Lu v State of Queensland (Queensland Health)
[2024] QIRC 31
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- Lu v State of Queensland (Queensland Health)[2024] QIRC 31
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Lu v State of Queensland (Queensland Health)[2024] QIRC 31
Lu v State of Queensland (Queensland Health)[2024] QIRC 31
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lu v State of Queensland (Queensland Health) [2024] QIRC 031 |
PARTIES: | Lu, Wei (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2024/8 |
PROCEEDING: | Public Service Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 15 February 2024 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – Fair treatment decision where appellant sought review of decisions regarding roster changes, offers of full-time employment and use of an adverse referee report in a selection process – appeal filed out of time – section 38 Acts Interpretation Act 1954 – reckoning of time over public holiday periods – whether part of appeal is a fair treatment decision relating to the recruitment or selection of a public sector employee pursuant to section 132(4)(c) of the Public Sector Act 2022 – whether extension of time application should be granted – application refused – appeal dismissed for want of jurisdiction |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) s 38 Industrial Relations Act 2016 (Qld) s 562B, s 564 Public Sector Act 2022 (Qld) s 131, s 132 |
CASES: | Dickson v Moreton Shire Council [2020] QIRC 106 Grant v State of Queensland (Queensland Health) [2020] QIRC 228 Hanson v State of Queensland (Queensland Health) [2021] QIRC 68 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Nicholson v Carborough Downs Coal Management Pty Ltd [2022] ICQ 034 O'Keefe v State of Queensland (Queensland Police Service) [2022] QIRC 364 Secretary, Department of Foreign Affairs and Trade v Boswell [1992] 108 ALR 77 Speare v Kidston Craft Pty Ltd [2005] QIRComm 115 Stoyel v State of Queensland (Department of Environment and Science) [2023] QIRC 42 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Wilson v State of Queensland (Department of Justice and Attorney General) [2021] QIRC 245 |
Reasons for Decision
- [1]This is a public service appeal pursuant to s 131 of the Public Sector Act 2022 (Qld) ('PS Act'). The appellant in this matter is employed as a phlebotomist by Queensland Health in the pathology unit within the Royal Women's Hospital.
- [2]The crux of this matter is grievances raised by the appellant on 10 July 2023 and 9 August 2023. They were the subject of an investigation, the outcome being prepared in writing by the Greater Metropolitan Laboratory Operations Manager, Pathology Queensland and given to the appellant on 7 November 2023.
- [3]The appellant sought an internal review of that outcome. That internal review was carried out by the Deputy Director-General Queensland, Public Health and Science Services, Department of Health. That internal review produced a written decision ('Decision') dated 18 December 2023, which is the date that it was provided to the appellant. The appellant seeks an external review of the Decision by way of an appeal to the Queensland Industrial Relations Commission ('Commission').
- [4]The Decision reviewed findings about the grievances, which can be broadly described as refusals by the appellant's manager to change rosters as requested, directions given to the appellant about changes to the rosters, whether employees from England were favoured over the appellant regarding offers of full-time work and the use of an adverse referee report in a recruitment and selection process.
- [5]In his appeal notice Form 89, the appellant identifies that the appeal is filed out of time. The appellant seeks an extension of time. The respondent opposes that request.
- [6]The Commission issued orders on 19 January 2024 that the parties file submissions in relation to the appellant's application for an extension of time. The parties filed and exchanged both opening and responding submissions in accordance with those orders. I have read and considered those submissions and the matter has been determined on the papers.
Relevant law
- [7]Sections 564(1) and 564(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') work together to impose a time limit for filing an appeal of the Decision. In this case, that time limit is 21 days from the date the appellant received the Decision, which was on 18 December 2023.
- [8]Section 38 of the Acts Interpretation Act 1954 ('Interpretation Act') says:
38 RECKONING OF TIME
(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—
- if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
- in any other case—by including the day on which the purpose is to be fulfilled.
(2) If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.
(3) If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.
(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
- In this section—
"excluded day" —
- for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or
- otherwise—means a day that is not a business day in the place in which the thing must or may be done.
- [9]Section 564(2) of the IR Act allows for an exercise by the Commission of a discretion to extend time. In Hanson v State of Queensland (Queensland Health) ('Hanson'),[1] his Honour, Merrell DP, followed the principles for extension of time cases laid down in Hunter Valley Developments Pty Ltd v Cohen ('Hunter Valley').[2] Since then, the Hunter Valley principles were followed by his Honour, Davis J, in Nicholson v Carborough Downs Coal Management Pty Ltd,[3] the President noting that the High Court recently approved Wilcox J's judgement in Hunter Valley.[4] The President cited those principles as follows:[5]
- Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J, 9 December 1983) at 7).
- Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights': per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen [1984] FCA 77; (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the 'need for finality in disputes' (see Lucic at 410) but also the 'fading from memory' problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.
- 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 an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
- However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
- The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
- Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534‑535.
Parties' submissions
Appellant's stated reasons
- [10]In his Form 89 – Appeal Notice, the appellant stated:
I was thinking the queensland ombudsman will deal with my issue so I sent a review requirement to the Queensland Ombudsman and they replied very late. I just received the response today (16/01/2024) and told me they will not investigate my complaint. The Q/ueensland Ombudsman suggested that I contact you and ask for an external review.
Respondent's submissions
- [11]The respondent submits that the Decision contained the following text when it was provided to the appellant:[6]
External review
If you are not satisfied with my decision in relation to the internal review of your grievance, you may lodge a public service appeal. A public service appeal must be lodged with the Industrial Registry within 21 days of you being notified of my decision. Further information can be obtained from the Queensland Industrial Relations Commission on telephone 1300 592 987. Alternatively, you may refer to the Queensland Industrial Relations Commission appeals guide available at www.qirc.qld.gov.au.
Further information in relation to possible external review options can be found under clause 9.3 Stage 3 – external review of the Directive [Public Sector Commission Directive 11/20 Individual employee grievances].
You may also lodge a complaint with the Queensland Human Rights Commission (HR Commission). More information can be found on the HR Commission complaints webpage: www.qhrc.qld.gov.au/complaints.
- [12]The respondent also submits that the appellant was provided with a copy of that Directive, which provided further information outlining the appellant's rights to lodge an 'external review' in the Commission and also alerting the appellant to the fact that there were time limits for lodging this 'external review'.
- [13]The respondent submits that the 21-day time limit should exclude the period from 25 December 2023 through to 1 January 2024 and that the last date for filing the appeal within the 21-day time limit was therefore 16 January 2024. The respondent submits that the application for an appeal was thus filed one day late.
- [14]The respondent also submits that there was nothing that was beyond the appellant's control preventing him from filing within the prescribed 21 days. Further, the respondent submits that the appellant does not adequately explain why he decided to seek the assistance of the Queensland Ombudsman instead of filing an appeal with the Commission.
- [15]The respondent also pointed initially to the appellant not having put on any evidence proving that he did in fact seek the assistance of the Queensland Ombudsman.
Appellant's submissions
- [16]The appellant submits that he had sent complaints regarding these grievances to the Queensland Ombudsman in the past and thought to do so in respect of the review of the Decision in this case. The appellant also submits that he could prove that he sought the assistance of the Queensland Ombudsman by way of written correspondence. The appellant did subsequently file with the Commission copies of email correspondence between him and the Queensland Ombudsman. The appellant submits that waiting for the Queensland Ombudsman to advise him that it was unable to assist and was a matter outside of the appellant's control.
- [17]In response to the respondent's submissions about being advised of the 21-day time limit in writing, the appellant says that he did not understand that he 'must complain to QIRC'. The appellant submits that he had been invited, on the last occasion he dealt with the Queensland Ombudsman, to come back to it if he needed further assistance.
- [18]The appellant does not say that he failed to appreciate that an appeal to the Commission needed to be filed within 21 days of receiving the Decision. As I understand his submissions, the appellant simply chose to go back to the Queensland Ombudsman for assistance rather than filing an appeal in the Commission, and when he learned that the Ombudsman could not assist, time had already expired. The appellant filed this appeal as soon as he could after that.
Consideration
How late was the application
- [19]The appellant received the Decision on 18 December 2023. The 21-day limitation period therefore began to run on 19 December 2023, pursuant to s 38(1) of the Interpretation Act. There is a difficulty arising, however, with the respondent's submission in relation to the construction of s 38 of the Interpretation Act. The essence of that submission is that the period of public holidays from 25 December 2023 to 1 January 2024 should be excluded from the 21-day limitation period. The submission concludes that the appeal was filed one day late because the 21-day limitation period expired on 16 January 2024.
- [20]However, s 38(2) of the Interpretation Act operates (relevantly in this instance) to exclude only the last day upon which filing could occur within the prescribed period if that last day is an 'excluded day'. That is – a day on which the Commission is not open, such as a public holiday. Section 38(2) of the Interpretation Act does not operate to extend the 21‑day limitation period by the number of days within that 21-day period where the Commission was closed. By way of illustration, if the seventh and eight days after time began to run happened to be public holidays (as they were in this case), they are still counted as part of the limitation period. So too any weekends during the 21-day period. That is even though they are days upon which the Commission was not open to accept filing of documents.
- [21]It is only where the last day of the period for filing falls on an 'excluded day' that the relevant part of section 38 of the Interpretation Act has work to do. Where that last day for filing is an 'excluded day' (such as a public holiday) then time extends to the next business day when the Commission is open. That construction of s 38 of the Interpretation Act has been applied previously by the Commission.[7] On that basis, I do not accept the construction put forward by the respondent.
- [22]Accordingly, the 21-day limitation that applied in this case expired on 8 January 2024. The appellant filed this appeal on 17 January 2024. The appeal was therefore filed 10 days out of time.
- [23]In Hanson,[8] his Honour, Merrell DP described a delay of 11 days as 'significant'. Here the delay is very similar in length, being 10 days. I respectfully agree with and adopt his Honour's description in Hanson; the delay in this case was significant.
Explanation for the delay
- [24]Upon receiving the Decision, the appellant decided to seek assistance of the Queensland Ombudsman rather than lodge an appeal with the Commission. On the material before the Commission, it is abundantly clear that the appellant was told about his appeal rights and about the 21-day limitation period. That occurred, in writing, on the day the appellant received the Decision. Even before receiving the Decision, the respondent provided the appellant with information that set out the process for dealing with his grievances included information about the right to file an appeal in the Commission and the fact that time limits applied.
- [25]The appellant exercised a choice in seeking assistance from the Queensland Ombudsman rather than filing an appeal with the Commission. The appellant only decided to lodge this appeal once the Queensland Ombudsman advised the appellant that the Queensland Ombudsman could not assist. The 21-day time limit for lodging an appeal of the Decision was information that the appellant had been given well before time ran out. The appellant's submissions indicate that he misunderstood how far the Queensland Ombudsman could progress his concerns. However, there is nothing to suggest that the appellant was misinformed. The material before the Commission clearly shows that the appellant was correctly informed that he needed to file an appeal with the Commission within the 21-day time limit if he wanted to seek an external review of the Decision.
- [26]In short, the explanation for the delay is exercising a choice to seek assistance from the Queensland Ombudsman rather than filing an appeal in the Commission. That choice may have been influenced by a misunderstanding. But this is not a case where the appellant was entirely blameless, such as cases involving representative error like those discussed in Dickson v Moreton Shire Council.[9] With that in mind, I am not persuaded that the appellant has demonstrated an 'acceptable explanation' for the delay.
Prejudice
- [27]The appellant would obviously suffer prejudice if the extension of time were not granted because he would be deprived of the opportunity to have this matter fully considered. Conversely, the respondent suffers no prejudice from the delay. However, the fact that the appellant suffers prejudice and the respondent does not suffer prejudice does not warrant granting an extension in and of itself.
Merits of the appeal
- [28]The operative effect of s 562B of the IR Act means that this appeal's prospects lie in a finding by the Commission as to whether the Decision was fair and reasonable. There are three 'concerns' that the Decision deals with, which would be the subject of this appeal if an extension of time were to be granted.
- [29]The 'first concern' was a claim of cultural discrimination that cites two examples of cultural discrimination. Although the appellant admitted 'there is no obvious evidence' of cultural discrimination in the workplace, he claimed that he could 'feel' there was discrimination based on the two examples he provided.
- [30]The first example of cultural discrimination was a refusal by the appellant's manager of the appellant's request for a shift change. The decision-maker considered evidence reviewed in the initial investigation that proved the manager had offered to accommodate shift changes. Further, the decision-maker considered evidence proving that the shift in question was during the Easter 2023 period where staff were already rostered on leave and the appellant's request for a shift change came at short notice.
- [31]The second example provided by the appellant under this heading was that people who were from England were favoured over those not from England with offers of full‑time employment. The decision-maker considered documentary evidence which proved that the appellant, who was not from England, had in fact been offered a temporary full-time position that the appellant had subsequently accepted.
- [32]Regarding prospects, the appellant himself is living proof that the second example of alleged discrimination was unfounded. This part of the appeal is without any real prospects in my view. With the first example of alleged discrimination, I see no real prospects either. Even from this early vantage point, it is clear that the finding was fair and reasonably open. The manager refused to facilitate a late request for changing or altering of shifts. Granting the request would have had the effect of altering the rostered leave of other employees. It was therefore entirely open to the decision-maker to form the view that refusing such a request was fair and reasonable. On that basis, I do not see any real prospects in this part of the appeal.
- [33]The 'second concern' related to the appellant's manager directing him to update his roster when alterations to his shifts were agreed to by the manager. The issue here was that it was not the appellant's responsibility and not within the appellant’s power to make changes to the roster. The appellant was directed to do something, or expected to do something, that he says he was not able or authorised to do. The decision-maker considered evidence, which included the implementation of a new practice by that manager of ensuring that the manager, and not the appellant, made those changes to the roster. The manager implemented these new practices after being spoken to.
- [34]The decision-maker found that it was open to the initial reviewer to conclude that this second concern was resolved and did not warrant further action. The Commission's role in appeals of this nature is to determine whether the decision is fair and reasonable. It is clear that it was open on the materials considered by the decision-maker to find as he did – that the manager was spoken to, had subsequently changed her practice and that the appellant is no longer expected to make changes to the roster after those changes have been agreed to by the manager. On any objective assessment, even at this preliminary stage, the decision-maker's conclusion that the matter has been appropriately dealt with, and does not require further action, was fair and reasonable in the circumstances. On consideration of the material provided to the Commission, it is my view that this part of the appeal has no real prospects.
- [35]The 'third concern' raised by the appellant relates to the use of a referee report prepared by his manager by a selection panel when he applied for a position. The concerns relate to the less than glowing assessments of the appellant's language and communication skills, relationships with colleagues and interactions with some clients. The concern had two parts. First, the appellant disagreed with the facts asserted in the referee report. Second, the appellant claimed that he had not been given a chance to respond to, learn from, or improve in any of the performance areas mentioned in the referee report.
- [36]The initial review found that this concern was partially substantiated – that the manager had not treated the appellant fairly or reasonably because the appellant had not been given a chance to respond to, or self-correct in relation to, the issues in the report before it was provided to the selection panel.
- [37]However, the initial review, upheld by the Decision, found that the recruitment and selection panel did not consider the referee report - that the report was only requested, as it was for all of the applicants, in order to expedite the process. That finding seems to me to have been well and truly open to the decision-maker to make. I do not think that it is reasonably arguable that such a finding was unfair or unreasonable. Even if it were, that argument would raise the question of whether this part of the appeal relates to the recruitment and selection of a public sector employee.
- [38]Section 132(4)(c) of the PS Act says:
- A person can not appeal against a fair treatment decision:
… (c) relating to the recruitment or selection of a public sector employee; …
- [39]The words 'relating to", whilst usually construed broadly in meaning, must still be confined by context. The context is derived from the words surrounding them in the relevant statute.[10] It is obvious here that the context is the connection between the relevant part of a fair treatment decision and a recruitment or selection process of a public sector employee.
- [40]It is immediately apparent that this ground of the appeal has a very strong relationship to the recruitment or selection of a public sector employee. The appellant makes it abundantly clear in his submission that this ground of appeal is about whether the referee report was material in the decision not to select him for employment in a public sector position. So even on the appellant's own case, this part of the appeal clearly relates to the recruitment or selection of a public sector employee. On that basis, I am of the view that this part of the appeal cannot be brought pursuant to s 132(4)(c) of the PS Act. I thus have no hesitation in finding that this ground of the appeal also has no real prospects of success.
Fairness as between the appellant and others in a like position
- [41]It would be unfair if the appellant's application were granted in circumstances where the delay was significant, no reasonable excuse existed (such as representative error beyond the appellant's control) and where prospects of success were poor.[11]
Conclusion
- [42]The delay in this case is significant. I do not consider there to be an acceptable explanation for the delay in this case. The prospects of the appeal are poor and it would be unfair to those parties who have previously been refused extensions of time in similar circumstances. I am therefore not satisfied that it would be proper to exercise the discretion to extend time in this case. Consequently, the appeal, being filed outside of the time allowed, therefore is beyond the scope of the Commission's jurisdiction.
Orders
- [43]I make the following orders:
- The appellant's application for an extension of time to file the appeal is refused;
- The appeal is dismissed for want of jurisdiction.
Footnotes
[1] [2021] QIRC 68, [9] ('Hanson').
[2] (1984) 3 FCR 344.
[3] [2022] ICQ 034, [38] ('Nicholson').
[4] Nicholson (n 3) [40], citing Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28.
[5] Ibid [38].
[6] Bold emphasis in original.
[7] Wilson v State of Queensland (Department of Justice and Attorney General) [2021] QIRC 245, [15]; Speare v Kidston Craft Pty Ltd [2005] QIRComm 115.
[8] Hanson (n 1) [11].
[9] [2020] QIRC 106, [32]-[34].
[10] Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; Secretary, Department of Foreign Affairs and Trade v Boswell [1992] 108 ALR 77.
[11] Stoyel v State of Queensland (Department of Environment and Science) [2023] QIRC 42; Grant v State of Queensland (Queensland Health) [2020] QIRC 228; O'Keefe v State of Queensland (Queensland Police Service) [2022] QIRC 364.