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Gray v State of Queensland (Queensland Health)[2023] QIRC 258

Gray v State of Queensland (Queensland Health)[2023] QIRC 258

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gray v State of Queensland (Queensland Health) [2023] QIRC 258

PARTIES: 

Gray, James

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/144

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

5 September 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

  1. 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 fair treatment decision  –  appeal lodged out of time – whether extension of time should be granted – extension of time refused

LEGISLATION AND

OTHER INSTRUMENTS:

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

Positive Performance Management Directive 15/20

Public Sector Act 2022 (Qld)

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

Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344

Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147

Maina v State of Queensland (Queensland Health) [2022] QIRC 100

Reasons for Decision

Background

  1. [1]
    Dr James Gray (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) as a Senior Staff Specialist – Haematologist in the Cancer Care Services unit at Toowoomba Base Hospital within the Darling Downs Hospital and Health Service (‘the Health Service’).
  1. [2]
    Dr Gray has filed a fair treatment appeal against the decision of Dr Peter Carter, Deputy Director Medical Services, Darling Downs Hospital and Health Service, dated 7 September 2022.
  1. [3]
    In late 2021, reviews were undertaken into Dr Gray’s clinical practice. The decision letter subject of this appeal was issued to the Appellant following a meeting on 18 July 2022 where the findings of these reviews were discussed. The decision-maker says that those reviews identified some areas for improvement in Dr Gray’s Laboratory and Clinical Haematology roles. In light of these issues, the decision-maker determined to implement measures to support Dr Gray’s continuing professional development through a performance plan.
  1. [4]
    In the decision letter, Dr Carter explained that if at the end of the six-month period during which the performance plan was implemented, Dr Gray completed the appropriate continuing professional development (‘CPD’) and received positive feedback from the multi-disciplinary team (‘MDT’) process, there would be no ongoing extraordinary oversight of his independent practice.
  1. [5]
    The decision letter sets out the reasons why the Respondent chose to implement a performance plan. Dr Carter’s explanation begins with an acknowledgment that a number of Haematology Department meetings ceased during the COVID-19 pandemic. He said that following a Pathology Queensland review, those meetings would be reinstated to provide all haematologists with a robust opportunity for peer review and feedback prior to their laboratory reports being finalised.
  1. [6]
    Dr Carter also notes that the clinical reviews into Dr Gray’s practice identified areas for improvement regarding his documentation in cases where he deviated from standard practice. Dr Carter says that Dr Gray acknowledged that this was a reasonable critique and had taken steps to remedy the issue.
  1. [7]
    Multiple measures were put in place to support Dr Gray’s professional development. In summary, those measures included:
  • A period of laboratory reporting knowledge refreshment with support provided by Dr Mangos as a professional mentor;
  • A review at the three-month mark with Dr Mangos and Dr Corboy to discuss the support and structures in place;
  • The option to refer cases that either the Appellant or Dr Mangos required further clarification on to the Central Laboratory for a senior laboratory haematologist’s review and opinion;
  • A suitable online morphology refresher; and
  • The opportunity for Dr Gray to discuss his clinical reasoning with an experienced, senior haematologist, namely either Dr Mangos or Dr Mutsando.
  1. [8]
    Dr Carter said that at the end of the six-month performance plan, if the Appellant and Dr Mangos were both ‘happy that this arrangement is no longer required, it will be ceased’.
  1. [9]
    The decision-maker confirmed the following outcome:

Therefore, the agreed outcome[s] of the reviews are as follows:

  • The Department of Haematology will be asked to reinstate their peer review meetings as soon as practicable and, in addition to actively participating in these meetings, you will engage in peer mentoring with Dr Mangos, with updates and feedback provided to Dr Corboy, as outlined above.
  • As part of your Performance Plan, you will present samples of your clinical documentation that showcase documentation of your clinical reasoning where you have made a decision that would not be considered usual practice.
  • As part of your Performance Plan, you will approach Dr Mangos and/or Dr Mutsando to undertake case-based discussions around the specific cases identified during the clinical review.
  1. [10]
    Dr Gray filed his appeal notice with the Industrial Registry on 25 July 2023. On 26 July 2023, I asked the Industrial Registry to write to the Appellant seeking confirmation that the decision of 7 September 2022 attached to his appeal notice was indeed the decision subject of his appeal, noting the 21-day appeal period in public sector appeals.
  1. [11]
    On 27 July 2023, Dr Gray responded confirming that he wanted to appeal the 7 September 2022 decision. He explained that he has been in ongoing communication with the Respondent about this decision letter and attached a recent email train to this effect.
  1. [12]
    I subsequently issued a Directions Order on 27 July 2023 directing the parties to make submissions as to why the appeal should be heard out of time.

The Legal Framework

Jurisdiction

  1. [13]
    A member of the Queensland Industrial Relations Commission (‘the Commission’) may allow an appeal to be started within a longer period.[1]
  1. [14]
    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]
  1. [15]
    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]

  1. [16]
    The Appellant bears the onus of convincing the Commission to depart from the ordinary time limitations and hear the appeal out of time.[5]

Consideration to be given to whether Individual Employee Grievance process was followed prior to filing appeal

  1. [17]
    Section 562A(1) of the IR Act relevantly states:
  1. The commission may decide it will only hear an appeal against a directive decision, a fair treatment decision or a transfer decision under the Public Sector Act 2022 if the commission is satisfied –
  1. 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 a directive made under section 110 of that Act; and
  2. for a fair treatment decision under the Public Sector Act 2022 – it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).

Consideration

Explanation for delay and any action taken by Dr Gray

  1. [18]
    Dr Gray filed his appeal notice approximately ten months after receiving the decision letter dated 7 September 2022. I note that Dr Gray says that he did not receive the decision until 20 September 2022, however in the context of a 21-day appeal period, a delay of over 250 days is significant.
  1. [19]
    The Respondent says that Dr Gray raised concerns regarding the decision letter in correspondence dated 25 September 2022, and that he received further correspondence from Dr Carter addressing his concerns on 26 October 2022.[6]
  1. [20]
    The Respondent acknowledges the emails and correspondence between Dr Gray’s legal representative and Dr Geoff Fisher, Director Medical Services, dated between 16 November and 9 December 2022.  This correspondence was referred to by Dr Gray in his appeal notice and has been provided as attachments to the submissions of the Respondent.[7]
  1. [21]
    The Respondent submits that no further correspondence or any further decisions have been made in relation to the matter since that time. The Respondent says that Dr Gray has not provided any explanation for his failure to file the appeal within the statutory timeframe or any acceptable reason to depart from the legislatively prescribed timeframe.
  1. [22]
    Dr Gray acknowledges the correspondence exchanged between his legal representative and the Respondent but says that the Health Service was responsible for severing the communication by way of not replying to the final email from his legal representative dated 9 December 2022.
  1. [23]
    In reply, the Respondent says that the email from Dr Gray’s legal representative was the last in a chain of emails to Dr Fisher and informed him that the meeting scheduled for that day to review and discuss Dr Gray’s Professional Development Plan ‘cannot proceed’. The Respondent says that Dr Fisher was attempting to negotiate a mutually acceptable solution so the scheduled meeting could go ahead, however these efforts were frustrated by the correspondence from the legal representative on 8 and 9 December 2022 and the advice the Dr Gray would not be attending the meeting.
  1. [24]
    I have reviewed the email of Friday 9 December 2022 and I note that it appears to be a continuation of the repeated position taken by Dr Gray with regard to the Performance Development process.  That email does not invoke the grievance process.  It simply states that ‘… In the circumstances, regrettably the PAD meeting will need to be rescheduled pending resolution of these matters’.[8]
  1. [25]
    Dr Gray says that he was dismayed by the abrupt end of communications when the email of 9 December 2022 did not receive a response.
  1. [26]
    While Dr Gray refers to the ‘abrupt end of communications’, the Respondent says that Dr Gray has not initiated any discussion with Dr Fisher regarding progressing his Performance and Development (‘PAD’) meeting since this time.
  1. [27]
    Dr Gray says that following the lack of response to the email of 9 December 2022, he commenced a Right to Information (‘RTI’) application to the Health Service on 19 December 2022. Dr Gray says that he received a response decision to his RTI request which stated that access to the document/s sought was refused. Dr Gray then lodged an application for external review with the Information Commissioner which resulted in him receiving full access to those documents. However, Dr Gray says that the documents he was provided access to consisted of copies of correspondence exchanged between himself and the Health Service and not the substantive documents he sought which he says contained concerns raised about him and the evidence provided to the external reviewer.
  1. [28]
    Dr Gray says that he continued to hold concerns about the way the Health Service handled the review and consequent decision of 7 September 2022 and as such, on 21 July 2023, the day after he received the second RTI response, he lodged this appeal.
  1. [29]
    In reply, the Respondent says that Dr Gray’s RTI request has no bearing on his appeal and provides no mitigation for the delay in lodgement.
  1. [30]
    Dr Gray says that he as at all times communicated promptly with the Health Service to seek resolution via the avenues available to him.
  1. [31]
    The Respondent refutes Dr Gray’s submissions about consistently demonstrating he is willing and desirous of resolving his concerns. The Respondent says that Dr Gray has been afforded procedural fairness and natural justice at all times, and that when his initial concerns were raised, an impartial external review was undertaken and that Dr Gray was given a right of reply to the findings, resulting in the meeting held on 18 July 2022.

Respondent says that Dr Gray has not followed the Individual Employee Grievance Process

  1. [32]
    The Respondent says that in addition to being out of time, Dr Gray has no entitlement to appeal under s 562A(1)(b) of the IR Act as he was first required to comply with Queensland Health’s procedures under the directive relating to individual employee grievances. The Respondent draws my attention to s 562A(1) of the IR Act (see above at [17]).
  1. [33]
    The Respondent says that Dr Gray has not lodged a grievance in relation to the decision set out in Dr Carter’s correspondence dated 7 September 2022 or the correspondence upholding that decision dated 26 October 2022.
  1. [34]
    The Respondent notes that Dr Gray did submit an individual employee grievance dated 14 February 2022 and that this was reviewed and responded to in correspondence dated 19 May 2022.  I have reviewed that correspondence and note that it clearly sets out the process and the capacity for Dr Gray to seek an internal review of the decision of 19 May 2022. It appears that Dr Gray did not seek an internal review. To the extent that any of the correspondence that followed, including the decision under appeal, relate to that original grievance, it is my view that the grievance process relating to the matter ended when Dr Gray did not seek an internal review of the 19 May 2022 decision.
  1. [35]
    Dr Gray says that he commenced the grievance process on 14 February 2022 by writing to Dr Hwee Sin Chong with his grievance regarding the handling of the external review.  Dr Gray says that this was followed by a letter from his legal representative on 13 April 2022.  Dr Gray says that on 19 May 2022, he received a reply which maintained that the process adopted by the Health Service aligned with the principle of procedural fairness, which he strongly disputes.
  1. [36]
    Dr Gray says that he was particularly dismayed by Dr Chong’s response but that he was:

… also desirous of maintaining a collaborative relationship and discussing my professional development in a meeting.  As such, instead of appealing, my legal representative sent a letter dated 10 June 2022 to the Health Service seeking to arrange the meeting which took place on 18 July 2022 and was the meeting referred to in the letter from Dr Carter dated 7 September 2022, which is the subject of my application.

  1. [37]
    Dr Gray says that he attended the meeting with the Respondent on 18 July 2022 and presented evidence but that Dr Fisher stated that he did not intend to ‘get into the weeds’ and that this response was dismissive and unfair.  Dr Gray says that following this, the Respondent made the decision of 7 September 2022 with ‘purported agreed outcomes’ and that he was not permitted an opportunity to respond to these proposed agreed outcomes.
  1. [38]
    Dr Gray submits that he reasonably instituted a grievance process and engaged with the Health Service in further attempts to resolve the grievance and that this flowed into the decision subject of the application.
  1. [39]
    Dr Gray submits that he ‘did use the procedure required and it would be unreasonable to require me to comply with the internal review requirement because I promptly attempted to resolve the matter informally’.

Prejudice to the parties

  1. [40]
    The Respondent says that if the Commission was to hear the appeal out of time, the prejudice to be suffered by the Health Service would be a relevant consideration, particularly where the delay itself is considered to give rise to a general presumption of prejudice to the Health Service.[9]
  1. [41]
    The Respondent also notes that since the time of the decision of 9 September 2022, Dr Carter, the original decision-maker, has resigned from the Health Service. I understand the submission may refer to the difficulty involved in now reviving a matter which has not been addressed since the end of 2022, in circumstances where the prejudice to the Respondent appears to be that it will not have the benefit of seeking advice from Dr Carter about the events that occurred at the time of the decision.
  1. [42]
    Dr Gray says that there is obvious prejudice to him if the Commission does not extend time for him to lodge his appeal as he would lose the opportunity for independent review of the decision and that this is not an insubstantial detriment.
  1. [43]
    Dr Gray submits that while the delay in bringing his appeal may give rise to the general presumption of prejudice to the Respondent, he submits that there is minimal prejudice because the Respondent ought to hold all the documentation about the review process and consequent decision. As stated above at [27] and [28], Dr Gray says that he made genuine and reasonable inquiries to obtain documentation he felt would be of assistance to consider the issue and pursue any appeal, and that he promptly proceeded once the RTI process had been exhausted.
  1. [44]
    The Respondent says Dr Gray’s submission that there is obvious prejudice to him if the Commission does not hear his appeal is unfounded as the decision he is appealing is the requirement to undertake professional development which is not detrimental or disciplinary, but a benefit and opportunity for continuous improvement.
  1. [45]
    Dr Gray’s closing submissions discuss his exemplary work practice, and his ongoing commitment to patient safety, research teaching, providing the ‘very best’ care to cancer patients. Dr Gray says that he undertakes CPD to a high standard, that exceeds most of his colleagues.[10]
  1. [46]
    Dr Gray says that he is committed to quality assurance and improvement of Cancer Services.  In support of this, Dr Gray makes submissions about his participation in weekly meetings to discuss patients and selected outpatients; presentation at bi-weekly reviews; contribution to monthly morbidity and mortality meetings within Darling Downs Cancer Services and Toowoomba Hospital semi-annual reviews; membership of the Human Research Ethics Committee and Committee for Quality Assurance of Blood Transfusion  for Darling Downs Hospital and Health Service; the Blood Management Committee for the Australian Army; and participation in the National Association Testing Authority’s approved quarterly Quality Assurance Program of the Royal College of Pathologists of Australasia (‘RCPA’). Dr Gray says that he provides peer review of papers submitted for publication and meetings weekly with colleagues to review morphology and pathological diagnosis of patients who undergo bone marrow biopsy.

Merits of the substantive application

  1. [47]
    The Respondent submits that Dr Gray’s prospects of success are low. The Respondent says that Dr Gray raises concerns that he has not been afforded natural justice throughout the process, however the Health Service has provided him with several opportunities to consider feedback from the external reviews that were undertaken and provided an opportunity to respond.
  1. [48]
    The Respondent submits that it has communicated to Dr Gray on numerous occasions that the proposed peer mentoring and completion of online morphology training to be included in his PAD Plan following the external review, are supportive in nature, and are in accordance with positive performance principles outlined in Positive Performance Management Directive 15/20.
  1. [49]
    Further, the Respondent says that it has been confirmed to Dr Gray several times that this is not a disciplinary process. No findings or decision that a disciplinary ground exists has been made in relation to Dr Gray.
  1. [50]
    With regard to the prospects of success of the appeal, Dr Gray sets out a history of matters commencing from 30 September 2021. Dr Gray provides detailed submissions as to why he says the ‘external review’ of his clinical practice was not transparent and did not afford him procedural fairness.[11] Essentially, Dr Gray says that it was unfair and unreasonable for the Health Service to rely on the external review to decide that he is required to undertake particular professional development activities.
  1. [51]
    The Respondent refutes Dr Gray’s submission that he was not provided with natural justice. The Respondent says that Dr Gray was provided with appropriate information to respond to, noting that there were no allegations, it was not a formal performance or disciplinary matter and his responses were considered appropriately.
  1. [52]
    With regard to the professional development which may be included in Dr Gray’s plan, the Respondent notes that the requirement to undertake online morphology training was not at the direction of the Respondent but at the direction of Pathology Queensland who are responsible for his scope of practice and the standard of care for Dr Gray’s laboratory work. 
  1. [53]
    Further, the Respondent says it is conscious that the Australian Health Practitioners Regulation Agency (‘AHPRA’) has mandatory requirements for annual renewal of a medical practitioner’s registration.  The Respondent says that one of these requirements is participation in continuing professional development, and that in addition to this, the Respondent has a requirement that all medical practitioners have at least an annual Performance and Development meeting. The Health Service says it remains concerned that these obligations are not currently met.
  1. [54]
    In his closing submissions Dr Gray says that he has been diligent and safe throughout his career in research and clinical care. Dr Gray says that he has never been subject of a complaint to his regulatory body, AHPRA, the Royal Australasian College of Physicians (‘RACP’) or RCPA. 
  1. [55]
    Dr Gray says that the external review was not transparent and did not afford him the procedural fairness to which he was entitled, such that it was unfair and unreasonable for the Respondent to rely on the external review to make a decision that he is required to undertake particular professional development activities.
  1. [56]
    Dr Gray is concerned that the external review was pursued and carried out unfairly in an effort to discredit him and attempt to remove him from his employment, in order to open a position for another doctor, who was appointed to a permanent position without open recruitment process soon after the review.

Conclusion

  1. [57]
    While I am afforded a discretion under s 564(2) of the IR Act to allow Dr Gray to start his appeal within a longer period, I must exercise that discretion with consideration to well-established principles recognising the importance of adhering to statutory time limits and the authorities which have consistently found that statutory time limits should not easily be dispensed with.[12]

Explanation for the delay

  1. [58]
    The onus is on Dr Gray to provide a reasonable explanation for the delay in filing the appeal and to explain why it is that he should be enabled to file the appeal approximately 250 days outside of the statutory timeframe.[13]
  1. [59]
    It appears that the two main reasons Dr Gray says there was a delay in filing the appeal were that he was attempting to pursue the matter through his legal representative and further that he was seeking further information through an RTI process.
  1. [60]
    Dr Gray has demonstrated that he understands the grievance process.  Dr Gray previously lodged a grievance on 14 February 2022.  A range of actions followed, including a review of Dr Gray’s formal grievance by Dr Chong. On 19 May 2022, Dr Chong wrote to Dr Gray via his legal representative, and stated that ‘… I believe that this formal grievance has been fully investigated with appropriate actions taken and now consider this to be closed...’. In that correspondence, Dr Chong also advises that Dr Gray has a right to internal review of the decision and sets out the process to be followed. Dr Gray’s submissions state that he opted not to continue that grievance by pursuing an internal review of that decision.
  1. [61]
    Dr Gray did not lodge a grievance regarding the 7 September 2022 correspondence from Dr Carter. Dr Gray’s submissions confirm that he chose not to engage the employee grievance process at this stage, rather he opted to send correspondence to Dr Carter on 25 September 2022. Dr Carter replied to that correspondence on 26 October 2022 acknowledging matters raised by Dr Gray in the 25 September 2022 correspondence and sets out a way forward regarding Dr Gray’s Performance Plan.
  1. [62]
    It appears that instead of pursing a grievance at this point, Dr Gray instead requested that his legal representative prepare correspondence setting out Dr Gray’s position regarding the Performance Plan and associated matters.
  1. [63]
    Dr Gray was availing himself of legal representation and it was open to his legal representative to recommend the employee grievance process as an avenue for Dr Gray to address his concerns.
  1. [64]
    Dr Gray has not provided satisfactory reasons for the delay in filing his appeal.  Dr Gray has made some deliberate choices about the course of action he chose to address his concerns.  Further, I am not satisfied that Dr Gray had to wait until the RTI process had concluded in order file an appeal against the decisions of 25 September 2022 and 26 October 2022. 

Dr Gray did not invoke the individual employee grievance process and it was not unreasonable to expect him to do so in the circumstances

  1. [65]
    For the reasons set out from [59] to [62], I am satisfied that that Dr Gray did not invoke the individual employee grievance process following receipt of either the 7 September 2022 letter or the 26 October 2022 letter. While there was a previous grievance underway,  I consider Dr Gray’s decision not to further pursue that matter through seeking an internal review following the 19 May 2022 brought about an end of that grievance.  It was open to Dr Gray to commence a fresh employee grievance following receipt of the correspondence of 25 September 2022.  As stated above, Dr Gray instead opted to undertake a series of correspondence between his legal representatives and the Respondent. This appears to have led to a stalemate, and as far as I can gather, Dr Gray has not re-engaged with the Respondent regarding his PAD. 
  2. [66]
    I find that it would not be unreasonable to expect Dr Gray to engage with the employee grievance process prior to bringing the appeal to the Commission.

Prejudice to Dr Gray if extension of time is not granted and prospects of success should appeal be heard

  1. [67]
    I have considered the submissions Dr Gray has made regarding the prejudice to him if his appeal is not heard. I have reviewed all of the material and I note that there is no suggestion that the matters originally raised with Dr Gray and subject of the external review give rise to any disciplinary allegations or proceedings.[14] I note that Dr Gray provides detailed information in his submissions regarding ongoing CPD he participates in and the exemplary standard of work he undertakes both in working with the Respondent and more broadly in his profession. However, it must be noted that if Dr Gray’s appeal is allowed to be submitted out of time, it would have a very narrow focus.  It would not represent an opportunity to reopen the previous grievance.  Further, it would not involve the Commission undertaking an external review of the review undertaken regarding concerns raised about Dr Gray’s practice at the end of 2021.  That matter was subject of the previous grievance which is closed. 
  1. [68]
    Essentially, a public sector appeal regarding the 7 September 2022 correspondence would determine whether it was fair and reasonable for a range of steps representing positive performance management and the provision of collegial support and professional development to be put in place following the reviews of practice conducted in late 2021.
  1. [69]
    Considerable time has passed since the external review undertaken at the end of 2021.  A grievance regarding that external review was instituted and finalised.  Any review of the correspondence of 7 September 2022 would be undertaken on the basis that Dr Carter was confirming what was discussed at the meeting on 18 July 2022, after the external review grievance was closed.  Dr Gray is required to have a Performance Plan as are all employees of the Respondent. Noting Dr Gray’s submissions regarding professional development he has undertaken, it is unclear to me whether the matters set out in the letter of 7 September 2022 are still current or whether it may be necessary for Dr Gray to work with his supervisors to establish an appropriate Performance Plan going forward.  However, I find it unlikely that an extension of time to file the appeal would lead to the outcome Dr Gray appears to seek in the schedule to his appeal notice, which states ‘… I have not been given the ability to review the external reviewer’s actual findings or be confident that the external reviewer was provided with all of the evidence relevant to the cases’. 
  1. [70]
    That Dr Gray’s appeal appears to be against the external review undertaken at the end of 2021 which was addressed through the formal grievance process which was closed on 19 May 2022 and not further pursued through the grievance process is confirmed by the conclusion of Dr Gray’s submissions filed on 25 August 2023 where he asks the Commission to:
  1. exercise its discretion and hear my appeal; and
  1. set aside the decision of the Health Service dated 7 September 2022 and substitute a decision that I will not be subject to any actions arising out of the procedurally unfair external review; or alternatively,
  1. set aside the decision of the Health Service dated 7 September 2022 and direct that the decision maker rectify the procedural fairness deficiencies of the external review before deciding whether I am required to undertake any action related to professional development.[15]
  1. [71]
    I am of the view that the external review undertaken at the end of 2022 is outside of the scope of any appeal against the 7 September 2022 decision. I am therefore satisfied that there is limited prejudice to Dr Gray in determining not to extend time to file the appeal. I am also satisfied that the appeal has limited prospects of success and certainly a limited prospect of leading to the outcome Dr Gray seeks.

Other matters

  1. [72]
    In his closing submissions, Dr Gray expresses a concern that the external review was undertaken for the reason of discrediting him and attempting to remove him from his employment to open up a position for another doctor.  The Respondent has not sought to respond to this submission.  However, I note that if Dr Gray holds concerns of this nature, he may wish to speak to his legal representatives about avenues available to pursue this, as it is not something that can be dealt with in this appeal.

Conclusion

  1. [73]
    I find that Dr Gray has not provided a satisfactory explanation for the delay in filing the appeal such that I would be persuaded to depart from the 21-day statutory timeframe.  Further, I find that Dr Gray did not avail himself of the employee grievance process following receipt of the 6 September 2022 correspondence. Dr Gray had legal representation at the time and I find that he made a deliberate and considered decision not to pursue an employee grievance.  It is not unreasonable to expect that Dr Gray avail himself of the process, particularly in circumstances where he has demonstrated a knowledge of the process and capacity to invoke it.  I further find that any prejudice to Dr Gray is not such that it serves to displace the statutory timeframe. I am also of the view that Dr Gray’s appeal, should time be extended for filing, has limited prospects of success and is unlikely to deliver him the relief he seeks.
  1. [74]
    For the reasons given above, I will not exercise the discretion to allow Dr Gray’s appeal to be started within a longer period.

Order

  1. 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) (‘Brodie-Hanns’).

[3] (1996) 186 CLR 541 (‘Brisbane South Regional Health Authority v Taylor’).

[4] Ibid 553.

[5] Ibid 554; Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35].

[6] Respondent’s submissions filed 17 August 2023, attachments 2-3.

[7] Ibid attachments 4-5.

[8] Ibid attachment 5.

[9] Brodie-Hanns (n 2) 300.

[10] Appellant’s further submissions filed 30 August 2023, [3]-[10].

[11] Appellant’s submissions filed 25 August 2023, [13]–[24].

[12] Brisbane South Regional Health Authority v Taylor (n 3); Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Maina v State of Queensland (Queensland Health) [2022] QIRC 100, [25].

[13]Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147, [19].

[14] Respondent’s submissions filed 17 August 2023, attachment 7, page 3.

[15] Appellant’s submissions filed 25 August 2023 (emphasis added).

Close

Editorial Notes

  • Published Case Name:

    Gray v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Gray v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 258

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    05 Sep 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
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Cullen v State of Queensland (Queensland Health) [2021] QIRC 258
2 citations
Jump To
Cite 1 - [2021] QIRC 258
Cite 2 - [2021] QIRC 258
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
2 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344
2 citations
Jump To
Cite 1 - (1994) 3 FCR 344
Cite 2 - (1994) 3 FCR 344
Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147
2 citations
Jump To
Cite 1 - [2022] QIRC 147
Cite 2 - [2022] QIRC 147
Maina v State of Queensland (Queensland Health) [2022] QIRC 100
2 citations
Jump To
Cite 1 - [2022] QIRC 100
Cite 2 - [2022] QIRC 100

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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