Carlile v State of Queensland (Department of Resources) [2023] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carlile v State of Queensland (Department of Resources) [2023] QIRC 111 PARTIES: Carlile, Shane (Appellant) v State of Queensland (Department of Resources) (Respondent) CASE NO: PSA/2022/770 PROCEEDING: Public Sector Appeal – Appeal against a disciplinary decision DELIVERED EX TEMPORE ON: 13 April 2023 MEMBER: Dwyer IC HEARD AT: Brisbane ORDER: 1. The appeal is dismissed for want of jurisdiction CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a discipline decision – where public sector appeal was filed out of time – consideration of jurisdiction to hear appeal out of time – no jurisdiction – appeal dismissed LEGISLATION: Industrial Relations Act 2016 (Qld) ss 564(2), 564(3)(d). CASES: A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 -- 1 of 10 -- 2 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Dickson v Mornington Shire Council [2020] QIRC 106 Kelsey v Logan City Council (No.2) [2022] ICQ 13 Piggott v Department of Education and Training [2010] QIRC 001 APPEARANCES Mr S. Carlile representing himself Ms K. Vercoe of the State of Queensland (Department of Resources) for the Respondent Reasons for Decision (ex tempore) Background [1] Mr Shane Carlile is currently employed as a Policy Officer with the Department of Resources ('the Department'). He has been suspended from duty since March 2021. [2] By letter dated 5 March 2021 ('the suspension letter'), Mr Carlile was suspended from duty pursuant to s 137 of the Public Service Act 2008 (Qld).1 The suspension arose in circumstances where it was alleged that Mr Carlile had contravened, without reasonable excuse, a direction given on 27 November 2020 to cease all unreasonable and unsolicited contact with employees of a unit known as (at that time) Water Policy. Mr Carlile was the subject of allegations of intimidating and harassing conduct towards co-workers and consequently an investigation was to be formally instigated following Mr Carlile's suspension. [3] Relevantly, the suspension letter contained the following passages: Accordingly, pursuant to section 137(1)(b) of the Act, I have decided to suspend you from duty on normal remuneration, effective immediately. Your suspension will remain in place until 5 June 2021, at which time I will consider the issue of suspension afresh. I have appointed Ms Karina Vercoe, Principal HR Consultant, as a contact officer for you in this matter. … 1 The predecessor of s 101 of the Public Sector Act 2022 (Qld). -- 2 of 10 -- 3 During the suspension period you are directed not to present at, or in the vicinity of your normal workplace at 1 William Street Brisbane, or any other departmental or DRDMW site without prior permission from me. …If there is a legitimate reason for you or your representative to contact the departmental or DRDMW staff, please contact Ms Vercoe in the first instance… … Should you require any assistance in relation to any employment matter, please contact Ms Vercoe in the first instance. (Emphasis added) [4] Following his suspension from duty, it is not controversial that on 22 April 2021 Mr Carlile attended upon the premises at 1 William Street, gained access to the building, and removed a work-issued laptop. Specifically, it is not controversial that Mr Carlile engaged in that conduct without seeking permission from Ms Vercoe. [5] As a consequence of this apparent contravention of the direction issued on or about 5 March 2021, Mr Carlile was then subject to a further new investigation and show cause process which culminated on 20 May 2022 in respect of inter alia his contravention of a direction not to attend 1 William Street. [6] On 20 May 2022, Mr Carlile was invited to respond to formal allegations arising predominately from his conduct on 22 April 2021. Following Mr Carlile's responses to the show cause process on 5 July 2022, a decision was issued to Mr Carlile on 12 August 2022 that informed him that the allegations had been substantiated and that termination of his employment was being considered ('the decision letter'). [7] Mr Carlile received the decision letter on 12 August 2022. Notably, the decision letter expressly informed Mr Carlile of his appeal rights against the decision and specifically, the 21-day time limit for doing so.2 [8] Mr Carlile's appeal against the decision was filed on 9 September 2022 (seven days outside the prescribed time limit).3 The Department raised a preliminary objection to the appeal on the basis that it was filed outside of the prescribed time limit.4 [9] On 7 February 2023, following the resolution of a separate preliminary issue, directions were issued to the parties to file written submissions addressing matters relevant to the exercise of a discretion for the acceptance of a matter filed outside of a prescribed time limit. 2 See attachment "SC-09" to the Appeal Notice filed 9 September 2022. 3 Industrial Relations Act 2016 (Qld) s 564(3)(d). 4 T 1-5, ll 20-30. -- 3 of 10 -- 4 [10] The parties each filed written submissions in respect of that preliminary issue. Mr Carlile's submissions also attached an affidavit from Ms Susan Moriarty, principal practitioner at Susan Moriarty & Associates ('SMA'). [11] By consent of the Department, Ms Moriarty's affidavit was admitted into evidence at hearing.5 Ms Moriarty was not required for cross-examination. The question for determination is whether the Commission ought to exercise its discretion to allow Mr Carlile's appeal to be started in a longer period than the prescribed time of 21 days. Relevant legal principles [12] Section 564(3) of the Industrial Relations Act 2016 (Qld) ('the Act') relevantly requires inter alia a public sector appeal to be filed within 21 days of the receipt of the decision by an appellant. Given the decision was received by Mr Carlile on 12 August 2022, the statutory time limit for filing an appeal expired on 2 September 2022. However, s 564(2) of the Act provides that the Commission may allow an appeal to be started within a longer period. [13] In considering whether to grant an extension of time, the Industrial Court of Queensland has previously observed that the burden of invoking a favourable discretion rests with the party seeking the indulgence. That party will discharge the burden in three ways:6 In order to be successful an applicant must ordinarily discharge the burden in three ways. First, the applicant must demonstrate that the justice of the case requires the indulgence sought. Secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success. Thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed. (Underlining added) Consideration Explanation for delay [14] Mr Carlile has filed both a written submission and an affidavit from Ms Moriarty, a senior legal practitioner with SMA whose firm was representing Mr Carlile at all relevant times. [15] Notwithstanding that he had the opportunity to squarely address the rather trite principles informing a discretion to extend time, the net effect of the material filed by Mr Carlile is that it provides no explanation at all. 5 Exhibit 1. 6 A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 at [6]. See also Truffet v Workers' Compensation Regulator [2020] ICQ 013. -- 4 of 10 -- 5 [16] Firstly, the highest that the submissions of Mr Carlile rise to by way of an explanation for the delay is where he submits at paragraph 6 of his submissions filed 7 March 2023: My legal representative was unable to lodge my submissions they prepared on my behalf within 21 days primarily due to likely COVID-19-related illnesses, and has provided an affidavit detailing the exceptional circumstances as to how this eventuated. [17] The affidavit referred to in that submission is the affidavit of Ms Moriarty. Before turning to the affidavit of Ms Moriarty it is noted that, despite Mr Carlile expressing his reliance on his lawyers in his submissions, it is not in doubt that he was independently informed of the 21-day time limit in the decision letter, and he therefore knew or ought to have known about it. Further, he has not at any time denied he was aware of the time limit. [18] Secondly, it appears that a Mr Peter Wrigley was the solicitor employed by SMA who had carriage Mr Carlile's matter at all material times.7 That said, the affidavit of Ms Moriarty then proceeds to describe involvement by a number of other practitioners for various purposes at various times between 12 August and 9 September 2022. [19] While it is not clear from Mr Carlile's submission which of his legal representatives was said to be unable to lodge the appeal within 21 days, it is noted that there is a stark absence of any evidence from Mr Wrigley. [20] Further, there is no independent medical evidence disclosing that any of the legal practitioners at SMA at the relevant time were affected by any medical condition that might explain a failure to file the appeal within the prescribed time limit. [21] Having regard to Mr Carlile's submission as a whole, it does not assert representative error clearly or at all. At its best, it quite weakly alludes to a 'likely COVID-related illness' affecting an unidentified legal representative and it does so without any supporting medical evidence or evidence from the legal practitioner supposedly affected. [22] The affidavit of Ms Moriarty is equally unhelpful in identifying an explanation for the delay. Having regard to the affidavit as a whole, it traverses all manner of irrelevant historical health and workload issues affecting practitioners at SMA. While the affidavit thoroughly circumnavigates the proposition of representative error, it ultimately fails to acknowledge or concede any error by any practitioner. [23] However the affidavit of Ms Moriarty does establish these important facts: • On 16 August 2022, Mr Carlile received advice from Ms Moriarty as to his rights to appeal the decision; and • On 18 August 2022, Mr Carlile instructed SMA to appeal the decision. 7 Exhibit 1, paragraph 3. -- 5 of 10 -- 6 [24] Both of these dates were well within the prescribed time limit. [25] The affidavit further provides details of the steps taken to file the appeal after Mr Carlile's instructions. A first draft of the schedule to the appeal notice was completed on 31 August 2022. On 31 August 2022, Mr Wrigley notified the Department of Mr Carlile's intention to appeal the decision. On 1 September 2022 (still one day within the prescribed time limit), Mr Carlile provided instructions for the settlement of the draft schedule to the appeal notice. [26] Again, all of these events occurred within the prescribed time limit. [27] Given the clearly established facts at this point, one would readily anticipate that a clear explanation from either Mr Carlile, Ms Moriarty or Mr Wrigley might then follow. But instead, it is at this point in Ms Moriarty's affidavit that 'the trail goes cold'. [28] Astonishingly, the chronology of events set out in the affidavit skips over the expiration date of 2 September 2022 entirely, and without any explanation, suddenly resumes the chronology on 7 September 2022. There is absolutely no evidence provided to explain what happened (or did not happen) that prevented the filing of the appeal by 2 September 2022.8 [29] Oddly, after references to perfunctory steps taken relating to further appeal preparation on 7 and 8 September 2022, the affidavit then segues into an array of personal health information about Mr Wrigley suffering COVID and being unfit in May of 2022 i.e. approximately 3 months before any decision was made about Mr Carlile. [30] Beyond the unqualified and speculative observations of Ms Moriarty in her affidavit,9 there is nothing in the form of admissible evidence to support any suggestion that Mr Wrigley's health had contributed to the failure to file within the prescribed time limit. Further, if this was what Ms Moriarty intended to convey in her affidavit, there is no accompanying explanation as to why Mr Wrigley could not provide that evidence himself. [31] Despite its 22 paragraphs and 10 attachments, the affidavit of Ms Moriarty provides no explanation for the delay. [32] The Commission is not in a position on this evidence to imply representative error. It is no small thing to impugn the reputation of a legal practitioner in the absence of a clear acknowledgment from them that they have erred, or a satisfactory explanation why such acknowledgment is not forthcoming.10 8 Note – There was evidence that Mr Wrigley negotiated an extension to 2 September 2022 to provide a response to show cause why termination of employment should not be the penalty but this was distinct entirely from the statutory time limit applying to Mr Carlile's appeal rights and in no way amounted to consent to extend them. In any event, no action was taken to provide a response by 2 September 2022 or at all. 9 Exhibit 1 at paragraphs [16]-[20]. 10 Dickson v Mornington Shire Council [2020] QIRC 106 at [49]-[52] -- 6 of 10 -- 7 [33] In this matter there is no admission of error from Ms Moriarty. Further, there is no direct evidence from Mr Wrigley about his role in the matter at all. [34] It is therefore not proper for the Commission to simply 'fill in the blanks'. While the disjointed content of Ms Moriarty's affidavit might tempt the Commission to speculate about matters such as error or the incompetence of a legal practitioner, no findings to that effect can be made without more detailed evidence. What is clear though is that there is no direct explanation for the delay offered by Mr Carlile in his submissions, or by Ms Moriarty in her affidavit. [35] In the circumstances, I find that there is no evidence or submission before me that provides any explanation for the delay. Prospects of success [36] In Bruce Anthony Piggott v State of Queensland,11 President Hall adopted the earlier observations of Commissioner Asbury (as Her Honour then was) in Piggott v Department of Education and Training:12 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. [37] It is not necessary in this preliminary context to delve at length into the merits of Mr Carlile's appeal. Identification of obvious merit (or lack of merit) on consideration of material filed will be sufficient to draw conclusions about prospects of success or otherwise. [38] In his appeal, Mr Carlile challenges the substantiation of six allegations. Four of those allegations pertain to Mr Carlile's conduct on 22 April 2021 i.e. when he attended upon 1 William Street and removed a work-issued laptop. [39] In response to the allegation that he attended 1 William Street in contravention of a lawful direction, Mr Carlile (through his solicitor, Mr Wrigley) responded that he did not regard the direction as lawful and therefore could not have contravened a lawful direction (or words to that effect).13 The effect of his response was that Mr Carlile considered that he was not bound by the direction. [40] It is difficult to imagine a more unacceptable response. It is even more difficult to imagine a legal practitioner authoring such a response in the context of such a serious allegation against their client. 11 [2010] ICQ 35 at [6]-[7] 12 [2010] QIRC 001 at [10]-[11] 13 In earlier correspondence dated December 2021, Mr Wrigley asserted the direction was adverse action. By July 2022 he was describing the direction as a reprisal. -- 7 of 10 -- 8 [41] Had Mr Carlile or his legal representative genuinely considered the direction unlawful, be it because of alleged adverse action or an alleged reprisal, there were any number of legal avenues available to them to address that concern, including remedies available on an urgent basis. No action was taken. [42] Instead, despite having been given an explicit written direction not to attend the premises on or about 11 March 2021, and without any attempt to legitimately challenge the lawfulness of the direction in the intervening five-week period, Mr Carlile blithely disregarded the direction because he (and presumably is legal representative) felt confident they could simply unilaterally declare the direction unlawful. Plainly the onus was on Mr Carlile to first establish (as a matter of law) that the direction was unlawful before he disregarded it. [43] In those circumstances, I consider Mr Carlile's appeal against the substantiation of the finding that he failed to comply with a lawful direction is doomed to fail. The finding was plainly open to the decision maker on those facts. [44] Similarly, the allegation that Mr Carlile removed a work-issued laptop from the premises is met with a response (again via Mr Wrigley) that he was retrieving it to access relevant information regarding a public interest disclosure he had made. [45] Underpinning this allegation and response is (again) the assertion by Mr Carlile that he was not contravening a lawful direction not to attend at 1 William Street because (he says) the direction was unlawful. For all of the same reasons immediately above, Mr Carlile's appeal against the substantiation of the finding that he removed a work-issued laptop is equally doomed to fail. [46] There is no explanation why, if Mr Carlile needed the laptop for the reasons stated, he did not contact Ms Vercoe (as he was invited to do) to facilitate its delivery. Further, Mr Carlile's assertions that he had legitimate access to the laptop pursuant to a 'work from home policy' is contradicted by the fact of his suspension from duty. [47] Further, the assertion of the allegedly unlawful direction offered by Mr Carlile after he is confronted with allegations of misconduct is highly implausible, particularly in circumstances where Mr Carlile did not take immediate (or any) action to legitimately challenge the direction he alleges to be unlawful. [48] In all of the circumstances, the allegations pertaining to Mr Carlile attending 1 William Street and removing the laptop were clearly conclusions open to the decision maker on the facts. The conduct is not in dispute, only the alleged justification for it. -- 8 of 10 -- 9 [49] The conduct as alleged would justify consideration of a disciplinary penalty of termination of employment. These two allegations alone would amount to a flagrant disregard of a lawful direction, especially in circumstances where Mr Carlile's suspension and exclusion from 1 William Street was in the context of work, health and safety concerns pertaining to other employees. [50] Conversely, Mr Carlile's unilateral, late invoked, and unproven assertion of the unlawfulness of the direction is both misconceived and highly implausible, such that the merit of the serious findings against Mr Carlile in respect of but two of the six serious allegations is unimpeachable. [51] For completeness, it ought to also be noted as an aside that another substantiated allegation is to the effect that Mr Carlile misled security staff at 1 William Street when his security pass failed to give him access to the building. [52] Because the facts supporting each of the parties respective positions on this allegation are established inter alia by reference to testimony and CCTV footage not before me, I have not extended a consideration of the merits of Mr Carlile's appeal to include this particular aspect of the substantiated allegations except to note that: whatever words were exchanged between Mr Carlile and the security personnel, they did not include a disclosure by Mr Carlile that he was the subject of a suspension and a direction not to attend the site. So much is apparent when one has regard to the response letter from Mr Carlile's legal representative in December 2021 where Mr Carlile (through Mr Wrigley) attempts to shift blame to the security guard for the alleged breach by asserting that the guard failed to enquire whether Mr Carlile was authorised to enter the building. 14 [53] In all of those circumstances I consider the prospects of success of Mr Carlile's appeal filed on 9 September 2022 to be not only poor, but to be non-existent. Justice of the case [54] With respect to the justice of the case, I make three simple observations: i. The Department provided Mr Carlile with a clear indication of his appeal rights, including an explicit reference to the 21-day time limit when they issued the decision to him on 12 August 2022; ii. Mr Carlile had legal representation and access to advice at all material times during the prescribed time limit; and iii. Having regard to the substantiated allegations that are challenged, the appeal has no prospects of success. 14 See attachment "SC-04" (at page 6) to the Appeal Notice filed 9 September 2022. -- 9 of 10 -- 10 [55] Time limits are expected to be complied with. A respondent is entitled to some certainty.15 While the delay in this instance is only a short period of 7 days, that is but one of the constellation of considerations in the exercise of the discretion that are discussed above. [56] Having regard to the matter as a whole, the prejudice flowing to the Department in allowing Mr Carlile to be excused from compliance with the statutory time limit would far outweigh any prejudice flowing to Mr Carlile if his appeal is not allowed to proceed. Given the combination of factors, including the lack of explanation and the poor merits of the substantive appeal, there is no circumstance of this matter that would lead me to conclude the justice of the case compels an exercise of my discretion to extend time. Order [57] In the circumstances I make the following order: 1. The appeal is dismissed for want of jurisdiction. 15 Kelsey v Logan City Council (No.2) [2022] ICQ 13. -- 10 of 10 --