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  4. Hegazy v State of Queensland (Department of Education) - [2023] QIRC 16

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Hegazy v State of Queensland (Department of Education)[2023] QIRC 16

Hegazy v State of Queensland (Department of Education)[2023] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hegazy v State of Queensland (Department of Education) [2023] QIRC 016

PARTIES:

Hegazy, Hind

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/910

PROCEEDING:

Public Service Appeal – Appointment to position at higher classification

DELIVERED ON:

20 January 2023

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. The appeal is dismissed for want of jurisdiction.

CATCHWORDS:

PUBLIC SERVICE – APPEAL – application for permanent employment at higher classification – no decision made by department's chief executive within 28 days of the request – chief executive taken to have decided not to offer to appoint appellant to the higher classification position – appeal against decision – appeal filed out of time – where department raises jurisdictional objections – where appellant has been acting in the position for 17 months at the time of the appeal being filed – where department contends the appeal should not be heard out of time – where appellant contends appeal should be heard out of time – appeal dismissed for want of jurisdiction

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 562A, 562B, 562C, 564

Public Service Act 2008 (Qld) ss 149C, 194, 195

Directive 13/20 Appointing a public service employee to a higher classification level position

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 013

Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Background

  1. [1]
    Dr Hind Hegazy ('Dr Hegazy') is employed by the State of Queensland, Department of Education ('the Department') substantively in a permanent full-time role as Experienced Senior Teacher at Woodridge State High School.
  1. [2]
    From 6 October 2015 until 19 January 2021 Dr Hegazy was performing duties in a higher classification of 'Heads of Program – (Stream 2)' a 'Head of Department' role within the First Nations Strategy and Partnerships organisational unit in the Central Office ('the previous role').
  1. [3]
    The classification level for the previous role changed (effective 21 January 2021) and from that time Dr Hegazy commenced performing duties in the higher classification level of 'School Leaders – (Stream 3)' a 'Deputy Principal' role within the First Nations Strategy and Partnerships organisational unit in the Central Office ('the higher classification position').
  1. [4]
    On 12 May 2022, Dr Hegazy requested to be appointed to the higher classification position. The request was acknowledged by the Department on the same day by reply email. Relevantly, the acknowledgement email states:

…

Please note a decision must be made within 28 calendar days after your request was made. The Department is currently giving consideration to your request in accordance with the PS Act and the directive.

I wish to advise, however that if a decision is not made and sent to you in writing on or before 9 June 2022 the decision maker is taken to have refused the request to be appointed to the higher classification level position (a Deemed Decision). Please note you will not receive any further notification in this case.

If a Deemed Conversion Decision is made you might be entitled to lodge an appeal to the Industrial Registry of the Queensland Industrial Relations Commission, depending on your particular circumstances. An appeal must be lodged by completing Form 89 – Appeal Notice – Public Service Act 2008 within 21 days after the Deemed Decision was made.

…

  1. [5]
    In 'early June' 2022 Dr Hegazy contacted the Human Resources department to enquire about her application for permanent appointment at the higher classification. According to Dr Hegazy she was informed it was a 'deemed decision'. Despite having been informed of this possible contingency (and her respective rights) in the email from the Department on 12 May 2022, Dr Hegazy then proceeded to pursue various other lines of inquiry throughout the Department rather than immediately file an appeal.
  1. [6]
    It appears uncontroversial from the parties submissions that on 9 June 2022 Dr Hegazy had not received a response from the Department within the prescribed 28-day period under the Public Service Act 2008 (Qld) ('the PS Act'). Accordingly, pursuant to s 149C(6) of the PS Act the chief executive is taken to have made a deemed decision not to permanently appoint Dr Hegazy to the higher classification position.[1]
  1. [7]
    On 20 September 2022, having exhausted her inquiries for 'paperwork' without success, Dr Hegazy filed this appeal ostensibly against the deemed decision to refuse to permanently appoint her to the higher classification.

Nature of appeal

  1. [8]
    Under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the role of the Commission is to review the decision appealed against.[2] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[3]
  1. [9]
    An appeal under Chapter 11 of the IR Act is not a rehearing of the matter.[4] It is a review of the decision and the decision-making process.[5]  The issue for my determination in the matter before me is whether the deemed decision to refuse to convert Dr Hegazy's employment to the higher classification position was fair and reasonable.[6]

What decisions can the Industrial Commissioner make?

  1. [10]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    …
  1. (c)
    for another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.             
  1. [11]
    Further, s 564 of the IR Act requires an appellant to file their appeal within 21 days of the date of the decision.

Relevant provisions

  1. [12]
    Section 149C of the PS Act provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee –
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

…

  1. (3)
    The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after –
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).

…

(4A)  In making the decision, the department's chief executive must have regard to –

  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.

…

  1. (6)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.

…

  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.

(Emphasis added)

  1. [13]
    Section 194(1)(e) of the PS Act provides an appeal may be made against a conversion decision:

 (iii)  under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.

  1. [14]
    Section 195(1) of the PS Act also provides a person cannot appeal against:
  1. (i)
    A decision under s 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years.
  1. [15]
    Section 564 of the IR Act provides:
  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (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.
  1. (3)
    In this section –

appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after –

  1. (a)
    if the decision is given at a hearing – the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar – the release of the decision; or
  1. (c)
    if the decision is a promotion decision – the decision is publicly notified under the Public Service Act 2008; or
  1. (d)
    if, under another Act, the decision is given in another way – the decision is given in the other way.

(Emphasis added)

Submissions of the parties

  1. [16]
    The parties filed written submissions in accordance with a Directions Order dated 24 September 2022.

Submissions of the Department

  1. [17]
    The Department submits to appropriately respond to the appeal the following jurisdictional questions should be determined:
  1. Can the deemed conversion decision be appealed?
  1. If so, should the appeal be heard out of time?
  1. [18]
    The Department contends if the Commission determines the above questions in the affirmative, further directions should be issued to address the fairness and reasonableness of the deemed decision. The Department's submissions address the jurisdictional questions, and do not provide any submissions as to the fairness and reasonableness of the deemed decision.
  1. [19]
    The Department's submissions provide the following comments in relation to the Appeal Notice:
  • The deemed decision was a conversion decision pursuant to s 149C of the PS Act;
  • Dr Hegazy's contract expires on 11 December 2022; and
  • The appeal was not lodged within 21 days after the deemed conversion decision.
  1. [20]
    The Department makes the following submission in relation to section 149C of the PS Act and directive:[7]
  1. In Schoch v State of Queensland, McLennan IC considered matters in this space, noting and opining the following:
  • in Holcombe, it was found that section 149C and Directive 13/20 create a legislative framework whereby a person is considered for permanent conversion to the particular position which they occupy at the time of requesting the review;
  • 'the higher classification level' refers to a single higher classification level, rather than multiple levels. A person must perform at that level for the requisite period, in the same role, in order to meet the requirements of continuous service under section 149C; and
  • the meaning of 'continuous period' in section 194(1)(e)(iii) of the PS Act should be afforded the meaning from section 149C, which adopts the definition from Directive 13/20.
  1. In other words, in order to be able to appeal a decision under 149C, an employee's service must be at the (singular) higher classification level in the same role for at least 2 years.
  1. Relevantly, the Appellant had been acting in the higher classification level of School Leaders – (Stream 3) since 21 January 2021 - which was around 17 months at the time the Deemed Conversion Decision was made on 9 June 2022 - which is less than 2 years.
  1. The Appellant states that she was doing the same responsibilities managing the program but as HOD since 2014. However, the classification level changed on 21 January 2021.
  1. Accordingly, the Deemed Conversion Decision cannot be appealed.
  1. [21]
    The Department submits that alternatively, if the deemed conversion decision can be appealed, it should not be heard out of time. The Department provides the following reasons:
  • The deemed decision was made on 9 June 2022. The last day Dr Hegazy could have lodged an appeal within the statutory timeframe was by 30 June 2022. The Appeal Notice was filed in the Industrial Registry on 20 September 2022. Accordingly, the appeal is 82 days out of time, which the Department submits was an unreasonable delay.
  • The Department submits that Dr Hegazy was aware of her ability to lodge an appeal in the 21 day period, however she proceeded to labour under the misconception that obtaining written confirmation from HR would trigger the 28 day decision timeframe and 21 day appeal timeframe. The Department submits there is no adequate explanation for the delay.
  • A long delay is considered to give rise to a presumption of prejudice to a respondent.[8] The Department submits they will suffer prejudice if the Commission hears the appeal out of time.
  • The Department notes the acknowledgement email, which Dr Hegazy confirms she received, provided the following relevant information to understand and comply with any appeal rights:
  1. On 9 June 2022 a deemed decision may be made by the effluxion of time, and if this occurs she would not receive further notification;
  1. Dr Hegazy may be able to appeal the decision and may wish to seek independent industrial advice on her particular circumstances before commencing an appeal; and
  1. An appeal is lodged by completing and filing a Form 89 with the Industrial Registry within 21 days after the deemed decision.
  1. [22]
    The Department contends that Dr Hegazy's appointment to the higher classification position is not viable or appropriate, given the Respondent intends such appointments to be temporary with the view of incumbents returning to a school-based position.
  1. [23]
    The Department submits the Commission ought to dismiss the Appeal pursuant to section 562A(3)(b) of the IR Act on the basis the Appeal is misconceived, because the deemed decision cannot be appealed, or should not be heard for another compelling reason, such as for want of jurisdiction.
  1. [24]
    The Department also submits the Commission should not allow the appeal to be heard out of time, and on that basis the appeal should be dismissed.

Submissions of Dr Hegazy

  1. [25]
    Dr Hegazy notes she received no reasons for the decision not to convert her employment and questions the transparency in relation to the decision. She also raises concerns about prejudice and bias in the decision-making process.
  1. [26]
    Dr Hegazy submits she has been specifically employed to manage the Solid Pathways Program to fulfil the outcomes specified within the Aboriginal and Torres Strait Islander Education and Training: An Action Plan for Queensland (2017). She contends she has continued to manage and expand the program.
  2. [27]
    Dr Hegazy submits the plan stipulates to 'continue and expand the Solid pathways program' which indicates a need for ongoing responsibilities and implies a requirement for permanency. She also contends there is a genuine operational need for the position as the Solid Pathways Program has permanent deliverables. She notes she has worked in the Solid Pathways Program for seven years. She also submits she meets the merit criteria in the PS Act.
  1. [28]
    Dr Hegazy cites the 2019 independent review 'A Fair and Responsive Public Service for All – Independent Review of Queensland's public sector employment laws' and submits the recommendations need to be considered and implemented into the decision-making process. She submits it would be unfair and unreasonable for the Commission to find the deemed decision was fair and reasonable due to her eligibility, professionalism, experience and contribution to the Solid Pathways Program.
  1. [29]
    In response to the jurisdictional objection raised by the Department, Dr Hegazy submits her classification was changed from head of department to deputy principal in 2021 to more accurately reflect the work she was undertaking. She thus submits she meets the requirements in s 149C of the PS Act as there is a continuing need for her to be employed in a role that is 'substantially the same' as her previous role.
  1. [30]
    Dr Hegazy contends she has been performing in essence, the same role for seven years. She submits that she was never told at any point in her employment that she would return to a school-based position, and the key priority of her role is to continue and expand the Solid Pathways Program which she submits inherently implies the role is not temporary.
  1. [31]
    In addressing the Department's submission in relation to the appeal being filed out of time, Dr Hegazy requests that the Commission hears her appeal out of time because she had unclear communications from the Human Resources Department. She says she received mixed messages, and only verbal communication. She also submits she is not familiar with Industrial Relations processes and contends the Department will not be prejudiced if the appeal is heard out of time because of their expertise and access to internal legal advice.
  1. [32]
    Dr Hegazy closes her submissions by contending she has demonstrated the ways in which the justice of her case meets the requirements for an indulgence of an extension of time to file the appeal, as the deemed decision was not fair or reasonable. She submits the Department failed to establish that their operational requirements form a reasonable basis not to convert her to the position at the higher classification.

Reply submissions of the Department

  1. [33]
    The Department maintains that the approach in their submissions filed on 19 October 2022 should be adopted by the Commission to dispose of the appeal.
  1. [34]
    The Department submits the key relevant industrial provisions are those contained within s 149C of the PS Act and the directive, and submit that Dr Hegazy's references to other instruments, documents and other sections of the PS Act are not relevant in the circumstances.
  1. [35]
    The Department agrees that Dr Hegazy's classification changed in January 2021, however, disagrees that the head of department and deputy principal positions are the same role.
  1. [36]
    The Department confirms the reason the decision was deemed is that their centralised decision maker did not receive the required information from the First Nations Strategy and Partnerships organisational unit to make an active written decision before the 28 day deadline lapsed.
  1. [37]
    In response to Dr Hegazy's contentions about unclear communications from the Department, the Department submits the written communication provided to Dr Hegazy on 12 May 2022 should take primacy. The Department notes Dr Hegazy ignores her receipt of the clear information contained in the acknowledgement email which is designed to assist employees in knowing their appeal rights and timeframes.
  1. [38]
    The Department submits that the other reasons for the delay in filing the Appeal as cited by the appellant are no different to those faced by the majority of appellants who start their appeal within the correct timeframe.
  1. [39]
    The Department disagrees with Dr Hegazy's claim that the justice of the case overcomes the delay in the filing of her appeal.
  1. [40]
    In addressing the concept of a deemed decision, the Department notes a deemed decision is a legitimate and permissible option under the legislation and the mandatory components of a written decision do not apply to a deemed decision.[9]
  1. [41]
    The Department also notes they do not dispute that Dr Hegazy was eligible for appointment, having regard to the merit principle.
  1. [42]
    In response to Dr Hegazy's points regarding the action plan, they note the statement she relies on being 'continue and expand the Solid Pathways Program for high performing students' was in a draft action plan and was not included in the final action plan.
  1. [43]
    In response to Dr Hegazy's claimed lack of awareness of the Department's proposition that appointments such as hers should be temporary in nature with the view of the incumbent returning to a school based position, the Department notes Dr Hegazy's email of 16 August 2022 in which she stated, 'I understand that as a school staff I am not eligible for corporate permanency, I am however applying for permanency at a higher duty level, so that when and if I go back to school, I am at a DP level'.

Consideration

Was there a deemed decision?

  1. [44]
    The uncontroversial fact of this matter is that on 12 May 2022 Dr Hegazy applied pursuant to s 149C of the PS Act to be permanently appointed to employment at the higher classification at which she was working. Whether she was entitled to make such application given the recent change to the title and classification of the role is a matter that goes to the merits of her application and will be addressed later in these reasons.
  1. [45]
    Equally uncontroversial are the facts that (also on 12 May 2022) the Department confirmed receipt of Dr Hegazy's application and expressly informed her of the prospect of a deemed decision and also:
  • informed her of her rights to appeal such deemed decision; and
  • the jurisdiction where she could file that appeal; and
  • provided her with a link to an electronic version of the Appeal Notice; and
  • explicitly referred to the 21-day time limit for the filing of the appeal. 
  1. [46]
    According to Dr Hegazy she called the Department's human resources office 'sometime in early June' 2022 to follow up on a decision about her application for permanent appointment. In her own account of events Dr Hegazy confirms she was told there was a deemed decision.
  1. [47]
    The plain words of s 149C(6) of the PS Act provide that if the chief executive does not make decision in response to a request pursuant to s 149C within the required period (28 days) then the chief executive is taken to have refused the request.
  1. [48]
    There is no evidence or suggestion that Dr Hegazy was misled by any response she received from the various officers of the Department to whom she spoke between May and August 2022. On the contrary, her first enquiry informed her that a deemed decision had occurred. If there was any confusion about this, it was all Dr Hegazy's.
  1. [49]
    Clearly a deemed decision was made in response to Dr Hegazy's request for permanent appointment at the higher classification.

Is an appeal of the deemed decision out of time?

  1. [50]
    Dr Hegazy filed her appeal on 20 September 2022. It would appear that Dr Hegazy has inadvertently filled in the portion of the Appeal Notice relevant to appeals against promotion decisions. When one has regard to the content of her Appeal Notice and her request for permanent appointment pursuant to s 149C it is clear she seeks to appeal the deemed decision made in response to her request of 12 May 2022.
  2. [51]
    Given the request to be permanently appointed was made on 12 May 2022, by plain operation of s 149C(6) of the PS Act, the deemed decision occurred on 9 June 2022. Nothing in the language of s 149C of the PS Act confers any discretion of the chief executive to vary this timeframe or allows the parties to agree to extend it. Further, there is no allegation or evidence that the actions of the Department between June and September 2022 expressly or impliedly waived the time limit for either making a decision or filing an appeal against a decision.
  1. [52]
    Accordingly, an appeal against the deemed decision was required to be filed by 30 June 2022.[10] In those circumstances Dr Hegazy's appeal filed on 20 September 2022 was filed 82 days beyond the prescribed time limit.

Should leave be granted for the appeal to be heard out of time?

  1. [53]
    There are well traversed considerations to which the Commission must turn its mind when determining whether to allow a matter filed outside the prescribed time limit to be heard.[11] The length of the delay, the explanation for the delay, the respective prejudice to each party and the merits of the matter form the ingredients for an holistic consideration as to whether leave ought to be granted.
  1. (i)
    Length of delay and prejudice
  1. [54]
    The length of the delay is 82 days (almost 3 months). This is not an insignificant period. The prejudice to each party, depending on how the discretion is exercised, is also significant.
  1. [55]
    On the one hand, Dr Hegazy will be denied an opportunity to have the Commission review the decision and potentially overturn it. On the other hand, the Department will be deprived of the certainty and finality they are entitled to have following Dr Hegazy's failure to challenge the deemed decision. This prejudice is aggravated by the length of the delay and the fact that the Department went to great lengths to ensure Dr Hegazy knew her appeal rights.
  1. (ii)
    Explanation for the delay
  1. [56]
    The submissions filed by Dr Hegazy make a number of assertions, all of which seek to displace her personal responsibility for the failure to file on time. Dr Hegazy asserts that communications were 'unclear' and that she received 'mixed messages'. She further asserts that she is not familiar with the 'IR process' and that she found it difficult to relate the 'generic HR information' available to her to her 'unique and complex' employment.
  1. [57]
    Dr Hegazy fails entirely to acknowledge the effect of the email she received from the Department on 12 May 2022 that explicitly spelled out the possibility of a deemed decision, the avenues of appeal and even forearmed her with an Appeal Notice to fill in if she so desired. The Department's communication with Dr Hegazy goes well beyond affording Dr Hegazy procedural fairness. It is difficult to identify what more the Department could have done to ensure that Dr Hegazy was aware of her rights.
  1. [58]
    But beyond these efforts by the Department, on her own account of events, Dr Hegazy confirms she was advised as early as 'early June' that there had been a deemed decision. Dr Hegazy offers no plausible explanation why, after being so informed, she then embarked on a series of further inquiries around the Department over many weeks, rather than file an appeal.
  1. [59]
    I reject the suggestion from Dr Hegazy that she received 'mixed messages' from her work unit. To the extent her inquiries may have met with unhelpful responses, these occurred in the context of the preceding clear instruction of her rights to appeal and having been clearly informed (in June) that a deemed decision had been made. 
  1. [60]
    I find the explanation by Dr Hegazy to be wholly unsatisfactory and unworthy of any sympathetic consideration. However, it remains necessary to consider the merits of Dr Hegazy's appeal in order to properly consider the exercise of my discretion.
  1. (iii)
    Merits of the appeal
  1. [61]
    In the context of considering whether to grant leave to commence or pursue proceedings out of time it is often not necessary to comprehensively evaluate the merits. Often a lack or abundance of merit will be obvious.
  1. [62]
    In this instance it is sufficient to observe that Dr Hegazy is quite clearly barred from appealing the deemed decision by virtue of s 195(1)(j) of the PS Act which relevantly provides:

A person cannot appeal against any of the following decisions –

…

(j) a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years;

(Emphasis added)

  1. [63]
    The previous role performed by Dr Hegazy from 2015 to 19 January 2022 was classified as 'Stream 2'. In addition to a new title, the role performed by Dr Hegazy was subsequently reclassified as 'Stream 3'. This reclassification took effect from 21 January 2021 and it was from this date that Dr Hegazy commenced acting at 'the' higher classification relevant to both her request for permanent appointment and more importantly, for the purposes of s 195(1)(j) of the PS Act.
  1. [64]
    It is ultimately irrelevant whether Dr Hegazy has effectively been performing the same job since 2015 or that she previously worked at 'a' higher classification from 2015. What is critical in this matter is that the classification of the role was changed as and from 21 January 2021, and that is the date from which Dr Hegazy commenced acting at 'the' higher classification relevant to s 195(1)(j) of the PS Act.
  1. [65]
    At the time of her request for permanent appointment on 12 May 2022, Dr Hegazy had been acting in the newly reclassified 'Stream 3' classification for a total of approximately 16 months i.e. well short of the 2 year threshold for an appeal prescribed by s 195(1)(j).    

Out of time consideration - summary

  1. [66]
    Having regard to all of the relevant considerations I am not persuaded that Dr Hegazy should have leave to proceed with her appeal. While I accept that this decision will prejudice her, I consider that the prejudice likely to impact each party is, more or less, equal.
  1. [67]
    More importantly, Dr Hegazy has offered no satisfactory explanation for her delay in filing in circumstances where the Department went to extraordinary lengths to ensure she was aware of her rights. Quite apart from that, there is the additional issue of the unquestionable jurisdictional barrier in s 195 of the PS Act that extinguishes any merit in Dr Hegazy's appeal.
  1. [68]
    In all of those circumstances, as the appeal is filed out of time, the Commission does not have jurisdiction to deal with it.

Section 562A(3)

  1. [69]
    The Department submits in the alternative to declining to exercise the discretion to hear the appeal out of time that the Commission ought to dismiss the appeal pursuant to s 562A(3)(b) of the IR Act because the appeal is inter alia misconceived.
  1. [70]
    For all of the reasons set out above I agree with this characterisation of the appeal however, s 562A(3) expressly requires the Commission to ask an appellant to establish though submissions that they have an arguable case before the discretion can be exercised. 
  1. [71]
    While Dr Hegazy has been put on notice of the Department's invitation to the Commission to exercise the discretion found in s 562A(3), and while Dr Hegazy has wholly failed to respond to the assertions that her appeal is misconceived, I feel unable to exercise the discretion at this time.
  1. [72]
    Section 562A(3) expressly requires the Commission to ask an appellant to (in essence) convince the Commission they have an arguable case. It is not the case that a respondent can simply invite the exercise of the discretion in s 562A(3) or that the Commission can exercise it unilaterally upon forming a view about the viability of an appellant's case.
  1. [73]
    While I consider that Dr Hegazy's appeal would be a strong contender to be dismissed pursuant to s 562A(3), there is no utility in asking her to make the requisite submissions given the conclusions reached above.
  1. [74]
    I note also that, assuming Dr Hegazy has remained acting in the ‘Stream 3’ classification throughout 2022, she will have served 2 years continuously on 21 January 2023. Assuming Dr Hegazy is eligible to make an application for permanent appointment within days of the date of the release of this decision, I would consider that to be an additional compelling reason within the meaning of s 562A(3) not to hear her appeal although, for the reasons set out immediately above, it is unnecessary for me to take the necessary steps to exercise that discretion.

Order

  1. [75]
    In the circumstances I make the following order:
  1. The appeal is dismissed for want of jurisdiction.

Footnotes

[1] Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.3; Public Service Act 2008 (Qld) 149C(6).

[2] Industrial Relations Act 2016 (Qld) s 562B.

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[4] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[5] Ibid.

[6] Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[7] Citations omitted.

[8] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

[9] Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 013, 51-55.

[10] Industrial Relations Act 2016 (Qld) s 564.

[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

Close

Editorial Notes

  • Published Case Name:

    Hegazy v State of Queensland (Department of Education)

  • Shortened Case Name:

    Hegazy v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 16

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    20 Jan 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 13
2 citations
Jump To
Cite 1 - [2021] QIRC 13
Cite 2 - [2021] QIRC 13
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Gomez v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 1902 citations
Hegazy v State of Queensland (Department of Education) [2023] QIRC 1141 citation
1

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