Wesener v TAFE Queensland[2024] QIRC 196

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Mr Peter Wesener is employed by TAFE Queensland. He has filed an Appeal Notice seeking to commence a public service appeal. The Appeal Notice was filed after the expiry of the appeal period, and so Mr Wesener applies for an extension of time. The Respondent opposes that application.
2. [2]
   For the reasons set out in this decision I grant the request for an extension of time.

Background

3. [3]
   Mr Wesener is a Senior Teacher. He filed his appeal notice on 18 June 2024, seeking to commence a public service appeal. The decision he seeks to appeal against is a decision regarding disciplinary findings ('the decision') set out in a letter ('the decision letter') from Mr Stephen Gates, General Manager, TAFE Queensland, SkillsTech Region, dated 22 May 2024.
4. [4]
   Mr Wesener is represented in these proceedings by his union, the Queensland Teachers Union of Employees (QTU).

The legislative framework

5. [5]
   The substantive matter is a public service appeal which Mr Wesener seeks to bring pursuant to Chapter 3, Part 10 of the Public Sector Act 2022 ('Public Sector Act') and section 562B of the Industrial Relations Act 2016 ('Industrial Relations Act').
6. [6]
   The decision is a fair treatment decision for the purposes of section 131 of the Public Sector Act, relating to disciplinary findings and grounds for discipline. Chapter 3 of the Public Sector Act applies to disciplinary processes, as does the Public Sector Commission's Directive 05 of 2023, Discipline.^[1]
7. [7]
   This appeal is subject to the appeal period prescribed by section 564 of the Industrial Relations Act. Section 564(2) of the Industrial Relations Act confers a discretion on the Commission to allow the appeal to be started within a longer period.
8. [8]
   Extensions are not as of right and are the exception, not the rule.^[2] A person wishing to bring an appeal out of time bears the onus of persuading the Commission that the discretion should be exercised in their favour.

The Appeal and this application

9. [9]
   In the Appeal Notice Mr Wesener identifies several decisions as to disciplinary findings and disciplinary grounds that he says were not fair and reasonable.^[3] The grounds on which he says they were not fair and reasonable are because they:^[4]

3. (a)
   were not reasonably open to the decision maker on the evidence before him;

3. (b)
   took into account irrelevant considerations and failed to take into account relevant considerations; and

3. (c)
   did not give appropriate weight to exculpatory evidence.

10. [10]
    Mr Wesener makes this application for an extension of time on the following grounds:^[5]

I could not file my appeal within the 21 day period was because of delays in accessing from TAFE the voluminous documents necessary for identifying the grounds of appeal. I have received extensions of time from TAFE to respond to the Decisions in the letter of 22 May until 18 June because of those delays in dealing with the volume of material provided by TAFE, and (because of a series of misunderstandings and technical problems within TAFE) obtaining access to documents held within the TAFE IT system necessary to identifying the deficiencies in the Decision.

I should be granted an extension of time to file this appeal because it was not possible for me to draft this appeal notice without access to those documents from TAFE, that information provides objective evidence that TAFE's conclusions are not reasonably open to it, TAFE has already recognised those difficulties by extending my time to respond to the Decision letter until 18 June, and TAFE will not suffer any prejudice by provision of an extension because the appeal is being filed before my response to TAFE is due.

11. [11]
    TAFE Queensland opposes the application for extension of time.
12. [12]
    The Commission issued a Directions Order allowing the parties to make submissions in relation to this issue.
13. [13]
    The QTU filed submissions on the Appellant's behalf on 3 July 2024. TAFE Queensland filed submissions on 10 July 2024. The QTU filed submissions in reply on 15 July 2024.

Submissions

14. [14]
    The parties' submissions went to the principles relevant to the exercise of the discretion including timing of the decision being given, whether there was a reasonable explanation for delay, issues regarding access to electronic documents, prejudice, the parties' conduct, the merits, and fairness. I will deal with their submissions as necessary below.

Consideration

15. [15]
    In considering whether to exercise the discretion and grant an extension of time, I will have regard to the principles ordinarily considered in such applications.^[6] These principles are not exhaustive; the discretion is unfettered.^[7]

Length of delay

16. [16]
    By operation of section 564(1) of the Industrial Relations Act the period for commencing this appeal was within 21 days after the decision was given.

When was the decision given?

17. [17]
    The material is inconsistent in relation to when Mr Wesener received the decision. His appeal notice states he received the decision on 22 May 2024.^[8] The parties' submissions indicate that Mr Wesener received the decision letter (but not its supporting materials) by email under the hand of Ms Kathleen Hunter, Manager, Human Resource Operations, at 1.28 pm on 24 May 2024,^[9] and that he received the supporting materials by couriered USB later that afternoon, though the parties are in dispute as to whether that happened before or after close of business.^[10] The QTU's submissions in reply on behalf of Mr Wesener, in contrast to the principal submissions, say he received the decision on 22 May 2024.^[11]
18. [18]
    Having regard to the email from Ms Hunter of 24 May 2024, I find that the decision was given on that date.

Whether attachments were delivered after close of business

19. [19]
    I do not accept the QTU's argument that time did not begin to run until 27 May, on the basis that the supporting materials were not received until after close of business on 24 May. The Respondent provided a courier document showing the package to have been delivered at 4.50 pm. The QTU has not since taken issue with that document.
20. [20]
    It is not necessary to consider, therefore, whether providing the decision letter without the attachments referred to in it was sufficient to set time running for the purposes of section 564 of the Industrial Relations Act. Nor it is it necessary to consider whether providing a decision outside of ordinary business hours means it is not given, for the purposes of section 564, until the following business day.
21. [21]
    If I am wrong about the timing of the delivery, then in this particular case, where a substantial part of the reasoning for the decision was set out in an attachment to it instead of in the body of the decision letter,^[12] I would be inclined to consider that providing it separately after close of business on a Friday evening would at the least be a factor in favour of extension of time.

Whether intended to be provided at a later date with union support present

22. [22]
    I also do not accept the QTU's argument that time did not begin to run until 27 May, on the basis that the employer had intended to hand deliver the decision on that date, or on the basis that Mr Wesener could not access hard copy documents "with union support" until a meeting to be held on that date. Nor do I accept the QTU's argument that time did not begin to run until 30 May, on the basis of delays in being able to access electronic information. Section 564 applies when the decision is given, not when it is intended to be given, or when it is given in the presence of a union official.

Appeal period and filing date

23. [23]
    As the decision was given on 24 May 2024, the period for filing the appeal ended on 14 June 2024. Mr Wesener signed the appeal notice on 17 June 2024, and it is clear from the Appeal Notice's content that he knew it was out of time. The union did not file the Appeal Notice until the following day, 18 June 2024. No explanation has been offered for this further delay.
24. [24]
    The appeal was filed four days, but only two business days, after the appeal period ended.

Explanation for delay and other action taken by Mr Wesener

25. [25]
    Mr Wesener's principal explanation for delay related to difficulties in gaining access to electronic documents.
26. [26]
    He also submits that he filed within the period allowed by the Respondent for him to respond to the decision letter.^[13]

Information technology access

27. [27]
    Mr Wesener by his representatives made attempts to gain access to his work computer and external hard drive. He was absent from work on suspension during the disciplinary process.^[14] He needed his network access restored.^[15] Once it was restored, he, the QTU and Ms Hunter learned, on 7 June 2024, that the computer itself had been deactivated.^[16] Once this was addressed, by the Respondent and Fujitsu,^[17] there was difficulty because the multi-factor authentication was attached to a work phone number to which he no longer had access.^[18]
28. [28]
    It was not until Monday 10 June 2024 that Mr Wesener was able to gain access to, take home, and use his work computer.^[19]
29. [29]
    As at 6 June 2024 the external hard drive had not yet been able to be located. It is not clear to me whether it has been located since.
30. [30]
    Mr Wesener says he needed the information technology access in order to identify the deficiencies in the decision and to draft the appeal notice.^[20] He says that the electronic information provides objective evidence that the Respondent's conclusions were not reasonably open to it.^[21] This is one of the grounds of his appeal.^[22]
31. [31]
    The union submits on Mr Wesener's behalf that he had a reasonable basis to allege the Respondent's conclusions were not reasonably open to it only after gaining access to and reviewing electronic documents. It says that once he had that reasonable basis, he "promptly" filed the Appeal Notice^[23] and "did so within the period that the Respondent had allowed him to respond to the Decision."^[24]
32. [32]
    I accept that challenging disciplinary findings regarding allegations going to timetabling and overtime, and whether a student examination re-sit was justified, may well involve reviewing electronic documents. There may also be electronic documents relevant to the other substantiated allegations.
33. [33]
    I accept it may have taken some time for Mr Wesener to review the electronic materials. Mr Wesener filed the appeal notice within seven days after the day on which he obtained access to the electronic documents.

Filing within period agreed for response to "show cause"

34. [34]
    Mr Wesener says his appeal was filed within the period agreed, by the Respondent, for the provision of his response to the decision letter. That period had been extended twice at Mr Wesener's request and with the agreement of the Respondent:

    1. Mr Wesener's union had requested an initial extension of fourteen days for him to respond to "the show cause,"^[25] and the Respondent granted the extension; and
    2. after information technology problems impeded Mr Wesener's access to relevant materials, his union requested a further extension of four days "for his show cause,"^[26] to 18 June 2024. The Respondent again granted that request.
35. [35]
    I take the reference to "the show cause" or "his show cause" to be a reference to the decision letter, which in addition to stating the disciplinary findings and disciplinary grounds, invited the Appellant to show cause as to why disciplinary action should not be taken. This is a conventional approach, consistent with Public Service Commission guidance.^[27]
36. [36]
    The relevant correspondence is simply silent as to whether any party sought or gave consent for an application to file the appeal within a longer period. The fact that Mr Wesener filed out of time, and the fact that TAFE Queensland objects to his having done so, suggests there may not have been a shared understanding as between the parties in relation to what the agreed extension did and did not cover.

Prejudice

37. [37]
    The Appellant will suffer prejudice if the extension is not granted. The disciplinary process will proceed on the basis that certain allegations have been substantiated. The Respondent will make its decision as to penalty on that basis. If the Respondent decides to impose the proposed penalty of termination of employment, then the Appellant's position will shift from resisting to challenging dismissal.^[28]
38. [38]
    The Respondent concedes that the prejudice to it is "minimal."^[29] The union says that because the appeal was commenced prior to the date by which the Appellant was to show cause in relation to penalty, the decision-maker had not yet moved to the next stage in the process.^[30] The union says that by granting extensions to the Appellant, the Respondent implicitly conceded it would have been unfair not to give the Appellant more time to deal with the further materials, and that it would not suffer prejudice by doing so.^[31]
39. [39]
    When the appeal was filed the parties were still at the stage of the process where the Appellant was showing cause as to why disciplinary action should not be taken.^[32] The Respondent had not yet received that show cause response and could therefore not yet be considering it or otherwise undertaking the next stage of the process, i.e., deciding whether to take disciplinary action.^[33] By definition the Respondent could not yet have acted in reliance on the decision.
40. [40]
    Given the proposed penalty is termination of employment, then as a matter of prudence the Respondent would likely have turned its mind to defending the disciplinary findings not only in a fair treatment appeal but also potentially in an application for reinstatement some months later.^[34]
41. [41]
    In the circumstances, the Appellant's commencing this appeal on 18 June 2024 rather than 14 June, is unlikely to have given rise to any prejudice to the Respondent in being able to defend these proceedings.

Conduct of the Respondent

Conduct in respect of information technology

42. [42]
    As indicated above the Respondent had not preserved Mr Wesener's network access, prevented the deactivation of his computer, or made arrangements for an alternative basis for multi-factor authentication in advance of providing the decision letter to him. I make no finding that this was a deliberate attempt on the Respondent's part to impede Mr Wesener's ability to respond or commence the appeal, or that any arrangement was specific to him rather than being of general application to employees absent from the workplace. I also observe that Ms Hunter appears to have been diligent and prompt in seeking to resolve these issues. Despite her efforts Mr Wesener did not have access until 10 June 2024.
43. [43]
    To avoid future delays, or contested requests for extensions, public sector employers may wish to consider how to make sure that any information technology processes align with disciplinary and appeal processes, especially where the employee is to be absent because of suspension or other reasons.

Notification of appeal rights

44. [44]
    The Respondent says the Appellant was advised of his appeal rights on page 8 of the decision letter and was alerted to the 21-day time frame to lodge an appeal.^[35]
45. [45]
    The decision letter has a section entitled "Appeal entitlements" that is largely consistent with the Public Sector Commission's template letter ("the template").^[36]
46. [46]
    The Respondent's version was materially different from the template in one respect, specifically, the omission of the advice to commence the appeal "urgently" from the third paragraph.
47. [47]
    Neither the decision letter nor the template itself clearly states the day on which the appeal period starts to run.
48. [48]
    The template provides two paragraphs to be used in notifying a person of their appeal rights if termination of employment is not proposed, and an alternative six paragraphs to be used if termination is proposed.
49. [49]
    The template's language about the commencement of the appeal period is clearer in the paragraphs to be used where termination is not proposed, in that it states not just the period, but also the date on which the period commences to run:^[37]

If you believe that my decision (to find that the allegation[s] above are substantiated – disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal within 21 days of receiving this decision under section 131(1)(d) of the Act.

(emphasis added)

50. [50]
    Because termination of employment can cause a fair treatment appeal right to lapse, describing the appeal right is inherently more complicated. The decision letter used the following paragraph, which as stated above is materially the same as the equivalent paragraph from the template save for the omission of the reference to urgency:

Therefore, if you wish to lodge a fair treatment appeal within 21 days under the appeal provisions of the PS Act regarding the disciplinary finding decision, you must exercise your appeals rights before a decision to terminate (if it were to be made) is implemented.

51. [51]
    The template's users would benefit if the template's reference to "within 21 days" could be more precise by indicating what it is that the person needs to lodge within 21 days of, i.e, the disciplinary finding(s) decision set out in the same letter.

Merits of the appeal

52. [52]
    The Respondent submits the merits of the appeal cannot be garnered from the limited grounds outlined in the Appeal Notice.^[38] The grounds of appeal are as set out above and are not unconventional.
53. [53]
    The attachments to the decision letter are not yet before me. This includes the initial show cause letter of 23 January 2024, Mr Wesener's response of 1 March 2024, and most importantly Attachment C which the decision letter says sets out in detail the findings in relation to each allegation "and associated sub-allegations" including "the analysis of key information gathered to date."^[39]
54. [54]
    The Appellant says the documentary information obtained from the Respondent's records shows the Respondent did not have reasonable grounds for various of the findings in the decision.^[40] The Appellant goes on to make arguments specific to Allegations 1 and 5. The electronic information relied upon by the Appellant as a basis for his arguments on the merits is not before me so I cannot assess the likely success or failure of those arguments, but the arguments themselves go to fairness and reasonableness of the decision and it will be open to the Appellant to make them.

Considerations of fairness between the appellant and other persons in a like position

55. [55]
    The Respondent submits that refusing the application would not give rise to unfairness for other persons in a like position because of the Appellant's failure to provide an adequate explanation for the delay.^[41]
56. [56]
    The Appellant says that if time is not extended that would:^[42]

    1. cause other potential appellants to file "speculative" appeals before they have sufficient material in front of them to identify proper grounds; or
    2. enable other potential respondents to avoid the commencement of appeals within time, by delaying the provision of required information.

Whether the discretion should be exercised

57. [57]
    Having regard to the facts and circumstances considered above I am persuaded, on balance, to exercise the discretion to extend time, to allow the Appeal Notice to be commenced on 18 June 2024.
58. [58]
    The Respondent's own information technology arrangements, while no doubt being instituted for sensible security reasons, caused delay for the Appellant in gaining access to electronic documents. This is a matter more within a respondent's control than an appellant's. I agree that it is preferable for the parties if appellants can have a reasonable amount of time to consider such documents prior to filing their appeals. Respondents can avoid this giving rise to the need for such extensions by turning their mind to information technology access at the same time as they are preparing to issue "disciplinary findings" letters to persons who have been absent because of suspension or otherwise.

Conclusion

59. [59]
    The question in this case is whether I should exercise my discretion and allow Mr Wesener to start his appeal on 18 June 2024.
60. [60]
    For the reasons given I am persuaded the discretion should be exercised to extend time.

Order

61. [61]
    I make the following order:

The Appellant's application to allow his appeal to be started within a longer period is granted. The Appellant has leave to file his Appeal Notice on 18 June 2024.