QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Lumchee v State of Queensland (Queensland Health) [2022] QIRC 218

PARTIES:	
	Lumchee, Sarah 
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2022/343
	
PROCEEDING:
	Public Service Appeal – Appeal against a conversion decision 

DELIVERED ON:
	16 June 2022
	
MEMBER:

HEARD AT:	Hartigan IC

On the papers 

ORDER:
	The Appellant's application for an extension of time to file the appeal is refused. 
	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where appellant's temporary employment was reviewed in accordance with 
s 149B of the Public Service Act 2008 (Qld) – where appellant's temporary employment was not converted to permanent – where appeal has been filed approximately 175 days out of time – where appellant has made an application for an extension of time to file the appeal – whether extension of time should be granted – consideration of length of delay, prejudice and fairness – where length of delay is significant – where both parties would suffer prejudice – where appellant was advised of appeal rights – where application for an extension of time to start the appeal is refused
	
LEGISLATION:

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

A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations [2019] ICQ 16
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344	

Reasons for Decision 
Introduction 

[1]	Ms Sarah Lumchee is employed by the State of Queensland (Queensland Health) ('the Department'), on a fixed term temporary basis in the role of Senior Pharmacist, Cancer Services HP4, at the Princess Alexandra Hospital within the Metro South Hospital and Health Service ('MSHHS'). 

[2]	On approximately 5 August 2021, the Department advised Ms Lumchee that it was conducting a review of her fixed term temporary employment in accordance with s 149B of the Public Service Act 2008 (Qld) ('the PS Act') and the Fixed Term temporary Employment Directive (Directive 12/20). 

[3]	By letter dated 16 August 2021, Ms Lumchee was advised that she was not being converted to permanent employment and that she would continue to be engaged on a fixed term temporary basis until 2 January 2022, when the substantive incumbent of the role was due to return. 

[4]	On 27 April 2022, Ms Lumchee filed an appeal notice in the Industrial Registry appealing the decision of the Department dated 16 August 2021 to not convert her fixed term temporary employment to permanent employment. Ms Lumchee relies on the following grounds in support of her appeal, as set out in her appeal notice:

…

The decision was declined due to 'staffing needs' as the 'substantive incumbent is returning to the role on a full-time basis'. My temporary contracts have been to cover maternity leave backfill. I have knowledge (from direct contact) that the substantive incumbents of the positions that my temporary role covers, are not returning on a full-time basis. 

I would argue that there is a clear need to convert my fixed term temporary contract to permanent, to ensure ongoing safe clinical care delivery, based on the following:
-	significant other upcoming maternity leave within our Department
-	significant likelihood of ongoing projected maternity leave cover requirements within our Department, based on proportion of female staff [sic] and observed trends over the past 3 years
-	established workforce trends of incumbent position holders not initially returning in full time capacity
-	essential clinical service delivery needing to be maintained (i.e. cancer treatments in a major tertiary hospital), without any significant reduction ever likely even in a pandemic environment
-	specialised healthcare area requiring extensive training and on-the-job experience, without ability to easily fill positions from general pool of staff

[5]	The notice of appeal also indicated that Ms Lumchee was applying for an extension of time to lodge the appeal and provided the following reason as to why the appeal could not be lodged within the 21-day time period:

I was not aware that an external appeals process was available until recently.

[6]	The Commission issued directions for the filing of written submissions which included, inter alia, a direction for Ms Lumchee to address whether the appeal has been filed in the time prescribed by the IR Act. 

[7]	The Department, in its written submissions raised a jurisdictional objection to the appeal on the basis it has been filed some 176 days out of time. 

[8]	For the reasons contained herein, I am not persuaded to grant an extension of time for filing the appeal.

The decision 

[9]	On 16 August 2021, the Department issued Ms Lumchee a letter detailing the outcome of the review of her fixed term temporary employment. The letter is in the following terms:

Conversion review decision 
I have conducted a review of your employment status and have determined that your employment will remain as fixed term temporary at this time. You will continue in the role of Pharmacist Senior until 2 January 2022 when the substantive incumbent returns from leave.

Considerations when making the decision 
I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed term temporary employment directive 09/20 and your employment history, including any previous conversion review decisions. 

There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below. 

Merit
Thank you for your performance in the role over the period 9 August 2010 to 5 August 2021. You have demonstrated over this time that you satisfy the merit requirements for the role. 

Continuing need
The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, my reasons are that there is no continuing need for you to perform your current role because the substantive incumbent is returning to the role on a full-time basis. This type of coverage is contemplated in the directive as to a reason a person's employment should remain temporary. 

Additionally, there is no continuing need for you to perform a role that is substantially the same as all alternative roles have been considered.

[10]	The decision maker also attached additional information about Ms Lumchee's appeal rights to the decision. Relevantly, this was referred to in the decision as follows:

I have included additional information about the process and appeal rights at the end of this letter. 

[11]	That additional information included the following:

Appeal rights – sections 194(1)(e), 196(e)

A fixed term temporary employee not converted to permanent employment following a review after two years continuous employment may appeal a decision not to convert. There is no appeal available for a review decision not to convert after one year of continuous employment. 

Under section 194(1)(e)(ii), a fixed term temporary employee may also appeal an offer made under section 149B(3)(b) for conversion to permanent employment as a general employee on tenure or a public service officer in the circumstances where the hours of work per working week offered are less than the hours required to be offered by clause 7.4 of the Fixed term temporary employment directive. 

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. 

Discretion to hear an appeal out of time

[12]	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.
…

[13]	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)

[14]	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. 

[15]	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. 

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

Length and explanation of the delay and other action taken by Ms Lumchee 

[17]	Ms Lumchee's notice of appeal provides that she received the decision that is the subject of the appeal on 17 August 2021. Accordingly, the appeal has been filed approximately 175 days out of time. This, in my view, is a significant period of time. 

[18]	As noted above, the Commission issued directions requiring the filing of written material, including, but not limited to, whether the appeal has been filed within the time prescribed by the IR Act. 

[19]	Ms Lumchee, in her written submissions, appears to attribute the significant delay in filing the appeal to a 'misunderstanding' and a 'miscommunication' with her line manager in relation to the appeal process and to her previous dealings with MSHHS. 

[20]	In this regard, Ms Lumchee submits that during the height of the COVID-19 pandemic, there were significant delays with respect to the signing off of contracts at the MSHHS which resulted in, Ms Lumchee not being paid for work previously performed, 
Ms Lumchee's employment contract being withdrawn which subsequently affected her leave balance and ability to take annual leave, Ms Lumchee being ineligible for COVID response leave and Ms Lumchee having to be approved to take leave without pay for a pre-booked holiday. 

[21]	Ms Lumchee submits that the 'situation' with MSHHS spanned across six months and was 'incredibly stressful, time consuming and left [Ms Lumchee] feeling disheartened with Metro South Health HR'. 

[22]	Ms Lumchee further submits that following receipt of the decision to not convert her employment to permanent, Ms Lumchee had a discussion with her line manager, and it was mentioned that the decision could be appealed, however Ms Lumchee understood that the appeal was through MSHHS and given her recent experience with MSHHS, she did not feel there was any point in appealing the decision. 

[23]	Ms Lumchee submits that, following advice from her colleague in early 2022 that the appeal process was through the Queensland Industrial Relations Commission, and after learning that two temporary HP4 employees were made permanent, Ms Lumchee decided to file an appeal and did so immediately. 

[24]	The Department submits that extensions to legislative timeframes should only be allowed in exceptional circumstances and submits that Ms Lumchee's circumstances are not exceptional on the following bases:

(a)	Ms Lumchee was notified of her appeal rights in the decision letter dated 16 August 2021, and specifically that time limits apply in relation to appealing a decision;

(b)	the decision letter included information on how to access the Public Service Appeal guide and included a direct link to the Public Service Appeal guide contained on the Queensland Industrial Relations Commission website; 

(c)	Ms Lumchee did not take appropriate steps to appraise herself of information in relation to progressing her appeal; and 

(d)	the delay is entirely attributable to Ms Lumchee.

[25]	As noted above, the decision letter itself refers to the appeal process in the 'Additional Information' attached to the decision. The information refers to the Queensland Industrial Relations Commission Public Service Appeal guide. From this, it is apparent that 
Ms Lumchee was advised of her appeal rights and directed to the guide which provides further details with respect to the appeal process, including that an appeal is to be filed in the Industrial Registry of the Queensland Industrial Relations Commission.

[26]	Given Ms Lumchee has attached the decision containing the 'Additional Information' to her appeal notice, it can only be assumed that Ms Lumchee was provided the relevant information regarding the appeal process.

[27]	The fact that Ms Lumchee made her own assumptions about the appeal process, including that it would be conducted by her employer, indicates that Ms Lumchee at least had knowledge of her appeal rights. A failure by Ms Lumchee to have proper regard to the relevant information which was provided to her with respect to commencing an appeal does not, in my view, amount to a reasonable explanation for such a lengthy delay. 

Prejudice 

[28]	Ms Lumchee does not address the issue of prejudice in her submissions. However, I accept that if I do not permit Ms Lumchee to start her appeal within a longer period, she will suffer prejudice in that she will not be able to appeal the decision. 

[29]	The Department submits that it would suffer significant prejudice if the appeal was to be permitted to be heard out of time. In this regard, the Department submits that a significant period of time has elapsed since the decision, and, due to the changes that have occurred within the team over the last seven months, the operating environment and the needs of the workforce have differed significantly. The Department submits that Ms Lumchee's colleagues have modified their working arrangements, have undertaken fixed term secondments and have accessed long term leave. 

[30]	Given the passage of time and changes made in the intervening period, I accept that the Department will suffer prejudice associated with defending an appeal filed some 175 days out of time. 

[31]	Accordingly, I consider both parties would potentially suffer prejudice, depending on whether or not an extension of time is granted. 

Prospects of success 

[32]	Ms Lumchee contends that there is an ongoing need for her employment and makes the following submissions in support:

1.	I continue to be employed by Metro South Health 7 months after being notified by Human Resources that my position would not be converted to permanent

2.	My current temporary contract continues until July 2022

3.	The substantive incumbents whose role I backfill are not returning to work on a full-time basis.

4.	Within my small team, Cancer Services Pharmacy Department there are 7.6 fulltime equivalent (FTE) permanent Senior Pharmacists of which approximately 5.8 FTE are contracted or on leave temporarily, leaving approximately 2 FTE vacant within my small team alone

5.	Having over 10 years' [sic] experience as a pharmacist, my skills are transferrable to many other HP4 roles within the Pharmacy Department and there always appears to be many other permanent staff on long term leave, secondments or higher duties 

[33]	The Department submits that Ms Lumchee would have little prospects of success and relies on the following grounds, as relevantly summarised:

(a)	at the time of the decision, Ms Lumchee was backfilling hours that were vacant for a known period and that are no longer vacant; 

(b)	Ms Lumchee is currently filling two permanent employees who have temporarily reduced their hours, it could not have been known at the time the decision was made that the two permanent employees would seek to modify their working arrangements and therefore this is not a factor the decision maker could have considered when reviewing Ms Lumchee's employment; 

(c)	the employees Ms Lumchee is currently backfilling have not permanently reduced their hours, are entitled to and intend to return to their substantive hours; 

(d)	Ms Lumchee's current position occupancy is not a relevant consideration in this matter; 

(e)	at the time of the decision, there was not an ongoing need for Ms Lumchee to perform the duties of the role as permanent employees were employed to perform the duties; and 

(f)	the Department explored other employment opportunities for Ms Lumchee, however as at August 2021, there were no ongoing permanent roles suitable to 
Ms Lumchee having regard to her profession, skills, qualifications, and experience. 

[34]	I do not consider Ms Lumchee's current employment circumstances to be relevant to this appeal. 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. Matters that have occurred subsequent to the decision ordinarily do not assist in determining whether the decision, at the time it was made, was fair and reasonable. 

[35]	On the matters referred to in Ms Lumchee's submissions, I consider the appeal has limited prospects of success. This factor weighs against the exercise of the discretion. 

Fairness 

[36]	Ms Lumchee's submissions do not address this issue. 

[37]	The Department submits that it would not be fair to allow the appeal to be heard so long after the decision has been made, and further submits that Ms Lumchee will be entitled to have her employment status reviewed again in August 2022. 

[38]	I consider it would be unfair to the Respondent to grant the extension of time after such a lengthy delay. The organisation of the workplace has changed in the 175 days since the decision, and the Respondent has, rightly, proceeded on the basis that no appeal of the decision was filed. 

[39]	Further, I note that Ms Lumchee is entitled to have her employment status reviewed in August 2022. I consider that such a process will no doubt have regard to the changes that Ms Lumchee asserts have occurred since the last review. 

[40]	This factor weighs against the exercise of the discretion. 

Conclusion 

[41]	Having considered the matters referred to above, I have determined not to exercise my discretion to extend the period of time to file the appeal. 

Order

[42]	Accordingly, I make the following order:

The Appellant's application for an extension of time to file the appeal is refused.