QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	McGill v State of Queensland (Queensland Health) [2022] QIRC 87

McGill, Bronte Lynda
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)

CASE NO:
	PSA/2022/262
	
PROCEEDING:

DELIVERED ON:
	Public Service Appeal – Fair treatment decision

9 March 2022	
HEARING DATES: 	9 March 2022

MEMBER:

HEARD AT:	Pidgeon IC

Brisbane

ORDERS:
	The appeal is dismissed for lack of jurisdiction.
	
CATCHWORDS:

LEGISLATION:

CASES:

	PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLLY - PUBLIC SERVICE APPEAL - where the appellant filed appeal out of time - where the appellant did not apply to be allowed to start appeal within a longer period - where the appellant failed to attend hearing

Public Service Act 2008, s 194

Industrial Relations Act 2016, s 539 and s 564.

Brisbane South Regional Health Authority v Taylor 186 CLR 541

Grant v State of Queensland (Queensland Health) [2020] QIRC 228	

Reasons for Decision (ex tempore)
	
Background to matter

[1]	Ms Bronte McGill filed a public service appeal on 14 February 2022.  Ms McGill’s appeal notice indicated that the appeal was a fair treatment appeal, but included with that no reasons for appeal.  Attached to the appeal notice were two documents.  The first was an internal review decision signed by Dr Deborah Tennant, dated 21 December 2021.  The second was what appears to be Ms McGill’s request for an internal review of a decision not to grant her an exemption from the requirement for vaccination against COVID-19.  The appeal notice contains – “an appeal entitlement checklist”.  

[2]	Ms McGill ticked the option which stated that she was lodging her appeal within 21 days after being given the decision.  When reviewing the file to determine what directions to issue for the matter, I became concerned that Ms McGill’s appeal appeared to have been filed some 54 days after the date of the decision.  On 16 February 2021, the Industrial Registry emailed the parties asking for confirmation of the date that Ms McGill received the decision she was appealing against.  That same day, the respondent emailed the Registry to say that the decision was communicated to Ms McGill on 22 December 2021.  Ms McGill did not respond to either the initial email from the Registry or the email reply from the respondent.  

[3]	On 17 February 2022, the Industrial Registry emailed Ms McGill asking her to reply to the email.  On 23 February 2022, the Industrial Registry phoned Ms McGill and left a message for her asking her to reply to the email of 17 February 2022.  On 24 February 2022, the Industrial Registry emailed the parties a listing notice for a jurisdictional hearing before me of the matter to be held on the 28th of February 2022.  That listing notice was accompanied by information regarding the purpose of the jurisdiction hearing.  The parties were informed that I was first seeking to confirm the date that Ms McGill received the decision, and in the event that Ms McGill confirmed the date that she received the decision and it seemed that the appeal had been filed out of time, it was my intention to ask Ms McGill if she wished to apply for an extension of time to file her appeal.  

[4]	If Ms McGill did seek to do so, she was informed that I would be assisted by submissions from her addressing the key matters to be considered by the Commission in deciding whether to extend time for the filing of an appeal.  Ms McGill replied to that email on that same day and said:

Hi Brooke. 

 Sorry for the missed calls.  We are experiencing flooding.  

Can I seek more clarification as I am not sure that I fully understand.  

Thanks, 

Bronte.  

[5]	Later that afternoon, the Industrial Registry replied to Ms McGill’s email, stating:

Dear Ms McGill,
 
For the purpose of clarity, your public service appeal has been listed for a jurisdictional hearing this Monday 28 February 2022 (notice attached) before Industrial Commissioner Pidgeon.
 
As you have yet to respond to prior emails from the Commission, the jurisdictional hearing is for the purposes of hearing if your matter has been filed out of time, and if so, if you wish to apply for an extension of time.
 
If your appeal was filed out of time and you do wish to apply for an extension, the Commissioner will ask for oral submissions at the hearing on why your extension should be granted. 
 
A link to the Public service appeal guide is here:  Public service appeal guide.
 
Please ensure to include the other party in future correspondence with the Commission, I have done so in this reply on your behalf.

[6]	Now, due to the Brisbane flood event, that hearing listing was cancelled.  On 3 March 2022, the Industrial Registry wrote to the parties to inform them that they were required to attend a jurisdiction hearing to be held at 10 am on 8 March 2022.  That listing notice and email was, again, accompanied with information about the purpose of the hearing and the matters which would be considered at the hearing.  Ms McGill failed to attend the jurisdiction hearing on 8 March 2022.  She did not inform the QIRC by phone or email that she would not attend.  The link for the video hearing was sent to both her work and her private email address.  My Associate also phoned Ms McGill just prior to the commencement of that hearing in an attempt to ensure her attendance.  That hearing was unable to proceed on the basis that Ms McGill was not in attendance.  

[7]	A further jurisdiction hearing was scheduled for today at 2.00pm.  The listing notice was sent to Ms McGill along with the following email correspondence:

I write in relation to the above matter, noting your failure to attend the jurisdictional video hearing listed at 10 am this morning.  If you do not wish to proceed with your appeal, a link to the form 27 notice of discontinuance is enclosed.  Please be advised that the matter will be relisted for tomorrow, 9 March 2022, commencing at 2 pm.  You are directed to attend via video link.  Please provide the email address you wish the invite to be sent to as soon as possible.  Failure to attend the relisted hearing may give rise to your appeal being dismissed, pursuant to rule 45(3) of the Industrial Relations Tribunal Rules 2011.  

[8]	We now find ourselves at that listed hearing and Ms McGill has once more failed to appear.  We’ve delayed the commencement of today’s matter to make a further attempt to contact Ms McGill.  The email exchange I referred to earlier where Ms McGill replied and said she wanted more clarification because she wasn’t clear on the purpose of the hearing, makes it clear to me that Ms McGill was aware that the Commission was seeking to hear the matter and what the purpose of the hearing was and this was further clarified in response to Ms McGill’s request for more information.  

[9]	The documentation that’s available to me and the submissions from the respondent indicate that Ms McGill’s appeal has indeed been filed out of time.  Ms McGill has provided no information to the Commission to suggest otherwise, nor has she applied for an extension of time for her appeal to be heard.  In the absence of an application to hear the matter out of time, or any supporting submissions, I’ve decided that I’m unable to progress with the hearing of the appeal.  Ms McGill has had multiple opportunities to provide further information to the Commission.  She has now had two opportunities to address the Commission directly, seeking an extension of time to file her appeal.  

[10]	Section 564(1) of the Industrial Relations Act states that: "An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period".

[11]	Section 564(2) states that: "…on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period."

[12]	There are principles that are commonly used for guidance when considering whether to extend time.  I listed these principles at paragraph 8 of Grant v State of Queensland (Queensland Health) [2020] QIRC 228.  Relevantly to this matter, the applicant for an extension must show an acceptable explanation for the delay and that it’s fair and equitable in the circumstances to extend time.  The action taken by the applicant is – on their appeal is also a relevant consideration as to whether an acceptable explanation of the delay has been furnished.  

[13]	In Brisbane South Regional Health Authority v Taylor 186 CLR 541, his Honour McHugh said: "A limitation provision is the general rule;  an extension provision is the exception to it".

[14]	In the circumstances, not only has Ms McGill not asked for an extension of time, she’s provided the Commission with no explanation as to the delay in filing it or why it would be fair and equitable in the circumstances to extend time.  This is the second time Ms McGill has failed to attend the Commission as directed in the notice of listing and I find that the Commission has not been provided with an adequate explanation for the filing of the appeal some 54 days after the decision was provided to Ms McGill.  As such, I’m not minded to allow the appeal to be started within a longer period.  The appeal is dismissed as it has been filed out of time, and an extension of time is not allowed.  There’s no jurisdiction for the QIRC to hear Ms McGill’s appeal.  The appeal is dismissed.