Judkins v State of Queensland (Queensland Corrective Services)
[2022] QIRC 494
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- Unreported Judgment
- Judkins v State of Queensland (Queensland Corrective Services)[2022] QIRC 494
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Judkins v State of Queensland (Queensland Corrective Services)[2022] QIRC 494
Judkins v State of Queensland (Queensland Corrective Services)[2022] QIRC 494
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Judkins v State of Queensland (Queensland Corrective Services) [2022] QIRC 494 |
PARTIES: | Judkins, Jason Israel (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO: | PSA/2022/950 |
PROCEEDING: | Public Service Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 22 December 2022 |
MEMBER: HEARD AT: | Hartigan DP On the papers. |
ORDER: | Pursuant to s 562A(3) of the Industrial Relations Act 2016, I decline to hear the appeal. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary penalty decision – where disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 (Qld) – where appellant submits penalty decision is unfair and unreasonable – where appeal is lodged twenty-one (21) days out of time – whether extension of time ought to be granted – consideration of relevant factors – decline to hear the appeal |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 562, s 564 Industrial Relations (Tribunals) Rules 2011 (Qld) r 45 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (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 Jason Israel Judkins is employed by the State of Queensland, Queensland Corrective Services ('the QCS'), as a Custodial Correctional Officer.
- [2]On 1 February 2022, a disciplinary finding decision was made which substantiated the following allegations:
- Allegation 1: On 1 January 2021 at Lotus Glen Correctional Centre (LGCC), you damaged Queensland Corrective Services (QCS) property, namely a computer monitor.
- Allegation 2: On 1 January 2021 at LGCC, you prepared an inaccurate incident report regarding your involvement in incident 297508.
- [3]On 5 April 2022, the QCS determined to impose the following disciplinary penalty ('the original penalty decision'):
- a reduction of remuneration from GS1/7 to GS/1/6 for a period of 12 months. After the 12 month period at which you will be paid at the GS1-6 paypoint has passed, you will return to your substantive GS1/7 paypoint with your progress through that GS1/7 paypoint resuming as from the date immediately prior to this penalty being imposed. Thereafter, your further progression will be in accordance with the Correctional Employees Award – State 2015;
- a reprimand; and
- a direction that you attend a refresher training in the Code of Conduct and the COPD: Incident Management;
effective immediately from the date of receipt of this letter.
- [4]On 8 April 2022, Mr Judkins advised the QCS that the original penalty decision had misclassified his pay point under the Correctional Employees Award – State 2015 ('the Award') and that he was classified at pay point GS1.8 as opposed to pay point GS1.7.
- [5]Between 8 April 2022 and 9 September 2022, Mr Judkins progressed from pay point GS1.8 to pay point GS1.9 under the Award.
- [6]By letter dated 9 September 2022, the QCS advised Mr Judkins that in light of the change to his classification, a decision had been made to revoke the original penalty decision of 8 April 2022 and to impose a new penalty decision ('the new penalty decision'), as follows:
- a reduction of remuneration level from GS1.9 to GS1.8 for a period of 12 months with a pay point progression to be in accordance with the Award (after the 12-month period at which you will be paid at the GS1.8 pay point has passed, it is proposed that you will return to your substantive GS1.9 pay point with your progress through that GS1.9 pay point resuming as from the date immediately prior to the penalty being imposed);
- a reprimand; and
- a direction to attend training in relation to the Code of Conduct and COPD: Incident Management.
- [7]In imposing the new penalty decision, the QCS advised Mr Judkins of the following:
I note that the Former Penalty comprised of a reduction in remuneration of $63 per fortnight, whereas the New Penalty comprises a reduction in remuneration of $53 per fortnight.
- [8]By appeal notice filed in the Industrial Registry on 24 October 2022, Mr Judkins appeals the new penalty decision of the QCS. Mr Judkins relies on the following matters in support of his appeal, as relevantly summarised:
- (a)it took QCS over a year and a half to investigate the allegations;
- (b)the QCS did not consider the submissions raised by Mr Judkins in his defence when making their decision;
- (c)that the new penalty decision is 'manifestly unjust' and unreasonable because it is higher than the original penalty decision; and
- (d)that Mr Judkins would prefer to pay for the costs incurred in repairing the damaged computer monitor on a payment plan.
- [9]The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('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) by the Queensland Industrial Relations Commission.
- [10]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 or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
- [11]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]
- [12]However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard.
- [13]The QCS raise the following two matters for the consideration of the Commission:
- (1)that Mr Judkins' appeal should not be heard as it was filed out of time; and
- (2)that because Mr Judkins has failed to comply with the Directions Note stipulated on the Directions Order issued to the parties on 25 October 2022, it would be open to the Commission to dismiss the appeal. The QCS rely on r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules') in this regard.
- [14]A Directions Order was issued by the Commission on 25 October 2022 in the following terms:
AFTER reading the Appeal in the above matter filed with the Industrial Registry on 24 October 2022, IT IS ORDERED:–
- That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than five pages in length and any relevant attachments) in support of the Appeal, including but not limited to, submissions addressing whether the Appeal has been filed out of time by 4.00 pm on 1 November 2022.
- That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions (of no more than five pages in length and any relevant attachments) in response to the Appellant's submissions by 4.00 pm on 8 November 2022.
- That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) in reply to the submissions of the Respondent, by 4.00 pm on 15 November 2022.
NOTE: If the Respondent makes a submission that the Commission should decline to hear the appeal on the basis that the appeal is frivolous or vexatious, misconceived, or should not be heard for another compelling reason, or raises some other jurisdictional objection, the Appellant is requested to respond to such submissions in its reply submissions, including with respect to whether it has an arguable case for the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016.
- Unless any party files an application for leave to make oral submissions or further written submissions by 12 noon on Friday 18 November 2022 the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld).
Note 1: Strict compliance with the above Orders is required by the parties. Failure to comply with these Orders may result in a proceeding being dismissed or another Order being made which the Commission considers appropriate
- [15]Mr Judkins did not comply with the Directions Order and did not file any submissions in support of the appeal including by addressing whether the appeal had been filed out of time.
- [16]Rule 45 of the Tribunal Rules relevantly provides:
45 Failure to attend or to comply with directions orders:
- (1)This rule applies if—
- (a)a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
- (b)the party fails to attend the hearing or conference.
- (2)This rule also applies if—
- (a)a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
- (b)the party fails to comply with the order.
- (3)The court, commission or registrar may—
- (a)dismiss the proceeding; or
…
Discretion to hear an appeal out of time
- [17]The QCS raise the following jurisdictional objection:
- The Appellant had 21 days from the date of receiving the Second Decision on penalty to file an appeal in the Commission. The Appellant received the Second Decision on Penalty on 12 September 2022, meaning any appeal was due to be filed on or by 3 October 2022.
- The Appeal Notice was filed in the Commission on 24 October 2022, some 21 days after the prescribed time limit had lapsed.
…
- [18]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:
- 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.
…
- [19]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)
…
- [20]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.
- [21]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.
- [22]Prior to determining whether a decision is fair and reasonable, I must, firstly, be satisfied that I have jurisdiction to determine the appeal.
- [23]Accordingly, I will consider whether to 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
- [24]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.
- [25]The length of the delay is twenty-one days beyond the time prescribed by the Act. That is not insignificant in circumstances where Parliament imposed an appeal period of twenty-one days.
- [26]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 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
- [27]The QCS submit that they will not suffer any prejudice from the delay, however they contend that the 'commencement of an action outside that period is prima facie prejudicial to the other party, in this case to the Respondent, who would otherwise have the benefit of the limitation'.
- [28]I consider prejudice to the Respondent to be a neutral consideration in this matter.
Merits of the appeal
- [29]The appeal notice filed by Mr Judkins contends that the new penalty decision is unfair as, with his increase in salary, a reduction in pay point will result in him losing 'roughly' $3,221.00 per annum.
- [30]The QCS submits that it is unclear how Mr Judkins has calculated a reduction in remuneration to equate to $3,221.00.
- [31]The QCS submit that the new penalty decision is more lenient than the original decision and Mr Judkins is $10.70 better off per fortnight under the new penalty decision than he would have been under the original penalty decision. The QCS discloses its calculation in support of its submissions as follows:
- On the Respondent's calculation, the Original Penalty (being a reduction from GS1.7 to GS1.6) represents a reduction in remuneration of $66.80 per fortnight or $1,736,80 per annum; whereas the Penalty (being a reduction from GS1.9 to GS1.8) represented a reduction in remuneration of $56.10 per fortnight or $1,458.60 per annum. We note that the monetary figure in the First Decision on Penalty, being $1,577.33 is incorrect. The Appellant has not been prejudiced by this calculation error, on the basis that the First Decision on penalty was revoked by the Second Decision on Penalty.
- [32]Mr Judkins has not filed submissions disputing the Respondent's particularised submissions. Given the particularised submissions made by the QCS suggesting that the new penalty decision is less financially onerous on Mr Judkins, I consider the appeal has limited merit.
Conclusion
- [33]For these reasons, I refuse to exercise my discretion to hear the appeal filed out of time and I decline to hear the appeal.
Order
- [34]Accordingly, I make the following order:
Pursuant to s 562A(3) of the Industrial Relations Act 2016, I decline to hear the appeal.
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.