Mason v State of Queensland (Queensland Health)
[2022] QIRC 367
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Mason v State of Queensland (Queensland Health)[2022] QIRC 367
- Add to List
Mason v State of Queensland (Queensland Health)[2022] QIRC 367
Mason v State of Queensland (Queensland Health)[2022] QIRC 367
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mason v State of Queensland (Queensland Health) [2022] QIRC 367 |
PARTIES: | Mason, Richard (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/742 |
PROCEEDING: | Public Service Appeal – Appeal against a conversion decision |
DELIVERED ON: | 26 September 2022 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDER: | The Appellant's application for an extension of time to file the appeal is refused. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – conversion decision – where Appellant requested to have fixed term temporary employment converted to permanent employment under s 149 of the Public Service Act 2008 (Qld) – where Respondent rejected appellant's request by deemed decision – where Respondent raises jurisdictional objection on the basis that the decision can not be appealed against – where appeal is lodged fifteen (15) days out of time – whether extension of time ought to be granted – consideration of relevant factors – application refused. |
LEGISLATION: | Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), s 562B, s 562C and s 564 Public Service Act 2008 (Qld), s 194 and s 195 Directive 9/20 - Fixed Term Temporary Employment, cl 11 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 |
Reasons for Decision
Introduction
- [1]Mr Richard Mason is employed by the State of Queensland (Queensland Health) ('the Department'), on a fixed term full-time basis in the role of Administration Officer (A03), COVID-19 Fever Clinic within Gold Coast Hospital and Health Service ('GCHHS').
- [2]Mr Mason has been an employee of the Department since approximately 16 December 2019 and has been continuously engaged in various positions prior to commencing the role of Administration Officer (A03) on 4 April 2022.
- [3]On 4 July, Mr Mason filed an application to the Department to conduct a review of his fixed term employment pursuant to s 149 of the Public Service Act 2008 (Qld) ('the PS Act').
- [4]Mr Mason did not receive a response to his request by 1 August 2022, and therefore a deemed decision was taken to have been made by the Department on 1 August 2022 not to convert the Appellant's fixed term employment status to permanent ("the decision").
- [5]By appeal notice filed in the Industrial Registry on 6 September 2022, Mr Mason appealed the decision of the Department to not convert his fixed term employment to permanent employment.
- [6]On 8 September 2022, the Commission issued directions for the filing and serving of written material in support of the appeal. Both parties complied with the directions.
- [7]In the notice of appeal, Mr Mason provides the following grounds in support of his appeal:
It is my understanding that I have been eligible for temporary to permanent review from the 19th of December 2021. To this day, I have not received a notification to review. I also find it difficult to comprehend how an employer can simply 'wait out' the application review timeline of 28 days and then use that as a "deemed decision of No". A decision, by its very nature is a conclusion or resolution following consideration, this leads me to conclude that very little, or in fact no consideration has been given to my application, I welcome a copy of that review to alleviate my concerns. At the time of writing this, there were a number of A03 positions advertised in the GCHHS system.
- [8]The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
- [9]Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
- [10]I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
- [11]However, before I consider the substance of the appeal I must be satisfied that the appeal is one which is able to be heard. The Respondent raises two objections to the appeal going to jurisdiction and I will consider those matters in order to determine whether I hear the substance of the appeal.
Jurisdictional objection
- [12]The Department raises the following jurisdictional objections to the appeal as follows:
- The decision cannot be appealed in accordance with Section 195(1)(i) of the Act;
- In the alternative, if it is determined the decision can be appealed, in accordance with Section 194(1)(e)(i) of the Act, the decision should not be heard as the application is out of time.
…
- [13]I will consider the jurisdictional objections when considering the merits of the appeal further below.
Discretion to hear an appeal out of time
- [14]Directions orders were issued by the Commission requiring the parties to file written submissions. The Appellant filed written submissions on 14 September 2022 and the Respondent filed its written submissions on 19 September 2022. As noted above, the Respondent raised two jurisdictional objections with respect to the appeal.
- [15]The Directions required that the Appellant respond to any jurisdictional objection raised by the Respondent in reply submissions. No reply submissions were filed by the Appellant.
- [16]Section 564(2) of the IR Act bestows a discretion on the Commission to allow an appeal to be started within a longer period. In this regard, s 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.
…
- [17]Section 564(2) of the IR Act was considered by President Martin J in A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations)[4] as follows:
On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey 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.” (citations omitted)
…
- [18]Accordingly, an appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised.
- [19]In Hunter Valley Developments Pty Ltd v Cohen,[5] Wilcox J set out a number of principles that can act as a useful guide in determining whether to exercise a discretion to extend a time frame to allow a person to lodge an application or an appeal. These principles need not be considered in an exhaustive manner. The principles include, as relevantly summarised:
- (a)whether the appellant demonstrated an acceptable explanation for the delay and that it is 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 would go towards the consideration of whether an acceptable explanation for the delay has been furnished;
- (c)whether the respondent will suffer any prejudice from the delay;
- (d)merits of the substantive matter; and
- (e)fairness between the parties.
- [20]Prior to determining whether a decision is fair and reasonable, I must, firstly, be satisfied that I have jurisdiction to determine the appeal.
- [21]Accordingly, I will exercise the discretion as provided by s 564(2) of the IR Act, having regard to the above principles.
Length of delay and explanation provided
- [22]As noted above, the Appellant did not respond to the Respondent's objections to the appeal. Consequently, no direct explanation has been provided for the delay.
- [23]The length of the delay is fifteen (15) days. That is not insignificant in circumstances where Parliament imposed an appeal period of 28 days.
- [24]I infer from the material filed by the Appellant that he was unsure of the process. On 17 August 2022, the Appellant was advised a deemed decision has been made and was directed to Directive 09/20 – Fixed Term Temporary Employment ('Directive 09/20'). Directive 09/20 relevantly identifies what decisions can and can not be appealed and refers to the Appeals Directive as a related resource and reference material.
- [25]It is not immediately apparent if the Appellant made himself aware of the information contained in the relevant directives.
- [26]It is incumbent upon the Appeal, having requested the review process, to make himself aware of the manner in which a decision may be appealed. There is no evidence that the Appellant undertook such steps. The Directives are publicly available documents (and presumably are also made available internally to employees of the Respondent) and regard must be had to them if an employee wishes to follow a process as set out in the Directive.
- [27]I do not consider that a reasonable explanation for the length of the delay (or at all) has been provided by the Appellant. The length of the delay (15 days) and the failure to provide a reasonable explanation for the delay are matters which weigh against the Commission exercising its discretion to extend the time to file the appeal.
Prejudice to the Respondent
- [28]Neither parties made submissions with respect to the prejudice suffered by the Respondent should an extension of time be granted.
Merits of the Appeal
- [29]As noted above, the Respondent raises a jurisdictional objection on the basis that it contends the decision is a decision in which an appeal is not permitted to be heard pursuant to s 195(1)(i) of the PS Act.
- [30]The Appellant applied pursuant to s 149 of the PS Act, for conversion from temporary fixed term employment to permanent. The deemed decision, which is the subject of this appeal, was a determination not to convert the employment basis of a fixed term employee.
- [31]Section 195(1)(i) relevantly identifies decisions against which appeals can not be made as follows:
195 Decision against which appeals can not be made
- (1)A person can not appeal against any of the following decisions—
…
- (i)a decision under section 149 to not convert the employment basis of a fixed term temporary employee or casual employee;
…
- [32]Accordingly, it appears the decision is a decision which falls within the ambit of s 195(1)(i) of the PS Act.
- [33]For this reason, I conclude that the appeal has limited prospects of success.
Conclusion
- [34]Having regard to the factors relevant to my consideration, I decline to exercise my discretion to grant an extension of time for the filing of this appeal.
- [35]Consequently, it is unnecessary for me to consider the substance of the appeal.
Order
- [36]Accordingly, I make the following order:
The Appellant's application for an extension of time to file the appeal is refused.
Footnotes
[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[4] [2019] ICQ 16.
[5] [1984] FCA 176; (1984) 3 FCR 344.