Thompson v State of Queensland (Queensland Health)
[2022] QIRC 74
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- Unreported Judgment
- Thompson v State of Queensland (Queensland Health)[2022] QIRC 74
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Thompson v State of Queensland (Queensland Health)[2022] QIRC 74
Thompson v State of Queensland (Queensland Health)[2022] QIRC 74
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Thompson v State of Queensland (Queensland Health) [2022] QIRC 74 |
PARTIES: | Thompson, Ricky Arthur (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/417 |
PROCEEDING: | Public Service Appeal – appeal against a disciplinary declaration |
DELIVERED ON: | 9 March 2022 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – where appeal notice states appellant is appealing a disciplinary declaration – where appellant's submissions appear to be appealing a direction to undertake alternative duties pursuant to s 137 of the Public Service Act 2008 (Qld) – where respondent raises jurisdictional objections – where appeal filed out of time – where no disciplinary declaration has been made – where no disciplinary decision has been made – whether extension of time should be granted – where extension of time not granted – where appeal dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562A and 564 |
CASES: | A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 |
Reasons for Decision
Introduction
- [1]Mr Ricky Thompson is employed by the State of Queensland (Queensland Health) ('the Department'), as a Personnel Protection Officer at the Logan Hospital within Metro South Health ('MSH').
- [2]Mr Thompson has been employed with the Department since 17 February 2020.
- [3]On 9 July 2021,[1] the MSH chief executive, by written correspondence, directed Mr Thompson to undertake alternative duties effective immediately, pursuant to s 137(3) of the Public Service Act 2008 (Qld) (' the PS Act') ('the Direction'). The Direction was issued following a show cause notice dated 20 August 2021 which put two allegations to Mr Thompson for his response in relation to his alleged conduct during a shift at the Logan Hospital on 21 June 2021.
- [4]The two allegations put to Mr Thompson for his response in the show cause notice were as follows:
Allegation One
On 21 June 2021, you used unreasonable or unnecessary force when you physically restrained patient URN604797 by using an inappropriate and improper hold technique to restrain her.
Allegation Two
On 21 June 2021 between 12:30pm and 12:45pm, you spoke to patient URN604797 in an inappropriate and unprofessional manner.
- [5]Mr Thompson filed a notice of appeal in the Industrial Registry on 6 December 2021, attaching the correspondence of the MSH dated 9 July 2021 and 20 August 2021. From a review of the appeal notice and the submissions of Mr Thompson,[2] it appears Mr Thompson is appealing the Direction. Having regard to the date Mr Thompson received the Direction, namely on 21 July 2021, pursuant to the combined effect of ss 564(1) and 564(3)(d) of the Industrial Relations Act 2016 (Qld) ('the IR Act'), Mr Thompson should have made his appeal on or before 11 August 2021.
- [6]By order of this Commission dated 7 December 2021, the parties were directed to file in the Industrial Registry and serve on each other, written submissions in respect of the appeal. This included a direction for the Appellant to advise whether the appeal had been filed within the time prescribed by the IR Act. Mr Thompson filed written submissions on 14 December 2021, which did not address the issue of whether the appeal was filed out of time and the Department filed its submissions on 20 December 2021. The Department's submissions addressed in some detail the reasons why it contends the appeal was filed out of time. Mr Thompson did not file written submissions in reply.
- [7]Further, on 25 February 2022, the Commission wrote to the parties and invited
Mr Thompson to file any further submissions addressing whether he has an arguable case on appeal by 12 noon on Tuesday, 1 March 2022. No further submissions were filed or received from Mr Thompson in response to this request.
- [8]For the reasons contained herein, I am not persuaded to hear the appeal out of time. Accordingly, the appeal is dismissed.
Jurisdictional objection
- [9]The Department, in its written submissions, raises three jurisdictional objections to the appeal, namely:
- the decision appealed against can not be appealed;
- Mr Thompson has not used the grievance processes required to be used; and
- the appeal has been filed out of time.
- [10]I will deal with the Department's submission that the appeal has been filed out of time first, and then, if necessary, address the Department's other two objections.
Discretion to hear an appeal out of time
- [11]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.
…
- [12]Section 564(2) of the IR Act was considered by President Martin J in the matter of A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations[3] ('A1 Rubber') 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]
- [13]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.
- [14]In the matter of Hunter Valley Developments Pty Ltd v Cohen,[4] 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.
- [15]Accordingly, I will exercise the discretion as provided by s 564(2) of the IR Act, having regard to the above principles.
Length and explanation of the delay and other action taken by Mr Thompson
- [16]Mr Thompson's notice of appeal provides that he received the Direction on 21 July 2021, accordingly, the appeal has been filed approximately 117 days out of time. This, in my view, is a significant period of time.
- [17]As noted above, this Commission issued directions requiring, inter alia, Mr Thompson to file and serve written submissions in support of his appeal, including but not limited to, whether the appeal has been filed within the prescribed time period as provided for in the IR Act.
- [18]Mr Thompson's submissions filed on 14 December 2021 do not address this issue. Further, Mr Thompson does not seek an extension of time for the filing of his appeal.
- [19]The Department relies on a number of authorities[5] in relation to the importance of the application of statutory time limits. In this regard, the Department submits that the delay in the filing of the proceedings is significant, that an extension to legislative timeframes should only be allowed in exceptional circumstances and that Mr Thompson's circumstances do not meet the high standard applied in a test of whether such circumstances are exceptional.
- [20]The Department also submits that Mr Thompson was legally represented at the time he received the show cause notice and the Direction and any delay in filing the appeal can only be attributable to Mr Thompson and his legal representatives at the time.
- [21]In light of the above matters, I am satisfied that Mr Thompson has not provided any explanation for the delay in filing the appeal notice. As noted above, I consider the delay to be significant.
Prejudice
- [22]Neither party has addressed the issue of prejudice.
- [23]However, I accept that the Department will suffer prejudice associated with defending an appeal filed some 117 days out of time.
- [24]Further, it is accepted that Mr Thompson may suffer some prejudice in that he will not be able to appeal the decision, should an extension of time not be granted.
- [25]I consider that both parties would potentially suffer prejudice, depending on whether an extension of time is granted.
Prospects of success
- [26]The Department has raised two additional jurisdictional barriers to the appeal.
- [27]Firstly, the Department submits that the Commission should decline to hear the appeal as it is misconceived pursuant to s 562A(3)(b)(ii) of the IR Act. The Departments submits this on the basis that Mr Thompson's appeal is unclear as the appeal notice provides that he is appealing a disciplinary declaration, however no disciplinary declaration has been made in respect of this matter.
- [28]Further, the Department states that Mr Thompson's written submissions address decisions that the Department has not made and therefore can not be the subject of this appeal, including whether the allegations raised should be substantiated and whether
Mr Thompson should be subjected to disciplinary action.
- [29]Secondly, the Department submits that the Commission should exercise its discretion pursuant to s 562A(1)(a) of the IR Act to not hear the appeal, on the basis that
Mr Thompson has not used the MSH's individual grievance procedures prior to filing an appeal.
- [30]Section 562A(1)(a) of the IR Act provides as follows:
562A Commission may decide not to hear particular public service appeals
- (1)The commission may decide it will only hear an appeal against a decision mentioned in the Public Service Act 2008, section 194(1)(a), (d) or (eb) if the commission is satisfied—
- (a)the appellant has used the procedures required to be used by the employee in relation to the decision under a directive under that Act, including the individual employee grievances directive; and
…
- [31]The Department acknowledges that the appeal has not been filed as a fair treatment appeal but nevertheless contends that the Commission should exercise its discretion not to hear the appeal as a fair treatment appeal. As Mr Thompson failed to make any compelling submissions, or any submissions at all, as to why his appeal should be dealt with as an appeal of a fair treatment decision, I need not consider the matter any further.
- [32]Given that the appeal notice seeks to appeal a disciplinary declaration and no disciplinary declaration has been made, I consider that the appeal has limited prospects of success.
Fairness between the parties
- [33]The parties have not addressed this issue.
Conclusion
- [34]Having considered the matters referred to above, I have determined not to exercise my discretion to extend the period for the filing of the appeal.
Order
- [35]I make the following order:
The appeal is dismissed.
Footnotes
[1] The Appellant did not receive the correspondence until 21 July 2021.
[2] Filed on 14 December 2021.
[3] [2019] ICQ 16.
[4] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.
[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, [553] and Erhardt v Goodman Fielder Food Service Limited (1999) 163 QGIG 20.