Nash v State of Queensland (Queensland Corrective Services)
[2022] QIRC 434
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- Unreported Judgment
- Nash v State of Queensland (Queensland Corrective Services)[2022] QIRC 434
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Nash v State of Queensland (Queensland Corrective Services)[2022] QIRC 434
Nash v State of Queensland (Queensland Corrective Services)[2022] QIRC 434
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nash v State of Queensland (Queensland Corrective Services) [2022] QIRC 434 |
PARTIES: | Nash, Denise (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO.: | PSA/2022/685 |
PROCEEDING: | Public Service Appeal – Conversion to higher classification level |
DELIVERED ON: | 9 November 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | The Appellant's application for a longer period to start her appeal is refused. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant was reviewed under s 149C of the Public Service Act 2008 (Qld) – where appeal lodged out of time – whether extension of time should be granted – extension of time not granted |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 564 Public Service Act 2008 (Qld), ss 149C and 194 |
CASES: | A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Chapman v State of Queensland [2003] QCA 172 Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138 Wantling v Department of Community Safety (Queensland Corrective services) [2013] QIRC 43 |
Reasons for Decision
- [1]Ms Denise Nash ('the Appellant') is substantively employed by the State of Queensland (Queensland Corrective Services) ('the Respondent') as an AO3 Sentence Planning Advisor at Woodford Correctional Centre.
- [2]The Appellant has been acting in a higher classification role as an AO4 Sentence Planning Coordinator continuously since 6 August 2018 ('the position').
- [3]On 16 March 2022, the Appellant submitted a request to be permanently appointed to the position, pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act').
- [4]By letter dated 12 April 2022, Ms Samantha Newman, Acting Deputy Commissioner, Community Corrections and Specialist Operations, informed the Appellant that she had determined not to appoint the Appellant to the position due to the genuine operational requirements of the agency ('the decision').
- [5]By appeal notice filed on 19 July 2022, the Appellant appealed against the decision, pursuant to s 194 of the PS Act.
- [6]Within the appeal notice, the Appellant applies for an extension of time to lodge the appeal. The jurisdictional issue must first be determined as to whether an extension of time should be granted for the filing of the appeal.
- [7]For the reasons contained herein, an extension of time is not granted.
Reasons for delay
- [8]The Appellant outlined the following reasons for the delay in filing the appeal:
I was waiting for the incumbent to return to the position on 1 July 2022 as advised in attached correspondence dated 12 April 2022. The incumbent did not return on 1 July 2022 and they have been further extended in their current position until June 2023.
Legislative framework
- [9]Section 564 of the IR Act provides for the time limit for appeal:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (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.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- [10]
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."[3]
- [11]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…[4]
Consideration
Explanation for delay
- [12]The decision relevant to this appeal was made on 12 April 2022. The appeal was filed on 19 July 2022 and was therefore filed 78 days beyond the 21 day time limitation period. This is a significant delay beyond the statutory timeframe.
- [13]The Appellant submits that the appeal was lodged 'less than 21 days after the incumbent's extension was confirmed'. Section 564 of the IR Act provides that the 21 day time period commences upon receipt of the decision to be appealed and is not referable to any other decisions.
- [14]On the appeal notice, the Appellant states that she was 'waiting for the incumbent to return to the position on 1 July 2022 as advised'. The Appellant further notes that 'the incumbent did not return on 1 July 2022 and they have been further extended in their current position until June 2023'.
- [15]The Appellant only made the decision to file the appeal after the Appellant was made aware of the incumbent's secondment extension a number of months after receipt of the relevant decision. This is not an acceptable reason for failing to file an appeal within the statutory time period.
- [16]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 to extend this timeframe. Such reasons are not evident in this matter.
Prospects of success
- [17]A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
- [18]
…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…[6]
- [19]The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[7] Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below.
- [20]Ms Newman outlined the following reasons in the decision to not appoint the Appellant to the position:
I have considered your request and have determined that, due to the genuine operational requirements of the agency which includes the position having an appointed substantive occupant, you will not be appointed to the position of AO4 Sentence Planning Coordinator (736635). With regard to this, I also note that the incumbent is due to return to the position on 1 July 2022.
- [21]The existence of an incumbent who is scheduled to return to the position following secondment elsewhere has been considered in previous decisions of this Commission to be a genuine operational requirement that may make permanent appointment unviable or inappropriate.[8] There are other issues to be considered, including the reasons for each decision previously made, however, cl 4.2(b) of Directive 13/20[9] provides that circumstances such as these support the temporary engagement of an employee at a higher classification level.
- [22]One of the reasons outlined in the decision to deny the Appellant's application for permanent appointment at the higher level was that the incumbent was due to return to the position on 1 July 2022. The Appellant's decision to appeal was then prompted by the extension to the incumbent's secondment until 30 June 2023. Whilst this extension may inform any further decisions made pursuant to s 149C of the PS Act, or decisions by the Appellant as to future appeals, it is not appropriate to delay the filing of an appeal pending the outcome of a separate process.
- [23]In consideration of the above, I am of the view that the appeal has limited prospects of success.
Justice of the case
- [24]The prejudice to the Respondent in allowing the appeal is that it will not be able to rely upon the statutory time limit, despite advising the Appellant of her appeal rights and specifically noting that time limits applied. Ms Newman outlined the following in the 'additional information' attachment of the decision:
Appeal rights–sections 194(1)(e), 196(e)
…
There are procedural requirements, including time limits, under the Industrial Relations Act 2016 that you must fulfil in order to appeal this decision. Further information is available in the Queensland Industrial Relations Commission's public service appeals guide found at: https://www.qirc.qld.gov.au/public-service-appeals.
- [25]The prejudice to the Appellant will be that the appeal against the decision will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited.
- [26]In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe.
Conclusion
- [27]In circumstances where the statutory time period is 21 days, the delay of 78 days in filing this appeal is significant. To allow an extension of time in circumstances in which the appeal was only filed following external decisions made at a later date would be to frustrate the parliamentary intention to provide for a 21 day time limit.
- [28]As considered in Wantling v Department of Community Safety (Queensland Corrective services),[10] the statutory time limit should only be departed from in the most compelling of circumstances. I am not persuaded that such circumstances exist in this matter.
- [29]In consideration of the above factors, I do not consider that there are reasonable grounds to extend the time for filing this appeal and have determined not to exercise my discretion pursuant to s 564(2) of the IR Act.
Order
- [30]I make the following order:
The Appellant's application for a longer period to start her appeal is refused.
Footnotes
[1] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[2] [2019] ICQ 16.
[3] Ibid 2.
[4] Ibid.
[5] [2003] QCA 172.
[6] Ibid [3].
[7] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35.
[8] See e.g., Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138; Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167.
[9] Appointing a public service employee to a higher classification level.
[10] [2013] QIRC 43.