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[2026] QIRC 30
General information, not legal advice.
Queensland Industrial Relations Commission
2026-02-09
Original judgment source is linked above.
INDUSTRIAL LAW - PUBLIC SECTOR APPEAL - EXTENSION OF TIME - appeal filed outside of statutory time limit - length of delay considered - explanation for the delay in filing considered - competing prejudice to parties considered - general merit of appeal considered - appeal dismissed.
Kelly v State of Queensland (Queensland Health)
Perry v State of Queensland (Queensland Reconstruction Authority) [2025] QIRC 288
[1] Mr Daniel Frith is employed as a Teacher with the Department of Education ('the respondent'). In June 2025 Mr Frith submitted an individual employee grievance ('the grievance'). On 7 July 2025 the respondent issued an outcome to the grievance deciding that no further action would be taken.
[2] Mr Frith subsequently lodged an internal review request (also on 7 July 2025). On 23 July 2025 the respondent issued a decision with respect to the internal review. The respondent decided that no further action would be taken on the grievance ('the decision').
[3] The decision was communicated to Mr Frith in writing. Relevantly it contained a paragraph that read:[1]
If you are dissatisfied with my decision, you may lodge a public sector appeal. A public sector appeal must be lodged with the Industrial Registry within 21 days of you being notified of my decision. Further information can be obtained from the Queensland Industrial Relations Commission on 1300 592 987. Alternatively, you may refer to the QIRC appeals guide available at www.qirc.qld.gov.au.
Further information in relation to possible external review options can be found under clause 9.3 of the Directive (enclosed).
[4] On 8 September 2025, 26 days after the expiry of the time limit for filing this appeal, Mr Frith filed this appeal. Upon allocation to me I noted the appeal had been filed outside the prescribed time limit. Accordingly, the matter was listed for mention on 22 September 2025, and Mr Frith was directed (along with the respondent) to file submissions addressing why the matter ought to be dealt with out of time.
[5] These reasons deal exclusively with that jurisdictional point.
[6] Section 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly provides:
(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 Sector Act 2022; or
(d) if, under another Act, the decision is given in another way - the decision is given in the other way.
[7] The relevant legal principles were recently summarised by O'Neill IC in Kelly v State of Queensland (Queensland Health)[2] where he noted:
[69] Section 564(2) of the IR Act is silent as to the factors to be considered by the Commission when considering whether to exercise a discretion to extend time, as a consequence, 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.
[70] Section 564(2) of the IR Act was considered by President Martin J in the matter of A1Rubber 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."
I note that s 346 of the 1999 Act is reproduced as s 564 in the current Act. In applying those principles, this Court will not grant leave unless it is positively satisfied that it is proper to do so. I will consider the merits of the appeal before finally determining the application for extension. As was said in Chapman v State of Queensland:
"In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application ... An extension of time will not be granted if the court considers the appeal to be plainly hopeless."
[71] In Ulowski v Miller, Bray CJ relevantly held:
It must be remembered that we are dealing here with a discretion and in my view it ought not be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
[72] In Forsyth-Stewart v Queensland, his Honour DP Merrell had regard to the following factors as being relevant in exercising the discretion to extend time:
[8] Further, in my view the principles applicable for the extension of time limitation period imposed by s 317(2) of the IR Act in reinstatement applications are equally apposite to the considerations necessary for the discretion afforded by s 564 of the IR Act. In applying those principles recently I noted in Perry v State of Queensland (Queensland Reconstruction Authority):[3]
[18] In Queensland Public Sector Union of Employees v Department of Corrective Services, President Hall said:
This Court has consistently adhered to the view that the 21 day limitation period imposed by s. 346 should be seen as an assessment by the legislature that in the ordinary category of case justice will be best be served by adhering to a 21 day limitation period, though on occasion the limitation period may defeat a perfectly good case.
[19] In Wantling v Department of Community Safety (Queensland Corrective Services) ('Wantling'), Deputy President O'Connor (as he then was) observed that the statutory time limit in section 74(2)(a) should only be departed from in the most compelling of circumstances and where necessary to ensure that justice is done between the parties. Relevantly, in Wantling, Deputy President O'Connor citing President Hall in Rich v Chubb Protective Services said:
His Honour President Hall outlined the effect of the limitation period set out in s. 74(2) as follows:
The view which I expressed in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109 about the counterpart provision in the Workplace Relations Act 1997 (s. 218(3)) is equally applicable here. The power to allow a further period of time within which an application about an alleged unfair dismissal may be made is vested in the Commission by statute because by statute a time limit of 21 days is imposed and because the legislature recognised "that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case", Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J (with whom Dawson J agreed). In exercising the power, the legislature's choice of a 21 day limitation period must be respected, Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060 at 1060, Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature's judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 553 per McHugh (with whom Dawson J agreed). Section 74(2)(b) should not be treated as having equal standing with s. 24(2)(a). Section 74(2) is not the equivalent of a rule of court providing that if a matter is not commenced within 21 days it may be commenced only with leave of the relevant tribunal. It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s. 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed).
[20] In determining applications to extend the 21 day time limit pursuant to s 317(2)(b) of the Act, the Commission has previously had regard to the following factors:
[21] In Mather v Commercial and General Insurance Brokers Industrial Commissioner Asbury (as she then was) observed:
All of the principles may not be relevant in all cases. The major consideration is whether in all of the circumstances of a particular case, it is equitable to extend time. This consideration has also been expressed as whether in a particular case justice requires an extension of time. In seeking to achieve an equitable outcome, the Commission will be required to give greater weight to the facts or matters considered under some principles than it does to those considered under others, depending on the facts and circumstances of each case...
[22] While each of these factors must be considered, not all of them will be equally relevant in the circumstances of each case. The consideration requires holistic evaluation of the circumstances of each case. Mr Perry bears the onus of demonstrating that the justice of the case requires an extension of time.
[9] Having regard to these principles I intend to direct my consideration for the discretion to waive the prescribed time limit to the following:
[10] The parties filed written submissions in accordance with directions. I do not intend to restate those submissions in full. The salient portions are identified and referred to in the reasons that follow.
[11] The appeal was filed 26 days after the prescribed time limit expired. Determining whether a delay is significant is not merely an exercise in considering the number of days. In keeping with the holistic approach referred to earlier in these reasons, determining the significance of the length of the delay will be a task informed by all the other considerations. In the right circumstances a delay of e.g. 1 day might be regarded as significant or a delay of 1 year might arguably be excused.
[12] In this matter it might be said that a period of 26 days, considered in isolation, is not likely to produce e.g. significant prejudice to the respondents. But the length of the delay must also be considered in the context of the guiding legal principles as to the compelling nature of prescribed limits and whether a satisfactory explanation has been provided. In the circumstances I consider the significance or otherwise of the length of delay in this matter will be better determined by my conclusions on these other matters.
[13] Mr Frith was directed to file written submissions addressing the question of whether he ought to have leave to proceed with his appeal. Mr Frith filed those submissions on 17 October 2025. The salient portions are reproduced below though it is worth noting at the outset that, even at this stage of the proceedings, Mr Frith continues to demonstrate a flawed understanding of the prescribed time limit. The opening paragraphs of his submissions contain a reference to a '28 day' time limit that expired on '20 August 2025'. It is troubling that, even now, Mr Frith has plainly failed to read and understand the explicit statement in the decision informing him (in bold print) of the 21 day time limit.
[14] The other relevant preliminary observation on this issue is that an explanation for delay ought to typically focus on the period of time between when the decision was issued and when the appeal was filed. In this matter that period is from 23 July to 8 September 2025. While certain antecedent issues might be relevant to some degree, it is for the party offering the explanation to address what circumstances in that critical period might be said to have caused the delay or otherwise prevented filing within the prescribed time.
[15] Unfortunately, Mr Frith's submissions largely relate to matters apparently affecting him in the period preceding the decision. It is entirely unclear how (or if) any of those matters have any relevance to the explanation for the delay that has occurred after the decision was released on 23 July 2025, especially where none of the earlier matters raised are relied on to e.g. support a submission they caused him to misunderstand his rights.
[16] The portions of Mr Frith's submission that appear to be an attempt to provide an explanation for the delay is brief enough to reproduce in full. The first part of the explanation asserts:[4]
Between April and July 2025 I experienced significant mental-health strain and family safety pressures. My GP confirmed periods of reduced capacity to manage administrative tasks. At the time [redacted]. These circumstances directly limited my ability to prepare and file a timely appeal.
[17] The redacted portion of that submission contains a reference to an attachment described as 'E3'. The submissions themselves do not include any attachments but there is an 'Attachment index' referred to with the added words '(on file)'. This must be presumed to be the numerous documents attached to Mr Frith's Appeal Notice filed on 8 September 2025. A thorough examination of the file reveals no other attachments.
[18] Without setting out the nature and content of the attachments to Mr Frith's Appeal Notice it is sufficient to note that they are documents relevant to the substantive appeal. They all refer to and deal with matters pre-dating the decision. None of them provide any insight into what Mr Frith's mental state was in the relevant period between 23 July and 8 September 2025 and more importantly, whether he lacked capacity to attend to filing his appeal.
[19] Indeed, on the question of capacity, the documents attached to the Appeal Notice demonstrate that Mr Frith was more than capable of advocating for himself during the period immediately preceding the decision, but further, he appears to have done so notwithstanding all of the multitude of personal issues he contends he was dealing with. In those circumstances, if there was a sudden diminishment of his capacity after 23 July 2025 Mr Frith has provided no explanation for that and no independent medical evidence.
[20] More specifically Mr Frith contends in his submission that his 'GP confirmed periods of reduced capacity to manage administrative tasks' but he has failed to provide any evidence from the 'GP' (presumably a reference to a general practitioner) or to stipulate with any precision which 'periods' he was subject to the alleged reduced capacity.
[21] Having scoured the collection of attachments provided by Mr Frith, the only document located that appears to be an independent medical opinion is a medical certificate dated 11 June 2025 from Dr Swadhin Paul. It states:
Mr Daniel Frith has a medical condition. According to his statement he is going through a lot of mental health crisis, soon needs a GP mental health treatment plan which will be done through his GP in QLD next week for stress management and dealing with adjustment disorder.
[22] This certificate has the following deficiencies that render it irrelevant:
[23] A loss of capacity sufficient to deprive an individual of the ability to organise their legal affairs is a significant impairment. It is not something that can simply be asserted for dramatic effect. Individuals will be affected in different ways by stress. Some people will cope with significant stressors with ease, while others may rapidly become despondent when stressors multiply. But stress induced lethargy should not be conflated with the very serious condition of incapacity to manage one's affairs. Moreover, the latter condition is matter for independent expert opinion, not a subjective assertion offered by the individual said to be affected.
[24] An extension of the statutorily prescribed time limit is a significant indulgence. To grant such an extension on the grounds that a person did not have cognitive capacity to understand or act in accordance with their obligations within a prescribed period demands compelling independent medical evidence.
[25] In the circumstances I do not accept there is sufficient evidence before me to support a conclusion that Mr Frith was incapacitated by the numerous stressors he contends were affecting him in the period between 23 July and 8 September 2025.
[26] For completeness I note that the additional (redacted) ground asserted may broadly be described as relating to pressing family responsibilities. While the numerous documents attached to the Appeal Notice contain information that would suggest some upheaval in Mr Frith's personal and family relationships, the matters referenced all arise in the period preceding the decision on 23 July 2025. Further, there is no evidence or submission as to how Mr Frith says these matters so completely consumed his time or energy between 23 July and 8 September 2025 to the extent they prevented him from complying with the statutory time limit.
[27] To the extent Mr Frith contends that these matters are an explanation for the delay in filing, I consider he has failed to provide adequate evidence to support such a conclusion and as such I consider they do not satisfactorily explain the delay.
[28] The second explanation offered by Mr Frith reads as follows:
Three formal Direction Letters were issued between March and May 2025. The first (8 May) followed my initial compassionate-leave request. The second (26 May) was delivered while I was on approved sick leave and special leave. A third letter was dated 27 March 2025 but not delivered until late June or early July, creating a clear procedural irregularity. During this same period, HR representatives ... issued conflicting instructions about communication protocols and leave status, further compounding confusion and distress as I attempted to comply in good faith.
[29] This aspect of Mr Frith's explanation for the delay appears to relate to correspondence issued to Mr Frith between May and (early) July 2025 which he apparently found confusing. Notably, none of the correspondence he refers to is the decision dated 23 July 2025.
[30] Mr Frith does not offer any submission as to what he was confused about, when that confusion arose, or what efforts (if any) he made to clarify the matters allegedly confusing him. Further, in circumstances where the time limit is explicitly set out in the decision letter, I am at a loss to understand how Mr Frith's alleged confusion arising from correspondence pre-dating the decision explains his failure to file his appeal within the prescribed time limit.
[31] To whatever extent Mr Frith was confused by the correspondence he received between May and (early) July 2025, on the submission before me the alleged confusion cannot be a satisfactory explanation for his failure to file his appeal within 21 days as required.
[32] Mr Frith's explanation for the delay is further explained as follows:
Throughout May I maintained professional communication ... notifying the Department of my circumstances and seeking a compassionate solution. When internal remedies were offered, I pursued them and lodged a formal grievance (17 June 2025). My participation was consistent, transparent, and cooperative through both stages.
[33] It is difficult to know if Mr Frith intends this submission to serve as an explanation for his failure to conform with the prescribed time limit. Apart from the fact it relates to his wholly subjective characterisation of his conduct as 'good faith', it is also conduct that appears to be confined to a period between May and 17 June 2025 i.e. before the decision was made.
[34] Unfortunately Mr Frith appears to have (again) entirely missed the point of this exercise, namely, he was required to explain the causes of his failure to file his appeal within the 21 day period after 23 July 2025. If his intention was to contend there is some sympathy evoking connection between his 'good faith' conduct up to June 2025, and his dilatory conduct after 23 July 2025, Mr Frith has failed to communicate it.
[35] Whatever Mr Frith's explanation might have been intended to be, it appears wholly related to an irrelevant period and matters preceding the decision. For those reasons it is unsatisfactory.
[36] The final aspect of Mr Frith's explanations reads:
After regaining stability in August 2025, I compiled the complete record, prepared this submission, and lodged the appeal at the first practical opportunity. No further delays occurred.
[37] The difficulty with this submission is that it presupposes Mr Frith's alleged incapacity to act within the prescribed time limit. Given I have no reliable independent evidence that Mr Frith was incapacitated during the relevant period, or when (or how) he regained capacity, the timing of his eventual filing of the appeal is meaningless.
[38] For completeness I note that Mr Frith provided submissions accompanying his Appeal Notice on 8 September 2025. Those submissions also contained explanations as to why the appeal was filed outside the prescribed time limit. I do not intend to address those submissions specifically, suffice to say they rely on health and family grounds similar to those contained in the submissions filed on 17 October 2025, albeit more superficial. In those circumstances it follows that they are equally unsatisfactory.
[39] Having regard to all aspects of the explanation for the delay offered by Mr Frith I conclude that they are, collectively and individually, unsupported by the evidence or reliant on irrelevant facts (or both). While it is important to refrain from prematurely reaching a final conclusion as to whether I ought to exercise my discretion to waive the prescribed time limit, it is already clear that the extent of the inadequacy of the explanations offered by Mr Frith will be an influential factor.
[40] A decision to allow or refuse leave for this appeal to proceed will cause inevitable prejudice to one or the other party. On the one hand the respondent is entitled to rely on the certainty provided by the prescribed time limit. The inaction of Mr Frith after 23 July 2025 would entitle them to consider the grievance concluded. To allow this appeal to proceed would compel them to return to the task of addressing matters they had considered long since concluded. The effort and resources required to do this are not insignificant.
[41] On the other hand, if leave to proceed was refused, Mr Frith would be denied a resolution to the grievances that he considered unsatisfactorily resolved. The personal distress he has experienced is evident from the submissions he has filed, and it would no doubt be compounded by a decision denying him an opportunity to seek more favourable outcomes to his grievances.
[42] In my view, when considered in broad terms, the respective prejudice to the parties is evenly matched. However, the circumstances and nature of the appeal itself serve to diminish the prejudice to Mr Frith. The substantive matter is a public sector appeal. The nature of such proceedings is such that the powers of the Commission are confined to a review of the decision dated 23 July 2025 and there are very limited powers to make orders.[5]
[43] Having regard to the personal and professional matters underpinning the grievance I consider it reasonable to presume that neither of these aspects is static. That is to say, I would confidently anticipate that at least some of the personal or professional issues concerning Mr Frith in 2025 have been impacted by the passage of time over the last 7 months such that some may have become more problematic by e.g. subsequent events, but equally, some may have resolved on their own or at least diminished in importance.
[44] Unlike other types of legal proceedings where a refusal to grant leave to proceed will extinguish all possibility of a legal remedy for the affected party, Mr Frith has the unique advantage of a system of public sector directives and polices granting him access to grievances and other actions on a seemingly endless loop. Unlike a litigant pursuing e.g. reinstatement after having lost their employment, the extinguishment of Mr Frith's grievance by my decision would not prevent him from e.g. simply lodging another. Naturally he could likely expect the same outcome if a fresh grievance were identical. But given the non-static nature of his concerns and his personal situation, it takes no imagination to anticipate the formulation of a fresh grievance based on the same fundamental concerns albeit reliant on more contemporary particulars.
[45] To be clear, my observations in this regard are not intended to encourage Mr Frith to take such action. I make the observation merely to demonstrate that the refusal to allow Mr Frith to proceed with this appeal will not prejudicially impact him to the same extent as another type of litigant being denied singular access to remedies for discrete and confined harm.
[46] In those circumstances I consider the prejudice to Mr Frith that would arise from my refusal to waive the prescribed time limit is negligible.
[47] The merits of Mr Frith's substantive appeal are somewhat nebulous. Mr Frith is prone to making broad and dramatic assertions about matters, using popular contemporary vernacular to emphasise his personal distress. But the actual substance of his complaints and objective evidence to support them are difficult to identify.
[48] The grounds of Mr Frith's grievance can be broadly described as:
[49] The overwhelming impression gleaned from the matters causing Mr Frith grief is that his problematic personal situation in 2025 has intersected with his professional life in such a way that each impacts negatively with the other. The emotional distress this causes Mr Frith then informs his interactions with his managers in a way that likely distorts his perceptions. I note that at least two of the grounds for Mr Frith's grievance are founded on his subjective dissatisfaction with the way in which he was spoken to. One has to wonder what remedy might be achieved for such complaints through the vehicle of a public sector appeal given the limited powers of the Commission.
[50] But in any event, as contemplated earlier in these reasons, the nature of the matters forming the foundations of Mr Frith's grievance are not static. It would be folly and wasteful in my view to attempt the exercise of evaluating the merits of such matters when those matters may have likely ceased to be issues or where they have progressed to something different by the passing of time. In the latter case they could be addressed by fresh proceedings.
[51] I do not need to determine the merits are poor. I do not need to determine the merits at all. For the purposes of considering my discretion I need only give the merits consideration to ensure the interests of justice are properly considered. Were the merits objectively very strong or very weak, then that would enhance their relevance to my consideration. But in this matter, I can see no clear or compelling merits (good or bad) that would amplify the injustice to Mr Frith if I were to refuse to allow his appeal to proceed.
[52] For all of the preceding reasons I have determined to refuse to exercise my discretion to waive the prescribed time limit. Having considered all of the relevant matters necessary to inform my discretion I consider that they do not warrant such an indulgence.
[53] In all of the circumstances, because it was filed outside the prescribed time limit, I decline to allow Mr Frith's appeal to proceed.
[1] The emphasis was included in the decision.
[2] [2026] QIRC 018 at [69] - [72] (citations omitted).
[3] [2025] QIRC 288 at [18] - [22].
[4] Appellant's submissions filed 17 October 2025. Note - portions have been redacted to protect confidentiality of certain information about Mr Frith's children. Despite the redaction, the facts asserted in those redacted portions were considered.
[5] See Industrial Relations Act 2016 (Qld) ss 562B and 562C.
Frith
State of Queensland
(1996) 186 CLR 541
(1996) 186 CLR 540