QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Taylor v State of Queensland (Queensland Corrective Services) [2023] QIRC 231
	
PARTIES:
	Taylor, Kevin
(Appellant)

v

State of Queensland (Queensland Corrective Services)
(Respondent)
	
CASE NO.:
	PSA/2023/46
	
PROCEEDING:
	Public Sector Appeal 
	
DELIVERED ON:

MEMBER:

HEARD AT:

ORDER:	10 August 2023

Power IC

On the papers

Pursuant to s 562A of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal
	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY- Public Sector Appeal – where respondent raises jurisdictional objections – where appeal filed out of time – whether extension of time should be granted – were extension of time not granted – decline to hear appeal 
	
LEGISLATION:	Industrial Relations Act 2016 (Qld), ss 562, 564

Public Service Act 2008 (Qld), s 137

Public Sector Act 2022 (Qld), ss 101, 131

CASES: 		Bakhash v State of Queensland (Department of Education) [2022] QIRC 362

Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356

Breust v Qantas Airways Limited [1995] QGIC 777

Drage v State of Queensland (Queensland Health) [2023] QIRC 074

Elliott v State of Queensland (Queensland Health) [2022] QRIC 332

Hensen v State of Queensland (Queensland Corrective Services [2022] QIRC 322

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Truffet v Workers’ Compensation Regulator [2020] ICQ 013

Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 043

Reasons for Decision 

Introduction

[1]	Mr Kevin Taylor ('the Appellant') is employed by the State of Queensland (Queensland Corrective Services) ('the Respondent') as a Custodial Correctional Officer within the Capricornia Correctional Centre. 

[2]	On 29 June 2022, the Respondent issued an Employment Direction 01/22 ('the Directive'). The Directive outlined the COVID-19 vaccination requirements for staff members working in the corrective services facility. 

[3]	On 7 July 2022, the Appellant was suspended by Deputy Commissioner McMahon with normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) due to the Appellant's non-compliance with the Directive. 

[4]	On 6 September 2022, 27 October 2022 and 13 February 2022, the Appellant's suspension with normal remuneration was extended. 

[5]	By letter on 14 February 2023, a second show cause notice ('the decision') was issued by Acting Deputy Commissioner Sarah Hyde to the Appellant. This notice: 

a.	Made disciplinary findings (the decision) pursuant to s 187(1)(d) of the Public Service Act 2008 on the basis that the Appellant had without a reasonable excuse failed to comply with the Commissioner's Directions (a lawful direction) which required the Appellant to be double vaccinated by prescribed dates; 
b.	Proposed the penalty of termination of employment (proposed disciplinary action);
c.	Provided the Appellant with seven days to respond to the proposed disciplinary action; and 
d.	Set out the Appellant's appeal entitlements. 

[6]	On 3 March 2023, the Appellant responded to the decision stating that the Appellant 'wishes to appeal the finding'. 

[7]	On  23 March 2023 the Appellant filed an appeal notice, appealing against the decision dated 14 February 2023 pursuant to s 131(1)(c) of the Public Sector Act 2022 (Qld) ('PS Act').

[8]	On 30 March 2023 an order was issued directing parties to file submissions relating to the jurisdictional issue arising from the appeal notice having been filed outside of the 21 day statutory time period.

Legislative Provisions

[9]	Section 131 of the PS Act provides the following: 

131   Decisions against which appeals may be made

(1)	 An appeal may be made against the following decisions—

(a)	a conversion decision;
(b)	a directive decision;
(c)	a disciplinary decision;
(d)	a fair treatment decision;
(e)	a promotion decision;
(f)	a suspension without pay decision;
(g)	a transfer decision;
(h)	a work performance direction decision;
(i)	a decision about anything else against which another Act allows a person to appeal.
(2)	However, if an appeal may be made under this section against a decision, other than under subsection (1)(d), the appeal can not be made under subsection (1)(d).
(3)	This section is subject to section 132.

[10]	Section 564 of the Industrial Relations Act 2016 (Qld) ('IR Act') provides the following: 

64      Time limit for appeal
(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)	if the decision is given at a hearing—the announcement of the decision at the hearing; or
(b)	if the decision is given through the registrar—the release of the decision; or
(c)	if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022; or
(d)	if, under another Act, the decision is given in another way—the decision is given in the other way.

Submissions

Appellant's submissions

[11]	The Appellant submits that the appeal notice was filed within the required timeframe, further submitting that:

•	The Respondent failed to note the 3 March 2023 response email showing the Appellant was not aware of the 14 February 2023 email until 2 March 2023. 

•	The Queensland Corrective Services email dated 7 March 2023 advised that if the Appellant wanted to appeal the decision to do so via the QIRC 'and that strict time frames apply (21 days)'. 

•	The Form 89 Appeal was received by the QIRC 16 days later on 23 March 2023. 

Respondent's Submissions 

[12]	The Respondent submits that the Commission should determine the out of time issue for the following reasons: 

•	On 14 February 2023, the Respondent emailed the Appellant a copy of the decision to his personal email account. The Respondent had previously corresponded with the Appellant in the disciplinary and suspension process via his personal email address. 

•	On 2 March 2023, the Respondent, having not received a reply to the decision, emailed the Appellant enquiring if he was going to respond to the second show cause notice. 

•	On 3 March 2023, the appellant provided a response to the decision which included the statement 'I wish to appeal the finding I failed to follow a directive'.

•	On 7 March 2023, the Respondent advised the Appellant that there were strict timeframes for lodging an appeal and provided a link to the guide on the QIRC website. 

•	On 21 March 2023, the Appellant responded advising that he was seeking legal advice and sought a 7 day extension to allow his legal representatives time to review his situation and prepare a response on his behalf. 

•	On 23 March 2023, the Appellant advised the Respondent that he had lodged an appeal with the QIRC.

•	The Appellant bears the onus of establishing that the justice of the appeal requires an extension of time and that a limitation provision is the general rule, whilst an extension provision is an exception.  

•	In Wantling v Department of Community Safety (Queensland Corrective Services), cited in Drage v State of Queensland (Queensland Health) it was stated that the statutory time limit in s 74(2)(a) should only be departed from the in the most compelling of circumstances and where necessary to ensure that justice is done between the parties.

•	There are numerous authorities that set out the principles by which the QIRC can be guided when determining if it should exercise discretion to accept an out of time appeal.

•	In Breust v Qantas Airways Limited the following were stated to be relevant: 

(a)	length of delay;
(b)	Appellant's explanation for the delay;
(c)	prejudice to the parties should the extension be allowed or not allowed;
(d)	conduct of the Respondent; and 
(e)	the Appellant's prospects of success. 

•	In Truffet v Workers' Compensation Regulator, President Martin (as he then was), summarised the principles to be: the applicant must demonstrate that the justice of the case requires the indulgence sought; the applicant must demonstrate the case has prospects of success; and there must be an explanation for the delay between the expiry of the time period and time the application was filed. 

•	The date when the Appellant received the email for the purposes of the appeal period is the date that it was sent to the Appellant, not the date the Appellant chose to read it. 

•	The appeal needed to be filed by 08 March 2023. The 23 March 2023 filing makes the appeal 12 days out of time, posing a significant delay beyond the 21-day time limit. 

•	The Appellant's submission stated that he did not see the email until 2 March 2023. No explanation was given for why the Appellant did not see the email that was sent to him prior to 2 March 2023. 

•	It is noted that the Appellant forwarded the original email to himself, confirming that it was received into his inbox on 14 February 2023.

•	The Appellant did not provide a reasonable explanation for the delay because the Appellant has been on paid suspension pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) while the disciplinary process is on foot. It is a reasonable expectation that the Appellant would check his personal emails given he was on a paid suspension, subject to ongoing disciplinary process and had corresponded with the Respondent via this email.

•	The Appellant said that he did not see the email until 2 March 2023. At this point the Appellant was still in time to lodge the Appeal, having until 8 March 2023 to do so. The Appellant has provided no explanation why he did not lodge the Appeal at this point in time. Further, the Appellant was advised by the Respondent by email on 7 March 2023, that strict time frames apply. Again, the Appellant was still in time to lodge the Appeal at this time. No explanation has been given by the Appellant why he did not lodge the Appeal at this time. 

•	The prejudice to the Respondent of allowing the appeal is that it will not be able to  reply upon the statutory time limit. If the Appeal is not accepted out of time, the Appellant will not be able to have the Appeal determined, although he will still have the opportunity to file a claim in the QIRC in relation to any decision on penalty. The justice of the case does not require indulgence sought. 

•	The appeal has little prospect of success as the matters raised by the Appellant in his response to the show cause notice have already been extensively considered and determined in numerous public service appeals and ''with the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suits of arguments of this nature''. 

Consideration

[13]	The relevant factors to be considered in these circumstances were outlined in the decision of Breust v Qantas Airways and can be summarised as the length of delay, explanation for delay; prejudice to parties and any relevant conduct by the Respondent. An assessment as to the prospects of the appeal is also required as outlined by Martin J in Truffet v Workers Compensation Regulator. 

[14]	An appeal against the Respondent's decision on disciplinary findings was required to be filed by 8 March 2023, however the appeal was not filed until 23 March 2023.

[15]	I note that the Appellant stated in his response to the show cause notice dated 23 December 2022 that he had not responded sooner as he 'did not realise' that he had received the first notification. This should have put the Appellant on notice that he needed to check his emails regularly during the disciplinary process. It was not reasonable to then claim again that he did not see the Respondents decision on disciplinary findings until some 14 days after it was sent. It is the responsibility of employees who are on paid suspension to generally remain contactable whilst not physically in the workplace. 

[16]	Accepting that the Appellant did not read the email attaching the decision until 2 March 2023, I note that the decision outlined the Appellant's appeal rights stating that if the Appellant wished to lodge an appeal against the disciplinary findings he should do so 'urgently'. The Appellant had a further six days to file an appeal at this point to ensure it was received within the statutory time period.

[17]	The Appellant stated in his response to the disciplinary decision that he wanted to appeal the decision. The Respondent replied on 7 March 2023 advising the Appellant that appeals are conducted through the QIRC and attached a link to the public sector appeal guide on the QIRC website. The Respondent also advised in their email that strict timeframes apply for lodging an appeal. 

[18]	No explanation was provided for the delay between receipt of the Respondent's email of 7 March 2023 and the Appellant's email of 21 March seeking an extension for the purposes of seeking legal advice. The Appellant had been given all the necessary information as to the strict timeframes associated with appeals and chose not to file an appeal until 23 March 2023. I am not satisfied a satisfactory explanation was provided for this delay.

[19]	The appeal was filed 12 days outside of the statutory time limit. In the context of a 21 day time limit the length of this delay was not insignificant. 

[20]	In considering the Appellant's prospects, I am of the view that the appeal has limited prospects of success. The matters referred to by the Appellant have already been raised in a significant number of public service appeals unsuccessfully. The requirement to have a vaccine has consistently been found to be a lawful and reasonable direction across multiple public sector agencies. 

[21]	There is no significant prejudice to the Respondent if the appeal is heard, although they will lose the right to rely upon the statutory timeframe. A decision to not extend the time to hear this appeal will undoubtedly prejudice the Appellant as he will not be given the opportunity to have his appeal heard and determined. However as noted above, I do not consider the appeal to have any real prospects of success. 

[22]	Finally, an assessment of the conduct of the Respondent does not reveal any actions which contributed to the delay in filing the appeal. The Respondent pro-actively sought responses from the Appellant when he did not provide an initial response to the show cause and provided additional information about the Appellant’s appeal rights following receipt of the Appellant's response. 

[23]	After considering all of the circumstances in this matter, I decline to extend the time period for filing and hence decline to hear the appeal. 

Order

[24]	I make the following order:
Pursuant to s 562A of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal.