QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
		
CITATION:

PARTIES:	
	Hubbard v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 152

Hubbard, Kim
(Appellant)

v

State of Queensland (Department of Agriculture and Fisheries)
(Respondent)
	
CASE NO:
	PSA/2024/79
	
PROCEEDING:	Public Sector Appeal – Appeal against a conversion decision
	
DELIVERED ON:	21 June 2024	
		
MEMBER:

HEARD AT:	Pidgeon IC

On the papers

ORDER:	1.	The Appellant's application for an extension of time is dismissed.
	
CATCHWORDS:

	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant is employed by the respondent as a fixed term temporary Technical Officer (TO2) – where the appellant's request for permanent appointment was rejected – where the appellant's appeal was lodged out of time – whether extension of time should be granted – application for an extension of time dismissed
	
LEGISLATION AND 
OTHERINSTRUMENTS:
	Directive 02/23: Review of non-permanent employment 

Industrial Relations Act 2016 (Qld) s 564(2) 

Public Sector Act 2022 (Qld) ss 115, 116
	
CASES:	Breust v Qantas Airways Ltd [1995] 149 QGIG 777

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

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

Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344

Reasons for Decision

[1]	Ms Kim Hubbard ('the Appellant') has been employed by the State of Queensland (Department of Agriculture and Fisheries) ('the Respondent') as a Technical Officer (Beef) (TO2) on a fixed term temporary basis since 15 November 2021.

[2]	In summary, Ms Hubbard seeks to appeal a decision not to convert her fixed term temporary employment to permanent. The decision Ms Hubbard appeals was provided to her on 10 April 2024. Ms Hubbard filed her Appeal on 9 May 2024. As there is a statutory 21-day Appeal period for Public Sector Appeals, Ms Hubbard has filed her Appeal 7 days beyond the statutory timeframe.

[3]	Ms Hubbard's Appeal Notice makes an application for an extension of time to file her Appeal. Ms Hubbard states, "As per the appeals guide I am applying within 28 days of the employee being eligible for their employment status to be reviewed." Ms Hubbard includes a URL address for the QIRC Public Sector Appeal Guide.

[4]	I asked the parties to file submissions to assist me in determining whether to extend time. 

[5]	For the reasons which follow, I will not extend time for the filing of the Appeal and the Appeal will not be heard for that reason. 

Background

[6]	On 15 November 2023, the Respondent informed Ms Hubbard that there was to be a review of her employment pursuant to Directive 02/23: Review of non-permanent employment directive ('the Directive') and s 115 of the Public Sector Act 2022 (Qld) ('the Act').

[7]	On 21 December 2023, Dr Wayne Hall, Executive Director of Agri-Science Queensland wrote to inform Ms Hubbard that the review was unable to be finalised within the 28-day timeframe, resulting in the deemed decision not to convert. Ms Hubbard was informed that her temporary employment would continue until 30 June 2024. Dr Hall's letter also informed Ms Hubbard that, pursuant to s 116 of the Act, she may be entitled to make an additional request for a review of her non-permanent employment within three-months of the deemed decision being made. Dr Hall also informed Ms Hubbard of her Appeal rights. 

[8]	Further email correspondence was sent to Ms Hubbard on 27 February 2024. That email attached the previous email of 21 December 2023 and informed Ms Hubbard of the options relating to her temporary employment including the opportunity to request an additional review within 3-months after the deemed decision date.

[9]	It appears that on the same day that that email correspondence was sent to Ms Hubbard, a phone discussion occurred between Ms Hubbard and Ms Timbs, Senior HR Consultant. This gave rise to a subsequent email being sent later that day providing further information about requesting a review. 

[10]	On 13 March 2024, Ms Hubbard requested an additional review of her non-permanent employment. 

[11]	On 10 April 2024, Ms Hubbard was emailed an outcome letter from Dr Hall stating that, following a review of her employment in accordance with s 116 of the Act, a decision had been made that Ms Hubbard would remain employed on a fixed term temporary basis at this stage; and that her temporary employment would continue until 30 June 2024. 

[12]	I have reviewed that correspondence and I note that attached to the letter is a document which provided information about Appeal rights. I note the Respondent's submission that this document is the one provided online under "Resources with the Directive… as the attachment to a letter where an employee is not converted." The relevant section of the document states: 
	
a)	There are procedural requirements, including time limits, under the Industrial Relations Act 2016 that you must fulfil in order to appeal this decision. Further information is available in the Queensland Industrial Relations Commission's public service appeals guide found at https://www.qirc.qld.gov.au/public-service-appeals. 

[13]	The relevant section of that Public Sector Appeals guide ('the guide') states that an Appeal Notice must be received by the Industrial Registrar no later than 5.00pm on the day – that is the 21st day after the day the Appellant received the decision they wish to appeal against. This section of the guide contains a table which lists when an Appeal can be lodged. Relevantly, with regard to Temporary Employment, the table states: 

Within 21 days of the employee stating that their status will remain as a temporary employee.

If the chief executive has failed to review the temporary employee's temporary status, within 28 days of the employee being eligible for their employment status to be reviewed.

The Legal Framework

Jurisdiction 

[14]	A member of the Queensland Industrial Relations Commission ('the Commission') may allow an Appeal to be started within a longer period.

[15]	In exercising discretion to extend time to lodge an Application or Appeal, there are principles that have been used for guidance. Those principles are commonly: 

•	the length of the delay; 

•	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 the proceedings occasioned by the delay, is a material factor militating against the grant of extension;  

•	any prejudice to the Appellant if the extension of time is not granted;

•	any relevant conduct of the Respondent;

•	the merits of the substantive application are taken into account when considering whether an extension of time should be granted; and  

•	consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of discretion.
 
[16]	The application of statutory time limits was addressed by his Honour Justice McHugh in Brisbane South Regional Health Authority v Taylor:

A limitation period should not be seen therefore 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 enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.
 
[17]	The Appellant bears the onus of convincing the Commission to depart from the ordinary time limitations and hear the Appeal out of time.

Ms Hubbard's explanation for the delay

[18]	As noted above, with regard to her application for an extension of time, Ms Hubbard's Appeal Notice simply stated that she was "applying within 28 days of the employee being eligible for their employment status to be reviewed." 

[19]	I directed the parties to file submissions addressing the application for an extension of time. On 27 May 2024, Ms Hubbard filed submissions in support of her application for an extension of time to file her Appeal.

[20]	Ms Hubbard's submissions explaining the delay were brief and so I will set them out here: 

I submitted the form 89 – Appeal notice at 28 days for the following reasons; 

1.	It was my understanding when I contacted my HR deparment [sic] (Ashley Timbs) with a phone call on approx 27th February 2024 that I had 28 days for appeal.

2.	I also received an email from the HR department and it was my understanding from this email that I had 28 days to appeal (please see attachment 1)

3.	I had also read the Public Sector Appleal [sic] Guide, Version 7 (lMarch [sic] 2023) page 14. Under section 3.7 Temporary employment and misread that I had 28 days instead of the 21 days.

I apologise for my mistake

…

[21]	The Respondent points to the types of principles set out above at [15] and [16] and submits that the Appeal should not be heard on the basis that it has been lodged out of time. 

[22]	The Respondent notes Ms Hubbard's explanation that she lodged her Appeal on 8 May 2024 because she received information from the Respondent on two occasions that the Appeal timeframe was 28-days. 

[23]	With regard to the conversation Ms Hubbard recalls having on or around 27 February 2024 (see above [20] (2)), Respondent says that this was with regard to the notice of a deemed decision provided to Ms Hubbard on 21 December 2023. The Respondent says that Ms Hubbard was enquiring about the deemed decision at this time and that she was referred back to the "Additional Information" in the deemed decision outcome letter, which, in turn, refers to the guide. The guide, with reference to the timeframe to lodge an Appeal against a deemed decision, states: "If the chief executive has failed to review the temporary employee's temporary status, within 28 days of the employee being eligible for their employment status to be reviewed." The Respondent notes that the decision subject of this appeal is not a deemed decision.

[24]	The Respondent also refers to Ms Hubbard's submission (see [20](2) above) regarding the email she received on 8 May 2024 stating that the Appeal period is 28-days. The Respondent says that while that email did mistakenly state that Ms Hubbard could lodge her Appeal by close of business that day to make it within 28-days of the decision, this email did not cause Ms Hubbard to lodge her Appeal late. The Respondent says that Ms Hubbard sought and received the information seven-days after the 21-day Appeal timeframe had lapsed. The Respondent says that the delay in Ms Hubbard filing her Appeal therefore cannot be attributed to this advice. 

[25]	The Respondent also responds to Ms Hubbard's submission at [20](3) above. The Respondent notes that Ms Hubbard accepts that she misread the information in the guide. However, the Respondent says that the guide is clear that the Appeal timeframe is 21-days of the employee receiving notice that their status will remain as a temporary employee.

[26]	I have considered each aspect of Ms Hubbard's brief submissions and I do not think she has provided an acceptable explanation for the delay. 

[27]	I understand that at the time Ms Hubbard filed her Appeal, she was of the view that she had 28-days to file the Appeal. This was incorrect. It seems Ms Hubbard formed the view that the Appeal period was 28-days partly on the basis of earlier advice which was provided to her at the time of the 10 December 2023 decision and later when she asked for more information around 27 February 2024. However, any advice about Appeal rights received at that time related directly to the deemed decision of 10 December 2023. By the time Ms Hubbard was making enquiries on 27 February 2024, the time for appealing the deemed decision had passed. In any case, Ms Hubbard exercised her right to request a further review. 

[28]	It appears that in the email on 8 May 2024, Ms Hubbard was erroneously informed that she was able to appeal the decision not to convert her employment to permanent until the 28th day after the decision. The Respondent has acknowledged that this information was incorrect. While it is not ideal for an employee to be provided with inaccurate information, I cannot find that the email of 8 May 2024 has had any impact whatsoever on the late filing of the application. Firstly, as has been pointed out by the Respondent, the email was sent several days after the 21-day Appeal period had lapsed. It was not relied upon by Ms Hubbard in taking steps to file an Appeal against the decision of 10 April 2024. Secondly, the decision of 10 April 2024 was accompanied by detailed information about Ms Hubbard's Appeal rights, including a link to the guide, which Ms Hubbard says she read. This is not a situation where Ms Hubbard did not know about her Appeal rights, sought information from the Respondent and did not receive any instruction until after the statutory timeframe had elapsed.

[29]	Finally, I note Ms Hubbard's submission that she consulted the guide and misread that she had 28-days instead of 21-days to file her Appeal. It is unfortunate that Ms Hubbard made a mistake in reading the relevant part of the guide, however the relevant section does not give rise to ambiguity.

[30]	While the authorities indicate that "special circumstances" need not be shown in order for the Commission to exercise discretion to extend time, I do not accept that a 'misreading' of the guide or a belief that a 28-day Appeal period existed based on Ms Hubbard's previous experience with her deemed decision are acceptable explanations for the failure to file her Appeal Notice within the statutory timeframe.

Action taken by the Applicant other than making an application

[31]	Ms Hubbard has not made submissions about actions she has taken other than filing her application. In fact, it appears that Ms Hubbard took no steps to commence an Appeal prior to 8 May 2024 when she spoke on the phone with Ms Clarke, who later in the day sent her a copy of the Form 89. In circumstances where the decision letter dated 10 April 2024 provided information about Appeal rights at pages 4 and 7 and invited Ms Hubbard to contact Ms Clarke if she had any questions, I find it was open to Ms Hubbard to have made enquiries for more information had she not understood the content of the letter as it related to appeal rights. 

Prejudice to the respective parties arising from a decision to extend time or not extend time 

[32]	There is minimal prejudice to the Respondent if I decide to extend time. There is a clear prejudice to Ms Hubbard if I do not extend time, however for the reasons set out below, I find that her Appeal has limited prospects of success.

Merits of the substantive application 

[33]	The Respondent submits that there are low prospects of the Appeal being successful as there are clear reasons that the Appellant does not meet the requirements for conversion to permanent. The Respondent says that the 10 April 2024 decision confirms there is no continuing need to engage the Appellant beyond the original end date of 30 June 2024 and that concerns have been raised with the Appellant about her performance which remain unresolved.

Continuing need

[34]	Ms Hubbard's Appeal notice states that "There is ongoing work at Brain [sic] Pastures Research Facility for a variety of projects and potential for funding for future projects that would warrant my permanent employment." Ms Hubbard provides some information about the project work she believes is required to be undertaken.

[35]	The letter of 10 December 2024 provides detailed reasons for the decision that Ms Hubbard will remain employed as a fixed term temporary employee at this time. Dr Hall concludes that there is no continuing need to employ Ms Hubbard. While the question of whether there is a continuing need for Ms Hubbard to be employed would be the subject of submissions in the hearing of the Appeal, I note that the project Ms Hubbard works on is a five-year project which is in its 'wind-down' phase and funding connected to the activities Ms Hubbard is undertaking ending on 30 June 2024 and the other project funding supporting 40% of her role is due to end on 31 December 2024. 

Suitability to perform the role

[36]	Perhaps of greater import when considering the merits of Ms Hubbard's Appeal is that Dr Hall has identified that Ms Hubbard is not suitable for appointment at this time as a result of "unresolved conduct and performance matters." Dr Hall refers to information showing that "significant communication, interpersonal and teamwork issues are continuing to affect your expected work performance outcomes into 2024." 

[37]	Ms Hubbard sets out the skills she possesses that she says are valuable for further project work and notes that she has been in her current role for approximately two and half years. 

[38]	Ms Hubbard also says that she believes she has been 'unfairly assessed' in her interpersonal skills and approach to teamwork. Ms Hubbard refers to a number of teams she has worked in and says that she would be able to ask these teams to provide references of her interpersonal, communication and teamwork skills. 

[39]	Even if Ms Hubbard were to produce references from colleagues describing her interpersonal, communication and teamwork skills, these would not displace the performance issues which are currently being addressed within her PDA (or were at the time the decision was made). I note that the information contained in the review material states that Ms Hubbard has demonstrated technical proficiency suitable for the position. However, the document goes on to state:

Kim has and continues to have significant interpersonal and teamwork issues with the other staff at the Brian Pastures Research Facility, including her line manager. These issues have been raised with Kim through the PDA process and through written and verbal communications (see PDA). Kim has strongly disagreed with the assessments by her manager. Kim's line manager has recently been changed (Mar 24), however it is too soon to discern if there has been any improvement at this time. 

[40]	If time were to be extended to hear the Appeal, the matter to be determined by the Commission would be whether the decision was fair and reasonable. The Appeal would not be an opportunity for a fresh review of Ms Hubbard's employment in the context of whether the performance matters had been resolved either as a result of Ms Hubbard's actions or the change of line manager. Those will be matters for consideration in the event Ms Hubbard continues to work in a temporary capacity and a further review is undertaken. 

[41]	I do not think the merits of the Appeal warrant the granting of an extension of time for filing the Appeal.

Any relevant actions of the Respondent

[42]	The Respondent says that any argument from Ms Hubbard that the delay in lodging the Appeal is the fault of the Respondent should be rejected. The Respondent says that it provided adequate advice to the Appellant on the relevant procedures for appealing decisions. 

[43]	The Respondent says that the delay in Ms Hubbard filing her Appeal arose solely from a lack of diligence in reading the guide with sufficient comprehension and taking steps to lodge her Appeal within the statutory timeframe accordingly.

[44]	I have addressed Ms Hubbard's submissions regarding the erroneous advice she received on 8 May 2024. I do not find that this advice impacted on Ms Hubbard's capacity to lodge her Appeal within time. 

[45]	Having reviewed all of the material available to me, it appears that on all occasions, from the original notification that Ms Hubbard was eligible for review, to the provision of the deemed decision, communication regarding Ms Hubbard's rights following the deemed the decision and the decision of 10 April 2024, the Respondent has been diligent in providing Ms Hubbard with information about her rights. The 10 April 2024 decision clearly provided enough information for Ms Hubbard to understand the decision and the steps she needed to take if she was not satisfied with the decision. It is not the fault of the Respondent that Ms Hubbard filed her Appeal outside of the statutory timeframe. 

Consideration of fairness as between the applicant and other persons in a like position

[46]	The Respondent points to previous decisions of the Commission where an extension of time was not granted in similar circumstances on the basis that "there was no reasonable ground or compelling circumstances to extend the time for filing."

[47]	I do not think that a decision not to extend time will give rise to unfairness as between Ms Hubbard and other persons who have sought to file a Public Sector Appeal seven-days late without any reasonable explanation for doing so and in circumstances where the Appeal has limited prospects of success, on the material available.

Conclusion and order

[48]	Ms Hubbard has not discharged the onus of persuading me that there are sufficient grounds to warrant the exercise of the Commission's discretionary power to extend time to hear the Appeal. The application for an extension of time to hear the Appeal is dismissed.

Order

1.	The Appellant's application for an extension of time is dismissed.