Dean v State of Queensland (Department of Education) [2021] QIRC 42

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dean v State of Queensland (Department of Education) [2021] QIRC 042 PARTIES: Dean, Tracy (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2020/379 PROCEEDING: Public Service Appeal – Fair treatment decision DELIVERED ON: 5 February 2021 MEMBER: HEARD AT: Industrial Commissioner Dwyer On the papers ORDER: The appeal is dismissed for want of jurisdiction LEGISLATION: Public Service Act 2008 Industrial Relations Act 2016 s 564 CASES: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Breust v Qantas Airways Limited [1995] QGIG 777 Truffet v Workers’ Compensation Regulator [2020] ICQ 013 -- 1 of 6 -- 2 Reasons for Decision Background [1] Ms Tracy Dean is currently employed permanently as a teacher at Robina State High School ('RSHS') by the Department of Education ('the department'). [2] On 25 May 2020, Ms Dean wrote to the department in relation to possible breaches of the Code of Conduct by a staff member at RSHS. [3] On 30 June 2020, the department issued correspondence to Ms Dean advising of the outcome of her complaint (‘the stage 1 decision’). The stage 1 decision informed Ms Dean that no breaches had been found and that if she was dissatisfied with the decision she should request an internal review within 14 days. Ms Dean did so. [4] On 10 August 2020, the department issued further correspondence to Ms Dean advising of the outcome of her appeal (‘the stage 2 decision’). The stage 2 decision informed Ms Dean that the stage 1 decision was fair and reasonable in the circumstances and her appeal was unsuccessful. [5] Relevantly, the stage 2 decision advised Ms Dean that if she was dissatisfied with the decision she could refer her concern for external review in a number of ways including: A public service appeal against a decision under a directive or a fair treatment decision under section 194(1)(a) or 194(1)(eb) of the Public Service Act 2008 (must be lodged within 21 days after the day the appellant received notice of the decision appealed against) [6] On 1 December 2020, Ms Dean filed Form 89 in the Queensland Industrial Relations Commission requesting an extension of time to file her Appeal notice outside the 21 day period required by s 564 of the Industrial Relations Act 2016 ('the IR Act'). [7] Noting that the appeal had been filed outside the prescribed time limit, the matter was listed for mention on 17 December 2020. Subsequent to that mention Directions were issued requiring Ms Dean to file submissions showing cause why her appeal should be dealt with out of time. The department was also directed to file submissions in response. [8] The parties filed submissions in accordance with those directions. The decision will deal exclusively with the question of whether Ms Dean’s application ought to be dealt with out of time. The statutory time limit -- 2 of 6 -- 3 [9] Section 564 of the Industrial Relations Act 2016 (‘the IR Act’) provides relevantly as follows: (1) An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period. (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. (3) In this section— "appeal period", for an appeal against a decision to an industrial tribunal, means the period within 21 days after— (a)…; or (b) …; or (c) …; or (d) if, under another Act, the decision is given in another way—the decision is given in the other way. [10] Accordingly, pursuant to s 564(1) and (3)(d) of the IR Act, Ms Dean was required to file her appeal within 21 day of the date she received the stage 2 decision i.e. on or about 7 September 2020 depending on the date she received the correspondence. [11] Ms Dean did not file her appeal until 1 December 2020 and as such, she now requires an exercise of my discretion pursuant to s 564(2) of the IR Act for her appeal to proceed. Relevant authorities [12] A routinely relied on seminal authority on statutory time limits is Brisbane South Regional Health Authority v Taylor1 where McHugh J noted – A limitation period should not be seen 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 or greater than those provisions that exact limitation 1 (1996) 186 CLR 541 at 553. -- 3 of 6 -- 4 periods. A limitation provision is the general rule; an extension provision is the exception to it. [13] In Breust v Qantas Airways Limited2 the following factors were identified as relevant to inform the discretion to grant an extension of time: • The length of the delay; • The Appellant's explanation for the delay; • The prejudice to the parties should the extension be allowed or not allowed; • The conduct of the Respondent; and • The Appellant's prospects of success [14] In Truffet v Workers’ Compensation Regulator3, President Martin (as he then was) made the following observation: 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. … …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. [15] I note that the factors identified in Truffet are broadly consistent with the factors identified in Breust. In the circumstances, for the efficient disposition of this matter, I propose to adopt the factors identified in Truffet. Submissions of the parties [16] I note the submissions filed by the department. I do not intend to reproduce those submissions at length in these reasons. Suffice is to say that the department cites Brisbane South Regional Health Authority v Taylor4 and Breust and steps through the specific considerations set out in paragraph 13 above. [17] Ms Dean filed her submissions on 23 December 2020. Importantly Ms Dean submits that she was conscious of the portion of the stage 2 decision headed ‘Avenues of External Review’. Ms Dean extracts the options set out in the decision in her submissions. [18] In particular, the stage 2 decision includes the reference to the right to file a public service appeal under the Public Service Act 2008 and the time limit of 21 days. Ms Dean does not submit any degree of impediment in understanding this. 2 [1995] QGIG 777. 3 [2020] ICQ 013. 4 Ibid. -- 4 of 6 -- 5 [19] Ms Dean's submission is that, having regard to the numerous options set out in the decision, she has been ‘taking actions to pursue the unfair decision’. She does not identify what those actions were. She obliquely refers to the range of options as having ‘required many avenues’ but offers no further insight into what those avenues were or are. [20] Ms Dean submits that during ‘this time’ (presumably a reference to the three months between the decision and the filing of the appeal) she made a ‘number of enquiries to gain appropriate and relevant legal representation'. She submits that ‘legal representatives’, the ‘Ombudsman’ and the ‘CCC’ (it is not clear which) advised her to lodge her appeal ‘even though it was out of time’. [21] Importantly, Ms Dean does not make any submission about any factors impeding her actions or judgment during the relevant period, nor does she allege any representative error on the part of those allegedly advising her during the relevant period. [22] The net effect of Ms Dean’s submission is that it took her some time to consider her options and get advice. This is her explanation for the delay. Consideration [23] I now turn to the considerations identified in Truffet. The justice of the case requires the indulgence. [24] Broadly this requires an evaluation of inter alia the prejudice that will or might be suffered by Ms Dean if she is not granted permission to proceed with her appeal. Inevitably, a denial of a right to be heard on such jurisdictional grounds will cause some prejudice. I have no doubt that, on some level, Ms Dean will be affected in this way. [25] However, this must be balanced with the prejudice to the department who, like any respondent or defendant, are entitled to expect compliance the statutory time limit, and not to be drawn into litigation when e.g. recollections of witnesses are waning or documentary evidence has been lost, destroyed or will be costly to retrieve. The applicant must demonstrate that the case sought to be appealed has prospects of success. [26] Ms Dean has offered no submission on her prospects of success. Moreover, Ms Dean’s Appeal Notice contains no detailed particulars of her appeal. On the material available to me I am wholly unable to identify any meaningful basis for the appeal, or any merits. In particular, at Part C of her Appeal Notice, Ms Dean refers to 'reprisals' and 'maladministration' but provides no further information in support of these allegations. -- 5 of 6 -- 6 [27] Ms Dean was on notice that she was required to show cause why her matter should not be dismissed. In those circumstances I can only conclude that Ms Dean is either unwilling or unable to demonstrate inter alia the merits of her appeal. Explanation of the delay [28] Ms Dean’s appeal was filed approximately three months beyond the prescribed time limit. In my view, this delay is considerable when having regard to the nature of appeals under the Public Service Act 2008. [29] Having acknowledged that she was aware of her option to file such an appeal, and in circumstances where the decision plainly identifies the 21 day time limit, Ms Dean simply failed to act in a timely manner. She alleges no impediment of her understanding of this, no confusion, no illness, and no representative error that might explain her delay. She simply asserts that she was considering all of her options as a means of explaining herself. [30] In the circumstances I find her explanation completely unsatisfactory. Conclusion [31] For all of the above reasons I consider that Ms Dean has failed to demonstrate any cogent reason why a discretion should be exercised in her favour to allow the filing period for her appeal to be extended. Order [32] In the circumstances I make the following Order: 1. The appeal is dismissed for want of jurisdiction. -- 6 of 6 --