Lui v State of Queensland (Department of Energy and Public Works)
[2023] QIRC 31
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- Unreported Judgment
- Lui v State of Queensland (Department of Energy and Public Works)[2023] QIRC 31
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Lui v State of Queensland (Department of Energy and Public Works)[2023] QIRC 31
Lui v State of Queensland (Department of Energy and Public Works)[2023] QIRC 31
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lui v State of Queensland (Department of Energy and Public Works) [2023] QIRC 031 |
PARTIES: | Lui, Sin Oi (Appellant) v State of Queensland (Department of Energy and Public Works) (Respondent) |
CASE NO: | PSA/2023/3 |
PROCEEDING: | Public Service Appeal – Fair treatment decision |
DELIVERED ON: | 1 February 2023 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDERS: | The appeal is dismissed pursuant to section 562A(1) of the Industrial Relations Act 2016 and section 195 of the Public Service Act 2008. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLLY – PUBLIC SERVICE APPEAL – fair treatment appeal – jurisdictional objections raised – appeal lodged out of time – whether extension of time should be granted – whether the decision can be appealed against – where the Appellant seeks to appeal a decision about the classification level of employment – where the Appellant was required to comply with the Respondent's grievance process before appealing decision as a fair treatment decision – where the Appellant did not comply with the Respondent's grievance process before appealing the decision as a fair treatment decision – where the decision is not one that can be appealed against – where the question of an extension of time to lodge the appeal therefore does not need to be considered – appeal dismissed |
LEGISLATION AND OTHER INSTRUMENTS: | Directive 07/20 Appeals cl 5 Directive 11/20 Individual employee grievances Industrial Relations Act 2016 ss 562A, 564 Public Service Act 2008 ss 194, 195 |
Reasons for Decision
Introduction
- [1]Ms Sin Oi Lui (the Appellant) is employed by the Department of Energy and Public Works (the Respondent) as a Senior Quantity Surveyor, QBuild. Ms Lui has lodged a fair treatment appeal regarding the Respondent's decision that her role remain at the classification of Professional Officer Level 4 (PO4) and not be reclassified to Professional Officer Level 5 (PO5) level. Ms Lui's appeal notice makes reference to 'pay discrimination, pay discrepancies, pay difference unjust'.
- [2]Ms Lui commenced employment with the Respondent, which was then the Department of Housing and Public Works, on 13 November 2007.
Jurisdictional matters
Request for an extension of time
- [3]Ms Lui's appeal notice contains an application for an extension of time to lodge the appeal. As best I can make out, Ms Lui requested that her role be reclassified and following discussions and consideration of the request, was advised by email dated 21 November 2022 that the last Job Evaluation Management System (JEMS) process for the Senior Quantity Surveyor PO4 role indicated that the role remained at PO4 level and QBuild's current assessment is that the business requirements of the PO4 role remained unchanged.
- [4]On 26 November 2022, Ms Lui replied to that email taking issue with the decision. In her email of 26 November 2022, Ms Lui concludes by saying 'Let us get help from external parties, I will initiate my action asap'.
- [5]It seems that when Ms Lui received no further response, she completed and sent her appeal notice by email to the Industrial Registry on 18 December 2022. The notice itself was filed on 4 January 2022, however, I am satisfied that Ms Lui attempted to file the notice on 18 December 2022 and that the delay in the intervening period was likely because her complete form and attachments were more than 30-pages long and as per Practice Direction Number 3 of 2021 - Electronic Filing and Hard Copies of Documents, were required to be filed in hard copy. I also note that the Christmas shutdown occurred for a portion of the intervening period between 18 December 2022 and 4 January 2023.
- [6]On 10 January 2023, I issued a Directions Order seeking the Respondent to file submissions in response to Ms Lui's request for an extension of time.
Decision cannot be appealed against and Ms Lui has not used the individual employee grievance process
- [7]The submissions of the Respondent addressed the Appellant's request for an extension of time to file her appeal but also raised further jurisdictional objections to the appeal on the basis that Ms Lui was appealing a decision that cannot be appealed pursuant to s 195 of the Public Service Act 2008 (the PS Act) and that Ms Lui had not used the required procedures stipulated by the individual employee grievances directive. Ms Lui's reply submissions include a response to matters raised by the Respondent regarding her use of the individual employee grievance procedure.
The Legal Framework
Jurisdiction
- [8]A public service appeal must be filed within 21 days of the Appellant receiving the relevant decision. However, a member of the Commission may allow an appeal to be started within a longer period.[1]
- [9]The Appellant bears the onus of convincing the Commission to depart from the ordinary time limitations and hear the appeal out of time.
- [10]Section 562A of the Industrial Relations Act 2016 (the IR Act) provides:
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
- (b)for a fair treatment decision under the Public Service Act 2008, section 194(1)(eb) – it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).
- [11]Section 195(1)(f) of the PS Act stipulates:
195 Decisions against which appeals can not be made
- (1)A person can not appeal against any of the following decisions—
…
- (f)a decision about the classification level of employment, unless the decision is declared under a directive of the commission chief executive to be a decision against which an appeal may be made
Respondent's submissions
- [12]In its submissions filed on 17 January 2023, the Respondent raises three jurisdictional objections to Ms Lui's appeal. Those objections can be summarised as follows:
- Ms Lui has filed her appeal outside of the 21-day appeal period;
- The Appellant is excluded from appealing the decision through s 195(1)(f) of the PS Act on the basis that she seeks to appeal against a decision about the classification of her role; and
- Ms Lui is excluded from appealing the decision as she has not complied with the Department's complaints management process prior to lodging her appeal in accordance with cl 5.2(h) of Directive 07/20 Appeals.
- [13]The Respondent notes that Ms Lui has filed her appeal notice 27 days after she was notified of the decision. Further, the Respondent says that Ms Lui has not submitted any justification or reasoning with respect to her request for an extension of time to lodge the appeal and as such, the Respondent requests that the extension not be granted.
- [14]The Respondent notes that the decision to not reclassify Ms Lui to a higher classification is not one which may be appealed, per s 195(1)(f) of the PS Act. Further, the Respondent says that Ms Lui has not complied with the Department's complaints management process prior to lodging her appeal per cl 5.2(h) of Directive 07/20.
Ms Lui's submissions
- [15]Ms Lui's filed submissions on 24 January 2023. In summary, she provides the following explanation for the delay in filing:
- She has been requesting reclassification of her position since 2012, but particularly since 2019.
- In May 2022, she commenced seeking advice from Job Watch, Cairns Community Legal Centre and Preston Law.
- Ms Lui says that she was informed by Cairns Community Legal Centre that there is a deadline of 21 days in which to file proceedings for unfair dismissal and 1 year for workplace bullying, but says she was advised that other proceedings need to be initiated within 6 years of the claim arising.
- She was of the understanding that if there would be a deadline, 'it will be likely say 6 months, one year or even 6 years based on the advice'.
- She was dissatisfied with the 21 November 2022 decision of the Executive Director that her request for PO5 level was rejected and says that the decision did not address her concern regarding unfair treatment.
- On 26 November 2022, she replied to the Executive Director to express her disappointment and advise that her concern regarding unfair treatment had not been addressed.
- She submitted an application to the Australian Human Rights Commission (AHRC) on 11 December 2022 but was told on 13 December 2022 that it was not jurisdiction of the AHRC to deal with such matters and referring her to the Fair Work Ombudsman.
- She then rang the Queensland Industrial Relations Commission (QIRC) to initiate the application and says that she was not advised of any time limits for appeals.
- It was only as she was completing the form that Ms Lui became aware of the timeframe for lodging a public service appeal.
- [16]Ms Lui maintains that she has followed the grievance process and says that the decision of 21 November 2022 was, in fact, an internal review decision regarding a decision by Human Resources on 10 August 2020. Ms Lui says:
According to Employee grievances guideline 2.3 Stage 3 (External review of a decision made at internal review), 'if the aggrieved employee is dissatisfied with the decision made following the internal review, the employee may seek an external review. The avenues for external review may include an application to the QIRC for a public service appeal against a decision under a directive or a fair treatment decision under sections 194(1) of the Public Service Act 2008.'
- [17]Further, Ms Lui says that she has 'followed all available avenues for internal review whereas there have been no request for me to fill in any particular forms in order to initiate the appeal process'.
Respondent's submissions in reply
- [18]With respect to Ms Lui's submissions that the grievances policy and guideline were not brought to her attention, the Respondent submits that Ms Lui ought to have been aware of the policy and guideline given her 'extensive 15 years of employment in the Department and through the provision of annual mandatory training regarding Public Sector Ethics and Workplace Behaviour, which discusses Employee grievances policy and the Employee grievances guideline.'
- [19]With reference to the Employee grievances policy, the Respondent submits that it expects employees to make reasonable attempts to resolve their grievances informally in the first instance, where practicable.
- [20]The Respondent reiterates that Ms Lui has not complied with the employee grievances guideline and that her grievance has only been considered and addressed informally by the Executive Director to date and has not been managed as a formal employee grievance or been subject to a request to the Department's chief executive for an internal review.
- [21]The Respondent repeats its earlier submissions that Ms Lui is excluded from appealing the decision both because she has not complied with the Department's complaints management process prior to lodging her appeal, and also because she is seeking to appeal against a decision which cannot be appealed against pursuant to s 195(1)(f) of the PS Act.
Ms Lui's final submissions
- [22]Ms Lui confirms that she does not know about the employee grievances policy and guideline and repeats that she would expect to be told or requested to fill in a form to pursue her request for a review.
- [23]Ms Lui repeats her earlier submission that she has requested review of her classification many times since 2019.
- [24]Ms Lui says that she has 'actually completed the procedure under the Directive to appeal/complaint' and says 'the task has been done in substance although not in the required format'. Ms Lui says that she believes that the determination regarding the JEMS review on 10 August 2020 was a formal decision and that the Executive Director's further decision on 21 November 2022 was a formal internal review.
- [25]Ms Lui goes on to make a number of submissions regarding her dissatisfaction at being managed by her colleague who is at PO5 level. Ms Lui makes submissions regarding her concern at what she says is an unreasonable management change and requests that the change to management reporting be stopped until her appeal is finalised. These are matters outside of the scope of the appeal and for this reason, I will not address them.
Consideration
- [26]A review of the material attached to Ms Lui's appeal notice demonstrates that over a period of years, she has been advocating for her role to be reclassified from PO4 to PO5. It appears that Ms Lui chased up the matter via multiple emails throughout the course of 2022 and that this culminated in the email she received on 21 November 2022 informing her that her role would remain at PO4 level.
- [27]I understand from her handwritten reasons for appeal included in the notice, that Ms Lui complains that the decision that she continue at PO4 level is discriminatory and unfair.
- [28]It is also clear that Ms Lui has sought advice from a range of external sources.
Ms Lui has not used the employer's individual grievance process
- [29]While I understand that Ms Lui is frustrated and feels that she has exhausted the grievance process and has made a decision to escalate the matter to external review via this public service appeal, it is clear that the grievance process set out in the policy and guideline has not been followed. There is no evidence that Ms Lui has completed an Employee Grievance form and provided such to Human Resources. Further, there is nothing in the material before me to demonstrate that Ms Lui has made a written request to the Department's chief executive for an internal review of any action taken to address a grievance. At its highest, the material available to me demonstrates that Ms Lui has been advocating for her role to be reclassified and has received a response stating the role will remain at PO4.
- [30]In indicating on her appeal notice that she has used her employer's individual employee grievance process before lodging this appeal, Ms Lui is clearly relying on her efforts to communicate with various officers of the Respondent regarding her request. However, I note that in her final communication on 26 November 2022, Ms Lui states 'Thank you very much for meeting with me and I now can confirm that I will not initiate any further meeting internally regarding the issue'. It appears that Ms Lui is informing Ms Catterall and Mr Parmenter in that email that she does not intend to avail herself of any further internal process to resolve the matter.
- [31]Ms Lui has not used the procedures required to be used under the individual employee grievance process before seeking to bring her matter to the QIRC. I do not think it would be unreasonable to require Ms Lui to comply with the Respondent's individual grievance procedure. I understand that Ms Lui believes she should have been guided through the process by the Respondent. I find that it is reasonable for a person of Ms Lui's years of experience in the public service to either be aware, via training and the availability of policy and procedures of the grievance policy and procedure or to have the capacity to investigate what the appropriate process is.
- [32]I am not satisfied that Ms Lui has utilised the appropriate internal grievance process and having found it would not be unreasonable to require her to do so, I have decided not to hear the appeal pursuant to s 562A(1) of the IR Act.
The decision of 21 November 2022 is not one which may be appealed
- [33]It also appears that, in any case, the decision of 21 November 2022, assuming it was made following the internal grievance policy and procedure (which it was not), is not one that may be appealed.
- [34]Section 194(eb) provides for an appeal to be made against 'a decision the employee believes is unfair and unreasonable'. A broad range of matters come before the Commission as public service fair treatment appeals. However, section 194(2)(b) states that an appeal cannot be made against a decision if section 195 applies to the decision.
- [35]Section 195 lists decisions against which appeals cannot be made. Section 195(f) states that a person can not appeal against 'a decision about the classification level of employment unless the decision is declared under a directive of the commission chief executive to be a decision against which an appeal may be made'.
- [36]The decision Ms Lui is appealing is a decision about the classification level of employment. Therefore, s 195 applies to make this a decision which cannot be appealed.
- [37]This is not to say that there are not other avenues for Ms Lui to pursue her complaint regarding her classification level or to raise a grievance or a complaint regarding what she says is a discriminatory and unfair decision. It is a matter for Ms Lui to familiarise herself with the relevant Directive 11/20 Individual employee grievances and the Department's related policy and procedure and to seek advice regarding the avenues available to her.
- [38]Having decided not to hear the appeal under s 562A(1) of the IR Act and having found the decision is not one which may be appealed per s 195 of the PS Act, I am not required to consider the application for an extension of time to file the appeal.
Order
- [39]The appeal is dismissed pursuant to section 562A(1) of the Industrial Relations Act 2016 and section 195 of the Public Service Act 2008.
Footnotes
[1]Industrial Relations Act 2016 s 564(2).