QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	
Lynam v State of Queensland (Department of Housing and Public Works) [2021] QIRC 014

Lynam, Lain
(Appellant)

v

State of Queensland (Department of Housing and Public Works) 
(Respondent)
	
CASE NO:
	PSA/2020/326
	
PROCEEDING:
	Public Service Appeal – Appointment to Higher Classification Level
	
DELIVERED ON:
	18 January 2021	
MEMBER:

HEARD AT:
	McLennan IC

On the papers	
  ORDERS:	1.	That the appeal is dismissed.	

CATCHWORDS:

LEGISLATION AND DIRECTIVES:

CASES:
	
INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the appellant was not permanently appointed – where the incumbent of the role was returning – where the appeal was filed out of time – consideration of whether to hear the appeal out of time.

Acts Interpretation Act 1954 (Qld) s 14A, s 38

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6, 7, 9, 10, 11

Industrial Relations Act 2016 (Qld) s 564, s 562B, s 562C

Public Service Act 2008 (Qld) s 120, s 149, s 149A, s 149B, s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

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 Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers (2010) 197 IR 403

Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

House v The King (1936) 55 CLR 499

Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189
	
Reasons for Decision

Introduction

[1]	Mrs Lynam is currently substantively employed in the role of AO3 Housing Officer for the Respondent. However, she has been continuously performing the duties of AO4 Senior Housing Officer since 8 December 2016.

[2]	Mrs Lain Lynam (the Appellant) has filed an appeal against a conversion decision (the decision) made by Mr/s Tully Stewart (the decision maker), Acting Director of Human Resources the State of Queensland (Department of Housing and Public Works) (the Respondent, the Department). The decision maker determined not to convert Mrs Lynam to the higher duties position permanently. 

[3]	There was a 21-day timeframe within which to file an appeal against that decision. Mrs Lynam filed some six days after that timeframe had ended. For the reasons that follow, I am not minded to extend time to hear the appeal out of time. It follows that the appeal is dismissed.

Jurisdiction

Decision against which an appeal may be made

[4]	Section 194 of the Public Service Act 2008 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision “…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.” 

[5]	Section 197 of the PS Act allows for an appeal to be heard and decided by the IRC.  An appeal is initiated by providing the Industrial Registrar an appeal notice stating the details of the decision being appealed against and the reasons for the appeal.

[6]	Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  Mrs Lynam meets that requirement.

[7]	I am satisfied that the conversion decision made by the Department is able to be appealed.

Timeframe for appeal

[8]	Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received. 

[9]	The decision was given to Mrs Lynam on 22 October 2020 by email. 

[10]	The Notice of Appeal was filed with the Industrial Registry on 19 November 2020. 

[11]	Mrs Lynam acknowledges in her appeal notice that her appeal was filed out of time, but does not say by how long.  

[12]	The Acts Interpretation Act 1954 (Qld) provides (emphasis added):

38  Reckoning of time
(1)	If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—
(a)	if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
(b)	in any other case—by including the day on which the purpose is to be fulfilled.

(2)	If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.

(3)	If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.

(4)	If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.

(5)	In this section—

excluded day—
(a)	for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or
(b)	otherwise—means a day that is not a business day in the place in which the thing must or may be done.

[13]	By virtue of s 38(1) of the AI Act, the first day, namely 22 October 2020, is excluded. The count begins from the following day. The IR Act at s 564 does not specify a number of “clear days”, or “at least” a number of days. Each of those terms would provide the filing party an entitlement to the entirety of the final day, such that the last day for filing would be the following day. Rather, the IR Act at s 564(3) provides that the filing is to occur “within 21 days after (the decision was given to the appellant)”. It follows that s 38(1)(a) of the AI Act does not apply, and so s 38(1)(b) does apply and the last day is not excluded from the count.

[14]	Therefore, 21 days after the decision was provided to Mrs Lynam on 22 October 2020 was 13 November 2020, having excluded the first day but included the final day. The Appeal Notice was filed in the Industrial Registry on 19 November 2020. As such, the filing was six days out of time. 

Appeal principles

[15]	Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". 

[16]	The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.  

[17]	Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.

[18]	The preliminary issue for my determination is whether or not Mrs Lynam’s appeal should be heard out of time. 

	What decisions can the IRC Member make?

[19]	Section 562C of the IR Act prescribes that the Commission may determine to either:

a)	Confirm the decision appealed against; or
b)	Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
c)	Set the decision aside and substitute another decision.

Submissions

[20]	In accordance with the Directions Order issued on 20 November 2020, the parties were invited to file written submissions. Only the Department elected to file material; Mrs Lynam did not file anything further.  

[21]	Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Should time for filing be extended?

[22]	I am empowered by the IR Act to extend the time for giving an appeal notice. The IR Act does not provide any criteria against which I am to determine whether or not to extend time. Foundationally, the extension of time is a discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion. 

[23]	In my view, Mrs Lynam bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.   

[24]	In Breust v Qantas Airways Ltd, Hall P set out the following considerations:

a.	The length of the delay; 
b.	The explanation for the delay;
c.	The prejudice to the Appellant if the extension of time is not granted;
d.	The prejudice to the Respondent if the extension of time is granted; and
e.	Any relevant conduct of the Respondent.

[25]	Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited. These were usefully summarised by Thompson IC in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services), which is paraphrased below:

a.	The 21-day time limit must be respected and should not easily be dispensed with; and
b.	The Appellant’s prospects of success at a substantive hearing are always a relevant matter where it appears an Appellant has no, or very limited, prospects of success. In that instance, the Queensland Industrial Relations Commission would not normally grant an extension of time.

[26]	Those cases were considering section 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case; what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion.  

[27]	Additionally, my discretion is informed by the purposes of the PS Act, including promoting the effectiveness and efficiency of government entities. In that regard, I am guided by the commentary of French CJ in Aon Risk Services:  

Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification.
Length of delay
[28]	The Appeal was filed six days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act and in the decision letter from the Respondent. 

[29]	The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances. Larger delays than five days have been considered to be not excessive in particular circumstances. However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like. There is no evidence that is the case here.

[30]	Given the additional circumstances of explanation for the delay, prejudice, and the conduct of the parties considered below, I have determined six days of delay to be significant and unreasonable in this instance. 

Explanation for the delay

[31]	In her Appeal Notice, Mrs Lynam acknowledges that she is outside the timeframe for filing. In seeking to explain that delay, she says she was in contact with the Department and the Public Service Commission. The thrust of her submission is that she did not rest on her laurels, but rather contacted the Department when she should have contacted the Industrial Registry. It seems that Mrs Lynam is effectively suggesting she was unaware of the correct avenue to file the appeal. 

[32]	I am not satisfied that those circumstances are sufficient to explain the delay in this instance. The decision of the Respondent clearly set out that Mrs Lynam had only 21 days to file this appeal, and that such filing was to be with the Queensland Industrial Relations Commission. There was no external factor impacting on Mrs Lynam’s ability to file this appeal. The delay seems to have resulted from a lack of diligence in carefully reading the Decision letter, or perhaps a decision on her part to attempt to resolve the matter by means other than filing an appeal. 

[33]	I find that Mrs Lynam has offered no adequate explanation or justification for the delay.

Prejudice to Mrs Lynam

[34]	Mrs Lynam has not provided any submissions as to the prejudice she might suffer should the appeal be dismissed for filing out of time. The obvious prejudice is that Mrs Lynam would lose the opportunity for an independent review of the decision, and any subsequent relief.

[35]	That outcome is of course not an insubstantial detriment to Mrs Lynam, who seeks to appeal a decision to not make her permanent in the higher duties position. That is a significant outcome.

Prejudice to the Respondent

[36]	The Respondent does not indicate any specific prejudice it would suffer should the Appeal be heard out of time.

[37]	It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent. Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time. 

[38]	For those reasons, I find that the Respondent would suffer some prejudice should I decide to exercise my discretion to hear the appeal out of time. However, that prejudice would be less than that suffered by Mrs Lynam.

Conduct of the Respondent

[39]	Mrs Lynam does not expressly contend that any actions of the Respondent caused or contributed to the delay in bringing these proceedings. On one reading of her submissions, it could be inferred that Mrs Lynam feels the Department and the Public Service Commission ought to have given her further information about filing the appeal in her correspondences with them.

[40]	In any event, it is clear that the Respondent informed Mrs Lynam of her appeal rights and the relevant timeframes in their decision.

[41]	While such conduct does not itself conclusively preclude the granting of an extension of time, it is certainly convincing evidence to support the propositions that the length of the delay was unreasonable, and that the explanation for the delay provided by Mrs Lynam is insufficient. 

Prospects of success 

[42]	An Appellant’s prospects of success at a substantive hearing are a relevant consideration. However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed): 

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. 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.
[43]	Mrs Lynam has declined to file any submissions in support of her appeal. There is therefore very little material before me about the appeal’s prospects of success. 

[44]	As such, this criterion has a neutral impact in informing the exercise of my discretion. 

Conclusion

[45]	Mrs Lynam has filed her appeal six days out of time. She has not provided any explanation for that delay, beyond stating that she had been in contact with the Department and the Public Service Commission regarding her appeal rights. 

[46]	Given that the timeframe to appeal the decision and the appropriate venue for filing that appeal were expressly stated on the Decision letter, I have not accepted that to be a sufficient explanation for the delay. 

[47]	I have therefore decided not to hear the appeal out of time. It follows that the appeal is dismissed. 

[48]	I order accordingly. 

Orders:		

1.	That the appeal is dismissed.