Reid v State of Queensland (Queensland Health)
[2022] QIRC 484
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- Unreported Judgment
- Reid v State of Queensland (Queensland Health)[2022] QIRC 484
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Reid v State of Queensland (Queensland Health)[2022] QIRC 484
Reid v State of Queensland (Queensland Health)[2022] QIRC 484
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Reid v State of Queensland (Queensland Health) [2022] QIRC 484 |
PARTIES: | Reid, Suzanne (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/983 |
PROCEEDING: | Public Service Appeal |
DELIVERED ON: | 14 December 2022 |
HEARD AT: | On the papers |
MEMBER: | McLennan IC |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – decision to not convert appellant to permanent employment – where appellant filed appeal out of time – where directions order issued requiring submissions on why the appeal should be heard out of time – where appellant failed to comply with directions order – whether timeframe for appeal should be extended – where delay is significant – where appellant did not provide an adequate explanation for delay – consideration of prejudice |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 564 Public Service Act 2008 (Qld) s 149B |
CASES: | Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 House v The King (1936) 55 CLR 499 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 23 Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189 |
Reasons for Decision
Introduction
- [1]Miss Suzanne Reid (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as an Assistant Finance Officer.[1]
- [2]The Appellant is a fixed term temporary public service employee - her current contract expires on 15 December 2022.[2]
- [3]On 11 November 2022, the Appellant filed an appeal against the decision not to convert her temporary employment status to permanent pursuant to s 149B of the Public Service Act 2008 (Qld) (the PS Act).[3] The appealed decision was conveyed in undated correspondence from Ms Kristy Frost, Executive Director of the Quarantine Fee Recovery Program (the Decision).
- [4]The Appellant received the Decision on 25 July 2022.[4]
- [5]The Appellant applies for an extension of time to lodge her appeal after 5:00pm on the 21st day after she was given the Decision, submitting:
When I originally received the response to my application for conversion it stated that the unit was a temporary unit and the role was no longer required. I accepted the decision. I have recently been informed that two staff within the same temporary unit have been made permanent.[5]
Jurisdiction
Timeframe to appeal
- [6]The Industrial Relations Act 2016 (Qld) (the IR Act) requires that an Appeal Notice be lodged within 21 days after the decision appealed against is given.[6]
- [7]Although it is not apparent when the Decision was given to the Appellant - the Decision was received by the Appellant on 25 July 2022.
- [8]Assuming the Appellant was given the Decision no later than the date she received it on 25 July 2022, the deadline for filing the Appeal Notice was 15 August 2022.
- [9]The Appellant filed the Appeal Notice with the Industrial Registry on 11 November 2022. That is, 88 days out of time.
- [10]
Should time for filing be extended?
- [11]The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal notice is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[8]
- [12]The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[9] In that regard, I note the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.[10]
- [13]
- 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.
- [14]
- the 21-day time limit must be respected and should not easily be dispensed with; and
- the Appellant's prospects of success at a substantive hearing are always a relevant matter where it appears an Appellant has no, or very limited, prospects of success. In that instance, the Commission would not normally grant an extension of time.
- [15]Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case - that is, what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion.
- [16]Additionally, my discretion is informed by the purpose of the PS Act, including promoting the effectiveness and efficiency of government entities.[14] In that regard, I am guided by the commentary of French CJ in Aon Risk Services Australia Limited v Australian National University:
Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification.[15]
- [17]I will now consider the circumstances in this matter against the abovementioned factors to determine whether I should exercise my discretion to hear this Appeal out of time.
Length of delay
- [18]The Appeal Notice was filed 88 days out of time.
- [19]The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act and I note the existence of a time limit for appeal was generally referred to in the Decision.
- [20]The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[16] It is true that in some cases delays of several weeks have been considered to be not excessive.[17] However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like. There is no evidence that is the case here.
- [21]In conjunction with the reasons that follow, I find that a delay of 88 days is significant and unreasonable in these circumstances.
Explanation for the delay
- [22]In the Directions Order issued 16 November 2022, the Appellant was directed to file and serve written submissions "addressing whether the Appeal should be heard out of time" by 4:00pm on 22 November 2022.
- [23]In the cover email that attached the Directions Order, the Appellant was advised the following:
As Ms Reid has acknowledged her Public Service Appeal was filed many months late, Commissioner McLennan has determined to hear this matter in two parts. The first decision will concern whether or not the appeal should be heard "out of time". In the event Commissioner McLennan determines that it should be heard out of time, the parties would then be asked to make submissions on whether Ms Reid’s temporary employment status ought to have been converted to permanent.
With respect to the first question only, please find attached a Directions Order inviting the parties to file written submissions on whether or not the appeal should be heard out of time. Ms Reid, for your reference, the criteria used to consider this issue is:
- Length of the delay;
- Explanation for the delay;
- Prejudice to the Appellant if extension of time is not granted;
- Prejudice to the Respondent if extension of time is granted; and
- Any relevant conduct of the Respondent.
- [24]Out of fairness to the Appellant I included that note to inform her that I would be considering whether to hear the Appeal out of time and to outline the factors that I would be taking into account. The Appellant was afforded the opportunity to present submissions in this regard, but for an unexplained reason she did not comply with the Directions Order.
- [25]The reason offered by the Appellant was only very briefly touched upon in her Appeal Notice – namely, she had recently been informed that two staff members within the same temporary unit have been made permanent. I note firstly that the Appellant was working as a "Data Officer" but the other two staff members are "advisors". Further, decisions of this type are made on a case-by-case basis and therefore a decision made with respect to a person working in a different role is not necessarily analogous to the Appellant's circumstances. On that basis, I am not persuaded that the Appellant's reason for delay warrants the granting of an extension of time – particularly when the Appellant has failed to elaborate on reasons for why that discretion should be exercised.
- [26]The 21-day time period for an Appeal Notice to be filed has been legislated and in the absence of a compelling reason for the delay I will not extend the time for filing. The Appellant has failed to offer an adequate explanation or justification for the delay.
- [27]The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[18] The Appellant has not discharged that onus.
Conduct of the Respondent
- [28]Through the Decision, the Respondent advised the Appellant of her appeal rights including general reference to time limits:
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.
- [29]That the Appellant ultimately elected not to file an appeal at that time before changing her mind some months later is certainly regrettable but not a sufficient or compelling reason to dispense with the legislative timeframes for filing an appeal. Further, it is not the fault of the Respondent.
- [30]The Respondent's advice of the existence of a time limit supports the proposition that the length of the delay was unreasonable, and that a failure to adequately explain the delay is unacceptable.[19]
Prospects of success
- [31]An Appellant's prospects of success at a substantive hearing is a relevant consideration.[20] I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):
In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[21]
- [32]The entirety of the Appellant's submissions in support of setting the Decision aside is reproduced below:
I accepted the decision at the time. But I have recently been informed that two staff who are advisors working in the Quarantine Fee Recovery Program which is a temporary unit have been made permanent.
Therefore, I am requesting a review of my application I understand there are 5 units within the Prevention Division and that there is scope for other roles which are suitable can be found within the division.
As noted below
There is a continuing need for the fixed term temporary employee to be employed in the role in question or there is a continuing need for the fixed term temporary employee to be employed in a role which is the same or substantially the same.
I am currently working as Assistant Finance Officer who is doing data entry for fee waiver approvals which is part of the Quarantine fee process.
- [33]Ultimately, each matter needs to be assessed on its own merits. The Appellant's circumstances would be different to that of her two colleagues. As the Appellant elected not to file further submissions, I am only provided with the above extract to consider and it is difficult to assess the merits of her matter on that submission alone.
- [34]Nevertheless, in totality of the factors considered, I do not consider this to be a matter where an extension of time ought be granted.
Prejudice to the Appellant
- [35]The Appellant will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that she would lose the opportunity for an independent review of the Decision, and any subsequent relief.
- [36]That outcome is of course not an insubstantial detriment to the Appellant, who seeks to appeal a decision to not convert her temporary employment status to permanent.
Prejudice to the Respondent
- [37]
- [38]For those reasons, I find that the Respondent would suffer some prejudice should I decide to exercise my discretion to hear the Appeal out of time.
Conclusion
- [39]The Appellant filed her Appeal Notice 88 days out of time but has not provided a reasonable explanation for that significant delay. Further, the Appellant failed to comply with a Directions Order requiring further elaboration on why the Appeal should be heard out of time.
- [40]There is a suite of relevant considerations in exercising my discretion to hear an appeal out of time. Foremost, I should be satisfied that the Appellant has a reasonable ground for extending the time.
- [41]I have found that the Respondent generally advised the Appellant of her rights of appeal, including reference to the time limit. I am satisfied the Appellant was provided with all the relevant information she required to file this Appeal within time. That she ultimately elected not to do so is unfortunate.
- [42]The reason for the delay is unpersuasive and therefore I have not been presented with an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
- [43]The Appellant will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time. However, if I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant.
- [44]For the reasons above, I find that the Appeal was filed out of time, and there is no reasonable ground to extend the time for filing.
- [45]I have determined not to exercise my discretion under s 564(2) of the IR Act to allow the Appeal to be started within a longer period. On that basis, I dismiss this appeal for want of jurisdiction.
- [46]I order accordingly.
Order:
- The appeal is dismissed for want of jurisdiction.
Footnotes
[1] Appeal Notice, 11 November 2022, 1.
[2] Ibid 3.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Industrial Relations Act 2016 (Qld) s 564(1).
[7] Ibid s 564(2).
[8] House v The King (1936) 55 CLR 499, [2].
[9] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 23; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
[10] (1996) 186 CLR 541, 553.
[11] (1995) 149 QGIG 777.
[12] (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
[13] [2013] QIRC 129.
[14] Public Service Act 2008 (Qld) s 3.
[15] (2009) 239 CLR 175, [30].
[16]Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.
[17] See, eg, Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.
[18] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 23; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
[19] Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.
[20] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
[21] [2010] ICQ 35, [6].
[22] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.
[23] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.