Gillespie v State of Queensland

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

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] QIRComm 22; [2009] 190 QGIG 189

• [1] Ms Nancy Gillespie (the Appellant) is employed as an AO4 Finance Officer with the Department of Communities, Housing and Digital Economy (the Respondent; the Department).
• [2] On 29 August 2023, the Appellant filed an appeal against the decision of Mr Andrew Spina, Deputy Director-General, Service Delivery and Operations, Queensland Government Customer and Digital Group, Department of Transport and Main Roads, to reduce her classification from AO4 pay point 4 to AO3 pay point 4, and consequential change in duties, following the findings made that the Appellant performed her duties carelessly, incompetently or inefficiently (the Disciplinary Action Decision).
• [3] On 4 September 2023, through the Industrial Registry, I emailed the parties noting that the Appellant's Appeal notice was incomplete as it did not include:
  • The date the disciplinary decision took effect;
  • The date the Appellant was given the decision; and
  • The last page of the decision letter (page 14).[1]
• [4] The Appellant then filed an Amended Appeal Notice including the above information. The Amended Appeal Notice included the date the Appellant was given the decision, which was 7 August 2023, making her original Appeal Notice filed one day out of time.
• [5] A Directions Order was issued on 6 September 2023 inviting the parties to make written submissions, including submissions on the question of why the Appeal should be heard out of time.
• [6] Before the question of 'whether or not the disciplinary action decision of Mr Spina was fair and reasonable' may be answered, I am first required to address the superseding (and in this case determinative) jurisdictional issue of the Appeal being filed out of time.
• [7] For the reasons that follow, I find that:
  • The Appellant has filed this Appeal out of time; and
  • She has not provided any sufficient explanation that may warrant an extension of time.

• [8] Section 564(3) of the Industrial Relations Act 2016 (Qld) (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.
• [9] I am empowered by the IR Act to extend the time for giving an appeal notice.[2]

• [10] The Disciplinary Action Decision was given to the Appellant on 7 August 2023.
• [11] The Disciplinary Action Decision explained that the decision may be appealed within 21 days.
• [12] The deadline for filing the Appeal was therefore 28 August 2023.
• [13] The date the Appeal Notice was first filed was on 29 August 2023 - that is, one day out of time.
• [14] After reading the Appeal Notice, I determined that it was incomplete and it was not until after I requested further information from the Appellant, that an Amended Appeal Notice was filed on 5 September 2023.
• [15] The further (and required) information provided by the Appellant enabled me to determine that the appeal was filed out of time.

• [16] 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.[3]
• [17] 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.[4] 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.[5]

• [18] In Breust v Qantas Airways Ltd,[6] 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.

• [19] Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.[7] These considerations were usefully summarised by Thompson IC in Lloyd v Department of Communities, Child Safety and Disability Services[8] 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.
• [20] 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.
• [21] Additionally, my discretion is informed by the purpose of the Public Sector Act 2022 (Qld) (PS Act), including promoting the effectiveness and efficiency of government entities.[9] 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.[10]

• [22] 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.

• [23] The Appeal Notice was filed one day out of time. The Amended Appeal Notice which was complete and included the information required by the Appeal Notice was eight days out of time.
• [24] 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.
• [25] The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[11] It is true that in some cases delays of several weeks have been considered to be not excessive.[12] 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. That is not the case here.
• [26] In conjunction with the reasons that follow, I find that a delay of one day for the incomplete Appeal Notice to be filed and eight days for the complete Appeal Notice to be filed, is significant and unreasonable in these circumstances.

• [27] The Appellant has provided conflicting reasoning as to why the Appeal Notice was filed out of time.
• [28] Initially, when filing the Appeal, the Appellant included in her email to the Industrial Registry "Sorry for the late submission which should be yesterday as I have to gathered all the evidences and sent to the Union Representative".[13]
• [29] The Appellant briefly addressed this point in her submissions by providing that:

There is an acceptable explanation for the application being made out of time since I must rely (sic) with the Union Representative to review my application. Once the review was done it was too late for me and I was not aware of the timeframes.[14]

• [30] The Appellant then provided another explanation as to why she submitted the appeal out of time in her submissions filed in reply:

I want to firmly say that lateness of the submission was correct. This is a fact that it does not prevent me to pursue my appeal and was not aware that it was a day for submission.

Honestly speaking, I had a personal reason to put off my decision to answer the Appeal directly since I did not know how to start and struggle to compose the letter.

I was not confident that my writing proficiency and language abilities will impact my situation coming from Non-English-Speaking Background and being a Migrant. I felt conscious and careful that my answers are limited or simply misunderstood.[15]

• [31] I do not accept the explanations provided by the Appellant, particularly when the Appellant submitted an entirely new explanation in her reply submissions that "Honestly speaking" she "put off" her "decision to answer the Appeal directly" since she "did not know how to start and struggle to compose the letter".
• [32] That is not a sufficient explanation to submit an Appeal out of time.
• [33] The Appellant has demonstrated a clear lack of insight into her responsibilities in submitting an Appeal, initially portioning blame on her union representative for the delay.
• [34] 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.
• [35] 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.[16] On 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.

• [36] Through the Disciplinary Action Decision, the Respondent advised the Appellant of her appeal rights including the timeframe within which an appeal should be filed:

A right of appeal for a decision under a disciplinary law to discipline a person is contained in Chapter 3, part 10, division 2 of the PSA. If you are not satisfied with my decision, you may appeal the decision to the Queensland Industrial Relations Commission (QIRC) in accordance with section 131(1)(c) of the PSA within 21 days of receiving this decision. The QIRC Industrial Registry will be able to provide further information about public service appeal procedures via their website www.qirc.qld.gov.au or telephone 1300 592 987.

• [37] The Appellant claims to have not understood the timeframe as outlined by the Respondent, which is not a sufficient or compelling reason to dispense with the legislative timeframes for filing an appeal.
• [38] Even if it were, I have difficulty believing that the Appellant was unaware of the 21-day time frame when she has:
  • Acknowledged that the appeal was submitted out of time in her email filing the Appeal notice on 29 August 2023; and
  • Said that she put off "her decision to answer the Appeal" as she "did not know how to start" and struggled "to compose the letter".
• [39] I also note that the Disciplinary Action Decision filed with the Appellant's Appeal Notice appears to have the heading "Right of appeal" and "Human rights" highlighted on the paper before it was scanned, further evincing in my mind that the Appellant had drawn her attention to the "Right of appeal" section of the letter which outlined the appeal timeframes.[17]
• [40] 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.

• [41] An Appellant's prospects of success at a substantive hearing is a relevant consideration.[18] 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.[19]

• [42] The Appellant has not particularised any compelling reason as to why the Disciplinary Action Decision of a reduction of classification level from AO4 pay point 4 to AO3 pay point 4, and consequential change of duties, is unfair and unreasonable.
• [43] Sections 92 and 93 of the PS Act relevantly provides:
  1. Meaning of disciplinary action

(1) Disciplinary action is any action relating to employment, including, for example, any of the following actions -

(a) termination of employment;

(b) reduction of classification level and a consequential change of duties;

(c) transfer or redeployment;

(d) forfeiture or deferment of a remuneration increment or increase;

(e) reduction of remuneration level;

(f) imposition of a monetary penalty;

(g) if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments;

(h) a reprimand.

1. Disciplinary action against public sector employee

(1) In disciplining a public sector employee, the employee's chief executive may take the disciplinary action, or order the disciplinary action be taken, against the employee that the chief executive considers reasonable in the circumstances.

• [44] Directive 05/23: Discipline (Discipline Directive) relevantly provides (emphasis added):

4.7 A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:

d. avoiding an unnecessary and disproportionately protracted dispute

4.8 Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.

4.9 A chief executive must not take disciplinary action against an employee for a matter relating

to the employee's performance until they have complied with the positive performance

9.5 Show cause process for proposed disciplinary action

a. the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)

b. the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented

c. the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act

d. in proposing appropriate and proportionate disciplinary action, the chief executive should consider:

ii. the employee's classification level and/or expected level of awareness about their performance or conduct obligations

iii. whether extenuating or mitigating circumstances applied to the employee's actions

iv. the employee's overall work record including previous management interventions and/or disciplinary proceedings

vi. the degree of risk to the health and safety of employees, customers and members of the public

vii. the impact on the employee's ability to perform the duties of their position

viii. the employee's potential for modified behaviour in the work unit or elsewhere

ix. the impact a financial penalty may have on the employee

x. the cumulative impact that a reduction in classification and/or pay-point may have on the employee

xi. the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding

e. a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated

f. the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.

g. if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.

a. the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken

b. the chief executive must inform the employee of the decision in writing, including:

i. the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice

ii. information that the employee may appeal the decision on disciplinary action (except for a termination decision)

iii. for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act

c. the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:

i. the revised disciplinary action is objectively less onerous than the original action proposed, or

ii. the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or

iii. the employee has suggested the disciplinary action as an appropriate alternative penalty

d. disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public sector employee has expired, or any appeal lodged is finalised.

• [45] In the Disciplinary Action Decision, Mr Spina advised that he had previously determined, on the balance of probabilities, the allegation could be substantiated that the Appellant had:

... performed the duties of your position as AO4, Finance Officer, General Ledger and Reporting, carelessly, incompetently or inefficiently because you failed to meet the required outcomes of your Performance Improvement Plan dates 7 June 2021 (the June to July 2021 PIP) in that you failed to correctly:

(a) undertake reconciliations

(b) complete and maintain registers

(c) undertake accruals/end of month journals

(d) manage Open Item Management in SAP

(e) undertake Bank Statement transaction clearing

(f) undertake analytical review of open items

• [46] Upon my preliminary review of the material submitted by the Respondent, it appears that extensive resources have been dedicated to supporting the Appellant's workplace performance, which has been unable to be rectified despite the implementation and completion of numerous Performance Improvement Programs (PIP) conducted in accordance with Directive 15/20: Positive performance management (PPM Directive).[20]
• [47] In determining to reduce the Appellant's classification, Mr Spina noted his reasons, some of which included:
  • The Appellant failed to meet the work performance expectations set out in PIP processes while in the role of AO4 Finance Officer during March to October 2019 and October to December 2019.
  • The outcomes required under the June to July 2021 PIP were sufficiently detailed and appropriate to the full duties of an AO4 Finance Officer.
  • The Appellant was provided with varied guidance and training mechanisms to successfully undertake the outcomes of the June to July 2021 PIP.
  • Support and guidance were provided to the Appellant in the March to October 2019, the October to December 2019 PIP and the June to July 2021 PIP.
  • The Appellant acknowledged that she had not met the required outcomes of the June to July 2021 PIP, and agreed to resume alternative duties that has been performed prior to participating in the PIP process.
  • The penalty is appropriate and proportionate in the circumstances and that no alternative penalties are appropriate.
• [48] Mr Spina also considered whether or not the Appellant could return to her substantive position as an AO4 in Tax and Assets, however noted that numerous and reasonable opportunities to return to that role were provided which the Appellant had previously declined. He further considered that there are concerns regarding the Appellant's ability to perform at an AO4 classification, which was demonstrated by the Appellant returning to a reduced workload/alternative duties, following the unsuccessful outcomes in the past three PIP processes and during the disciplinary process.
• [49] To summarise, the Appellant submitted that she should remain in her AO4 role as:
  • She was not properly trained to perform the role and was struggling to action outstanding tasks.
  • The PIP conducted was biased since she has always performed to the best of her ability and never complained about her workload.
  • She has previously received positive feedback from clients.
  • She has been subjected to bullying from a colleague which is the basis for her unsatisfactory performance.
  • She is a point of contact for colleagues when they have a question and is asked to provide contribute to discussions and meetings.
  • She has successfully completed her responsibilities and has the necessary skills for her role.
• [50] In response to the submissions of the Respondent, the Appellant claimed that she was put on a PIP due to colleagues wanting to "vanish" her. The Appellant further provided that her colleagues' "hatred" for her presence in the team, was the "sole basis of unsatisfactory performance".[21] The Appellant has not submitted any evidence or further explanation which supports this assertion or indicates why this may be the case.
• [51] The arguments raised by the Appellant do not sufficiently address why the Disciplinary Action Decision was unfair or unreasonable, rather, they appear to seek to disturb the finding that she performed her role "carelessly, incompetently or inefficiently". That is not the question to be decided in this case.
• [52] Upon my preliminary assessment, the Respondent complied with the PPM Directive leading up to the disciplinary process and there seems to be no other alternative penalty or further management action that can be taken to address the Appellant's performance. It appears the Respondent has complied with cl 9.5 and cl 9.6 of the Discipline Directive, including by considering an appropriate penalty proportionate in the circumstances. The Appellant has not appeared to discharge the onus of proof of establishing that the Disciplinary Action Decision was not fair or reasonable, and I consider that this matter has little to no prospects of success.

• [53] The Appellant will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that she would lose the opportunity for an independent review of the Disciplinary Action Decision.
• [54] 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.

• [55] 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.
• [56] 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.
• [57] The Appellant has been remunerated on at the pay classification for the 21-day appeal period and continues to be whist this appeal is on foot. Any further delay would have a direct financial impact on the public sector and further prejudice the Respondent.
• [58] For those reasons, I find that the Respondent would suffer prejudice should I decide to exercise my discretion to hear the Appeal out of time.

• [59] The Appellant filed her Appeal Notice out of time but has not provided a persuasive explanation for that delay.
• [60] 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.
• [61] I have found that the Respondent advised the Appellant of her rights of appeal, including the relevant timeframe. I am satisfied The Appellant was provided with all the relevant information she required to file this Appeal within time.
• [62] I have not been presented with an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
• [63] 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 she has limited prospects of success.
• [64] If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant.
• [65] 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.
• [66] 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 Disciplinary Action Decision pursuant to s 566(1)(b) of the IR Act.
• [67] I order accordingly.

1. The appeal is dismissed for want of jurisdiction.

1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 6 September 2023 be revoked.

[1] Although, the Appellant had in fact only filed every second page of the Disciplinary Action Decision.

[2] Industrial Relations Act 2016 (Qld) s 564(2).

[3] House v The King (1936) 55 CLR 499, [2].

[4] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 547.

[5] [1996] HCA 25; (1996) 186 CLR 541, 553.

[6] (1995) 149 QGIG 777.

[7] (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[8] [2013] QIRC 129.

[9] Public Sector Act 2022 (Qld) s 3.

[10] [2009] HCA 27; (2009) 239 CLR 175, [30].

[11]Tonia Shelley v McRoberts Agency [2009] QIRComm 22; [2009] 190 QGIG 189.

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

[13] Email from Ms N. Gillespie to the Industrial Registry dated 29 August 2023.

[14] Appellant's submissions filed 13 September 2023, 3.

[15] Appellant's submissions in reply filed 27 September 2023, 3.

[16] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 547.

[17] The "Right of appeal" section of the Disciplinary Action Decision letter filed by the Respondent was not highlighted, indicating that it was highlighted once the Appellant had received the letter.

[18] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[19] [2010] ICQ 35, [6].

[20] Now superseded by Directive 02/24: Positive performance management.

[21] Appellant's reply submissions filed 27 September 2023, [3].