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Philp v State of Queensland (Department of Education)[2025] QIRC 55

Philp v State of Queensland (Department of Education)[2025] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Philp v State of Queensland (Department of Education) [2025] QIRC 055

PARTIES:

Philp, Darren

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2024/200

PROCEEDING:

Public Service Appeal – Appeal against a suspension without pay decision

DELIVERED ON:

24 February 2025

MEMBER:

O'Neill IC

HEARD AT:

On the papers

ORDER:

  1. The Appellant's application to allow his appeal to be started within a longer period is dismissed.
  2. The appeal in matter PSA/2024/200 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – where application filed beyond statutory time limit – length of delay – explanations for delay – where the application was filed in the wrong jurisdiction – prejudice to the applicant and respondent – whether the Commission should exercise discretion to grant extension – prospects of success.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B, 562C, 564

Public Sector Act 2022 (Qld), s 101

CASES:

A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations [2019] ICQ 16

Baskin v State of Queensland (Department of Education) [2022] QIRC 349

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Chapman v State of Queensland [2003] QCA 172

Collins v State of Queensland (Department of Education) [2024] QIRC 086

Cullen v State of Queensland (Queensland Health) [2021] QIRC 258

Douglas v Allen and Ors [1984] FCA 77

Forsyth-Stewart v Queensland [2021] QIRC 395

Harry v State of Queensland (Queensland Health) [2022] QIRC 293

Lockhart v Queensland Health [2014] QIRC 012

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Mutonhori v Mt Isa City Council (No. 2) [2024] QIRC 240

Palmer v RCR Engineering Pty Ltd [2009] FWA 1431

Philp v State of Queensland (Department of Education) [2023] QIRC 219

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182

Ulowski v Miller (1968) SASR 277

Reasons for Decision

Introduction

  1. [1]
    Mr Darren Philp ('the Appellant') is substantively employed by the Department of Education as a Senior Teacher.
  2. [2]
    On 23 January 2023, the Appellant was charged by the Queensland Police Service with 1 x Indecent treatment of a child under 16, child under 12 years lineal descendent/guardian/carer with impairment of the mind pursuant to ss 210(1)(a), (3), (4), and (4A) of the Criminal Code Act 1899 (Qld).[1]
  3. [3]
    On 24 January 2023, the Queensland College of Teachers ('QCT') suspended the Appellant's teacher registration.[2]
  4. [4]
    On 25 January 2023, the QCT filed a referral in the Queensland Civil and Administrative Tribunal ('QCAT') seeking to continue the suspension of the Appellant's teacher registration. A decision on that referral is still pending.[3]
  1. [5]
    The Appellant received a letter on 26 March 2024 from Ms Rachel Borger, Assistant Director-General, placing the Appellant on suspension with remuneration until 21 June 2024 pursuant to s 101(1)(a) of the Public Sector Act 2022 (Qld) ('the PS Act').
  1. [6]
    By letter dated 20 June 2024, Mr Ralph Montepaone, Acting Executive Director, advised the Appellant that he was considering placing Mr Philp on suspension without remuneration and provided the Appellant an opportunity to show cause as to why this should not occur.
  1. [7]
    The Appellant provided his response on 19 July 2024.
  1. [8]
    The Appellant was then placed on suspension without renumeration pursuant to sections 101(1)(a) and 101(4) of the PS Act, via correspondence from Ms Lucy Morgan, Acting Executive Director, which was dated 18 September 2024 ('the suspension decision').
  1. [9]
    On 11 December 2024, the Appellant filed his Public Sector Appeal in the Industrial Registry, appealing the suspension decision of 18 September 2024. The Application did not indicate that it was being filed outside of the 21-day timeframe since the decision was made.
  1. [10]
    Sections 564(1) and 564(3) of the Industrial Relations Act 2016 (Qld) impose a time limit for filing an appeal of 21 days from the date that the decision is given. Given that the decision was provided by email on 18 September 2024, the Appellant had until close of business on 9 October 2024 to lodge his appeal. It therefore appeared that the appeal had been filed out of time.
  2. [11]
    In light of the jurisdictional issue outlined above, the matter was mentioned before me on 17 December 2024, and I subsequently issued a Directions Order requiring the parties to file submissions on the jurisdictional issue.
  1. [12]
    The parties have complied with the Directions Order and have filed written submissions. The Directions Order required the parties to advise the Queensland Industrial Relations Commission ('the Commission') by 4:00 pm on Friday, 31 January 2025 as to whether either party wished to make oral submissions. No request was received from either party, therefore pursuant to s 451(1) of the IR Act the matter was decided on the papers.
  1. [13]
    The issue for determination by the Commission is whether the Appellant should be granted an extension of time to file his Form 89 – Appeal Notice pursuant to s 564(2) of the IR Act.
  1. [14]
    The following reasons only address the jurisdictional issue and whether the Appellant should be granted an extension of time.
  1. [15]
    For the reasons that follow I have determined:
  1. That the Appellant has failed to discharge the onus placed on him to establish that the justice of this case supports the exercise of a discretion to grant an extension of time.
  1. To not exercise my discretion to extend time to the Appellant within which to lodge his Appeal Notice.

Legislative Framework

  1. [16]
    Section 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly states:
  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (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.
  1. (3)
    In this section—
  1. "appeal period" , for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
  1. (a)
    if the decision is given at a hearing—the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar—the release of the decision; or
  1. (c)
    if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022 ; or
  1. (d)
    if, under another Act, the decision is given in another way – the decision is given in the other way.

Commission's discretion to grant an extension

  1. [17]
    It is for the Appellant to persuade the Commission to allow an extension of time to file an application.[4]
  2. [18]
    Section 564(2) of the IR Act is silent as to the factors to be considered by the Commission when considering whether to exercise a discretion to extend time, as a consequence 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.[5]
  3. [19]
    Section 564(2) of the IR Act was considered by President Martin J in the matter of A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations)[6] ('A1 Rubber') as follows:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey 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."

I note that s 346 of the 1999 Act is reproduced as s 564 in the current Act. In applying those principles, this Court will not grant leave unless it is positively satisfied that it is proper to do so. I will consider the merits of the appeal before finally determining the application for extension. As was said in Chapman v State of Queensland:

"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."

[citations omitted]

  1. [20]
    In Ulowski v Miller.[7], Bray CJ relevantly held:

It must be remembered that we are dealing here with a discretion and in my view it ought not be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.

  1. [21]
    In Forsyth-Stewart v Queensland[8], his Honour DP Merrell had regard to the following factors as being relevant in exercising the discretion to extend time:
  • special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
  • action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
  • any prejudice to the respondent, including any prejudice in defending proceedings occasioned by the delay, is a material factor militating against the granting of an extension;
  • the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
  • considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

Length of the Delay

  1. [22]
    The Appellant was provided with the suspension decision on 18 September 2024.
  2. [23]
    The Appeal Notice should have been filed pursuant to s 564(3) of the IR Act on or before 9 October 2024.
  3. [24]
    The Appellant filed his Form 89 – Appeal Notice on 11 December 2024.
  1. [25]
    The appeal has therefore been filed 62 days late.
  1. [26]
    The Respondent in its submissions filed on 20 January 2025 cites Forsyth-Stewart v State of Queensland (Department of Education)[9] where his Honour Deputy President Merrell noted:
  1. [25]
    As a consequence, I find that Mr Forsyth-Stewart started his appeal 11 days out of time.
  1. [26]
    In my opinion, that is a significant delay.[10]
  1. [27]
    The Respondent submits that this is a significant delay and that it should represent a significant hurdle for the Appellant to overcome in order to justify the exercise of a discretion in his favour.[11]
  2. [28]
    I consider a 62-day delay to be a significant and unreasonable delay, particularly in the context of a 21-day limitation period. This weighs against the Appellant receiving an extension of time.

Reasons for the Delay

  1. [29]
    The Appellant filed his appeal and submissions in a timely manner in the Queensland Civil and Administrative Tribunal ('QCAT') rather than in the Commission.[12] Although the Appellant states that the appeal was filed in a timely manner with QCAT, he has not provided any evidence confirming the date that this occurred, nor has he provided a copy of the document he filed in QCAT.
  2. [30]
    In his submissions, the Appellant provides the following further timeline of events relevant to the appeal:
  • On 11 December 2024, in a conversation with a representative from QCAT, the Appellant was informed that:
    • QCAT had received his appeal submissions via email in a timely manner (once again the Appellant does not specify a date or provide a copy of the email); and
    • They were not able to locate a case file number for the appeal and therefore the Appellant would be transferred to the Queensland Industrial Relations Commission.[13]
  • The Appellant received a call back from the Commission on 11 December 2024 in which he alleges that:
  • His appeal submissions were located by the Industrial Registry using their computer;
  • His appeal submission were located in QCAT and had not been allocated a case file number and had not been forwarded to the QIRC Registry;
  • No QCAT correspondence could be found that contacted him directly and would make him aware that he had not followed due process in filing the appeal in a timely manner;
  • He was to resend the existing submissions using the email provided to him by the Industrial Registry and he would be contacted once it had been filed in the Commission;
  • The documents were delivered to the QIRC 19 minutes after he was made aware that they were situated in the QCAT Registry.[14]
  1. [31]
    The Appellant submits that there was no intentional delay by himself when lodging the appeal and he believed that he was following due process by submitting the appeal within the legally allowable timeframes even though it was filed in QCAT.[15]
  2. [32]
    The Appellant further contends that he waited for the automatic reply email from QCAT to ensure that his submission had been received, and he provided contact details for himself on the submission documentation. On lodgement of his submission the QCAT interface communicated to him that QCAT was experiencing long delays in processing matters.[16]
  3. [33]
    After two months, the Appellant followed up with QCAT by telephone to check on the progress of his appeal and he persevered for almost three quarters of an hour on the telephone to identify the whereabouts and status of the appeal.[17]
  4. [34]
    The administrative error he unknowingly made was corrected less than 20 minutes after the Appellant became aware of it.[18]
  5. [35]
    The Appellant has referred the Commission to the decision of Palmer v RCR Engineering Pty Ltd.[19] In that decision an extension of time was granted where the applicant initially filed his unfair dismissal application in the Western Australian Industrial Relations Commission instead of the Fair Work Commission within three days of the termination of his employment.
  6. [36]
    In that matter Deputy President McCarthy took into account the following matters in granting an extension of time to the applicant:
  • The applicant took action to contest the termination of his employment almost immediately, but in the wrong jurisdiction. The application would have well been within time if lodged with Fair Work Australia ('FWA').[20]
  • The Respondent's response was filed within the time allowed for a response, but it was some 20 days after the application had been lodged. The response contained a jurisdictional objection, and had it been lodged more expeditiously, the applicant most likely would have lodged an application with FWA within time.[21] The Deputy President paid particular regard to this factor in allowing the extension of time.[22]
  • The prejudice to the Respondent, the merits of the application and the fairness to the applicant compared to others in a like position.[23]
  1. [37]
    The Respondent submits that it is well established that filing an appeal in the incorrect jurisdiction is not, in itself, sufficient justification for a failure to meet a statutory deadline.[24] In support of that proposition the Respondent again cites Forsyth-Stewart v State of Queensland (Department of Education)[25], where Deputy President Merrell held:
  1. [28]
    Mr Forsyth-Stewart submits that the reasons for his delay were miscommunication by his employer, the illness brought about by his permanent impairment and the fact that he lodged his review in the wrong jurisdiction, namely, with the Public Service Commission.
  1. [29]
    I do not accept that Mr Forsyth-Stewart has provided an acceptable explanation for the delay. There are three reasons for this.
  1. …
  1. [31]
    Secondly in his appeal notice, Mr Forsyth-Stewart contends that he misinterpreted '… the obligations of the Chief executive and instead of a fair treatment appeal submitted a stage 3 external review to the Public Service Commission.' The available external avenues of review of the decision were clearly set out by Mr McKellar in the decision.
  1. …
  1. Mr Forsyth-Stewart does not explain why he sought a review of the decision with the Public Service Commission and did not commence an appeal in the Commission within 21 days of receiving the decision, despite the very clear advice given by Mr McKellar in the decision. [emphasis added]
  1. [38]
    The Respondent goes on to submit that this position was confirmed by the Commission in Mutonhori v Mt Isa City Council (No. 2),[26] where Commissioner Pratt stated:
  1. [25]
    I accept that filing in the wrong jurisdiction or pursuing remedies elsewhere, misunderstanding the nature of the remedies available to the Applicant when filing the above-mentioned matters, or not knowing there is a limitation period, do not constitute "exceptional circumstances" that would warrant the exercise of the discretion in this case.
  1. [39]
    I note, however, that the second decision cited by the Respondent related to an application for an extension of time pursuant to s 310 of the IR Act, where the relevant test in s 310(2) requires the Commission to be satisfied that there are 'exceptional circumstances' justifying an extension of time. This is not the relevant test under s 564 of the IR Act.
  2. [40]
    The Respondent contends that before the Commission can consider the matter out of time, the Appellant must provide an adequate explanation for the delay. The Respondent submits that he has failed to do so, other than the matter being filed in the wrong jurisdiction. The Respondent further submits that the Appellant has not provided any explanation for filing the matter in the wrong jurisdiction.[27]
  3. [41]
    The Respondent also contends that the Appellant's error cannot justify an extension in circumstances where there was ample information available to the Appellant to assist with the matter being filed in the correct jurisdiction. The Respondent notes that the decision of 18 September 2024 clearly set out the right of appeal available to the Appellant, which included detail on both the relevant jurisdiction and timeframe as follows:[28]

You are entitled to lodge an appeal against the decision to suspend you without pay with the Queensland Industrial Relations Commission (QIRC) within 21 days of receiving this decision. The QIRC Industrial Registry will be able to provide further information about filing an appeal. The QIRC website is www.qirc.qld.gov.au; or telephone 1300 592 987.[29]

  1. [42]
    The Respondent also refers to the Appeal Notice lodged on 11 December 2024, which clearly sets out the relevant jurisdiction and further information for lodging an appeal under the heading "Information":[30]
  1. •
    Use this form to make a public sector appeal to the Queensland Industrial Relations Commission;
  1. •
    Please read this form carefully and complete all relevant sections;
  1. •
    For information on completing this application, please see the Public Sector Appeal Guide located on the website www.qirc.qld.gov.au.
  1. [43]
    The Respondent also relies upon the Appellant's previous involvement in an earlier public sector appeal and submits that it could not be said that the Appellant was unfamiliar, or inexperienced, with the Public Sector Appeals process.[31]
  2. [44]
    In his reply submissions filed on 28 January 2021, the Appellant provides the following 'explanation' for the documents being filed in QCAT rather than the Commission:
  • On 9 October 2024, the day that the Appellant lodged the appeal submissions he moved the current appeal submissions and emails into a document called QCAT.[32]
  • Before filing the Appeal Submissions, the Appellant named them 'QCAT_Appeal_Decision_Darren Philp.pdf.'[33]

Consideration – Reasons for the delay

  1. [45]
    The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[34] An important part of that will be providing a convincing explanation for the delay.
  2. [46]
    In the present case it is abundantly clear that the delay has occurred as a consequence of the Appellant filing material in the wrong jurisdiction. What is not clear is how that came about.
  3. [47]
    The suspension letter in a section under a bold heading entitled 'Appeal entitlements', clearly states that the Appellant has 21 days to lodge an appeal in the Queensland Industrial Relations Commission. It also confirms that the Industrial Registry would be able to provide further information about filing an appeal and provides both the website for the Commission and a contact telephone number.
  4. [48]
    In light of that information being provided in the decision letter, the Appellant has failed to explain how or why he filed his appeal in QCAT rather than the Commission.
  5. [49]
    It is also a relevant consideration in my view that the Appellant has had previous experience in challenging the very same type of decision, by filing an appeal in the Commission. The decision of Commissioner McLennan in Philp v State of Queensland (Department of Education)[35]confirms that the Appellant filed an Appeal Notice in that appeal (within time) on 20 March 2023.[36] Further, the Appellant complied with a Directions Order regarding the filing of written submissions in the Commission.[37]
  6. [50]
    Given that the Appellant had shown capacity some 18 months earlier to file an Appeal Notice for a public sector appeal addressing the same issue in the Commission, a cogent explanation is required for why he made the error in filing in the wrong jurisdiction in the present case.
  7. [51]
    I further note that in his submissions attached to the Form 89 Appeal Notice, the Appellant actually cites Philp v State of Queensland (Department of Education)[38] in support of a proposition that he is entitled to the legal presumption of innocence.[39]
  8. [52]
    As noted above, the Appellant has not provided details as to what was filed in QCAT and whether this included a Form 89 – Appeal Notice. In his submissions filed on 7 January 2025, the Appellant records that on becoming aware of the administrative error it was corrected in less than 20 minutes and the appeal was filed in the Commission. It is therefore open to me to infer that the information submitted to QCAT included the Form 89 – Appeal notice.
  9. [53]
    This is relevant because the front page of that form it is headed 'Queensland Industrial Relations Commission'. Further, under the heading 'Information' the information excerpted in paragraph [45] above is set out. Once again, in the absence of some explanation it is not clear to me how the Appellant could have been confused about which jurisdiction the appeal had to be filed in.
  10. [54]
    In both his primary submissions and his reply submissions, the Appellant has not made any reference to there being proceedings current before QCAT that he was actively involved in at the relevant time in September 2024 which would have led to him being confused.
  11. [55]
    In Harry v State of Queensland (Queensland Health)[40] Commissioner Knight dealt with an out of time issue involving a public sector appeal. In that matter Ms Harry filed her appeal in the Industrial Registry on 28 April 2022, six days out of time. Ms Harry had in fact attempted to lodge her appeal within time on Friday, 21 April 2022, however, due to the appeal notice being incomplete it was rejected by the Industrial Registry.
  12. [56]
    The Industrial Registry contacted Ms Harry by email on Monday, 24 April 2022 seeking clarification and for her to resubmit a completed form, however, Ms Harry did not respond to the email. A compliant Appeal Notice was not filed until 28 April 2022. Commissioner Knight in refusing an extension of time noted as follows:
  1. [31]
    While I accept Ms Harry made some attempts to commence her appeal within time, I consider it is incumbent on parties to ensure they file material correctly and within the timeframes prescribed by either legislation or this Commission. I would have been somewhat more sympathetic to Ms Harry's position had she responded to the Industrial Registry or taken steps to correct her omission in a timely manner. Instead, it was not until the Industrial Registry persisted in trying to assist Ms Harry that she filed the completed form.
  1. [32]
    I also note the onus is on Ms Harry to provide a reasonable explanation for her delay. She has not done so. Instead, it has been left to the Commission to glean some understanding of the circumstances from correspondence which was not raised by her.[41]
  1. [57]
    I agree with Industrial Commissioner Knight that it is incumbent upon parties to ensure that they file material correctly and within time. This includes the obligation to file the appeal documents in the correct jurisdiction, particularly in circumstances where the decision letter provides explicit advice both about where the appeal has to be filed and the time limits for doing so.
  2. [58]
    In relation to the decision of Palmer v RCR Engineering Pty Ltd[42] ('Palmer') that the Appellant relies upon, this can be distinguished from the present factual situation on the following grounds:
  • In Palmer it appears that a significant factor that cause the FWA to allow an extension of time was that the Respondent waited to file its jurisdictional objection in the WAIRC until a time after the expiry of the limitation period in the FWA. In the present case there has been no similar conduct by the Respondent.
  • There is no indication that in the Palmer matter that the applicant received explicit advice:
  • about the appeal options that were available to him;
  • which also informed him where to file the application, and the time period in which he had to file his application.
  • In the present case, the Appellant had received such advice and instruction in the suspension decision, and either he did not read it, or he did not heed it.
  • In Palmer, the applicant sought legal advice, and the issue of jurisdiction was overlooked when he sought that advice. There is no indication of any issue of representative error in the Appellant’s submissions.
  1. [59]
    Given those conclusions, I therefore consider that the decision in Palmer is of limited weight to my determination as to whether an extension of time should be granted.
  2. [60]
    I am guided by the decision of Deputy President Merrell in Forsyth-Stewart v State of Queensland (Department of Education)[43], that the act of filing in the wrong jurisdiction may not provide an acceptable explanation for the Appellant's delay in filing the Appeal Notice.
  3. [61]
    I accept that the Appellant has acted promptly when his error in filing in the wrong jurisdiction became apparent. That is a matter that does favour him.
  4. [62]
    The only explanation that has been proffered by the Appellant as to why the error in jurisdiction occurred is that he placed the prepared material in a folder named Q-CAT.
  5. [63]
    In circumstances however, where:
  • the Appellant was provided clear explanation as to the process to follow to appeal the suspension decision within the decision letter (which he did not follow);
  • the suspension decision letter included clear contact details for the Commission and the Commission's website. There is no evidence of the Appellant making any attempt to contact the Commission to clarify the process for appealing the suspension decision;
  • the Form 89 Appeal Notice clearly identifies that the relevant jurisdiction is the Queensland Industrial Relations Commission;
  • The Appellant has previously successfully appealed the same type of suspension decision to the Commission;
  • After filing information with QCAT, the Appellant waited for 63 days before following up to check on the progress of his appeal,

I am not satisfied that this was a sufficient or adequate explanation for his error and his failure to check on the progress of the appeal in a timelier manner.

  1. [64]
    For all of these reasons, I am not persuaded that the Appellant has provided an acceptable explanation for his delay in filing the appeal with the Industrial Registry.

Prejudice to the Parties

  1. [65]
    In his submissions in support of an extension of time the Appellant does not claim that he will suffer prejudice if the extension is not granted.
  2. [66]
    The Appellant does provide submissions regarding whether the Respondent will suffer any prejudice.
  3. [67]
    The Appellant contends that because the Respondent is aware that the Appellant appealed its earlier suspension with remuneration decision, the Respondent is aware that he disagrees with their decision-making process and further that he would appeal their decision. The Appellant further contends that his submissions and points of law are the same as in his earlier submissions (and presumably therefore the Respondent will not be prejudiced).[44]
  4. [68]
    The Respondent submits that a delay itself is considered to give rise to a general presumption of prejudice to a respondent.[45] The Respondent also notes that minimal prejudice to the Respondent, in itself is an insufficient basis to grant an extension of time.[46]
  5. [69]
    The Respondent further notes that whilst the Appellant has set out the financial hardship associated with the suspension decision itself, the Respondent submits that financial hardship is the likely outcome of any decision to suspend an employee without remuneration. The Respondent contends that such financial hardship, in itself, is not sufficient to justify hearing the matter outside of the 21-day timeframe, and if it were, it would render the 21-day timeframe redundant in all suspension appeals.[47]
  6. [70]
    There will clearly be prejudice sustained by the Appellant if an extension is not granted, as he will be unable to proceed with his appeal of the suspension decision. I note however, that this prejudice is significantly ameliorated in circumstances where the suspension without remuneration was only until 22 November 2024 (which has now passed).
  7. [71]
    In those circumstances, there would need to be a further decision by the Department of Education extending the suspension without remuneration beyond this period which would necessitate the Appellant being given the right to challenge that decision.[48]
  8. [72]
    The prejudice that the Respondent will suffer if an extension of time is granted is having to respond to an appeal which is currently time barred. There is no other evidence provided by the Respondent of its ability to defend or provide responses being prejudiced, for example, because a witness is no longer available.
  9. [73]
    Given that the period in which the Appellant will be denied remuneration as a consequence of the suspension decision is effectively just over one month, I am not satisfied that the issue of prejudice he will suffer supports an extension of time.

Conduct of the Respondent

  1. [74]
    In its submissions the Respondent notes that the Appellant does not contend that any actions of the Respondent directly caused or contributed to the delay. The Respondent further notes that in the suspension decision dated 18 September 2024, the Respondent provided all of the relevant information to allow the Appellant to understand and meet the appeal deadline (see paragraph [41] above).[49]
  2. [75]
    In his reply submissions, the Appellant challenges this contention and suggests that there was conduct by the Respondent that possibly contributed to the delay and changed the circumstances for the Appellant while he struggled to navigate the decision making and appeals process.[50]
  3. [76]
    The Appellant points to the timing of various actions taken by the Respondent in issuing decisions to him and requiring him to show cause either immediately before, or during, school holiday periods which reduced the Appellant's ability to become familiar with the appeals process, seek support and generate appeal submissions.
  4. [77]
    Other than that bare assertion in the reply submissions, the Appellant has not provided any evidence to substantiate this allegation. Further, I note that during the show cause process, the Appellant sought an extension of time to provide a response, and this was granted by the Respondent.
  5. [78]
    I am satisfied that there has been no conduct by the Respondent which has contributed in any way to the Appellant not filing the Appeal Notice within the 21-day limitation period.
  6. [79]
    As submitted by the Respondent, the suspension decision letter clearly sets out the Appellant's appeal entitlements, confirms that the appeal must be lodged with the Commission and within 21 days of receiving the decision. The Appellant was further provided with advice by the decision letter to contact the Commission's Industrial Registry to seek further information about filing an appeal. He was also provided with the Commission's website details and a contact telephone number.
  7. [80]
    In my view the Respondent could not have done any more to inform the Appellant of his ability to seek an appeal and the process for doing so.

Merits of the Appeal 

  1. [81]
    Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [82]
    The appeal is not conducted by way of re-hearing,[51] but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.[52]
  1. [83]
    The Applicant's prospects of success at in the substantive appeal are a relevant consideration.[53]
  1. [84]
    Guidance on this factor was provided by President Hall in Bruce Anthony Piggott v State of Queensland[54] (emphasis added and 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.

  1. [85]
    The Appellant was clearly aware of the necessity for him to address the issue of the merits of the substantive appeal in his submissions. I summarise the points made by the Appellant regarding the merits of his appeal as follows:
  • The Respondent is aware that their decisions to alter his leave conditions is having a negative impact on his health and wellbeing.[55]
  • The Respondent has regularly placed his family and himself in a position of significant financial hardship by changing his leave conditions.[56]
  • Commissioner McLennan found in Philp v State of Queensland (Department of Education)[57] that the Respondent had made decisions in relation to his leave conditions without proper consideration for the rule of law.[58]
  • The Respondent is yet to provide him with information regarding the investigation, the decision makers, or their decision-making process.[59]
  • The Appellant attempts to access leave entitlements with his leave conditions are changed to without pay, however, he has been refused access to these leave entitlements.[60]
  • His salary sacrificed lease vehicle arrangement is not being honoured every time the Respondent alters his leave conditions.[61]
  1. [86]
    It can be seen that the majority of these matters relate to impacts of the suspension decision itself, rather than reasons why the Appellant's appeal is meritorious.
  2. [87]
    The Respondent submits that 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.[62]
  3. [88]
    The Respondent goes on to contend that the Appellant has not addressed the merits of the appeal but has simply relied upon a previous decision of the Commission along with other administrative matters that relate to his employment but are of limited relevance to the suspension decision of 18 September 2024.[63]
  4. [89]
    In his reply submissions, the Appellant still does not descend into detail regarding why the substantive appeal has merits that justify an extension of time being granted.
  5. [90]
    The Appellant has provided the following submissions on the issue of the merits of the substantive appeal in his reply submissions:
  1. 14.
    The Respondent's September 18 decision being appealed is the same type of decision as those the Appellant referenced. They were able to be judged for fairness by a third party. The Respondent could not see the concerns of the Appellant until after a third party became involved. They are not, however, the same decision that is being appealed. The Appellant understands that and has not intentionally altered the presumption of prejudice for the Respondent.
  1. 15.
    As a lay person, the Appellant believed the relevance was not in judging the fairness of the decision but in deciding if there is merit in hearing the appeal. Those 'irrelevant' facts were not being used to discredit the decision or decision maker. They were being used to show that, in my limited experience, the Respondent reviews my leave without pay decisions only at the request of a third party.
  1. [91]
    In the submissions that the Appellant has attached to the Form 89 – Appeal Notice the Appellant has raised the following issues:
  • He has not been afforded procedural fairness, and there is an absence of a specific allegation that justifies him being suspended without remuneration. He contends that the mere fact that he has been charged is insufficient grounds for the Respondent.[64]
  • The Appellant contends that clause 8.2a of the Suspension Directive 06/23 is not satisfied. The Appellant contends that if the unpredictable timeframe of the criminal justice and QCAT processes were a legitimate reason to suspend him without remuneration, express provisions would be contained with the PS Act or other legislation and no such provisions are prescribed.[65]
  • He is entitled to the legal presumption of innocence.[66]It is a fundamental principle of law that the Department should comply with.[67]
  • The Appellant contends that clause 8.2b of the Suspension Directive has not been satisfied because the Department has not acted as a model litigant in suspending him without remuneration on the mere basis of:
  1. (a)
    being charged;
  1. (b)
    the QCT suspending my registration;
  1. (c)
    the Decision Maker not properly considering and articulating the reasons in accordance with the Directive when suspending me without remuneration; and
  1. (d)
    no clearly considered and thorough evaluation of alternative working arrangements.[68]
  • The Decision Maker did not consider all reasonable alternatives. The Decision Maker has not considered and expressed a thorough evaluation of alternative work arrangements.[69]
  1. [92]
    The only information available to me for assessing the merits of the substantive appeal are the Form 89 – Appeal Notice, the Appellant's submissions attached to the Appeal Notice, and then the jurisdictional submissions provided by the respective parties.  
  2. [93]
    I do not have available to me the two show cause letters with the attached evidence relied upon by the Respondent, the Appellant's responses to those show cause letters and any additional evidence he provided.
  1. [94]
    The Appellant has not provided a sufficient basis either by evidence or submissions to establish that the substantive appeal is meritorious. At the same time, although I hold doubts whether the Appellant has realistic prospects of success in establishing that the suspension decision was not fair and reasonable, I simply do not have sufficient information available to me to reach a conclusion on these matters with the required certainty that is required as indicated by President Hall in Bruce Anthony Piggott v State of Queensland.[70]
  1. [95]
    Not being able to form a view as to the appeal's prospects, I consider the merits to be a neutral consideration.

Conclusion

  1. [96]
    For the reasons set out above I have concluded that filing the appeal 62 days out of time in the context of a 21-day limitation period is a significant and unreasonable period of delay.
  2. [97]
    I am not satisfied that the Appellant has provided an adequate explanation for the delay in circumstances where both the 21-day limitation period for filing the appeal, and the process for filing the appeal in the Queensland Industrial Relations Commission was specifically addressed in the suspension decision letter.
  3. [98]
    Further the Form 89 Appeal Notice clearly identifies that the form relates to an appeal in the Queensland Industrial Relations Commission. I have also taken into account that the Appellant has on a previous occasion successfully filed an appeal with the Industrial Registry for a public sector appeal against the same type of decision. Given this and what is raised in the preceding paragraph the Appellant has failed to provide a cogent or adequate explanation as to how he has mistakenly filed the appeal with QCAT rather than the Commission.
  4. [99]
    I have determined that there was no conduct by the Respondent which caused or contributed to Appellant filing the appeal in the wrong jurisdiction. To the contrary, the Respondent has made every effort to ensure that the Appellant was provided with all necessary information to enable him to successfully challenge the suspension decision. The Appellant has either chosen not to read this information, or to not heed the information.
  5. [100]
    The Appellant has failed to convince me that he will suffer significant prejudice in circumstances that he was only suspended without remuneration until 21 November 2024, a period of just over one month following receipt of the suspension letter. The Appellant will have the ability to subsequently challenge any further extension of the suspension without remuneration.
  6. [101]
    The Appellant has not established that he has a meritorious appeal, although I have found in the circumstances that this is a neutral consideration.
  7. [102]
    Having considered the matters referred to above, I have determined to not exercise my discretion to extend the period for the filing of the appeal.

Order

  1. [103]
    I make the following orders:
  1. 1.
    The Appellant's application to allow his appeal to be started within a longer period is dismissed.
  1. 2.
    The appeal in matter PSA/2024/200 is dismissed.

Footnotes

[1] Form 89 Appeal Notice, Appellant's submissions, 6(a).

[2] Ibid, 6(b).

[3] Ibid, 6(c).

[4] Collins v State of Queensland (Department of Education) [2024] QIRC 086, [22]; Lockhart v Queensland Health [2014] QIRC 012, [14]; Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554.

[5] House v The King (1936) 55 CLR 499, [2].

[6] [2019] ICQ 16 per President Martin J.

[7] (1968) SASR 277, 280.

[8] [2021] QIRC 395, [16] citing Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 ('Hunter Valley'), 348 and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J).

[9] [2021] QIRC 395.

[10] Ibid, [25]-[26] per Merrell DP.

[11] Respondent's submissions filed 20 January 2025, [12].

[12] Appellant's submissions filed 7 January 2025, [1].

[13] Ibid, [2].

[14] Ibid, [4]-[5].

[15] Ibid, [10]-[11].

[16] Ibid, [13]-[15].

[17] Ibid, [17].

[18] Ibid, [18].

[19] [2009] FWA 1431.

[20] Ibid, [8].

[21] Ibid, [9].

[22] Ibid, [11].

[23] Ibid, [10].

[24] Respondent's submissions filed on 20 January 2025, [14].

[25] [2021] QIRC 395.

[26] [2024] QIRC 240.

[27] Ibid, [16].

[28] Ibid, [17].

[29] Suspension decision dated 18 September 2024, page 5.

[30] Respondent's submissions, [18].

[31] Ibid, [19]-[20], citing Philp v State of Queensland (Department of Education) [2023] QIRC 219.

[32] Respondent's reply submissions, [18].

[33] Ibid, [19].

[34] Brisbane South Regional Health Authority v Taylor (1996) 186 541.

[35] [2023] QIRC 219.

[36] Ibid, [14].

[37] Ibid, [30].

[38] [2023] QIRC 219.

[39] Form 89 Appeal Notice, Attached submissions, [15].

[40] [2022] QIRC 293.

[41] Ibid, [31]-[32] per Knight IC.

[42] [2009] FWA 1431.

[43] [2021] QIRC 395, [28]-[34].

[44] Appellant's submissions, [24]-[26].

[45] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[46] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300; Douglas v Allen and Ors [1984] FCA 77.

[47] Respondent's submissions, [24].

[48] See Baskin v State of Queensland (Department of Education) [2022] QIRC 349, [22]-[35] per Merrell DP; Philp v State of Queensland (Department of Education) [2023] QIRC 219, [90]-[93], per McLennan IC.

[49] Ibid, [25].

[50] Appellant's reply submissions, [2].

[51] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1).

[52] Ibid; Industrial Relations Act 2016, s 562B(2).

[53] Chapman v State of Queensland [2003] QCA 172, [3].

[54] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35, [6].

[55] Appellant's submissions, [28].

[56] Ibid, [29](a) and (b).

[57] [2023] QIRC 219.

[58] Appellant's submissions, [29](c).

[59] Ibid, [29](e).

[60] Ibid, [30](a).

[61] Ibid, [30](c).

[62]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 at 547, 556 cited in Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182 at [30].

[63] Respondent's submissions, [26].

[64] Form 89 Appeal Notice, Appellant's submissions, [8]-[10].

[65] Ibid, [11]-[18].

[66] Citing Philp v State of Queensland (Department of Education) [2023] QIRC 219, [114].

[67] Human Rights Act 2019 (Qld), s 32(1).

[68] Ibid, [19]-[21].

[69] Citing Baskin v State of Queensland (Department of Education) [2022] QIRC 349.

[70] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35, [6].

Close

Editorial Notes

  • Published Case Name:

    Philp v State of Queensland (Department of Education)

  • Shortened Case Name:

    Philp v State of Queensland (Department of Education)

  • MNC:

    [2025] QIRC 55

  • Court:

    QIRC

  • Judge(s):

    O'Neill IC

  • Date:

    24 Feb 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
2 citations
Jump To
Cite 1 - [2019] ICQ 16
Cite 2 - [2019] ICQ 16
Baskin v State of Queensland (Department of Education) [2022] QIRC 349
3 citations
Jump To
Cite 1 - [2022] QIRC 349
Cite 2 - [2022] QIRC 349
Cite 3 - [2022] QIRC 349
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
4 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
3 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Cite 3 - (1995) 67 IR 298
Chapman v State of Queensland [2003] QCA 172
2 citations
Jump To
Cite 1 - [2003] QCA 172
Cite 2 - [2003] QCA 172
Collins v State of Queensland (Department of Education) [2024] QIRC 86
2 citations
Jump To
Cite 1 - [2024] QIRC 86
Cite 2 - [2024] QIRC 86
Cullen v State of Queensland (Queensland Health) [2021] QIRC 258
2 citations
Jump To
Cite 1 - [2021] QIRC 258
Cite 2 - [2021] QIRC 258
Douglas v Allen and ors [1984] FCA 77
2 citations
Jump To
Cite 1 - [1984] FCA 77
Cite 2 - [1984] FCA 77
Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395
5 citations
Jump To
Cite 1 - [2021] QIRC 395
Cite 2 - [2021] QIRC 395
Cite 3 - [2021] QIRC 395
Cite 4 - [2021] QIRC 395
Cite 5 - [2021] QIRC 395
Harry v State of Queensland (Queensland Health) [2022] QIRC 293
2 citations
Jump To
Cite 1 - [2022] QIRC 293
Cite 2 - [2022] QIRC 293
House v The King (1936) 55 CLR 499
1 citation
Jump To
Cite 1 - (1936) 55 CLR 499
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
1 citation
Jump To
Cite 1 - (1984) 3 FCR 344
Hunter Valley Developments Pty Ltd v Cohen (1984) FCA 176
1 citation
Jump To
Cite 1 - (1984) FCA 176
Lockhart v Queensland Health [2014] QIRC 12
2 citations
Jump To
Cite 1 - [2014] QIRC 12
Cite 2 - [2014] QIRC 12
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
2 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
Mutonhori v Mount Isa City Council (No.2) [2024] QIRC 240
2 citations
Jump To
Cite 1 - [2024] QIRC 240
Cite 2 - [2024] QIRC 240
Philp v State of Queensland (Department of Education) [2023] QIRC 219
7 citations
Jump To
Cite 1 - [2023] QIRC 219
Cite 2 - [2023] QIRC 219
Cite 3 - [2023] QIRC 219
Cite 4 - [2023] QIRC 219
Cite 5 - [2023] QIRC 219
Cite 6 - [2023] QIRC 219
Cite 7 - [2023] QIRC 219
Piggott v State of Queensland [2010] ICQ 35
3 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Cite 3 - [2010] ICQ 35
Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182
2 citations
Jump To
Cite 1 - [2019] QIRC 182
Cite 2 - [2019] QIRC 182
Ulowski v Miller [1968] SASR 277
2 citations
Jump To
Cite 1 - [1968] SASR 277
Cite 2 - [1968] SASR 277

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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