Hamouda v State of Queensland (Queensland Health)
[2022] QIRC 473
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- Unreported Judgment
- Hamouda v State of Queensland (Queensland Health)[2022] QIRC 473
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Hamouda v State of Queensland (Queensland Health)[2022] QIRC 473
Hamouda v State of Queensland (Queensland Health)[2022] QIRC 473
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hamouda v State of Queensland (Queensland Health) [2022] QIRC 473 |
PARTIES: | Hamouda, Enas (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/408 |
PROCEEDING: | Public Service Appeal – Fair Treatment Decision |
DELIVERED ON: | 5 December 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | I decline to hear the appeal pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld). |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where appellant lodged an individual employee grievance – where appellant dissatisfied with the stage 1 and stage 2 decision – where appellant did not outline grounds of appeal – where no submissions were filed by the appellant – where appeal lacks substance |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562A and 562B Public Service Act 2008 (Qld), ch 7 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Ms Enas Hamouda ('the Appellant') is currently employed by the State of Queensland (Queensland Health) ('the Respondent') as a full time Senior Payroll Officer ('SPO').
- [2]On 30 April 2020, an expression of interest email was circulated within Payroll Recovery Services ('PRS'), inviting employees to express their interest in a full time, permanent SPO role with Payroll Transaction Service, Corporate Enterprise Services. At the time of the email, the Appellant was employed as a Case Manager, PRS, Corporate Enterprise Services.
- [3]On 1 May 2020, the Appellant expressed an interest in the SPO role and on 20 May 2020, the Appellant was offered and accepted a permanent SPO role.
- [4]On 10 June 2020, the Appellant commenced in the SPO role in a part time capacity and subsequently changed to a full time capacity on 15 June 2021.
- [5]On 13 July 2021, the Appellant lodged a stage 1 grievance pursuant to the Individual employee grievances Directive 11/20 ('the Directive') regarding the process of the Appellant's transfer from PRS to the SPO role in June 2020, alleging that the process has adversely affected the Appellant and is unfair and unreasonable.
- [6]On 20 August 2021, the Appellant was provided with a decision with respect to the stage 1 grievance.
- [7]On 1 September 2021, the Appellant requested a stage 2 internal review of the stage 1 grievance decision and an internal review decision ('the decision') was subsequently made by Ms Barbara Phillips, Deputy Director-General, Corporate Services Division and COVID-19 Supply Chain Surety Division and provided to the Appellant on 15 March 2022.
- [8]By appeal notice filed on 4 April 2022, the Appellant, pursuant to ch 7 of the Public Service Act 2008 (Qld), appealed against the internal review decision of Ms Phillips dated 15 March 2022.
Appeal principles
- [9]The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [10]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision of Ms Phillips dated 15 March 2022 was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
Relevant provisions of the Directive
- [11]Clause 9.2 of the Directive provides for stage 2 internal review of a local action decision:
9.2 Stage 2–internal review
- (a)If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
…
- (d)An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
- (e)If the chief executive or delegate is satisfied that:
- (i)the reasons for seeking an internal review are insufficient
- (ii)the request for internal review is frivolous or vexatious, or
- (iii)the employee has unreasonably refused to participate in local action to resolve the individual employee grievance
the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).
- (f)A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
- (i)the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
- (ii)where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.
…
- (h)At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
- (i)outline the action taken to review the decision made through local action
- (ii)outline the reasons for the decision, or the decision to take no further action
- (iii)outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
- (iv)outline any avenues of external review that may be available to the employee, including any relevant timeframes.
- [12]Clause 9.3 of the Directive provides for stage 3 external review:
9.3 Stage 3–external review
- (a)If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include:
- (i)a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act
…
Grounds of appeal
- [13]The Appellant did not outline any reasons for the appeal.
Appellant's submissions
- [14]The Appellant did not file any submissions in support of the appeal or in response to the Respondent's submissions in accordance with the directions order issued to parties.
Respondent's submissions
- [15]The Respondent submits that both the stage 1 and stage 2 decisions are compliant with the requirements of cls 9.1 and 9.2 of the Directive respectively and that the management of the Appellant's grievance was fair and reasonable. In support, the Respondent submits, in summary, that:
- (a)a summary of the issues/themes identified during the assessment of the stage 1 grievance was provided to the Appellant on 22 July 2021 and the Appellant had ample opportunity to clarify the issues in her stage 1 grievance;
- (b)the decision provided more details of the information regarding training which supported the stage 1 decision that the Appellant has a comprehensive training and support plan in place, including different styles of training and support systems were provided, and input from the Appellant was actively sought;
- (c)the decision confirmed that staff were genuinely trying to provide reassurance; and
- (d)both the stage 1 decision and the decision were made based on the balance of probability and were supported by evidence. The conclusions made were open to the delegate and were fair and reasonable in the circumstances.
Consideration
- [16]Consideration of an appeal of this kind would normally require a review of the decision to determine if the decision was fair and reasonable.
- [17]There are a number of difficulties with this appeal. Firstly, the appeal notice required the Appellant to state the reason for the appeal. The Appellant did not outline the basis for the appeal or provide any reasons as to why the decision was being appealed. Part C of the appeal notice was left entirely blank. The Appellant indicated in Part B of the appeal notice that she was seeking an extension of time to lodge the appeal as it was filed beyond the 21 day time limitation following her receipt of the decision. It is not clear why an extension was sought as the decision is dated 15 March 2022 and the appeal was filed on 4 April 2022, being within the 21 day time period. The following reason was provided in Part B as to why the Appellant states that the appeal was not lodged within the 21 day time frame:
I am still in communication with my Union. They are looking into my appeal process and outcome. I will need more time to gather more information and seek advice on how to proceed. I am also seeking more clarification from my employer in regards to the outcome of the internal review and the options available for my return to work at Queensland Health.
Because of the above, I am requesting an extension of time to lodge my public service appeal as I need more time to re-evaluate my situation and options before making my decision about future plans.
- [18]The Commission issued a directions order on 6 April 2022, directing the Appellant to file and serve written submissions by 27 April 2022. The Appellant did not comply with the directions order and did not request an extension of time to file submissions. An email was sent to the Appellant inquiring as to the status of the submissions and providing a further date of 29 April 2022 by which submissions were to be filed. No response was received to the email and no submissions were filed by the Appellant.
- [19]The Respondent filed submissions in accordance with the directions on 18 May 2022, noting they had not received submissions from the Appellant. The Respondent was at a distinct disadvantage in this matter in having to provide submissions without the benefit of knowing the Appellant's grounds for appeal or having access to submissions to which they could respond. Accordingly, the Respondent's submissions simply outline their position that the decision was compliant with cl 9.2(h) the Directive.
- [20]Whilst the decision to file the appeal without grounds on the day before the time period exhausted is perhaps understandable, no communication has been received from the Appellant since the appeal was filed and directions order issued and no response was received from the subsequent email from the Commission.
- [21]Section 562A(3)(b)(ii) of the IR Act provides that the Commission may decide it will not hear a public service appeal against a decision in circumstances where the appeal is misconceived or lacks substance.
- [22]In consideration of the failure to provide grounds for the appeal along with the non‑compliance with the directions order, I am of the view that this matter should not be heard on the basis that it lacks substance in accordance with s 562A(3)(b)(ii) of the IR Act
- [23]For the foregoing reasons, I have determined that this appeal not be heard pursuant to s 562A(3)(b)(ii) of the IR Act.
Order
- [24]I make the following order:
I decline to hear the appeal pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld).
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[2] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
[4] IR Act s 562B(3).