Woodward v State of Queensland (Queensland Health)
[2023] QIRC 65
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- Unreported Judgment
- Woodward v State of Queensland (Queensland Health)[2023] QIRC 65
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Woodward v State of Queensland (Queensland Health)[2023] QIRC 65
Woodward v State of Queensland (Queensland Health)[2023] QIRC 65
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Woodward v State of Queensland (Queensland Health) [2023] QIRC 065 |
PARTIES: | Woodward, Sophia (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/935 |
PROCEEDING: | Public Service Appeal - Conversion to higher classification level |
DELIVERED ON: | 28 February 2023 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | The Appellant's application for a longer period to start her appeal is refused. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant was reviewed under s 149C of the Public Service Act 2008 (Qld) – where appeal lodged out of time – whether extension of time should be granted – extension of time not granted |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 564 Public Service Act 2008 (Qld), ss 149, 194 and 195 |
CASES: | A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Chapman v State of Queensland [2003] QCA 172 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works [2020] QIRC 195 |
Reasons for decision
Introduction
- [1]Ms Sophia Woodward ('the Appellant') was employed in a higher classification position of AO5, Project Officer, Digital Solutions and Technology, Digital Solutions and Delivery Branch, eHealth Queensland ('the position') with the State of Queensland (Queensland Health) ('the Respondent').
- [2]On 9 June 2022, the Appellant requested to be permanently appointed to the position, pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act') and Directive 13/20 Appointing public service employee to a higher classification level ('the Directive').
- [3]On 19 July 2022, Mr John Kinnane, Executive Directive, Digital Solutions Delivery Branch, advised the Appellant that she was not eligible for appointment as the Appellant has not been employed in the same role for a continuous period of at least one year ('the decision').
- [4]By appeal notice filed on 11 October 2022, the Appellant appealed against the decision, pursuant to s 194 of the PS Act.
- [5]The Appellant, within the appeal notice, indicates that she was unable to lodge the appeal within the 21 day time limitation period and applies for an extension of time to file the appeal. Accordingly, the jurisdictional issue must first be considered to determine whether discretion should be exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
- [6]For the reasons contained herein, an extension of time is not granted.
Appeal principles
- [7]The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [8]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
Reasons for delay
- [9]The Appellant outlined the following reasons for the delay in filing the appeal:
I am writing to extend the appeal time on the grounds that there was not sufficient time to have discussions with the Union I had to wait for the responses from the Together Members Unions. I had been discussing the outcome with the union and I had not contemplated they're being a period and I didn't realise that appeals had to be made to QIRC. I first applied for Union advice/Industrial Assistance to the union on 21/07/2022. I did not receive an outcome / response until 15/08/2022. Hence then missing the 21 day timeframe.
Legislative framework
- [10]Section 564 of the IR Act provides for the time limit for appeal:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (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.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- [11]
On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:
"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."[7]
- [12]The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:
In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[8]
Consideration
Explanation for delay
- [13]The decision relevant to this appeal was made on 19 July 2022. The last day to file the appeal within the 21 day time period was 9 August 2022. The appeal was filed on 11 October 2022 and was therefore filed 64 days beyond the 21 day time limitation period. This is a significant delay beyond the statutory timeframe.
- [14]The Appellant submits that the reason for the delay was that her Union did not provide a response to her request for advice until 23 August 2022. There is no explanation given for the almost six week delay beyond the date upon which the Union responded to the Appellant's request. There is also no evidence that the Appellant attempted to follow up with the Union to pursue the matter. I do not consider the Appellant's explanation for the delay to be an exceptional circumstance that would prevent the Appellant from filing the appeal within the statutory time period.
- [15]The Appellant submits that she had not contemplated that there was a time limitation period, however, it is made clear to the Appellant in the decision that 'there are procedural requirements, including time limits' under the IR Act to appeal the decision.
- [16]The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter.
Prospects of success
- [17]A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
- [18]
…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…[10]
- [19]The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[11] Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below.
- [20]The decision determined that the Appellant was ineligible to request appointment to the position on the basis that the Appellant was not engaged at the higher classification level for a continuous period of at least one year.
- [21]The Appellant submits that she has been a public servant for seven continuous years and worked in similar Project Officer roles for four years and ten months and was employed for ten months at a higher level AO6 Senior Project Officer role whilst retaining a permanent AO3 position. The Respondent submits that the ad-hoc grouping of the positions together does not meet the definition of a 'continuous period' of higher duties.
- [22]
The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.[13]
…
… That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.[14]
- [23]The difficulty for this appeal is that at the time of requesting a review pursuant to s 149C(1), the Appellant had not been seconded to a higher classification level for a continuous period of at least one year. The Appellant had been employed in the Project Officer (AO5) role for approximately 6.5 months before the incumbent returned from leave to resume their position. Accordingly, the Appellant was not eligible to seek a review for conversion.
- [24]Section 195(1)(j) of the PS Act provides that an appeal cannot be made against a decision under s 149C of the PS Act 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 level for less than two years. This timeframe is also contained in cl 8.2 of the Directive. The Appellant has not been employed at the higher classification level for two years and as such cannot appeal the decision in this matter.
- [25]On the basis of a jurisdictional barrier to determining the substantive appeal, the prospects of this appeal are limited.
Justice of the case
- [26]The prejudice to the Respondent in allowing the appeal is that it will not be able to rely upon the statutory time limit.
- [27]The prejudice to the Appellant will be that the appeal against the decision will not be subject to independent consideration, however, as outlined above, I consider the prospects of success in this matter to be limited.
- [28]In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe.
Conclusion
- [29]In consideration of the above factors, I do not consider that there are reasonable grounds to extend the time for filing this appeal and have determined not to exercise my discretion pursuant to s 564(2) of the IR Act.
Order
- [30]I make the following order:
The Appellant's application for a longer period to start her appeal is refused.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[2] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
[4] IR Act s 562B(3).
[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[6] [2019] ICQ 16.
[7] Ibid 2.
[8] Ibid.
[9] [2003] QCA 172.
[10] Ibid [3].
[11] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35.
[12] [2020] QIRC 195.
[13] Ibid [54].
[14] Ibid [56].