Kellaway v State of Queensland (Department of Transport and Main Roads)
[2025] QIRC 175
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- Unreported Judgment
- Kellaway v State of Queensland (Department of Transport and Main Roads)[2025] QIRC 175
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Kellaway v State of Queensland (Department of Transport and Main Roads)[2025] QIRC 175
Kellaway v State of Queensland (Department of Transport and Main Roads)[2025] QIRC 175
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kellaway v State of Queensland (Department of Transport and Main Roads) [2025] QIRC 175 |
PARTIES: | Kellaway, Carol (Appellant) v State of Queensland (Department of Transport and Main Roads) (Respondent) |
CASE NO: | PSA/2025/40 |
PROCEEDING: | Public Sector Appeal – Suspension without remuneration decision |
DELIVERED ON: | 7 July 2024 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDERS: | The appeal is dismissed for want of jurisdiction. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant employed as an administration officer – where the appellant has been charged offences relating to unlawful stalking and computer hacking – where the appellant was suspended without remuneration – where the appeal was filed out of time – whether the appeal should be extended – consideration of explanation for delay – consideration of prejudice – consideration of prospects of success |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 564, s 566 Public Sector Act 2022 (Qld) s 101 Directive 06/23: Suspension cl 8, cl 9, cl 11 |
CASES: | Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 House v The King (1936) 55 CLR 499 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010 Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189 |
Reasons for Decision
Appeal Details
- [1]Ms Carol Kellaway (the Appellant) is employed as an Administration Officer with the Department of Transport and Main Roads (the Respondent; the Department).
- [2]On 14 March 2025, the Appellant filed an appeal against the decision of Mr Dennis Walsh, Chief Engineer, Engineering and Technology Branch, Infrastructure Management and Delivery of the Respondent, to continue the Appellant's suspension without renumeration (the Decision), on the following basis:
I have carefully considered all the material before me including your Response and have determined that you will remain suspended without remuneration until 14 May 2025, unless cancelled earlier, on the following basis:
- Section 101(1)(a) of the PS Act provides that a public sector employee’s chief executive (or their delegate) may, by notice, suspend the employee from duty if they reasonably believe the employee is liable to discipline under a disciplinary law. Section 101(3) of the PS Act provides that before suspending an employee, the chief executive (or their delegate) must consider all reasonable alternatives available to the employee.
- Section 101(4) of the PS Act provides that a chief executive (or their delegate) may decide that normal remuneration is not appropriate during a period of suspension under s 101(1)(a) of the PS Act, having regard to the nature of the discipline to which the employee may be liable.
- Clause 8.2 of the Directive provides the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
- there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
- it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.
- I reasonably believe you are liable to discipline under a disciplinary law, namely s 91(1)(b) of the PS Act, on the basis that:
- You have been charged with:
- –one charge of Unlawful Stalking (domestic violence offence);
- –two charges of Computer Hacking (gain benefit); and
- –two charges of Computer Hacking (simpliciter) of the Criminal Code.
- I understand some of the criminal charges relate to your alleged conduct in the workplace, whilst performing your duties as a then QPS employee, namely inappropriate access and release of QPS information to another person that assisted that person in committing an offence, and that you received payment for the release of that information.
…
- [3]On the Appeal notice filed 14 March 2025, the Appellant indicated that the Decision was given to her on 14 February 2025. That makes the Appeal filed seven days out of time.
- [4]A Directions Order was issued on 18 March 2025 inviting the parties to make written submissions on the question of why the Appeal should be heard out of time.
- [5]Before the question of 'whether or not the suspension without pay decision was fair and reasonable' may be determined, I am first required to address the superseding (and in this case determinative) jurisdictional issue of the Appeal being filed out of time.
- [6]For the reasons that follow, I find that:
- The Appellant has filed this Appeal out of time; and
- She has not provided any sufficient explanation that may warrant an extension of time.
Jurisdiction
Timeframe to appeal
- [7]Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes.
- [8]
How long out of time was the Appeal filed?
- [9]The Decision was given to the Appellant on 14 February 2025.
- [10]The Decision explained that the decision may be appealed within 21 days.
- [11]The deadline for filing the Appeal was therefore 7 March 2025.
- [12]The date the Appeal Notice was filed was on 14 March 2025 – that is, seven days out of time.
Should time for filing be extended?
- [13]The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[2]
- [14]The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal Notice.[3] In that regard, I note the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor:
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 to 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]
- [15]
- the length of the delay;
- the explanation for the delay;
- the prejudice to the Appellant if the extension of time is not granted;
- the prejudice to the Respondent if the extension of time is granted; and
- any relevant conduct of the Respondent.
- [16]
- the 21-day time limit must be respected and should not easily be dispensed with; and
- the appellant's prospects of success at a substantive hearing are always a relevant matter where it appears an appellant has no, or very limited, prospects of success. In that instance, the Commission would not normally grant an extension of time.
- [17]Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case - that is, what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion.
- [18]Additionally, my discretion is informed by the purpose of the Public Sector Act 2022 (Qld) (PS Act), including promoting the effectiveness and efficiency of government entities.[8] In that regard, I am guided by the commentary of French CJ in Aon Risk Services Australia Limited v Australian National University:
Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification.[9]
- [19]I will now consider the circumstances in this matter against the abovementioned factors to determine whether I should exercise my discretion to hear this Appeal out of time.
Length of delay
- [20]The Appeal Notice was filed seven days out of time.
- [21]The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in both the IR Act and the Decision.
- [22]The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[10] It is true that in some cases delays of several weeks have been considered to be not excessive.[11] However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like. That is not the case here.
- [23]In conjunction with the reasons that follow, I find that a delay of seven days for the Appeal Notice is significant and unreasonable in these circumstances.
Explanation for the delay
- [24]The Appellant's submissions delve into the Respondent's "improper use of the suspension directive". I will address this later in my consideration, but do not consider those submissions relevant, as they do not explain why the Appellant submitted her appeal out of time.
- [25]The Appellant then submitted:
The direction of the Appellant to submit to the QIRC was as a result of correspondence received late on Friday 14/02/2025, by then the absorption of one day with the following weekend. (3 days elapsed). The Appellant’s interpreted return date was 7/03/2025.
To assist with this matter, the Appellant had required the QPS (2 x RTI applications) and the Respondent (1 x RTI application) to complete ‘Requests for Information’ relative to inform the public sector appeal. The QPS notified 19/02/2025 that they refused one application and TMR retuned (sic) heavily redacted material on the 10/02/2025 totalling 122 Pages. The Appellant has an outstanding application with the QPS to inform this matter.
The Appellant’s digest of the Respondent’s material commenced as soon as possible with Union liaison, legal counsel awareness and necessary support persons engaged. The Respondent required 10 weeks to assemble this advice to the Appellant.
During the business week commencing 3/03/2025 and upon declaration, the Brisbane City Council was a declared area, from 5/03/2025 to 13/03/2025. The opportunity to complete the submission during TC Alfred effects, was limited by her preparation of home and family and interrupted by loss of power, support persons ( during their own preparations )and the internet. Support persons to the Appellant were not available and equally challenged by the weather event. The Appellant was disadvantaged by the interruptions to services at her address. Her residence was subject to water ingress (7-8/3/2025) requiring contention to safety and management by the Appellant to and then fixed on 12/03/2025, rectifying the damage caused. The Appellant’s ability to attend to this matter comprehensively to the close of the 21 days vs the Respondent’s responses was compromised. The Appellant demonstrated due diligence in the research, application of information, engagement of support and advice before impact beyond her control . It should be noted that the Appellant was able to submit on the day after the declaration of the impact ceased in the Brisbane City Council declared impacted area.
- [26]Firstly, the relevance of the Decision being given on late on a Friday, "by then the absorption of one day with the following weekend. (3 days elapsed)", is irrelevant. The timeframe to appeal is 21 calendar days. It is not 21 business days.
- [27]The Appellant then submitted that to assist with her appeal, she needed to complete two RTI requests. The Queensland Police Service (QPS) refused one application on 19 February 2025, and the Department returned "heavily redacted material" on 10 February 2025 totalling 122 pages. The Appellant submitted she commenced "digest" of the material as soon as possible with "Union liaison, legal counsel awareness and necessary support persons engaged".
- [28]I do not see how the information obtained under the Appellant's RTI requests impacted upon the filing of her Appeal, when the documents were given to the Appellant on 10 February 2025, which is before the Decision was given to the Appellant on 14 February 2025. Further, legal representation is not permitted in public sector appeals. I can give no consideration to the time it took the Appellant to engage legal counsel.[12]
- [29]In the course of the Appellant's review of material she obtained under her RTI request, if she deemed that she needed more time to interpret and consider the material, including its relevance to this Appeal, she ought to have sought leave from the Commission for an extension of time before the timeframe had elapsed.
- [30]The Appellant then goes on to blame the impact of disruptions caused by ex-Tropical Cyclone Alfred. The Appellant's appeal was due on 7 March 2025. Ex-Tropical Cyclone Alfred did not make landfall until 8 March 2025, and for the most part, Brisbane did not experience the effects of any significant weather event, including loss of services, until 8 March 2025. This was after the date in which the Appellant was due to file her appeal. The Appellant has not submitted any evidence to support her claims that her services were interrupted prior to 7 March 2025.
- [31]The impacts of ex-Tropical Cyclone Alfred that were experienced by the Appellant after the due date are irrelevant.
- [32]The Appellant has demonstrated a clear lack of insight into her responsibilities in submitting an Appeal, initially portioning blame on need to review material received under a RTI application that was made and received prior to the decision being given – then attributing blame to the impact of ex-Tropical Cyclone Alfred, which occurred after the due date.
- [33]The 21-day time period for an Appeal Notice to be filed has been legislated and in the absence of a compelling reason for the delay I will not extend the time for filing.
- [34]The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[13] On the balance of the evidence before me, the Appellant has not discharged that onus.
Conduct of the Respondent
- [35]The Respondent advised the Appellant of her appeal rights including the timeframe within which an appeal should be filed:
Appeal rights
You are entitled to appeal the decision to suspend you without normal remuneration by lodging a public service appeal in accordance with Chapter 3, Part 10 of the Public Sector Act 2022 with the Queensland Industrial Relations Commission within 21 calendar days of receipt of this letter.
Information about lodging a public service appeal can be obtained from the website www.qirc.qld.gov.au. You may also want to refer to Directive 04/23 – Appeals which can be found online at https://www.forgov.qld.gov.au/employment-policy-career-and-wellbeing/directives-policiescirculars-and-guidelines/appeals-directive-0423.
- [36]The Appellant submitted that the Respondent had improperly used Directive 06/23: Suspension in undertaking the periodic review of her suspension. She further submitted I should consider hearing her appeal out of time because of the "behaviour of the Respondent in the treatment of the Appellant" and that "the Respondent has not acted lawfully to legislation and an issued Directive to even be capable to issue a nominated timeframe for appeal".
- [37]The Respondent properly advised the Appellant of her appeal rights and the timeframe for her to do so, as evidenced above at [35]. There is nothing before me that could be considered as the Respondent contributing to the Appellant filing a delayed appeal. Conduct in which the Respondent may or may not have exhibited before the decision was given, cannot be said to contribute to the Appellant filing a late appeal.
Prospects of success
- [38]An Appellant's prospects of success at a substantive hearing is a relevant consideration.[14] I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):
In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[15]
- [39]Section 101 of the PS Act relevantly provides as follows (emphasis added):
101 Suspension
- (1)A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
- (a)the employee is liable to discipline under a disciplinary law; or
- (b)the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
- (2)The notice must state—
- (a)when the suspension starts and ends; and
- (b)whether the employee is entitled to remuneration for the period of the suspension; and
- (c)the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
- (3)However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee.
Examples of reasonable alternatives which may be available to the employee—
- alternative duties
- a change in the location where the employee performs duties
- another alternative working arrangement
- (4)The employee is entitled to normal remuneration for the period of the suspension, unless—
- (a)the employee is suspended under subsection (1)(a); and
- (b)the employee’s chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.
- (5)If the employee is entitled to normal remuneration for the period of the suspension, any amount earned by the employee from engaging in alternative employment during the period of the suspension must be deducted from the employee’s normal remuneration, unless—
- (a)the employee was engaged in the employment at the time of the suspension; and
- (b)the employee, in engaging in the employment, was not contravening—
- (i)this Act; or
- (ii)a standard of conduct applying to the employee under an approved code of conduct or approved standard of practice under the Public Sector Ethics Act 1994.
- [40]Directive 06/23: Suspension (the Directive) relevantly provides:
8. Suspension without remuneration
- 8.1A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
- 8.2Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
- (a)there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
- (b)it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.
9. Procedural fairness
- 9.1Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness.
- 9.2As part of the suspension without remuneration process:
- (a)the employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This must occur through a ‘show cause’ process where the employee is notified in writing the reasons that it is proposed that the employee be suspended without remuneration
- (b)the show cause notice may be given at the time of the initial suspension on normal remuneration, or at any subsequent stage during the suspension
- (c)the chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice. The time to respond must have regard to the volume of material and complexity of the matter. The chief executive must consider any request, and may grant, an extension of time to respond to a show cause notice if there are reasonable grounds for extension
- (d)if the employee does not respond to the show cause notice or does not respond within the nominated timeframe in clause 9.2(c) and has not been granted an extension of time to respond, the chief executive may make a decision on suspension without normal remuneration based on the information available to them
- (e)where a decision is made to suspend an employee without normal remuneration, the employee is to be provided with written notice, including the particulars required by section 101(2) of the Act, and reasons for the decision. The employee must be informed of the time limits for starting an appeal provided for in the IR Act and the directive relating to appeals.
…
11. Periodic reviews
- 11.1This section applies to matters involving a public sector employee’s work performance or personal conduct, other than corrupt conduct matters.
- 11.2A chief executive is expected to resolve the matter giving rise to a suspension in a timely way.
- 11.3A suspension commences when a chief executive writes to the subject employee to inform them that they are suspended (usually a notice of suspension with remuneration and a show cause notice for suspension without remuneration, where applicable).
- 11.4A suspension may be extended by the chief executive, following review by an independent decision maker at 6 months and by a chief executive at twelve months and every 6 months thereafter.
- 11.5The review must consider whether the suspension should be cancelled or continued having regard to the considerations for suspension in section 101 of the Act and this directive.
- 11.6A suspension should remain in place while the review is completed.
- 11.7The findings of the review must be communicated to the employee and, where the suspension is continued, the chief executive must provide notice of the suspension to the employee as required by section 101 of the Act and this directive.
- [41]Upon my preliminary review of the material, it appears the Appellant has limited prospects of success. The Appellant bears the positive burden on demonstrating justice of the proceedings supports an extension.
- [42]In her submissions as to why this appeal should be heard out of time, the Appellant submitted:
The Respondent has chosen to undertake a Periodic Review upon the Appellant contending a Queensland Police Service (QPS) issued suspension issued 27/04/2024 applies. The Appellant dutifully replied, within the Respondent’s direction and defined process on 29/11/2024.
The Appellant’s prior response contended that the Respondent’s process remained unlawful and distinctly this is supported by the view and actions taken by the QPS and the Public Sector Commissioner. It was held that the Appellant was not entitled to a periodic review on the Notice of Suspension issued by the QPS on 27/04/2024, due to the operation of section 12 of the Suspension Directive 6/23. If the Respondent was operating a Suspension notice issued by a TMR Delegate, the ability of the Appellant to show cause is founded in the first issued Suspension Notice from TMR as the Public Entity that the Appellant is employed with. There is no further opportunity for the Appellant to periodically review a Suspension thereafter due to the application of section 12 of the Directive.
The Respondent’s delegate provided an appeals process, that relates a Periodic Review of a Suspension Notice, existing unlawfully vs the PSA Act 2022 and Suspension Directive 6/23. The Respondent’s direction to the Appellant (21 days) specifically to the periodic review process is not correct as the Respondent is not entitled to conduct the process with the Appellant and the Appellant did not lawfully have the right to appeal.
…
- [43]It is very difficult for me to make sense of these submissions, particularly where the Appellant has not attached any of the correspondence she is referring to. All I have before me is the Decision of Mr Walsh dated 14 February 2025.
- [44]In her Appeal notice, the Appellant initially ticked that she was appealing both a suspension without remuneration decision and a directive decision. Only one decision (the suspension without remuneration decision) was attached. Upon the Registry's enquiry to the Appellant regarding what category of decision she is appealing, the Appellant confirmed she is appealing a suspension without remuneration decision.
- [45]However, the Appeal notice traverses the matter of QPS's decision to suspend the Appellant from duty without remuneration, which remained effective and in place despite her transfer to the Department on 15 July 2024, and requested that the "QIRC review the process and subsequent decisions of the delegate(s) at TMR".
- [46]Based on the information supplied by the Appellant, the Decision subject of the appeal is the Decision of Mr Wash dated 14 March 2025. It is not open to the Appellant to rehearse her position in respect of previous decisions. If the Appellant wished to appeal other decisions made by the Department and/or QPS prior to the Decision subject of this appeal, those appeals would have needed to be filed within 21 days. That clearly has not occurred.
- [47]The Appellant submits that the Department could not suspend the Appellant without renumeration, because the Department's "delegate is not authorised by law s 101 and section 17 of the PSA 2022."
- [48]The PS Act states (emphasis added):
101 Suspension
- (1)A public sector employee's chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
- (a)the employee is liable to discipline under a disciplinary law; or
- [49]Section 101(4) of the PS Act provides that (emphasis added):
- The employee is entitled to normal remuneration for the period of the suspension, unless—
- (a)the employee is suspended under subsection (1)(a); and
- (b)the employee's chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.
…
- [50]I am unsure where the argument arises that "suspension of a QPS employee can only be undertaken by the delegate of the Commissioner and this is documented in the QPS Handbook of Delegations".
- [51]The PS Act provides that a public sector employee may be suspended from duty if the chief executive 'reasonably believes' the employee is liable to discipline under a disciplinary law.
- [52]The legislation is clear as to 'who' must hold such 'reasonable belief'. In the PS Act, it is the 'chief executive' who must have the 'reasonable belief'. The 'chief executive' is 'the chief executive of the public service entity in which the employee is employed as a public service employee'.[16] It appears from the material filed that the Appellant is employed by the Department. Therefore, if Mr Walsh held the 'reasonable belief' of the Appellant being liable to discipline, irrespective of whether the Appellant was originally suspended while employed by QPS, Mr Walsh is entitled to make the determination to suspend the Appellant, if he reasonably believes that the Appellant is liable to discipline. There is no material before me as to why this would not be the case.
- [53]Mr Walsh outlined that the decision to suspend the Appellant without normal remuneration on 14 February 2025, was made on the basis that the Appellant had been charged with the following offences under the Criminal Code:
- one count of Unlawful Stalking (domestic violence offence);
- two counts of Computer Hacking (gain benefit); and
- two counts of Computer Hacking (simpliciter).
- [54]Some of the criminal charges relate to the Appellant's conduct in the workplace, whilst performing her duties as a then QPS employee. Without evidence to the contrary, it appears that Mr Walsh held a reasonable belief that the Appellant is liable to discipline under a disciplinary law. It is not unreasonable that Mr Walsh considered it was not appropriate for the Appellant to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline believed to be liable.
- [55]The Department clearly has no control over the period of time it may take for the Appellant's criminal charges to progress to completion, and as a result, is affected in its ability to commence any discipline process against the Appellant. Clause 8.2(a) of the Directive is therefore satisfied in the circumstances.
- [56]I can also see that Mr Walsh appropriately considered reasonable alternatives, noting that the charges include serious conduct which breached the trust and confidence placed on the Appellant by QPS, in the course of her duties while employed by them. Modified duties, management plan or supervision were not deemed appropriate in these circumstances.
- [57]The Appellant has not appeared to discharge the onus of proof of establishing that the Decision was not fair or reasonable and I consider that this matter has little to no prospects of success.
Prejudice to the Appellant
- [58]The Appellant will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that he would lose the opportunity for an independent review of the Decision.
- [59]I have concluded above that the Appellant has limited prospects of success and therefore while I accept there is some prejudice to the Appellant, I do not consider that to be significant.
Prejudice to the Respondent
- [60]It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.
- [61]A delay in filing an appeal is a delay in the overall process. This prejudice is compounded by my conclusion that the Appeal has low prospects of success.
- [62]For those reasons, I find that the Respondent would suffer prejudice should I decide to exercise my discretion to hear the Appeal out of time.
Conclusion
- [63]The Appellant filed her Appeal Notice out of time but has not provided a persuasive explanation for that delay.
- [64]There is a suite of relevant considerations in exercising my discretion to hear an appeal out of time. Foremost, I should be satisfied that the Appellant has a reasonable ground for extending the time.
- [65]I have found that the Respondent advised the Appellant of her rights of appeal, including the relevant timeframe. I am satisfied the Appellant was provided with all the relevant information she required to file this Appeal within time.
- [66]I have not been presented with an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
- [67]The Appellant will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time. However, I do not consider that prejudice to be overwhelming particularly in light of my conclusion that she has limited prospects of success.
- [68]If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant.
- [69]For the reasons above, I find that the Appeal was filed out of time, and there is no reasonable ground to extend the time for filing.
- [70]I have determined not to exercise my discretion under s 564(2) of the IR Act to allow the Appeal to be started within a longer period.
- [71]I order accordingly.
Orders:
- The appeal is dismissed for want of jurisdiction.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 564(2).
[2] House v The King (1936) 55 CLR 499, [2].
[3] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
[4] (1996) 186 CLR 541, 553.
[5] (1995) 149 QGIG 777.
[6] (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
[7] [2013] QIRC 129.
[8] Public Sector Act 2022 (Qld) s 3.
[9] (2009) 239 CLR 175, [30].
[10]Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.
[11] See, eg, Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.
[12] Industrial Relations Act 2016 (Qld) s 530A.
[13] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.
[14] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.
[15] [2010] ICQ 35, [6].
[16] Public Sector Act 2022 (Qld) s 17 (1)(a).