Hensen v State of Queensland (Queensland Corrective Services)
[2022] QIRC 322
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- Unreported Judgment
- Hensen v State of Queensland (Queensland Corrective Services)[2022] QIRC 322
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Hensen v State of Queensland (Queensland Corrective Services)[2022] QIRC 322
Hensen v State of Queensland (Queensland Corrective Services)[2022] QIRC 322
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hensen v State of Queensland (Queensland Corrective Services) [2022] QIRC 322 |
PARTIES: | Hensen, Rene Michael (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO: | PSA/2022/662 |
PROCEEDING: | Public Service Appeal |
DELIVERED EX TEMPORE ON: | 9 August 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – where respondent raises jurisdictional objections – where appeal filed out of time – whether extension of time should be granted – were extension of time not granted – appeal dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562A, 564 |
CASES: | Casperson v Queensland [2021] QIRC 119 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Truffet v Workers' Compensation Regulator [2020] ICQ 013 Hunter Valley Developments Ltd v Cohen (1984) 3 FCR 344 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Sunny v State of Queensland (Queensland Health) [2022] QIRC 119 Collins v State of Queensland (Queensland Health) [2022] QIRC 215 Edwards v State of Queensland (Queensland Health) [2022] QIRC 091 Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195 McPaul v State of Queensland (Queensland Health) [2022] QIRC 175 |
Reasons for Decision (ex tempore)
Background
- [1]Mr Rene Hensen is employed with Queensland Corrective Services ('the Department'), as a correctional officer. It is not controversial that Mr Hensen was subject to a direction to be vaccinated against COVID-19 and that he has not complied with that direction.
- [2]As a consequence of his non-compliance, Mr Hensen has been subject to a disciplinary process resulting in an allegation that he has failed to comply with the direction.
- [3]On 10 June 2022 a decision was issued by Assistant Commissioner Ursula Roeder ('Ms Roeder') in which she found that Mr Hensen had contravened a directive without reasonable excuse. In the correspondence Mr Hensen was invited to show cause why he should not be dismissed. The decision of Ms Roeder was emailed to Mr Hensen by the Department.
- [4]There does not appear to be any dispute that the correspondence was emailed to Mr Hensen on 13 June 2022.
- [5]At the time of the correspondence being emailed, Mr Hensen's employment status was that he had been suspended pending completion of the disciplinary process. At the time the email from Ms Roeder was sent to Mr Hensen, Mr Hensen had absented himself from the State of Queensland and was visiting his parents in Western Australia.
- [6]Importantly, during this time Mr Hensen was not on a period of authorised leave, nor did he notify the Department that he was interstate and further (he says) without reliable access to the internet.
- [7]It is further noted that at the time Mr Hensen left the State to travel to Western Australia and effectively take himself out of internet range, he was aware that he had recently responded to the first stage of a show-cause process, and that a decision would have been pending. Notwithstanding this, Mr Hensen placed himself in a position whereby there was a risk he would not be able to receive a decision on that stage of the show cause process or respond to one in a timely manner.
- [8]On 24 June 2022 it was noted that Mr Hensen had not responded to the show-cause letter within the designated time frame. Consequently, the Department emailed him to enquire whether he intended to respond.
- [9]On 27 June 2022 Mr Hensen replied, saying he had recently returned from Western Australia (on 25 June 2022) and had only opened his emails on 26 June 2022. He indicated that he would reply with a response to the show-cause letter by 1 July 2022.
- [10]On 30 June 2022 Mr Hensen emailed a letter (dated 29 June 2022) requesting an extension to 'his appeal rights' pursuant to the Public Service Act 2008 (Qld) ('the PSA') until 15 July 2022.
- [11]On the same date the Department replied to Mr Hensen's request and advised him (in quite express terms) that firstly, they could not consent to vary a statutory time limit with respect to the PSA appeal rights but that secondly, they would allow an extension for him to respond to the show-cause letter until 7 July 2022.
- [12]On 4 July 2022 (following the delivery of the decision to Mr Hensen via email on 13 June 2022) the time limit for Mr Hensen to file his public service appeal arguably expired.[1]
- [13]Following some telephone contact with the Queensland Industrial Relations Commission Registry on 7 July 2022, Mr Hensen filed his appeal against the decision of Ms Roeder on 8 July 2022. Following allocation of the file, the matter was listed for mention on 15 July 2022. The matter was listed at the initiation of the Commission to resolve some questions about the timing of the filing of the appeal.
- [14]At the mention of the matter on 15 July 2022 it was established that:
- (a)the decision of Ms Roeder was emailed to Mr Hensen on 13 June 2022;
- (b)Mr Hensen was absent from Queensland and out of internet contact until 25 June 2022 and did not see the decision until after that date; and
- (c)in those circumstances, the Department sought to object to the jurisdiction of the Commission to deal with the matter, pursuant to section 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
- [15]Having identified the jurisdictional objection at the mention, the Commission also advised Mr Hensen that it was considering exercising its discretion pursuant to section 562A of the IR Act to not hear the appeal. The matter was then programmed for hearing on the jurisdictional points, and directions were issued.
Legislative framework
- [16]Section 564 of the IR Act requires an appeal of this nature to be filed within 21 days. The time for calculating commences from the day the decision was given to an appellant.[2]
- [17]Section 562A of the IR Act provides that the Commission may decline to deal with a public service appeal if the Commission considers the appeal should not be heard for another compelling reason. The discretion under section 562A is subject to an appellant having an opportunity to make submissions that they may have an arguable case.
Submissions of the parties
Mr Hensen
- [18]Mr Hensen provided written submissions on 26 July 2022. It is apparent from his submissions that Mr Hensen does not seek to argue that the appeal was made within time, or that he somehow misunderstood the time limit.
- [19]Mr Hensen relies on certain facts to explain the circumstances leading to his delay. Mr Hensen relies largely on his absence from Queensland at the critical time when the decision was delivered.
- [20]Mr Hensen points out that he was visiting his elderly and unwell parents in Western Australia, and that he had no or poor internet access where they reside. In those circumstances he did not or could not check his emails.
- [21]Mr Hensen indicated that his telephone was older technology and that he was only able to use it to speak with his wife and children.
The Department
- [22]The Department, in their submissions, stepped through the relevant legal authorities regarding consideration of appeals filed outside the prescribed time limit, and urged the Commission to refuse to deal with the matter.
- [23]The Department also pointed to the overall lack of merit, given the grounds provided in respect of the grounds of the substantive appeal by Mr Hensen.
Consideration
- [24]The appropriate consideration in these circumstances is usefully summarised in the decision of Breust v Qantas Airways Ltd[3] which is set out in the respondent's submissions. Those considerations are, in short:
- the length of the delay;
- the explanation for the delay;
- the prejudice to the Appellant if the extension of time is not granted;
- the prejudice to the Respondent if the extension of time is granted; and
- any relevant conduct of the Respondent.
- [25]I will address each of these grounds of consideration in turn.
The length of delay
- [26]I am satisfied that Mr Hensen received the email on 13 June 2022. Mr Hensen has not said otherwise. The fact that Mr Hensen put himself in a position where he could not access the email until 26 June 2022 does not alter the date that it was given to him for the purposes of calculating the time limit, especially where Mr Hensen placed himself incommunicado without notifying his employer of his absence.
- [27]In those circumstances I am satisfied that the statutory time limit in respect of his appeal against the decision of Ms Roeder was 4 July 2022. Having regard to the filing date then, there is a delay of four days.
- [28]While four days may seem inconsequential to the interests of the department when considered in isolation, the exercise of considering whether to grant leave for proceedings to proceed 'out of time' does not turn on one single consideration.
The explanation for the delay
- [29]With respect to the explanation for the delay, Mr Hensen was well aware that he was undergoing a disciplinary process and that a decision was pending at the time he left for Western Australia. He was well aware of this when he placed himself in circumstances where his ability to communicate and receive communications was poor.
- [30]His decision to remove himself from Queensland to a place with no internet service and not check his emails was careless disregard for the disciplinary process that he was subject to at the relevant time and in those circumstances, he is undeserving of any sympathy.
- [31]In any event, the trip to Western Australia is largely irrelevant as an explanation, because Mr Hensen returned home a full seven days prior to the expiry of the time limit on 4 July 2022.
- [32]Further, in his submissions and in his responses to questions from the Commission today, he confirmed that he was cognisant of the time limit during that time. Not only that but (as of 29 June 2022) Mr Hensen had, in his own evidence, obtained legal advice and was requesting an extension of his public service appeal rights.
- [33]The reply he received to that request on 30 June should have left Mr Hensen with no misunderstanding that no extension for his public service appeal was consented to.
- [34]Mr Hensen does not allege representative error on the part of his legal advisor. It remains unclear when Mr Hensen considered when his appeal ought to have been filed. But in circumstances where he was aware of limitation issues from as early as 29 June 2022, and where he had access to legal advice, I am not satisfied there is a reasonable excuse.
- [35]Any disadvantage to Mr Hensen by his delayed receipt of the letter of Ms Roeder was one entirely of his own creation. But further, any disadvantage arising from his failure to act after he returned on 25 June 2022 arises entirely as a consequence of his own inaction. Mr Hensen had legal advice, he was aware of the time limit, and he simply let it pass him by even though he had expressly had any expectation of extension extinguished.
The prejudice to the Appellant if the extension of time is not granted
- [36]In respect to the issue of prejudice there is no question that Mr Hensen will experience prejudice if his appeal rights are denied. But time limits of this nature are intended to be observed and cannot be casually set aside, especially where the party petitioning for extension unreasonably contributed to or caused the delay.
- [37]However, in the context of Mr Hensen's lack of reasonable explanation I consider that any weight I could to give to the prejudice that befalls him is wholly displaced.
Any relevant conduct of the Respondent
- [38]In respect to the conduct of the respondent, I cannot identify any conduct of the respondent that ought to influence me to grant an extension of time in respect of Mr Hensen's appeal. Further, Mr Hensen does not allege any conduct of the respondents have contributed to the delay.
Prospects of success
- [39]Mr Hensen has confirmed at the hearing that his appeal is against the decision of Ms Roeder to find he has contravened a lawful direction. The grounds of his appeal can be summarised in short terms as (firstly) he does not consider that vaccines are safe and (secondly) that he considers that a mandate is a human rights violation.
- [40]Mr Hensen also contends that the proposed termination of his employment is severe in light of the recent relaxation of the mandate as it applies with the Department.
- [41]A cursory glance at the decisions in other public service appeal matters delivered over the last six months by this Commission will reveal that arguments like those made by Mr Hensen are doomed to fail because they are utterly without merit. There is nothing to distinguish Mr Hensen's assertions from the multitude of similar arguments made by others before him that have been rejected by this Commission.[4]
- [42]In those circumstances I regard Mr Hensen's appeal as entirely without merit.
- [43]Further, any submission about the penalty that is proposed in the correspondence from Ms Roeder is outside of the jurisdiction of the appeal. The proposed penalty of termination is not a decision amenable to be reviewed under the Act.
- [44]As an aside, Mr Hensen ought to appreciate that a failure to obey a lawful and reasonable direction without reasonable excuse will always be conduct that will likely attract serious sanction. The fact that circumstances change and lead to a withdrawal of that direction does not in any way undermine the legitimacy of the direction at the time it was given. Further, a subsequent withdrawal of the direction when circumstances change does not dilute the seriousness of disobeying that direction when it was current.
- [45]In all of the circumstances I decline to hear the appeal.
Order
- [46]In the circumstances I make the following order:
- Pursuant to s 562A of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 564.
[2] Casperson v Queensland [2021] QIRC 119.
[3] (1995) 149 QGIG 777. See also Truffet v Workers' Compensation Regulator [2020] ICQ 013; Hunter Valley Developments Ltd v Cohen (1984) 3 FCR 344.
[4] See for example: Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175. There are numerous others.