QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Redman v State of Queensland (Department of Education) [2023] QIRC 020
	
PARTIES:	
	Redman, Gregory
(Appellant)

v

State of Queensland (Department of Education)
(Respondent)
	
CASE NO.:
	PSA/2022/748
	
PROCEEDING:
	Public Service Appeal – appeal against a decision under a directive
	
DELIVERED ON:
	24 January 2023
	
HEARD AT:	On the papers
	
MEMBER:
	McLennan IC
	
ORDERS:	1.	The appeal is dismissed for want of jurisdiction.

2.	Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 12 September 2022 be revoked. 
	
CATCHWORDS:

LEGISLATION & OTHER INSTRUMENTS:
	PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - where appellant directed to submit to an independent medical examination - where appellant filed appeal eight days out of time - where appellant misunderstood timeframe - whether timeframe for appeal should be extended - consideration of explanation for delay - consideration of prejudice - consideration of prospects of success 

Industrial Relations Act 2016 (Qld) s 564, s 566 

Public Service Act 2008 (Qld) s 3, s 174, s 175 

CASES:	Directive 10/20 Independent medical examinations cl 4 

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

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

House v The King (1936) 55 CLR 499

Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129

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

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

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

Introduction

[1]	Mr Gregory Redman (the Appellant) is employed by the Department of Education, State of Queensland (the Department; the Respondent) as a School's Officer. 

[2]	By letter dated 9 August 2022, Mr Chris Hodgson (Director, Human Resources Business Partnering) advised the Appellant of his decision to require the Appellant to submit to an independent medical examination (IME) (the Decision). Mr Hodgson directed the Appellant to submit to an IME on 13 September 2022 pursuant to s 175(a) and (b) of the Public Service Act 2008 (Qld) (the PS Act).

[3]	On 7 September 2022, the Appellant filed an Appeal Notice against the Decision with the Industrial Registry. 

[4]	On 12 September 2022, I stayed the Decision pending the determination of the appeal or a further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) (the IR Act). 

Jurisdiction 

		Timeframe to appeal

[5]	Section 564(3) of 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. 

[6]	The Decision is dated 9 August 2022 and the Appellant indicated in the Appeal Notice that he received the Decision on that date. On that basis, I am satisfied the Decision was given to the Appellant on 9 August 2022.  

[7]	As the Decision was given to the Appellant on 9 August 2022, the deadline for filing the Appeal Notice was 30 August 2022.

[8]	The Appellant filed the Appeal Notice with the Industrial Registry on 7 September 2022. That is, eight days out of time.

[9]	I am empowered by the IR Act to extend the time for filing an appeal notice. 

Should time for filing be extended?

[10]	The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal is fundamentally an exercise of 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. 

[11]	The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal Notice. In that regard, I note the reasoning of McHugh J 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 to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.

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

•	the length of the delay; 

•	the explanation for the delay;

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

•	the prejudice to the Respondent if the extension of time is granted; and

•	any relevant conduct of the Respondent.

[13]	Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited. These considerations were usefully summarised by Thompson IC in Lloyd v Department of Communities, Child Safety and Disability Services and are paraphrased below:

•	the 21-day time limit must be respected and should not easily be dispensed with; and

•	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 Commission would not normally grant an extension of time.

[14]	Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case - that is, 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.  

[15]	Additionally, my discretion is informed by the purpose 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 Australia Limited v Australian National University: 

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.

[16]	I will now consider the circumstances in this matter against the abovementioned factors to determine whether I should exercise my discretion to hear this Appeal out of time. 

	Length of delay

[17]	The Appeal Notice was filed eight days out of time. 

[18]	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 both the IR Act and the Decision.

[19]	The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances. It is true that in some cases delays of several weeks have been considered to be not excessive. 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. 

[20]	In conjunction with the reasons that follow, I find that a delay of eight days is significant and unreasonable in these circumstances. 

			Explanation for the delay

[21]	The Appellant submits he "was unaware that the allowance of 21 days for the submission of an appeal included weekends." The Appellant contends that four weekends account for the eight day delay. 

[22]	Through the Decision, the Respondent advised the Appellant of his appeal rights including the timeframe within which an appeal should be filed:

An employee may appeal a decision to require them to submit to an IME, where they believe the decision does not satisfy the conditions of section 174 of the PS Act. This appeal is available under the Directive 10/20 – Independent Medical Examinations. 

The PS Act provides 21 days from the date you receive this letter to appeal to the Queensland Industrial Relations Commission. There is an Appeals Guide to the process and it can be found at https:/www.qirc.qld.gov.au/public-service-appeals.

[23]	Had the Appellant referred to the Appeals Guide, he would have noted on p 14 (emphasis added):

There are time limits on appealing decisions. An appeal notice (Form 89 – Appeal Notice – Public Service Act 2008) must be received by the Industrial Registrar no later than 5.00pm on the day that is the 21st after:

•	for a promotion decision – the day the decision is publicly notified; or
•	otherwise – the day the Appellant was given the decision appealed against. 

[24]	It is regrettable that the Appellant wrongly assumed the 21-day timeframe excluded weekends. However, I find that is an unreasonable explanation when the wording does not include reference to "business days". 

[25]	The 21-day time period for an Appeal Notice to be filed has been legislated and in the absence of a compelling reason for the delay I will not extend the time for filing. 

[26]	The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal. On the balance of the evidence before me, the Appellant has not discharged that onus. Even if I am wrong in an aspect of this consideration, it is a culmination of the following factors that has contributed to my decision to not hear this Appeal out of time. 

	Conduct of the Respondent

[27]	Through the Decision, the Respondent advised the Appellant of his appeal rights including the timeframe within which an appeal should be filed:

An employee may appeal a decision to require them to submit to an IME, where they believe the decision does not satisfy the conditions of section 174 of the PS Act. This appeal is available under the Directive 10/20 – Independent Medical Examinations. 

The PS Act provides 21 days from the date you receive this letter to appeal to the Queensland Industrial Relations Commission. There is an Appeals Guide to the process and it can be found at https:/www.qirc.qld.gov.au/public-service-appeals.

[28]	That the Appellant seemingly did not understand the timeframe as outlined by the Respondent is certainly regrettable but not a sufficient or compelling reason to dispense with the legislative timeframes for filing an appeal. 

[29]	The Respondent's advice of the appeal period supports the proposition that the length of the delay was unreasonable, and that an inadequate explanation for the delay is unacceptable. 

			Prospects of success 

[30]	An Appellant's prospects of success at a substantive hearing is a relevant consideration. 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.

[31]	Section 174 of the PS Act provides:

This part applies to a public service employee if—
(a)		the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing his or her duties satisfactorily; and
(b)		the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.

[32]	Section 175 of the PS Act provides:

The chief executive may—
(a)		appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
(b)		require the employee to submit to the medical examination.

[33]	The decision-maker advised the Appellant he was required to submit to the IME because he is absent from duty and the decision-maker reasonably suspects the Appellant's absence from duty is caused by mental or physical illness or disability. The decision-maker referred to background information in "Attachment A".

[34]	Attachment A to the Decision outlines the following background information:

•	on 4 May 2017, Dr Matsuda certified the Appellant unfit for work due to a health condition from 2 May 2017 to 23 June 2017; 

•	on 20 June 2017, Dr Matsuda certified the Appellant unfit for work due to a health condition from 24 June 2017 to 13 August 2017; 

•	on 14 August 2017, the Appellant commenced long service leave which continued until 23 November 2017; 

•	on 24 November 2017, the Appellant commenced recreational leave which continued until 21 January 2018; 

•	on 25 January 2018, the Appellant commenced special leave no pay which continued until 7 October 2019; 

•	on 20 November 2019, sick leave was entered for one day; 

•	on 19 December 2019, the appellant commenced recreation leave which continued until 10 January 2020; 

•	on 13 January 2020, long service leave was entered for two days until 15 January 2020; 

•	on 16 January 2020, the Appellant commenced special leave no pay which continued until 20 September 2020; 

•	on 21 September 2020, the Appellant commenced sick leave which continued until 8 November 2020; 

•	on 9 November 2020, the Appellant commenced special leave no pay which continued until 16 April 2021; 

•	on 17 April 2021, the Appellant commenced sick leave which continues; 

•	on 14 July 2021, the Appellant lodged a claim for Workers' Compensation; 

•	on 10 November 2021, the Department was informed that the Appellant's claim for Workers' Compensation was not one for acceptance; 

•	on 17 November 2021, the Department's Senior Injury Management Consultant requested the Appellant's treating doctor provide detailed medical information around his likely duration of leave and when he may be able to return to work; 

•	on 30 November 2021, the current Medical Certificate was provided by Dr Matsuda declaring the Appellant unfit for work between 11 November 2021 and 24 June 2022; 

•	on 30 November 2021, Dr Matsuda provided further medical correspondence advising the Appellant has a diagnosis of "anxiety / depression" which fluctuates in severity and that the Appellant would be unlikely to return to work as a School's Officer; and

•	in accordance with the Department's Workplace Rehabilitation Principles, the following actions were taken:

-	since leave commenced, the Rehabilitation & Return to Work Coordinator continued to liaise with the Appellant whilst he was on sick leave and discussed the Department's Rehabilitation Procedure;

-	an authority to liaise with the medical practitioners(s) was provided the Appellant;

-	medical information was requested from the Appellant's treating medical practitioner(s) regarding his medical condition;

-	the Rehabilitation & Return to Work Coordinator advised the Appellant about leave balance entitlements, accessing relevant leave including accessing QSuper income protection insurance benefits; and

-	the Appellant was provided information regarding access to the Department's Employee Assistance Service.

[35]	The Appellant argues the Decision is unfair and unreasonable because:

•	procedural fairness policy requirements have not been observed; 

•	statutory obligations for a Return to Work Procedure have never been granted; 

•	cls 4.1 and 4.2 of Directive 10/20 Independent medical examinations (Directive 10/20) have not been observed; 

•	there has been no communication from the Department since the beginning of the Appellant's absence in April 2017 up to November 2021 in contravention of cl 4.2 of Directive 10/20; 

•	the Department did not manage the Appellant's absence in an appropriately supportive manner in contravention of cl 4.2 of Directive 10/20; 

•	the Appellant was not appraised of his rights regarding QSuper income protection insurance and potential WorkCover claim; 

•	there is false and misleading information; 

•	the Department did not identify the RRTWC officer and the Appellant's supervisor did not declare a conflict of interest; 

•	the Department have not met their obligations under industrial and human rights legislation; 

•	the Department did not take the Commissioner's suggestion from a Dispute conference; 

•	the Department used medically related information to try and coerce the Appellant into relinquishing his substantive position; 

•	the causal factors related to the Appellant's medical condition have never been properly addressed by the Department; 

•	the Department did not ensure that the Appellant operated in a safe manner in a safe workplace; 

•	reference to the "shed incident";

•	the Appellant had issues with his working relationship with the principal; 

•	the Department did not afford the Appellant empathy; and

•	the illness/injury was incurred because of retaliation for speaking against an unsafe work environment.

[36]	Clause 8.1 of Directive 10/20 provides that (emphasis added), "An employee may seek either an internal review or an appeal of a decision requiring them to submit to a medical examination, on the basis the decision does not satisfy the conditions of section 174 of the PS Act." The Appellant's submissions with respect to the fairness and reasonableness of the Decision go beyond whether or not s 174 of the PS Act has been satisfied or not. In a Public Service Appeal, the Commission is concerned with assessing whether the Decision appealed against is fair and reasonable. 

[37]	Upon a preliminary review of the material filed, it appears the Respondent has a strong case in that both limbs of s 174 of the PS Act are clearly met. Firstly, is uncontroversial that up to and including the date of the Decision, the Appellant was absent from duty in satisfaction of s 174(a) of the PS Act. 

[38]	Secondly, based upon my review of Attachment A, it was justifiable for the decision-maker to reasonably suspect that the Appellant's absence is caused by mental or physical illness or disability. Specifically, Attachment A indicates that the Appellant commenced sick leave on 17 April 2021 and "This leave type continues." Further, Attachment A states that the Appellant's treating general practitioner reported that the Appellant has a diagnosis of 'anxiety / depression' and would be unlikely to return to work as a School's Officer. On that basis, the Decision appears justifiable based on sufficient, documented grounds. 

[39]	I have not been convinced that any of the arguments raised by the Appellant render the Decision unfair or unreasonable. The Appellant's submissions are largely concerned with what he believes caused his injury – however that is not relevant to the satisfaction of s 174 of the PS Act. Further, the parties dispute several procedural aspects – however, in my view, they are less relevant to the question of whether or not s 174 of the PS Act has been satisfied. In light of the above, I conclude that the Appellant's prospects of success are extremely limited. 

	Prejudice to the Appellant

[40]	The Appellant will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that he would lose the opportunity for an independent review of the Decision.

[41]	That outcome is of course not an insubstantial detriment to the Appellant, however I note that the purpose of the IME is to obtain medical advice to help the Department propose an appropriate course of action and the Decision advises, "Importantly, no decisions on the report outcomes will be made without consulting you." 

[42]	I have concluded above that the Appellant has limited prospects of success and therefore while I accept there is some prejudice to the Appellant, I do not consider that to be significant.

Prejudice to the Respondent

[43]	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.

[44]	A delay in filing an appeal is a delay in the overall process. This prejudice is compounded by my conclusion that the Appeal has low prospects of success. 

[45]	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.

Conclusion

[46]	The Appellant filed his Appeal Notice eight days out of time but has not provided a persuasive explanation for that delay. 

[47]	There is a suite of relevant considerations in exercising my discretion to hear an appeal out of time. Foremost, I should be satisfied that the Appellant has a reasonable ground for extending the time. 

[48]	I have found that the Respondent advised the Appellant of his rights of appeal, including the relevant timeframe. I am satisfied The Appellant was provided with all the relevant information he required to file this Appeal within time. 

[49]	I have not been presented with an acceptable reason to depart from the legislatively prescribed timeframe of 21 days. 

[50]	The Appellant will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time. However, I do not consider that prejudice to be overwhelming particularly in light of my conclusion that he has limited prospects of success.

[51]	If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant. 

[52]	For the reasons above, I find that the Appeal was filed out of time, and there is no reasonable ground to extend the time for filing.

[53]	I have determined not to exercise my discretion under s 564(2) of the IR Act to allow the Appeal to be started within a longer period. On that basis, I dismiss this appeal for want of jurisdiction and revoke the stay of the Decision pursuant to s 566(1)(b) of the IR Act. 

[54]	I order accordingly.

Orders:

1.	The appeal is dismissed for want of jurisdiction.

2.	Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 12 September 2022 be revoked.