QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Navaratnam v State of Queensland (Department of Employment, Small Business and Training) [2022] QIRC 427	
		
PARTIES:	
	Navaratnam, Kathiravelu
(Appellant)

v

State of Queensland (Department of Employment, Small Business and Training)
(Respondent)
	
CASE NO.:
	PSA/2022/560
	
PROCEEDING:
	Public Service Appeal – Fair Treatment Decision
	
DELIVERED ON:
	7 November 2022	
HEARING DATE:	28 July 2022
	
MEMBER:
	Power IC
	
HEARD AT:	Brisbane
	
ORDER: 	The appeal is dismissed for want of jurisdiction.
	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against a decision directing the appellant to return to work following independent medical examinations – whether the decision directing the appellant to return to work is an appealable decision under the Public Service Act 2008 (Qld) – whether appeal lodged out of time – whether extension of time should be granted if lodged out of time 
	
LEGISLATION:	Industrial Relations Act 2016 (Qld), ss 562B and 564

Public Service Act 2008 (Qld), ss 175, 177, 178 and 195 
	
CASES:	Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)
	
APPEARANCES:	Mr K. Navaratnam, as self-represented Appellant.

Ms C. Kahler for the Respondent.	

Reasons for Decision

Introduction

[1]	Dr Kathiravelu Navaratnam ('the Appellant') is currently employed by the State of Queensland (Department of Employment, Small Business and Training) ('the Respondent') as a Senior Lead Auditor, Quality and Compliance, Investment Division.

[2]	On 25 January 2022, the Appellant attended two independent medical examinations ('IMEs') upon the direction of the Respondent.

[3]	Upon receipt of the IME reports, by letter dated 22 March 2022, the Respondent proposed a course of action to the Appellant regarding his return to work, including a facilitated meeting and a graduated return to work plan. The letter provided the Appellant the opportunity to comment on the proposed course of action.

[4]	On 28 March 2022, the Appellant provided his response and advised that he did not agree with the course of action proposed by the Respondent. The Appellant advised that he was willing to participate in an 'independent mediation process', however, was unable to make any decisions regarding returning to work until 20 June 2022 as outlined in a medical certificate previously provided to the Respondent from his general practitioner.

[5]	By letter dated 12 April 2022, Mr Steven Koch, Deputy Director-General of the Respondent informed the Appellant, inter alia, of the decision requiring him to return to work during the week commencing 9 May 2022. The letter also advised that where the Appellant does not attend work in the week commencing 9 May 2022, without reasonable excuse, that he will be placed on unauthorised leave without pay rather than sick leave.

[6]	By letter dated 18 April 2022, the Appellant raised concerns and issues with the Respondent regarding the decision requiring the Appellant to return to work.

[7]	By letter dated 5 May 2022, the Respondent advised that the Appellant's letter dated 18 April 2022 was considered and reiterated the decision requiring him to return to work.

[8]	On 6 May 2022, the Appellant sent further correspondence to the Respondent, requesting that he not be placed on unauthorised leave. On the same day, Mr Koch confirmed with the Appellant that he will be placed on unauthorised leave without pay if he does not attend work as directed.

[9]	On 9 May 2022, further correspondence was sent to the Appellant by Ms Lois Breen, Manager, Workforce Relations, Safety and Wellbeing, Corporate Services, Policy and Performance, informing the Appellant that the matter of placing him on unauthorised leave has been determined and that the Respondent does not propose to reconsider the decision. 

[10]	By appeal notice filed on 9 May 2022, the Appellant appealed against the decision to direct him to return to work pursuant to ch 7 of the Public Service Act 2008 (Qld) ('the PS Act'). A directions order was issued directing parties to file submissions with respect to the appeal. Both parties filed submissions in accordance with the directions order and a hearing was subsequently held at the request of the Appellant for parties to provide oral submission in support of their positions.

[11]	Within the Respondent's submissions, it raises the following jurisdictional objections:

…First, the Return to Work Decision cannot be the subject of a [public service appeal]. Second, even if that decision could be appealed, Dr Navaratnam's appeal was filed out of time… 

[12]	The parties are also in dispute about which decision the Appellant is appealing against.
 
[13]	Accordingly, this decision is the determination of the above preliminary issues.

Grounds of appeal

[14]	The Appellant appeals the decision to direct the Appellant to return to work on the basis that:

(a)	the Appellant was denied natural justice; and

(b)	the decision is not supported by the IME reports.

Appeal principles

[15]	The appeal must be decided by reviewing the decision appealed against. As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing, but involves a review of the decision arrived at and the decision making process associated therewith.

[16]	The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

Consideration

The decision appealed against

[17]	The Appellant outlines in the appeal notice that the decision being appealed against is the correspondence of the Respondent dated 6 May 2022. The Appellant then outlined in his written submissions that it is the correspondence dated 9 May 2022 that should be considered as it was the final decision that was conveyed to him. 

[18]	The Respondent submits that the correspondence dated 9 May 2022 'merely confirmed' its decision to direct the Appellant to return to work. Instead, the Respondent contends that the letter dated 12 April 2022 was the 'final and operative decision'.

[19]	The Appellant submits that the decision that he is appealing was contained in an email dated 9 May 2022 in which Ms Breen advised that 'The delegate has determined the matter of your placement on unauthorised leave and is not proposing to reconsider that decision. It is noted that the matter is now before the Queensland Industrial Relations Commission'. 

[20]	The Appellant confirms in his submissions that his notice of appeal was filed on 9 May 2022, however, submits that 'the final decision was conveyed to me on 9 May 2022'. 

[21]	The correspondence sent to the Appellant on 22 March 2022 outlined proposed action with respect to a return to work program. Mr Koch outlined in the correspondence that he was providing the Appellant with an opportunity to comment on the proposed course of action within 14 days of receipt of the letter. 

[22]	Mr Koch forwarded correspondence on 12 April 2022 outlining consideration of the Appellant's response and stating that the Appellant is required to return to work in the following terms:

Decision arising from the IME reports

As I have advised earlier in this letter, you are required to return to work during the week commencing 9 May 2022. 

[23]	The Appellant responded to the decision indicating that he was unwilling to return to work in those circumstances based upon his doctor's advice. On 5 May 2022, Mr Koch sent correspondence to the Appellant stating the following:

Reiteration of the Return to Work Decision

I have considered your 18 April 2022 correspondence, and your medical certificates.

The medical certificate of 21 December 2021 was one paragraph, and certified that you were suffering from 'ongoing work related stressors with an unsatisfactory outcome post recent work investigation', and that you would be unfit for work for at least three months. 

The medical certificate of 17 March 2022 was also one paragraph, and again referred to 'ongoing work related stressors with an unsatisfactory outcome post recent work investigation'. Your general practitioner opined that you were unfit for work until at least 20 June 2022. Your general practitioner referred to an opinion from 3 September 2021, and you having been 'reviewed once again on the 25/01/22 by a psychologist (via independent medical review)'. I understand your general practitioner is referring to the IMEs, which to confirm were not conducted by a 'psychologist' but rather by two doctors, one of whom was Dr Ng who is Psychiatrist.

I reiterate the reasoning in my Return to Work Decision; I prefer the more detailed and expert IME Reports over your general practitioner's certificates…

[24]	The letter of 5 May 2022 is a confirmation of the decision made on 12 April 2022. A decision is the final determination of the issue of fact. The decision of 12 April 2022 was not interim in nature and clearly outlined the determination that the Appellant was to return to work. The fact that the decision maker responded to further correspondence with the Appellant did not alter the decision. At no stage after 5 May 2022 did the decision maker indicate that the decision was to be amended or retracted. 

[25]	On the basis that the operative decision was 12 April 2022, the timeframe within which an appeal could have been filed ended on 3 May 2022. This appeal was filed on 9 May 2022, hence was filed outside of the 21 day statutory time period. 

Should an extension of time be granted? 

[26]	Section 564 of the IR Act provides for the time limit for appeal:

564	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 Service Act 2008; or
(d)	if, under another Act, the decision is given in another way—the decision is given in the other way.

[27]	The Appellant bears the onus of establishing that the justice of the case requires an extension of time. The statutory provision was considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber'), which stated:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 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."

[28]	The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:

In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…

[29]	The explanation provided by the Appellant for the delay in filing the appeal was that he did not consider that a final decision had been made until 9 May 2022. If it was the case that the 9 May 2022 was the operative decision date, the appeal would have been filed within time. However, as outlined above, the actual decision was made and communicated to the Appellant on 12 April 2022. The Appellant has been involved in pursuing previous public service appeals and has sought an extension to time for a separate appeal. This is relevant simply because it indicates that the Appellant was aware of the statutory timeframes involved in appealing decisions of this nature. The Appellant decided to engage in correspondence with the Respondent about the nature of his return to work rather than appeal that decision. As a result of engaging in back and forth correspondence rather than filing an appeal, the statutory time period had elapsed by the time the Appellant ultimately filed the appeal.  

[30]	This appeal has limited prospects of success given the jurisdictional barrier against bringing an appeal against a decision of this type under the PS Act. Section 195(3A)(a) of the PS Act provides that an appeal cannot be brought against a fair treatment decision made under ch 5 pt 7 of the PS Act. As outlined in the decision of 12 April 2022, actions had been taken to conduct IMEs and the IME reports were considered by the Respondent as part of the direction to the Appellant to return to work on a return to work plan. These actions were taken pursuant to ss 175, 177 and 178(2) within ch 5 pt 7 of the PS Act. I note the Appellant's submission that the decision to direct him to return to work is not included in s 178(1) of the PS Act. Section 178 of the PS Act provides the following:

178 	Action following report

(1)	If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may—
(a)	transfer or redeploy the employee; or
(b)	if it is not reasonably practicable to transfer or redeploy the employee—retire the employee from the public service.

(2)	Subsection (1) does not limit the action that may be taken relating to the employee.

[31]	Section 178(2) provides that s 178(1) does not limit any actions relating to the employee that may be taken following the IME reports. This includes a direction that the employee return to work. The decision directing the Appellant to return to work was a decision made under ch 5 pt 7 of the PS Act and consequently is non-appealable pursuant to s 195(3A)(a) of the PS Act. In these circumstances, the Appellant's prospects in this appeal are extremely limited. 

[32]	The prejudice to the Appellant if an extension of the timeframe for filing the appeal is not granted is that the appeal will not be heard and determined. The prejudice to the Respondent will be that the decision to direct the Appellant to return to work will be subject to delay pending the determination of the appeal. On the basis of the limited prospects of success in this appeal, I am not persuaded that the justice of the matter requires an extension be granted. 

Order

[33]	I make the following order:

The appeal is dismissed for want of jurisdiction.