (c)
    the Respondent denies that the context or the Appellant's alleged lack of intent, has any bearing on an officer's responsibility to treat co-workers with courtesy and respect;
  1. (d)
    it is the delegate and not the Appellant who must be reasonably satisfied that there has been a contravention without 'reasonable excuse' pursuant to s 18A of the AS Act. The finding demonstrates that the delegate determined that there was no reasonable excuse; and
  1. (e)
    the extent that the context of the exchange was considered is reflected in the relatively minor disciplinary action proposed.
  1. [16]
    The Respondent submits, with respect to allegation two, that:
  1. (a)
    when interviewed about the allegation, the Appellant was not so unequivocal;
  1. (b)
    the Appellant's submission regarding only being rostered on once with the subject officer on 15 March 2021 is irrelevant as at no stage was allegation two said to have occurred on 15 March 2021;
  1. (c)
    the Appellant's contention that the subject officer and the other officer lives together and have a relationship outside of work is at best, misleading. The other officer confirmed during his record of interview that he is a flatmate of both the subject officer and another officer and that he has never worked with either of officers;
  1. (d)
    the Appellant did not demonstrate in his response the existence or relevance of any alleged out of work relationship between the subject officer and the other officer;
  1. (e)
    it would not be extraordinary, due to the effluxion of time, for an ACP to confuse attendance at one hospital for an attendance at the other as ACPs in the region routinely go to each hospital on a frequent basis; and
  1. (f)
    while witnesses were not at one on the location, exact date or what the general conversation was prior, the common thread was clear.

Appellant's Submissions

  1. [17]
    In response to the Respondent's submissions, the Appellant outlined a brief chronology of the communications between the Respondent and his union representative regarding seeking of an extension of time to respond to the decision. The Appellant further submits, in summary, that:
  1. (a)
    contrary to the Respondent's submissions, it was not the Appellant's union representative who secured an extension of time on the Appellant's behalf for 'assistance with responding to the disciplinary finding', rather, it was the Respondent who volunteered an extension to 'the attached correspondence';
  1. (b)
    the Appellant subsequently spoke with Ms Ferrett[4] on 21 December 2021 who advised that the Appellant did not need to worry about the contents of the decision because an extension of time had been granted by the Respondent to 21 January 2022;
  1. (c)
    at no stage during the conversation with Ms Ferrett was the Appellant advised that the extension of time only applied to the decision and not to the balance of the matters set out in the decision, including the Appellant's right to lodge a fair treatment appeal; and
  1. (d)
    at no time was the Appellant 'specifically advised' that his right to lodge a fair treatment appeal was not impacted by the extension of time volunteered by the Respondent.
  1. [18]
    The Appellant submits that the length of delay of eight days is not a significant period of time and that facts of this case is materially different to the facts of the cases relied on by the Respondent. In contrast, the Appellant submits that he has specifically denied that he understood the avenues for appeal outlined in the decision. Further, the Appellant's delay was not occasioned by personal excuses such as relocation, work commitments or caring responsibilities.
  1. [19]
    The Appellant submits that there exists an acceptable explanation for the delay and that it is fair and equitable in the circumstances to grant an extension of time, consistent with the guiding principles referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen.[5] The Appellant submits that:
  1. (a)
    the appeal was lodged out of time as a result of a reasonable belief that the Respondent had granted the Appellant an extension of time in which to respond to the entirety of the matters detailed in the decision;
  1. (b)
    the Appellant did not receive any advice from his Union and was otherwise unable to receive alternative advice in the period 21 December 2021 to 10 January 2022 due to national business shut down;
  1. (c)
    upon resumption of business in the week commencing 10 January 2022, the Appellant took steps to obtain advice expediently; and
  1. (d)
    immediate action taken by the Appellant further demonstrates that an acceptable explanation for the delay has been furnished.
  1. [20]
    The Appellant submits that the Respondent will not suffer any prejudice in this matter as a result of an eight day delay in lodging the appeal.
  1. [21]
    The Appellant submits that his appeal is not plainly hopeless,[6] submitting that:
  1. (a)
    the context is entirely relevant for establishing whether the facts of the allegation can be made out and consequently, whether disciplinary action was warranted;
  1. (b)
    the Appellant was treated less favourably than other active participants of the same conversation;
  1. (c)
    the delegate did not consider all relevant evidence;
  1. (d)
    the comment in issue did not infringe standard 1.5 of the Code of Conduct;
  1. (e)
    despite witnesses who were present at the time the alleged comment was made as outlined in allegation two, the evidence given were ambiguous and conflicted. Their testimony was nonetheless preferred over the Appellant's testimony;
  1. (f)
    the subject officer did not work any night shifts with the Appellant in February or March 2021, the period which forms the basis of allegation two;
  1. (g)
    if allegation two allegedly occurred in February or March 2021, the subject officer's complaint was made three weeks later. Consequently, the subject officer's memory would not have been severely impacted by effluxion of time; and
  1. (h)
    the inference drawn by the Respondent with respect to allegation two is misleading and not supported by evidence.
  1. [22]
    The Appellant further filed an affidavit, providing a chronology of the extension of time request to the Respondent to respond to the decision and attaching material in support to his appeal.

Respondent's Submissions in reply

  1. [23]
    The Respondent submits, in summary, that:
  1. (a)
    Ms Ferrett's email to the delegate explicitly confirms that she was seeking an extension, stating that 'given Aaron's absence I will seek an extension';
  1. (b)
    the delegate's email to Ms Ferrett also confirms that the delegate was specific in stating, 'please let me know if you wish to seek an extension for a response to the attached correspondence';
  1. (c)
    any alleged belief that the delegate had, or could, provide an extension to the statutory 21 day timeframe to appeal was not reasonably open to the Appellant;
  1. (d)
    the Appellant provides no evidence concerning the source or content of the advice received in the week commencing 10 January 2022;
  1. (e)
    whether or not proposed disciplinary action is warranted, it is not a decision and is therefore outside the scope of the appeal concerning disciplinary findings;
  1. (f)
    the Appellant's material with respect to the roster as contained in the Appellant's affidavit were sought and provided after the appeal was filed. Further, the material has never been provided before the delegate and is therefore irrelevant to any review of the decision;
  1. (g)
    it was never alleged that the Appellant was working 'with' the subject officer;
  1. (h)
    if the appeal is not heard, the Appellant retains the ability to respond and show cause why the proposed disciplinary action should not be imposed; and
  1. (i)
    the Appellant also retains the right to appeal the delegate's subsequent decision regarding the imposition of the proposed or a lessor disciplinary action.

Consideration

  1. [24]
    The Appellant was issued with a notice to show cause on 4 November 2021 in which the three allegations were outlined and an opportunity was provided to the Appellant to respond. The Appellant's response to the allegations was provided to the Respondent on 2 December 2021. Following consideration of the Appellant's response, the Respondent issued a decision on 20 December 2021 advising that allegations one and two had been substantiated and a disciplinary finding had been made that the Appellant had failed to comply with standard 1.5 of the Code of Conduct. Standard 1.5 of the Code of Conduct provides:

1.5  Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own

b.  ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment

c.  ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients

d.  ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and

e. comply with legislative and/or policy obligations to report employee criminal charges and convictions.

  1. [25]
    The decision maker considered that the substantiated conduct were grounds for discipline pursuant to s 18A of the AS Act and proposed the imposition of disciplinary action of a reprimand and a transfer at level to Nerang Ambulance Station, along with a number of management actions regarding training and performance. Section 18A of the AS Act provides:

18A Grounds for discipline

  1. (1)
    The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has—
  1. (a)
    performed the officer’s duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the officer as a service officer by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the officer’s duties; or
  1. (f)
    contravened, without reasonable excuse, a requirement of the chief executive under section 13A(1) in relation to the officer’s appointment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (g)
    contravened, without reasonable excuse, a provision of this Act or an obligation imposed on the person under—
  1. (i)
    a code of practice; or
  1. (ii)
    a code of conduct—
  1. (A)
    approved under the Public Sector Ethics Act 1994; or
  1. (B)
    prescribed under a directive of the commission chief executive under the Public Service Act 2008; or
  1. (iii)
    an industrial instrument.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

  1. [26]
    The Appellant filed an appeal against the decision eight days outside of the 21 day statutory time limit. The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[7]
  1. [27]
    A similar statutory provision was considered in A1 Rubber, 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."[8]

  1. [28]
    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…[9]

Explanation for delay

  1. [29]
    The Appellant confirmed that he received the Respondent's decision on 20 December 2021. The Appellant submits that he contacted his union representative on 21 December 2021 who advised the Appellant that he was not available to provide assistance prior to 4 January 2022. The union representative requested an extension of time to provide a response and the Respondent advised that an extension of time was granted until 21 January 2022.
  1. [30]
    The Appellant submits that he spoke with Ms Ferrett of his union on 21 December 2021 who advised that he did not need to worry about the contents of the decision because an extension of time had been granted by the Respondent with a new deadline of 21 January 2022. The Appellant states that he was not advised during the conversation that the extension of time did not apply to his right to lodge a fair treatment appeal.
  1. [31]
    The extended time frame provided by the Respondent allowed a longer time period during which the Appellant could respond to the proposed disciplinary action and was not a further opportunity to respond to the disciplinary finding.
  1. [32]
    The decision included the following paragraphs:

Opportunity to respond

I am providing you until close of business on 4 January 2022 to show cause why the above disciplinary and administrative actions should not be imposed. If you disagree with the proposed action you have the opportunity to provide alternative action and reasons why you consider that action is more appropriate.

…

If you do not respond, or if your response is received later than close of business on 4 January 2022, I will make a decision based on the material that is currently before me.

…

Appeal entitlements

If you believe that my decision to find that the allegations above are substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the Public Service Act 2008 within twenty-one (21) calendar days of receipt of this decision.

Further information in relation to public service appeal procedures and arrangements can be located on the Queensland Industrial Relations Commission website at www.qirc.qld.gov.au; or by contacting them on 1300 592 987 or 07 3227 8060.

[emphasis added]

  1. [33]
    The decision outlined the basis upon which a disciplinary finding had been made after consideration of the Appellant's previous response. If the Appellant was of a mind to seek an appeal against the decision on the disciplinary finding, the only pathway to do so was via an appeal to the Queensland Industrial Relations Commission. This was clearly outlined in the decision under the heading 'Appeal entitlements', as was the time period of 'twenty-one (21) calendar days of receipt of this decision'.
  1. [34]
    The timeframe for a response to the proposed disciplinary action was set out in a separate part of the decision, with the decision maker stating, 'I am providing you until close of business on 4 January 2022 to show cause why the above disciplinary and administrative actions should not be imposed'.
  1. [35]
    The Respondent has no power to extend the statutory time period for an appeal under the PS Act beyond 21 days. Whilst this may not have been known to the Appellant, it is clearly outlined in the decision that one timeframe relates to the opportunity to respond and a separate timeframe relates to the appeal entitlements.
  1. [36]
    The Appellant submits that he was unable to receive advice up until 10 January 2022, due to 'national business shut down' during this period. The Appellant states that upon resumption of business in the week commencing 10 January 2022, he took steps to obtain advice and subsequently filed his appeal on 18 January 2022. The Appellant has not provided an adequate explanation as to the delay in his appeal being filed for over a week after he was able to access advice.
  1. [37]
    I note the comments of President Martin in A1 Rubber in which he stated that being unaware of the statutory time requirement 'cannot be a panacea for an error of this kin. The time provision is not hidden'.[10]
  1. [38]
    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. [39]
    The consequence of not extending the time period is that the appeal will not be heard and determined. The prejudice to the Appellant will be that the decision with regard to the disciplinary findings will stand. I note, however, that the disciplinary process has not concluded and that a decision regarding disciplinary action has not yet been made. If after receiving the decision on disciplinary action the Appellant is not satisfied with the determination, he is entitled to file an appeal against that decision within 21 days of receipt.
  1. [40]
    I note that the Respondent's submission does not identify any specific prejudice if an extension of time is granted. In my view, the only prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit as it would usually be entitled to do in matters of this nature.

Prospects of success

  1. [41]
    A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
  1. [42]
    The Queensland Court of Appeal considered this point in Chapman v State of Queensland,[11] 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…[12]

  1. [43]
    The Appellant included broad submissions as to the reasons for appeal. The Appellant contends that allegation one should not have been substantiated on the available evidence. The Appellant states that he did not make the comments as alleged, namely, 'As a Muslim, how do your parents react to your lifestyle?', however acknowledged in his response to the show cause letter that he did ask the subject officer about her family's feelings regarding her sexuality. The Appellant appears to rely upon the context within which the question was asked to contend that the question could not have contravened standard 1.5 of the Code of Conduct. The Appellant submits that if the comment did infringe this standard, it was not without 'reasonable excuse' as per s 18A of the AS Act, and as such no grounds for discipline are enlivened.
  1. [44]
    On the basis that the Appellant admitted to asking the subject officer about her parent's view of her sexuality given their religion, albeit in other words, and acknowledging that the question had caused offence to the subject officer, it was prima facie open to the decision maker to substantiate the allegation. Once the allegation had been substantiated, it was then open for the decision maker to find that standard 1.5 had been contravened and that grounds for discipline may exist. The fact that the decision maker did not determine that the context excused the Appellant's conduct does not suggest that the evidence of the context was not considered.
  1. [45]
    The Appellant contends that he has been held to a higher standard than other employees who participated in the conversation, stating that the types of comments made by others were of a very similar nature. The evidence of the witnesses to the conversation do not support the Appellant's assertion that others made comments of a similar nature.
  1. [46]
    The Appellant denies making the comment outlined in allegation two and submits that there is insufficient evidence to substantiate the allegation. The Appellant points to inconsistencies between the witness officers' statements. The Respondent acknowledges the differences in the recall of the witness officers' recollections in terms of location and exact date that the statement was made, however determined that the common thread is consistent throughout each witness' statement. It appears that the statements made by the witness officers are broadly consistent with respect to the statement attributed to the Appellant and in these circumstances it is likely to have been open to the decision maker that the allegation was substantiated on the balance of probabilities.
  1. [47]
    In consideration of the above, I am not satisfied that the appeal has good prospects of success.

Conclusion

  1. [48]
    As noted above, no determination has been made of the disciplinary action to be imposed. The Appellant has the opportunity to respond to the show cause notice as to why the disciplinary action should not be imposed. Following the determination of whether any disciplinary action will be imposed, the Appellant will have the opportunity to appeal that decision if dissatisfied with the outcome.
  1. [49]
    In consideration of the explanation for the delay, the justice of the matter and the prospects of success, I do not consider it appropriate that an extension of time be granted in this matter.

Order

  1. [50]
    I make the following order:

The appeal is dismissed for want of jurisdiction.

Footnotes

[1] Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I have anonymised the name of the officer the subject of the allegations because they are not a party to this appeal.

[2] [2019] ICQ 16.

[3] citing Hill v State of Queensland (Department of Education) [2021] QIRC 371; Street v State of Queensland (Department of Education) [2021] QIRC 399.

[4] Ms Ferrett is a union representative.

[5] (1984) 3 FCR 344.

[6] citing Chapman v State of Queensland [2003] QCA 172.

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

[8] A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16, 2.

[9] Ibid.

[10] Ibid 3.

[11] [2003] QCA 172.

[12] Ibid [3].

Close

Editorial Notes

  • Published Case Name:

    Moxey v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Moxey v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 254

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    30 Jun 2022

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
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
3 citations
Jump To
Cite 1 - [2019] ICQ 16
Cite 2 - [2019] ICQ 16
Cite 3 - [2019] ICQ 16
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Chapman v State of Queensland [2003] QCA 172
4 citations
Jump To
Cite 1 - [2003] QCA 172
Cite 2 - [2003] QCA 172
Cite 3 - [2003] QCA 172
Cite 4 - [2003] QCA 172
Foundadjis v Bailey [2007] ICQ 10
1 citation
Jump To
Cite 1 - [2007] ICQ 10
Hill v State of Queensland (Department of Education) [2021] QIRC 371
2 citations
Jump To
Cite 1 - [2021] QIRC 371
Cite 2 - [2021] QIRC 371
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
2 citations
Jump To
Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
Street v State of Queensland (Department of Education) [2021] QIRC 399
2 citations
Jump To
Cite 1 - [2021] QIRC 399
Cite 2 - [2021] QIRC 399

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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