Keenan v State of Queensland (Queensland Health)
[2023] QIRC 171
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- Unreported Judgment
- Keenan v State of Queensland (Queensland Health)[2023] QIRC 171
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Keenan v State of Queensland (Queensland Health)[2023] QIRC 171
Keenan v State of Queensland (Queensland Health)[2023] QIRC 171
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Keenan v State of Queensland (Queensland Health) [2023] QIRC 171 |
PARTIES: | Keenan, Christopher (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/80 |
PROCEEDING: | Public Sector Appeal – Appeal against a conversion decision |
DELIVERED ON: | 9 June 2023 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDERS: | The Appellant's application to allow their appeal to be started within a longer period is dismissed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a conversion decision – appeal lodged out of time – whether extension of time should be granted – extension of time refused |
LEGISLATION: | Appeals (Directive 04/23) cl 15 Industrial Relations Act 2016 (Qld) ss 115, 564 |
CASES: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Cullen v State of Queensland (Queensland Health) [2021] QIRC 258 Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344 Redman v State of Queensland (Department of Education) [2023] QIRC 020 Stafford v State of Queensland (Queensland Health) [2022] QIRC 344 Tucker v State of Queensland (Department of Health) [2021] QIRC 145 |
Reasons for Decision
Background
- [1]Mr Christopher Keenan (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) as a Data Collection Coordinator, Statistical Services Branch, classification level AO5.
- [2]Mr Keenan appeals the decision of Ms Trisha Johnston, A/Executive Director, Statistical Services Branch, Healthcare Purchasing and System Performance Division, dated 29 March 2023 to refuse Mr Keenan’s request for conversion of his employment from fixed-term temporary to permanent.
- [3]The Appellant made a written request for conversion on 10 March 2023 and following a review, the Respondent determined not to convert Mr Keenan. In the decision letter, the decision-maker explains that Mr Keenan has demonstrated his suitability for the role. However, Ms Johnston explains that there is only a continuing need for Mr Keenan to perform his current role while the substantive incumbent, who is expected to return to the role, is on secondment.
- [4]The decision-maker elaborates that a review of the Branch and Division has established that there were no other roles that were substantially the same which could be considered at the time of reviewing Mr Keenan’s employment.
- [5]With this in mind, the decision-maker says that the genuine operational requirements of the agency are such that it is not viable or appropriate to convert Mr Keenan at this time, nor create an additional position for him outside of their current budget arrangements.
- [6]Ms Johnston concludes by saying, ‘We hope that we can continue to support the fixed-term temporary employment until more permanent opportunities arise’. The letter includes additional information about the process, Mr Keenan’s rights to make additional requests for review, and his appeal rights.
- [7]On page 5 of the decision letter, Ms Johnston says:
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.
- [8]Mr Keenan filed his appeal notice on 21 April 2023. However, on page 3 of his Appeal Notice, the Appellant states that he received Ms Johnston’s decision on 29 March 2023. As this is outside of the 21-day appeal period, Mr Keenan has applied for an extension of time to file his Appeal Notice. The Appellant says:
I thought that the requirement was 21 business days, but when I called the QIRC this morning it was confirmed as 21 calendar days. After I received the decision I met with the Director of my area just before Easter to discuss it and then contacted the Dept. of Health Employee Relations HR team for advice which arrived on the 18th of April.
- [9]I issued a Directions Order on 2 May 2023 directing the parties to make submissions regarding Mr Keenan’s application for an extension of time to file his Appeal Notice.
The Legal Framework
Jurisdiction
- [8]A member of the Queensland Industrial Relations Commission (‘the Commission’) may allow an appeal to be started within a longer period.[1]
- [9]In exercising discretion to extend time to lodge an application or appeal, there are principles that have been used for guidance. Those principles are commonly:
- special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
- action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
- any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension;
- the merits of the substantive application are taken into account when considering whether an extension of time should be granted; and
- consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[2]
- [10]The application of statutory time limits was addressed by McHugh J in Brisbane South Regional Health Authority v Taylor:[3]
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 or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.[4]
- [11]The Appellant bears the onus of convincing the Commission to depart from the ordinary time limitations and hear the Appeal out of time.[5]
Submissions of the parties
Respondent's submissions
- [12]The Respondent submits that s 564 of the Industrial Relations Act 2016 (Qld) (the IR Act) required Mr Keenan to lodge his appeal by 5:00 pm on 19 April 2023, within 21-days of receiving the decision letter on 29 March 2023.
- [13]The Respondent says that it provided the Appellant with all reasonable advice and information about appealing the decision.
- [14]Firstly, the Respondent submits that the decision letter provided Mr Keenan with information about his appeal rights and the procedural requirements for appealing a decision, including the time limits under the IR Act. The decision-maker also directed the Appellant to the Queensland Industrial Relations Commission’s Public Sector Appeals Guide on the QIRC website, which states the 21-day appeal period.
- [15]Secondly, the Respondent says it responded to Mr Keenan’s email of 13 April 2023 requesting advice from Human Resources on what steps he could take to appeal the decision. On 18 April 2023, Ms Kerry Short, HR Advisor, HR Operations, emailed Mr Keenan with the following advice:
Appeals by public sector employees are heard and decided by the Queensland Industrial Relations Commission (QIRC) under chapter 11 of the Industrial Relations Act 2016 (IR Act).
The Appeals (Directive 04/23) For government Queensland Government applies in this regard.
Appeal rights
A non-permanent employee not converted to permanent employment following a review after two years continuous employment may appeal a decision not to convert. There are procedural requirements, including time limits, under the Industrial Relations Act 2016 that you must fulfil in order to appeal the 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.
- [16]Clause 15 of Appeals (Directive 04/23), which Ms Short directed the Appellant to in her email, reiterates the 21-day appeal period.
- [17]The Respondent notes that in Mr Keenan’s submissions, he acknowledges that he was aware of the 21-day appeal period, but misinterpreted this to mean 21 business days rather than 21 calendar days. The Respondent says Mr Keenan has not explained how he formed this interpretation.
- [18]The Respondent says that Mr Keenan has not provided any factors beyond his control to justify an extension of time to file his appeal, nor has he explained his lack of consideration of the appeal material provided to him by the Department.
- [19]In light of the above, the Respondent contends that there is no basis for the appeal to be heard on jurisdictional grounds.
Mr Keenan’s submissions
- [20]Mr Keenan submits that he considered he had ‘a good case for conversion, having worked for two years and nine months for the Department of Health’. When he received the decision letter, Mr Keenan says he was disappointed and made a cursory scan of the additional information provided by the decision-maker as he considered how the decision would impact him in light of the approaching end of his contract.[6]
- [21]Mr Keenan acknowledges that he was aware of a time requirement for lodging his appeal and states, ‘my experience in my career has been that when a number of days is referred to in a business/work context, it means business or working days. As I interpreted this situation as a business/work issue, it was within that experience that I understood the requirement to mean business days.’[7]
Mr Keenan’s further submissions
- [22]The Appellant filed further submissions to convey that his contract has been further extended with his end date being pushed back from 2 July 2023 to 31 December 2023. Mr Keenan submits that this is further evidence of the Department’s ongoing need or requirement for his employment.
Respondent’s further submissions
- [23]The Respondent further submits that Mr Keenan’s appeal has poor prospects of success as the Department did not have an ongoing need for the Appellant’s employment to continue in the role, or a same or similar role, at the time for the review.
- [24]According to the Respondent, a decision to allow Mr Keenan an extension of time to lodge his appeal would cause prejudice to the Department.
- [25]The Respondent acknowledges that if an extension is not granted, Mr Keenan will lose the opportunity for the matter to be heard and potential relief. However, the Respondent submits that the detriment caused to the Appellant would be minimal as he continues to be employed (albeit on a fixed-term temporary basis), and the Respondent will consider his employment on the anniversary date of his employment on 13 June 2023 in accordance with s 115 of the IR Act.
- [26]The Department says that while Mr Keenan’s interpretation of the 21-day appeal period as referring to business days is regrettable, he has not provided an exceptional or extraordinary reason for the late lodgement of his appeal or another compelling reason for the Commission to dispense with the legislative timeframes.
- [27]Finally, the Respondent says that granting an extension would not be fair or reasonable in comparison to other decisions of the Commission where public sector appeals have not been accepted for late lodgement.[8]
Consideration
Explanation for delay and any action taken by Mr Keenan
- [42]The length of the delay is 2 days. Mr Keenan does not deny that information was provided to him regarding his appeal rights. This information is clearly set out in the Public Sector Appeals Guide on page 14, ‘Are there any time limits?’ and in Directive 04/23.
- [43]I understand that in Mr Keenan’s previous experience, a reference to 21 days has described ‘business days’, however there is no such reference in the material provided to Mr Keenan.
- [44]Mr Keenan appears to have formed a view that the decision was not reasonable as he was reading the decision. Having decided to appeal the decision, it was as matter for Mr Keenan to find out the proper procedure and to comply with it. Mr Keenan could have availed himself of the material referred to in the initial decision or in the email reply to his request for information about appealing the decision. There was no paucity of information provided to Mr Keenan.
- [45]I have considered other decisions of the Commission[9] in which extension of time has been granted or refused. I do not see anything in Mr Keenan’s submissions to distinguish his matter from others where an application to extend time has been refused.
- [46]I am not satisfied that Mr Keenan has provided an acceptable explanation for the failure to file his appeal in time.
Prejudice to the parties
- [47]The Respondent’s submissions, and Mr Keenan’s further final submission, state that his fixed-term temporary employment has been extended. Further to this, the Respondent submits that Mr Keenan’s anniversary date of employment is 13 June 2023 and ‘therefore in the very near future, the Respondent will be reviewing the Appellant’s fixed-term temporary employment in accordance with section 115 of the Act.’
- [48]On this basis, I find that the prejudice to Mr Keenan if I decline to extend time is minimal. Clearly a decision not to extend time for the appeal means that he will not have the opportunity argue that the 29 March 2023 decision was not fair. However, he will receive a new decision within weeks and that decision will be made on the most up to date information available, including the recent contract extension he raises in his submissions of 1 June 2023. If Mr Keenan is unhappy with the outcome of that review, it is open to him to lodge an appeal, now with the benefit of knowledge of the 21-day appeal period.
- [49]The prejudice to the Respondent is clearly that if I extend time, the Respondent will find itself making submissions in relation to a decision it made in March 2023 at the same time as undertaking a further review June 2023. There is an extent to which the decision made in June 2023 will make the March 2023 decision redundant.
Conclusion
- [50]The Respondent will soon be undertaking a review of Mr Keenan’s employment and either his concerns will be resolved, or he will have an opportunity to exercise his appeal rights regrading the most recent review of employment. Mr Keenan will most likely receive his next review decision prior to the finalisation of written submissions regarding this current appeal if I was to extend time. There is no significant prejudice to Mr Keenan if I refuse to extend time.
- [51]I have read the decision letter and the submissions of the parties regarding the merits of the matter. I decline to comment on the merits of the appeal, partly because I have not sought submissions on this point and so have not had the benefit of the detailed arguments of the parties. Further, I do not think it would be useful or appropriate for me to express a view regarding the merits of the matter when a review will be taking place following Mr Keenan’s anniversary date of employment which falls only five days from the release of this decision.
- [52]Mr Keenan’s submissions have not persuaded me to exercise the discretion to extend time for him to file his appeal.
Order
- The Appellant's application to allow their appeal to be started within a longer period is dismissed.
Footnotes
[1]Industrial Relations Act 2016 (Qld) s 564(2).
[2]Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344, 348 (Wilcox J); Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J).
[3](1996) 186 CLR 541.
[4]Ibid 553.
[5]Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554.
[6]Appellant’s submissions filed 25 May 2023, [1].
[7]Ibid [2].
[8]See, e.g., Redman v State of Queensland (Department of Education) [2023] QIRC 020; Stafford v State of Queensland (Queensland Health) [2022] QIRC 344; Tucker v State of Queensland (Department of Health) [2021] QIRC 145.
[9]Ibid.