QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Godfrey v State of Queensland (The Public Trustee of Queensland) [2023] QIRC 117

PARTIES:	
	Godfrey, Jeremy 
(Appellant)

v
State of Queensland (The Public Trustee of Queensland) 
(Respondent)

CASE NO:
	PSA/2022/911	
PROCEEDING:
	Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:
	28 April 2023	
MEMBER:

HEARD AT:	Hartigan DP

On the papers 

ORDER:
	The appeal is dismissed. 	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL - appeal against a fair treatment decision – whether decision to refuse leave request was fair and reasonable – where appeal was filed 47 days out of time – whether an extension of time should be granted – consideration of relevant factors – appeal dismissed.
	
LEGISLATION:

CASES:	Industrial Relations Act 2016 (Qld), s 562 and s 564

Public Sector Act 2022 (Qld) s 134

Special Leave Directive 05/17

Appeal Directive 07/20 

Appeals Directive 04/23

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

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.	

Reasons for Decision 

Introduction 

[1]	Mr Jeremy Godfrey is employed by the State of Queensland, The Public Trustee of Queensland ('the QPT') as an Administration Officer (AO2). 

[2]	This appeal has been commenced in the context of the QPT refusing to grant Mr Godfrey paid discretionary special leave ('special leave') for the period from 5 April 2022 to 11 April 2022 (five days) to attend a surf life saving event as a participant and referee in a voluntary capacity. 

Relevant Background 

[3]	Mr Godfrey was initially approved five days of paid recreation leave ('paid leave') for the period from 4 April 2022 to 8 April 2022.  

[4]	On 9 February 2022, Mr Godfrey requested that his existing approved paid leave be extended to 11 days to include the period from 28 March 2022 to 11 April 2022. 

[5]	By letter dated 14 February 2022, the QPT advised Mr Godfrey that due to pre-existing leave approvals and operational requirements it was only able to approve the period from 28 March 2022 to 8 April 2022 as paid leave (10 days). 

[6]	On 2 March 2022, Mr Godfrey applied for five days of paid special leave to attend a surf lifesaving championships ('the Event') pursuant to the Special Leave Directive 05/17 ('Directive 05/17'). Mr Godfrey attached to his application a Referee Letter and a Competitor Letter as evidence of his attendance at the Event as a volunteer referee and a competitor. Mr Godfrey requested that the period from 5 April 2022 to 8 April 2022, which was already approved as paid leave, be instead approved as special leave. Mr Godfrey also requested special leave on 11 April 2022.

[7]	By email correspondence dated 15 March 2022, the QPT requested further information from Mr Godfrey regarding the Competitor Letter that he attached to his special leave application, in particular, the dates in which he intended to compete. Mr Godfrey did not provide such information. 

[8]	On 21 March 2022, the QPT advised Mr Godfrey that his special leave request was refused because he was not eligible for special leave under Directive 05/17. However, in recognition of Mr Godfrey's prior made travel arrangements, the QPT stated that they would approve 11 April 2022 as paid leave. The QPT provided the following explanation for the refusal:

In relation to your request for special leave to attend the Australian Lifesaving Championships as a volunteer/competitor from 5 to 11 April 2022, I have reviewed the discretionary leave schedule in Directive 05/17 Minister for Employment and Industrial Relations Directive: Special Leave and your supporting application. 

In determining the outcome of your request, Schedule two – Discretionary Special leave entitlement under item 2 Sporting Competitions provides:

An officer may be granted leave for sporting competitions if they are selected as – 
(a) a competitor, team manager or team coach of a state or national team participating at a major national or international sporting competition; or 
(b) an umpire or referee at such competitions.
The term "competitor" includes reserve competitors. Single competitors selected in events such as the marathon would be included in the category of "state or national team". An officer who is selected as a competitor or official at the Olympic Games, Commonwealth Games or International Games for the Disabled may be granted leave for the games. 

I note you have provided a letter stating that you will be a volunteer referee during the event. A volunteer official does not fall into category (a) or (b) therefore I am not able to support or approve your application for special leave to attend this event on those grounds. 

I also note you have provided a letter from your club stating that you are a competitor in events. On 15 March 2022 I emailed you, requesting confirmation of registration as a competitor, and the dates on which you intended to compete. I have not received that information. 

I am not able to support or approve your application for special leave to attend this event, and you are welcome to apply recreation leave to the previously approved recreation leave period. 

Additionally, I have assessed the Cairns office operational requirements and note that we already have high leave during the period you have requested, specifically the 11th April 2022. You were advised of this previously by your supervisor, and that we could not support the leave day on 11 April. You have since made travel arrangements including the 11th April (you advise, due to availability of flights). On the understanding that you will apply for recreation leave to cover the absence, this day can be approved on this occasion.
… 

[9]	Directive 05/17 prescribes the entitlements and conditions for special leave. Clause 8 and Schedule 2 of Directive 05/17 outlines the conditions for discretionary leave as follows:

8. 	 Discretionary leave 

8.1 	 A chief executive may approve paid leave for employees for any purpose, with duration
appropriate to the purpose of the leave.

(a)	Leave approved under clause 8.1 must not exceed more than five (5) days per year per reason unless the chief executive considers that circumstances warrant the granting of additional paid leave. Any additional leave must be reasonable and proportionate to the circumstances.

(b)	Examples of reasons could include, but are not limited to, those specified in Schedule Two.
…

SCHEDULE TWO – DISCRETIONARY SPECIAL LEAVE 

2. 	 Sporting Competitions

An officer may be granted leave for sporting competitions if they are selected as – 
(a)	a competitor, team manager or team coach of a state or national team participating at a major national or international sporting competition; or
(b)	an umpire or referee at such competitions.
The term “competitor” includes reserve competitors. Single competitors selected in events such as the marathon would be included in the category of “state or national team”.
An officer who is selected as a competitor or official at the Olympic Games, Commonwealth Games or International Games for the Disabled may be granted leave for the Games.
 …

[10]	By email correspondence dated 25 March 2022, Mr Godfrey requested a review of the decision. Later that day, the QPT advised Mr Godfrey that it had confirmed the decision dated 21 March 2022. 

[11]	On 14 April 2022, Mr Benjamin Spring, Together Union Delegate, requested that the QPT reconsider Mr Godfrey's leave request. On 4 May 2022, the QPT advised Mr Spring that Mr Godfrey was not eligible for paid discretionary leave under Directive 05/17. 

[12]	On 13 May 2022, the QPT advised Mr Spring that they would seek advice on the interpretation of cl 8 of Directive 05/17 from the Office of Industrial Relations ('OIR'). 

[13]	On 26 May 2022, the OIR advised the following, as summarised by the QPT in their submissions:
     …
15.	OIR advice was received on 26 May 2022 highlighting that under sections 8.1 and 8.2 of the Special Leave Directive 05/17, delegates may approve up to five (5) day's paid leave and any duration of unpaid leave per year per reason for any purpose. The OIR advice clarified that Mr Godfrey's request for paid discretionary special leave was eligible for consideration under the Special Leave Directive 05/17. OIR stated that matters of operational convenience, impact on the employee and on the workplace and the compelling nature of the reason for leave were all factors for a delegate to consider in relation to requests for discretionary special leave. 
…

[14]	On 14 July 2022, after seeking advice from the OIR, the QPT advised Mr Godfrey that his request for special leave was eligible under Directive 05/17 and that a decision had been made to approve the period from 5 April 2022 to 11 April 2022 as unpaid discretionary leave ('the decision'). 

[15]	By notice of appeal filed on 20 September 2022, Mr Godfrey appeals the decision of the QPT dated 14 July 2022.

[16]	The appeal is made pursuant to s 134 of the PS Act, which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.

[17]	Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. 

[18]	I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears. An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.

[19]	However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard.

[20]	The QPT raise the following jurisdictional objections to the appeal as follows:

2.	Mr Godfrey has not met the requirements of section 5.2(h) of Appeals Directive 07/20 (underpinned by s.562A(1)(a) of the Industrial Relations Act 2016) which requires a public service employee to comply with the agency's complaints management process prior to lodging the appeal.
3.	Upon request that the original decision of 21 March 2022 be reconsidered, a revised decision (the Decision) was provided to Mr Godfrey on 14 July 2022. As per the Public Trustee's (PT) Employee Complaints Management Procedure and the Individual Employee Grievances Directive 11/20, an employee can request an internal review of the decision within 14 days. No such request for internal review has been made by Mr Godfrey in relation to the Decision of 14 July 2022. 
4.	Further, Mr Godfrey has not lodged his Appeal within the appeal period of 21 days of receiving the Decision, as provided for in section 564(3)(d) of the Industrial Relations Act, and further outlined in section 3.7 of the Public service appeal guide. 

[21]	I will consider the QPT's jurisdictional objection on the basis that the appeal was filed out of time. 

Discretion to hear an appeal out of time
[22]	Section 564(2) of the IR Act bestows a discretion on the Commission to allow an appeal to be started within a longer period. In this regard, s 564(2) of the IR Act provides as follows:
564	 Time limit for appeal 
…
(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.
…
[23]	Section 564(2) of the IR Act was considered by President Martin J in A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) 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.” (citations omitted)
…

[24]	Accordingly, an appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised. 

[25]	In Hunter Valley Developments Pty Ltd v Cohen, Wilcox J set out a number of principles that can act as a useful guide in determining whether to exercise a discretion to extend a time frame to allow a person to lodge an application or an appeal. These principles need not be considered in an exhaustive manner. The principles include, as relevantly summarised: 

(a)	whether the appellant demonstrated an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time; 

(b)	whether the appellant has taken any action, other than by lodging an appeal which would go towards the consideration of whether an acceptable explanation for the delay has been furnished; 

(c)	whether the respondent will suffer any prejudice from the delay; 

(d)	merits of the substantive matter; and 

(e)	fairness between the parties. 

[26]	Prior to determining whether a decision is fair and reasonable, I must, firstly, be satisfied that I have jurisdiction to determine the appeal. 

[27]	Accordingly, I will exercise the discretion as provided by s 564(2) of the IR Act, having regard to the above principles. 

Length of delay and explanation provided 
[28]	The decision subject of this appeal was made on 14 July 2022. The last day to file the appeal within the 21 day time period was 4 August 2022. The appeal was filed on 20 September 2022. 

[29]	The length of delay is 47 days beyond the time prescribed by the Act. That is not insignificant in circumstances where Parliament imposed an appeal period of 21 days.

[30]	In his submissions, Mr Godfrey submits that the appeal was filed out of time because he wanted to ensure that the 'information' from the QPT was 'correct' so that he 'would not submit a frivolous appeal to the QIRC'. Further to this, Mr Godfrey submits that the delay was due to Mr Godfrey's belief that the matter was to be settled internally. 

[31]	Mr Godfrey has not adduced any material to support the contention that after he received the decision that he took steps to 'ensure' that the 'information' from the QPT was 'correct'. Mr Godfrey does not provide any submissions as to what information he is seeking and why he purportedly went about ensuring it was correct. 

[32]	Further, Mr Godfrey also submits that the delay was caused because he believed that the matter would be settled internally. Putting aside the lack of evidence or supporting information that he took steps to resolve the matter internally after receiving the decision, it appears from Mr Godfrey's submissions, that he made a conscious decision to delay filing the appeal whilst he explored an alternative path. Whilst Mr Godfrey was entitled to make such a choice, there are clear consequences of such a decision being made. I do not consider that Mr Godfrey has provided a reasonable explanation for the delay in filing the appeal. 

[33]	Accordingly, the length of delay and the failure to provide a reasonable explanation for the delay are matters which weigh against the Commission exercising its discretion to extend the time to file the appeal. 

Prejudice to the Respondent

[34]	Neither party made submissions with respect to the prejudice suffered by the Respondent should an extension of time be granted. 

[35]	However, I accept that the Department will suffer prejudice associated with defending an appeal filed at least some 47 days out of time. Further, it is accepted that Mr Godfrey may suffer prejudice in that he will not be able to appeal the decision should an extension of time not be granted.

Merits of the Appeal 

[36]	The role of the Commission in an appeal of this nature is to determine whether the decision the subject of the appeal is fair and reasonable. Such an inquiry ordinarily requires consideration of the relevant matters that were before the decision maker at the time the decision was made.

[37]	As noted above, the QPT raises a jurisdictional objection on the basis that it contends that Mr Godfrey did not use the procedures required to be used in relation to a decision under the Appeals Directive 07/20 ('Directive 07/20'). 

[38]	Section 562A of the IR Act sets out circumstances in which the Commission may decide to not hear a particular public service appeal as follows:

562A   Commission may decide not to hear particular public service appeals 

(1)	The commission may decide it will only hear an appeal against a directive decision, a fair treatment decision or a transfer decision under the Public Sector Act 2022 if the commission is satisfied—

(a)	the appellant has used the procedures required to be used by the employee in relation to the decision under a directive under that Act, including a directive made under section 110 of that Act; and

(b)	for a fair treatment decision under the Public Sector Act 2022—it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).
…

[39]	In its submissions, the QPT contends that Mr Godfrey has not complied with the QPT's complaints management process prior to lodging the appeal as required by cl 5.2(h) of Directive 07/20. 

[40]	Appeals: Directive 04/23 (‘Directive 04/23’) became effective on 1 March 2023 and supersedes Directive 07/20. Clause 9.4 of Directive 04/23 relevantly provides:

9.4	Further to clause 9.3, a public sector employee must first comply with their entity’s
procedures under the directive relating to individual employee grievances (where the
individual employee grievance directive applies to the entity), unless:

a.	the fair treatment decision was made by the chief executive of that entity, or

b.	where the fair treatment decision relates to a finding under section 91 of the Act that a
disciplinary ground exists for the person.
…

[41]	In his reply submissions, Mr Godfrey contends that Directive 07/20 says that an employee 'should' engage in the internal complaints process, not that they 'must'. Further, Mr Godfrey submits that there were numerous occasions where his representative Mr Spring and himself sought a review of the decision with the Cairns Regional Manager, the Regional Services North Director and the Human Resources Department Brisbane. Mr Godfrey contends that these attempts would satisfy the requirement under Directive 07/20.
 
[42]	Clause 5.2(h) of Directive 07/20 (now superseded) provides the following:

5.2 	An appeal may only be lodged by the following persons: 
…
(h)	For a decision under section 194(1)(eb) (fair treatment decision) a public service employee who is aggrieved by the decision. The public service employee should comply with the agency’s complaints management process prior to lodging the appeal. 
…

[43]	The onus rests on Mr Godfrey to establish that he has complied with the QPT's complaints management process prior to lodging the appeal. Mr Godfrey has not adduced any evidence or information to support the contention that he sought to internally review the decision which is the subject of this appeal, or, take any other steps purportedly in compliance with the QPT's complaints management process. Relevantly, neither Mr Godfrey's Notice of Appeal or his written submissions address or refer to any steps he took to review the decision after it was issued on 14 July 2022. 

[44]	Accordingly, given the lack of evidence to support the contention that Mr Godfrey utilised the QPT's complaints management process with respect to the decision before filing the appeal, I consider that the merits of the appeal do not favour the exercise of the discretion to extend time for filing the appeal. 

[45]	The final criteria that the authorities point to is that of fairness between the parties. Neither of the parties has specifically addressed this issue in their submissions.

[46]	Accordingly, having considered the matters referred to above, I have, on balance, determined not to exercise my discretion to extend the period for filing the appeal. The orders I make will be that the appeal is dismissed.

Order

[47]	Accordingly, I make the following order:

The appeal is dismissed.