Kelly v State of Queensland

Public Sector Act 2022 (Qld) s 81, s 114, s 115, s 116, s 129, s 131

Directive 02/23 - Review of Non-Permanent Employment cl 7, cl 14

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

Ambrey v Oswin [2004] QSC 224

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Barker v Queensland Fire and Rescue Authority (2000) QSC 359

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

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Collins v State of Queensland (Department of Education) [2024] QIRC 086

Cooper v Q-COMP [2012] ICQ 5

Cullen v State of Queensland (Queensland Health) [2021] QIRC 258

Douglas v Allen and Ors [1984] FCA 77

Drage v State of Queensland (Queensland Health) [2023] ICQ 22

Forsyth-Stewart v Queensland [2021] QIRC 395

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

Lockhart v Queensland Health [2014] QIRC 012

Morris v State of Queensland (Queensland Police Service) [2023] QIRC 196

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Ulowski v Miller (1968) SASR 277

WorkCover Queensland v Zanoletti [2001] ICQ 43; (2001) 167 QGIC 669

[1] Ms Alessandra Kelly ('the Appellant') is currently employed by Metro North Hospital and Health Service ('MNHHS') on a temporary full-time basis as a Senior Administration Training Coach, Digital Metro North ('the role').

[2] The Appellant previously held a permanent position with Metro South Hospital and Health Service and then continued in a non-permanent capacity with MNHHS. The Appellant's temporary employment history is as follows:

• Project Coordinator (AO5) from 29 May 2023 until 3 March 2024;

• Senior Administration Training Coach (AO6) from 4 March 2024 until 9 May 2027.

[3] The Respondent states that the Senior Administration Training Coach role is a temporary project role that will end with the finalisation of the project on 9 May 2027 and it will not be extended.[1]

[4] On 4 April 2024, the Appellant requested an employer-initiated review pursuant to s 115 of the Public Sector Act 2022 ('the PS Act'). The Respondent was required to undertake a review of the Appellant's employment status on 29 May 2025. A decision was not provided to the Appellant within the statutory period of 28 days.

[5] Despite this, the Respondent undertook a review of the Appellant's employment and provided a review decision dated 5 August 2025 ('the decision letter') pursuant to s 115(3) and s 114(3)(a) of the PS Act, which was received by the Appellant on 15 August 2025. The decision determined to not convert the Appellant's employment on the basis that there was no ongoing need for the Appellant to perform their role or a similar role.

[6] On 23 September 2025, the Appellant filed an Appeal Notice. The Appeal Notice as filed states that the decision being appealed is that dated 5 August 2025 which was received by her on 15 August 2025.

[7] The factual matrix in this appeal is somewhat complicated. As noted above the Respondent failed to provide the Appellant with a s 115 review decision within 28 days of the two year anniversary of her commencement in the temporary position on 29 May 2025.

[8] This meant that a deemed decision to refuse to convert the Appellant's temporary employment to permanent occurred on or about 27 June 2025.

[9] Sections 564(1) and 564(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') impose a time limit for filing an appeal of 21 days from the date that the decision is given.

[10] If the relevant decision is the decision received by the Appellant on 15 August 2025, this meant that any appeal of that decision should have been filed on or before 5 September 2025. The appeal was filed on 23 September 2025, some eighteen days late.

[11] If the relevant decision is the deemed refusal decision of 27 June 2025, any appeal of that decision should have been filed on or before 17 July 2025. This would mean that the appeal has been filed 68 days late.

[12] On either scenario, it therefore appears that the appeal had been filed out of time.

[13] In light of the jurisdictional issue outlined above, the matter was mentioned before me on 14 October 2025, and I subsequently issued a Directions Order on 10 November 2025 requiring the parties to file submissions on the jurisdictional issue.

[14] Following that mention, a conciliation conference was conducted by another member of the Commission on 17 November 2025, however a resolution of the issues was not able to be reached.

[15] The parties have complied with the Directions Order and have filed written submissions. The Directions Order required the parties to advise the Queensland Industrial Relations Commission ('the Commission') by 4:00 pm on Wednesday, 17 December 2025 as to whether either party wished to make oral submissions. No request was received from either party, therefore pursuant to s 451(1) of the IR Act the matter will be determined on the papers.

[16] The issue for determination by the Commission is whether the Appellant should be granted an extension of time to file her Form 89 - Appeal Notice pursuant to s 564(2) of the IR Act.

[17] The following reasons only address the jurisdictional issue and whether the Appellant should be granted an extension of time.

[18] Having regard to the submissions made by the parties and the material before me, I have determined that the appeal should be dismissed for want of jurisdiction.

[20] In the Appeal notice filed by the Appellant on 23 September 2025 the Appellant has noted the following reasons for the appeal:

• Failure to be notified of eligibility for temporary to permanent conversion.
• Failure to meet industrial obligations.
• Delay in decision causing potential impact to alternate avenue to progress conversation (Talent Pipeline) - request progressed myself start of April 2025 and the decision was provided on 15 August 2025.
• Conflicting information received from Metro North Resourcing and Digital Metro North Resourcing as to the application process.
• Final "confirmed" outcome for process on 27 August 2025.

[21] Section 562B (2) and (3) of the Industrial Relations Act 2016 ('the IR Act') provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

[22] The appeal is not conducted by way of re-hearing,[2] but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.[3]

Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[4]

[23] Section 131(1)(a) of the PS Act provides that an appeal may be made against a conversion decision. Section 133(a) of the PS Act provides that for a conversion decision, it is the public sector employee who is the subject of the decision who may appeal the decision.

[24] Section 129 of the PS Act relevantly provides:

(a) under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis; or

(b) under section 115 to convert the employment of a public sector employee mentioned in section 112 to a permanent basis in circumstances provided for under a directive made under section 115(8) about the hours of work offered when offering to convert the employment basis to a permanent basis; or

[25] I am satisfied that the Appellant is the subject of either the deemed refusal decision of 26 June 2025, or the decision provided by Dr Jason Brown dated 5 August 2025. I am therefore satisfied that the Appellant is entitled to appeal the decision.

[26] Section 564(3) of the Industrial Relations Act 2016 ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given.

[27] In respect of either of the alternative decisions identified above, the Appeal notice filed on 23 September 2025 has been filed beyond the 21 day limitation period set out in s 564(3) of the IR Act.

[28] Section 562C (1) of the IR Act prescribes that the Commission may determine to either:

• set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or

• set the decision aside and substitute another decision.

[29] Section 564 of 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.

"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.

Public Sector Act 2022

[30] Section 81 of the PS Act confirms that the basis of employment in the public sector is generally to be permanent:

81 Basis of employment - generally on permanent basis

(1) Employment of a public sector employee is on a permanent basis unless the employee is employed on a non-permanent basis under this Act or another Act that enables the person to be employed on a non-permanent basis, including, for example -

(2) However, a public sector employee may be employed under this Act or another Act on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate.

(3) Without limiting subsection (2), employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes -

(a) in relation to employment on a temporary basis for a fixed term -

(i) to fill a temporary vacancy arising because a person is absent for a known period; or

approved leave (including parental leave), a secondment

(ii) to perform work for a particular project or purpose that has a known end date; or

employment for a set period as part of a training program or placement program

(iii) to fill a position for which funding is unlikely or unknown; or

employment relating to performing work for which funding is subject to change or is not expected to be renewed

(iv) to fill a short-term vacancy before a person is employed on a permanent basis; or

(v) to perform work necessary to meet an unexpected short-term increase in workload;

an unexpected increase in workload for disaster management and recovery

(i) to fill a short-term vacancy arising because a person is absent for an unplanned or unexpected period; or

(ii) to perform work for a short period to fill a gap in a work roster for employees employed on a permanent basis, or on a temporary basis for a fixed term; or

(iii) to fill a position for which work patterns or work demand is variable and difficult to predict; or

(iv) to fill a position for which work hours are irregular, informal, flexible, occasional or non-rostered.

(4) Without limiting subsection (3)(a), employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis.

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

(5) Without limiting subsection (3)(b), employment of a person on a permanent basis, or on a temporary basis for a fixed term, may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(b) on a regular or systematic basis.

an ongoing requirement to fill gaps in various work rosters, on a regular and systematic basis

(6) Subsections (2), (3), (4) and (5) apply despite another Act.

(7) To remove any doubt, it is declared that this section applies in relation to a public sector employee's employment on a temporary basis for a fixed term if the employment is extended under this Act or another Act.

[31] Part 9, Division 1 of the PS Act provides for 'Review of non-permanent employment'.

[32] Section 114 obliges the chief executive to reach a decision on the request by the employee as follows:

114 Chief executive must make decision on employee's request

(1) This section applies if a public sector employee makes a request under section 113.

(2) The employee's chief executive must decide the request within 28 days after receiving the request.

(3) The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if -

(i) there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and

(ii) the employee is suitable to perform the role; and

(b) any requirements of an industrial instrument are complied with in relation to the decision.

(4) If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

(5) If the employee's chief executive decides not to offer to convert the employee's employment to a permanent basis, the chief executive must give the employee a notice stating -

(b) the total period for which the employee has been continuously employed under section 113(3) in the public sector entity; and

(c) how many times the employee's employment on a non-permanent basis has been extended.

(6) Subsection (5)(c) does not apply in relation to employment on a casual basis.

(7) If the employee's chief executive does not make the decision within the period required under subsection (2), the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment.

(8) The commissioner must make a directive about the making of a decision under this section.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

115 Chief executive must review status after 2 years of continuous employment

(1) If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee's chief executive must decide whether to -

(a) continue the employee's employment according to the terms of the employee's existing employment; or

(b) offer to convert the employee's employment to a permanent basis.

(2) The employee's chief executive must make the decision within the required period after -

(a) the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and

(b) each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.

(a) section 114(3) and (4) applies to the employee's chief executive; and

(b) the employee's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.

(4) If the employee's chief executive decides not to offer to convert the employee's employment to a permanent basis, the chief executive must give the employee a notice stating -

(b) the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and

(c) how many times the employee's employment on a non-permanent basis has been extended; and

(d) each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.

[34] Directive 02/23 Review of non-permanent employment relevantly provides as follows:

4.1 Chief executives are responsible for making decisions on review of non-permanent employment, under chapter 3, part 9, division 1 of the Act.

4.2 Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.

4.3 Under section 81 of the Act, employment of a public sector employee is generally on a permanent basis unless it is not viable or appropriate.

4.4 Employment on a permanent basis may not be viable or appropriate if the employment is for any of the reasons provided for at section 81(3) of the Act.

4.5 Under the Human Rights Act 2019, decision makers have an obligation to:

(a) act and make decisions in a way that is compatible with human rights

(b) give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

4.6 Under chapter 1, part 3 of the Act reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.

4.7 Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.

4.8 In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

1. Employer obligation to undertake a review of non-permanent employment

7.1 A public sector employee who is eligible (or approaching eligibility) for a review of their employment status under section 115 of the Act may notify the employee's chief executive of their requirement to commence a review under section 115 of the Act, and that the employee would like to be converted to permanent employment.

7.2 The notification provided for in clause 7.1 may be made by the employee or the employee's representative, provided it is not more than three months before the review must be undertaken, in accordance with section of 115 of the Act.

7.3 An entity must set out information on its intranet, or in another way that is accessible to employees, about how to notify under clause 7.1.

7.4 Where an employee does not notify their entity in accordance with clause 7.1, the chief executive is still required to undertake the review in accordance with section 115 of the Act.

7.5 When a chief executive starts a review of an employee's employment status under section 115 of the Act, the chief executive must notify the employee.

7.6 The notification must be in writing and include:

(a) the name and contact details of the entity contact for the review

(c) that the employee or their representative may choose to provide a written submission for consideration during the review process

(d) that if the chief executive does not make a decision within the required period, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis

(e) information about any relevant appeal right and timeframe for appeal.

1. Obligations when a decision is made not to offer to convert an employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment

13.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:

(a) set out the findings on material questions of fact, and

(b) refer to the evidence or other material on which those findings were based.

13.2 Any notice provided to the employee must include information about any relevant appeal rights available to the employee.

13.3 Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role, any notice provided to the employee must also include information about an employee's right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.

14.1 A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis, and to continue the employee's employment according to the terms of the employee's existing employment.

14.2 A written notice is not required to be prepared to support a deemed decision.

14.3 However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:

(a) the employee's right to make an additional request for employment on a permanent basis under section 116 of the Act, if the deemed decision occurred under section 114(7) or 115(6) of the Act, and

(b) any relevant appeal right available to the employee.

14.4 Chief executives are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.

15.2 A public sector employee may be able to lodge an appeal with the Queensland Industrial Relations Commission in relation to a decision on review of their non-permanent employment, as provided for under chapter 3, part 10 of the Act.

[35] The Appellant filed submissions on 24 November 2025 following the parties being unable to resolve the issues during a conciliation conference before another member of the Commission.

[36] Within the Appellant's submissions, the Appellant contends that her eligibility for conversion was confirmed by Metro North on 4 April 2025 following a request made by the Appellant for her employment status to be reviewed.

[37] The Appellant is not satisfied that the process has been managed in accordance with the requirements of the PS Act and notes that a decision was not made by the Respondent within the statutory timeframe, and therefore, a deemed decision was made on 27 June 2025. The Appellant contends that due to the deemed decision, the decision provided on 15 August 2025 should be considered a nullity given it is not binding under the legislation.

[38] The Appellant seeks conversion to permanent employment status via the MNHHS Talent Pipeline_[5]_ and maintains that the security process of the time should be enforced. The Appellant submits that it was the unreasonable delay of the Respondent in providing her with a review decision that denied her the opportunity to explore the Talent Pipeline as an avenue of progression.

[39] The Appellant contends that information was not managed openly as practicable within the legal framework and that the Chief Executive did not take responsible action to consider her review.

[40] On 15 August 2025, the Appellant submits she contacted Metro North Conversions to follow up regarding conversion via the Talent Pipeline and was not provided with a response until 27 August 2025 at which point she sought external advice regarding her options. The Appellant submits that 27 August 2025 should be the official confirmation regarding her employment review.

[41] The Appellant acknowledges that even if the later date were to be accepted as the correct decision date, the Appeal is still filed beyond the statutory limit. She contends that this was an oversight on her behalf and is simply a case of an appellant struggling to come to grips with the statutory and procedural regime.

[42] The Appellant contends that the compliance with mandated response times should be considered as a whole, including the Respondent's compliance and not solely the employee. The Appellant further submits that the Respondent's delay in response is not compatible with the main purpose of the PS Act including fair treatment and maximising employment security.

[43] The Respondent filed submissions on 8 December 2025 and maintains that the Appellant has failed to satisfy the conditions for an extension of time.

[44] The Respondent submits that in light of the Appellant's submissions, the appeal is now expanded to include other decisions, being a deemed decision dated 27 June 2025, and a decision dated 27 August 2025 where the Appellant was advised of the Talent Pipeline decision.

[45] In relation to the 27 August 2025 email, the Respondent contends that this was not a decision, but rather clarifying information provided to the Appellant.

[46] The Respondent cites a decision of Deputy President Merrell, Forsyth-Stewart v Queensland[6] where His Honour stated that in order to allow an appeal out of time, the applicant must provide an acceptable explanation for the delay.

[47] In response to the Appellant's contention that the Appellant did not progress the appeal within the required timeframe as she had previously been discouraged (the Appellant does not go into further detail about this), and had concerns regarding repercussions in the workplace, the Respondent rejects the explanation on the basis that the statements are vague and no evidence of any threats have been provided.

[48] The Respondent contends that the Appellant has provided no further explanation for the delay and submits that awaiting further information regarding the Talent Pipeline is not a sufficient explanation.

[49] The Respondent submits that the delay, whether it be 18 days or 68 days, is significant and unjustified in the circumstances.

[50] The respondent submits that the Appellant has not made out any case as to the merits of the appeal or how they meet the eligibility and suitability criteria for conversion. This is in reference to A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations)[7] ('A1 Rubber') where President Martin J stated:

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.[8]

[51] In response to the Appellant's arguments that she should have been appointed to the Talent Pipeline, the Respondent submits that the elements of Directive 02/23 must still be met as for an employee to be appointed to the Talent Pipeline. There must still be a continuing need for the Appellant's employment. The Respondent contends that the Talent Pipeline was not intended to be utilised for finite funded roles where there was no genuine need for the role on a permanent basis.

[52] Further to address the Appellant's prospects of success, the Appellant contends that on the basis that the role is a project role, the merits of the substantive appeal are very low. The Respondent submits that the Appellant accepted the role knowing that the project had a limited scope, with no extensions.

[53] The Respondent contends that it is unreasonable for the Appellant to now submit that there is a continuing need for the role on a permanent basis.

[54] Regarding the conduct of the Respondent, the Respondent contends that the delayed process does not alter the circumstances that the Appellant occupies a temporary role for which there is no continuing need.

[55] The Respondent concedes that it did not inform the Appellant of her appeal rights following the deemed decision, however, submits that the Appellant was aware that the Respondent continued work on the review. It is further contended that the Appellant was informed of her appeal rights on 15 August 2025 when she was provided with the review decision dated 5 August 2025.

[56] The Appellant contends that the Respondent misinterprets legislative obligations and has framed them as flexible or subject to discretion rather than mandatory duties.

[57] The Appellant further contends that the Respondent has incorrectly interpreted s 115 of the PS Act, relying on ss 114 and 115 as a single decision rationale to obfuscate. The Appellant submits that s 114 provides the criteria for decisions made under s 115.

[58] The Appellant further submits that the Respondent has failed to engage with the fair and reasonable standard outlined in the IR Act. The Appellant contends that the Respondent's submissions omit any analysis of fairness, contrary to the statutory test.

[59] It is submitted by the Appellant that the Respondent has failed to consider equity when framing the Appellant's delay as "significant and unjustified" without acknowledging mitigating factors or its own delay.

[60] The Appellant contends that the Respondent has breached the Model Litigant principles.

[61] In response to the Respondent's explanation of the Talent Pipeline, the Appellant submits that this misstates the purpose, operation and decision-making aspects of the Talent Pipeline. The Appellant contends that Metro North documents show the Pipeline as an established pathway with clear operational steps (mandates) that the Respondent excessively narrows or omits.

[62] The Appellant contends that the Talent Pipeline is not contingent on continuing need as suggested by the Respondent. The Appellant submits that the Respondent's insistence on that as a prerequisite and the exclusion of finitely funded roles is incorrect.

[63] The Appellant provides the following extract from the Talent Pipeline which they contend is the only criteria an employee needs to meet:

[Suitability] considers the extent to which you have abilities, aptitude, skills, qualifications, knowledge, experience, personal qualities and registrations relevant to carrying out the duties and the extent to which you have potential for development. As part of this process you will be assessed for what training and development you might require to undertake a role. If the training and development requirements are reasonable, you are likely to be deemed as suitable for that specific role.

[64] The Appellant submits that the Talent Pipeline conversion is an equitable mechanism to give effect to the PS Act and that the Respondent's denial of such conversion undermines the PS Act's purpose and equity obligations.

[65] The Appellant contends that where the Respondent's delay revoked their opportunity to progress conversion, even via the Talent Pipeline, then equity requires the extension sought to be granted.

[66] In response to the Respondent's contention that the Appellant accepted the role 'knowing the project had limited scope, with no extensions' the Appellant submits that this is incorrect and that they specifically relinquished their permanent position because of the opportunity to progress to permanency at their 24-moth anniversary.

[67] In the preparation of these reasons for decision I have carefully considered all of the submissions and attached evidence provided by both parties. All relevant material has been considered although it may not be referred to in these reasons for decision.

Commission's discretion to grant an extension

[68] It is for the Appellant to persuade the Commission to allow an extension of time to file an application.[9]

[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.[10]

[70] Section 564(2) of the IR Act was considered by President Martin J in the matter of _A1_Rubber[11] 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.[12], 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[13], his Honour DP Merrell had regard to the following factors as being relevant in exercising the discretion to extend time:

• special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

• action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;

• any prejudice to the respondent, including any prejudice in defending proceedings occasioned by the delay, is a material factor militating against the granting of an extension;

• the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and

• considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

[73] The _Appeal Notic_e filed by the Appellant identifies the decision that she is appealing as the correspondence dated 5 August 2025 from Dr Jason Brown. A copy of that correspondence is attached to the Appeal Notice.

[74] There is no indication in the Appeal Notice of an intention on the part of the Appellant to appeal a deemed refusal decision.

[75] The Appellant in her submissions states that on 15 August 2025 she contacted Metro North Conversions to follow up the progression via the Metro North Pipeline. The Appellant notes that she was provided with a response to that enquiry on Wednesday 27 August 2025. The Appellant contends 27 August 2025 as the date of official confirmation regarding her employment review.

[76] The 27 August 2025 email states: [14]

• If the delegate makes a decision not to convert an employee from temporary to permanent, then they do not have the option to be converted to either of the Digital Metro North (DMN) and Metro North Talent Pipelines.
• As confirmed with Workplace Relations within Metro North, the DMN and Metro North Talent Pipelines have been decommissioned as of Monday, 18 August 2025 which was after your Temporary to Permanent Conversion outcome letter was provided to you.
• Your anniversary date is 29 May 2025, you will have another Temporary to Permanent Conversion review in 12 months from this date if you meet eligibility criteria, some of which are being employed as a true temporary employee for at least two years and not having more than 12 weeks break in service.
• Please note that we commenced your Temporary to Permanent Conversion review during the Caboolture go-live period of the IeMR Program. DMN Resourcing received the confirmation that the delegate was not endorsing your Temporary to Permanent Conversion on 18 June 2025, once this confirmation was communicated to DMN Resourcing, the Line-Manager - Conversion Checklist Non-permanent Conversion Review (after two years continuous service) was signed by your line manager and sent to Metro North People and Culture Directorate for further processing and approvals. The delegate finalised the decision of your Temporary to Permanent Conversion on 05 August 2025 and your outcome letter was provided to you on 15 August 2025.

[77] The Appellant appears to contend that the 27 August 2025 email is a "decision" for the purposes of s 129, s 131(1)(a) and s 133(a) of the PS Act, and further that the 21-day limitation period did not commence to run until 27 August 2025.

[78] It is therefore necessary to determine whether the email of 27 August 2025 is a "decision" for the purposes of the PS Act, and in particular, whether it is a "conversion decision".

[79] A number of authorities have considered the meaning of the word "decision". As an example, his Honour Cullinane J considered in Ambrey v Oswin[15] what constitutes a decision and observed:

A decision must, for the purposes of the act be one which is "final --- operative and determinative --- in a practical sense of the issue in fact falling for --- consideration."[16]

[80] As noted in footnote 9, Cullinane J cited and relied upon the High Court decision in Australian Broadcasting Tribunal v Bond[17] ('Bond') in which the Court considered the expression "decision to which this Act applies" in relation to administrative decisions subject to challenge pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[81] In Bond, his honour Mason CJ in considering the word "decision" observed that it will:

... generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. [18]

[82] I further note that White J in Barker v Queensland Fire and Rescue Authority[19] held that a "decision":

... must have a quality of finality, not being a step taken on the way to the possible making of an ultimate decision. It must have the essential quality of being a substantive as distinct from a procedural determination ...[20]

[83] Guided by the authorities excerpted above, I am satisfied that to constitute a "decision", it should determine a dispute or issue with some degree of finality.

[84] Does the email of 27 August 2025 determine the issue of the Appellant's entitlement to seek the conversion of the Appellant's temporary employment to permanent? To determine this, it is necessary to examine the processes established under the PS Act and Directive 02/23 to facilitate the conversion of temporary employment to permanent.

[85] The Appellant commenced in a temporary role with MNHHS on 29 May 2023 as an AO5 Project Coordinator.

[86] Section 115 of the PS Act confirms that a chief executive must review the employee's status following two years of continuous employment in the same public sector entity.

[87] Clause 7.1 of Directive 02/23 confirms that a public sector employee who is eligible (or approaching eligibility) for a review of their employment status under s 115 of the PS Act may notify the employee's chief executive of their requirement to commence a review under s 115, and that the employee would like to be converted to permanent employment.

[88] On 4 April 2025, the Appellant provided notification of the requirement to undertake a s 115 review and that she was seeking to be converted to permanent employment.[21]

[89] The chief executive therefore had an obligation to undertake a s 115 review from 29 May 2025 pursuant to s 115(2)(a) of the PS Act.

[90] Section 115(2) of the PS Act further confirms that the review decision is required to be made within the "required period". Section 115(11) of the PS Act states:

required period, for making a decision under subsection (1), means -

(a) the period stated in an industrial instrument within which the decision must be made; or

(b) if paragraph (a) does not apply - 28 days after the end of the period mentioned in subsection (2)(a) or (b).

[91] The s 115 review was therefore required to be completed on or before 26 June 2025.

[92] Section 115(3) of the PS Act confirms that in undertaking the s 115 review, s 114(3) and (4) of the PS Act apply to the chief executive, and the chief executive must have regard to the reasons for each decision previously made, or taken to have been made under either s 114 or s 115 in relation to the employee.

[93] Section 114(3) and (4) of the PS Act relevantly provide as follows:

(3) The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if -

(i) there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and

(ii) the employee is suitable to perform the role; and

(b) any requirements of an industrial instrument are complied with in relation to the decision.

(4) If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

[94] I further consider that for a decision to constitute a "conversion decision" for the purposes of s 115 of the PS Act, there must be evidence of some review of the employee's history and consideration of the matters set out in s 114(3) and (4) of the PS Act.

[95] In the decision letter dated 5 August 2025, Dr Brown specifically notes:

I have considered the requirements of the Public Sector Act 2022 (Act), the Review of non-permanent employment (Directive 02/23) and your employment history, including any previous conversion review decisions. I have determined there is no continuing need for someone to be employed in the role that you are employed in or a role that is substantially the same. This is a temporary project role to support the rollout of the ieMR program which has a known end date of May 2027 when the final Metro North site has been rolled out.

I have considered other alternate roles, however I was unable to identify any positions which could be considered substantially similar to your current role. As such I have decided that I am unable to offer to convert your employment to a permanent basis. Specifically, my reasons are there is no continuing need for you to perform your current role because the role was temporary for a specified period and purpose which is coming to an end.[22]

[96] I am satisfied that the decision letter dated 5 August 2025 addresses the matters that are required to be addressed by ss 114(3) and (4) and s 115(3) of the PS Act.

[97] I am further satisfied that in terms of the guidance provided by the authorities excerpted above, the letter dated 5 August 2025 determines the issue of the s 115 review and the Appellant's request for her temporary employment to be converted to permanent.

[98] By contrast, the email of 27 August 2025[23] from Ms Angela Pogoda does not consider the matters set out in s 114(3) and (4) of the PS Act, and appears to summarise an earlier conversation between the Appellant and Ms Pogoda.

[99] The Respondent in its submissions denies that the email of 27 August 2025 is a "decision", and notes that the purpose of the email was to clarify that the Appellant would not be appointed to the Talent Pipeline due to the review decision.

[100] The email of 27 August 2025 is not a conversion decision for the purposes of ss 129 and 131 of the PS Act. It provides information about the process that was undertaken, but it is clearly not a "conversion decision". I reject the Appellant's contention the 27 August 2025 email constituted the official confirmation of her employment review.

[101] The Appellant appears to conflate the temporary to permanent conversion process and the Talent Pipeline. In my view, these are separate albeit related processes. To the extent that the Respondent has provided a "conversion decision", it is in the correspondence dated 5 August 2025.

[102] Further, it is the decision letter dated 5 August 2025 that the Appellant has nominated in the Appeal Notice as being the decision that is being appealed, and that is the decision the Appellant has attached to the Appeal Notice.

[103] The s 115 review was not completed by 26 June 2026.

[104] The background to the s 115 review not being completed within the 28 day period is set out in the email of 27 August 2025, the relevant parts of that email have been excerpted at paragraph [76] above.

[105] In the fourth dot point Ms Pogoda confirms that the review was commenced during the 28-day period and in fact DMN Resourcing received confirmation that the delegate was not endorsing the Appellant's Temporary to Permanent Conversion on 18 June 2025 (that is, prior to the expiry of the 28-day period provided for in s 115(11) of the PS Act.

[106] Ms Pogoda goes on to explain that processes in finalising authorisation and approvals of the decision led to the provision of the outcome letter to the Appellant being delayed until 15 August 2025.

[107] This situation is addressed in s 115(6) of the PS Act, which confirms that if the chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment.

[108] Section 115(6) therefore in effect deems a failure to make a decision to be a refusal to convert the employee's employment.

[109] In the present case, this means that there was a deemed decision to refuse to convert the Appellant's employment to permanent on or about 27 June 2025. This is confirmed by cl 14.1 of Directive 02/23 which relevantly states:

14.1 A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis, and to continue to the employee's employment according to the terms of the employee's existing employment.

[110] Section 115(2)(b) of the PS Act further confirms that each one year period following the initial two year period, there is an obligation to undertake a further s 115 review. This means that the Respondent will have the obligation to undertake a further s 115 review on 29 May 2026.

[111] The Appellant in her submissions contends that the 'purported' decision of 5 August 2025 should be considered to be a nullity given that it is not binding under the PS Act. The Appellant does not develop that submission or provide any authorities to support that contention.

[112] The Respondent has not provided any submissions which address the Appellant's contention that the decision of 5 August 2025 is a nullity.

[113] If the Appellant's contention is accepted, it appears to be problematic for her appeal in two respects:

• Firstly, the Appellant has only sought to appeal the decision dated 5 August 2025, and not the deemed decision dated 27 June 2025. The Appellant has not sought to amend the Appeal Notice to include grounds of appeal relating to the deemed decision.

• Secondly, the period of delay in filing the appeal is markedly increased if the Appellant seeks to appeal the deemed decision.

[114] Properly construed, I consider that s 115(6) of the PS Act confirms that a failure by a chief executive to determine the review application within 28 days brings about a deemed refusal of the conversion request. This construction of s 115(6) of the PS Act is both consistent with, and confirmed by, cl 14 of Directive 02/23, and in particular, cl 14.1 of that Directive.

[115] There is no provision in the PS Act, or in Directive 02/23, which enables a s 115 review to be re-opened or re-enlivened following a deemed decision to refuse to convert the employee's temporary employment to permanent. As noted above, the PS Act makes provision for a further s 115 review to be conducted on the next one year anniversary of the employee's commencement in the temporary position.

[116] The PS Act does, via s 116 in certain circumstances permit an employee to make an additional request for a review. In the case of a deemed refusal pursuant to s 115(6) of the PS Act, such a request must be made prior to the employee appealing against the decision under s 130 (of the PS Act).[24] A request pursuant to s 116 of the PS Act was required to be made within 3 months of the deemed decision.[25] If such a request was made, the chief executive was required to decide whether to:

• continue the employee's employment according to the terms of the employee's existing employment; or

• offer to convert the employee's employment to a permanent basis.[26]

[117] In the present case the Appellant did not make a request pursuant to s 116 of the PS Act.

[118] The other relevant provision from the PS Act which permits the revisitation of a conversion decision made under s 115, is s 117 of the PS Act. This provides for a further review of the conversion of the employee's employment if the chief executive:

• has made a decision under s 115(2) of the PS Act to not offer to convert the employee's employment to permanent basis; and

• considers the circumstances justify the making of another decision mentioned in s 115(1) before the start of the next 1-year period mentioned in s 115(2)(b) (of the PS Act).[27]

[119] There is no evidence available to me of the chief executive determining to conduct an additional review pursuant to s 117 of the PS Act.

[120] Given that the review was deemed to have been undertaken, and a deemed decision to refuse to convert the Appellant's temporary employment to permanent was made on 27 June 2025, in my view there was nothing further for the Respondent to review.

[121] In the absence of either s 116 or s 117 of the PS Act being engaged, in my opinion there was no legislative basis for the Respondent to continue the review.

[122] Given that the s 115 review was finalised by the deemed decision on or about 27 June 2025, it is difficult to see what legal force or effect the subsequent s 115 review decision dated 5 August 2025 could have.

[123] In the absence of a further review being undertaken pursuant to either s 116 or s 117 of the PS Act, I am satisfied that the deemed decision of 27 June 2025 finalised the s 115 review with a refusal to convert the Appellant's temporary employment to permanent.

[124] This means that the operative decision for the purposes of the determination of this appeal is the deemed decision dated 27 June 2025.

[125] If I am in error in that conclusion, I will also consider whether the Appellant should be granted an extension of time to appeal the decision dated 5 August 2025 which was provided to her on 15 August 2025.

[126] The decision dated 5 August 2025 was provided to the Appellant on 15 August 2025. This means that any appeal relating to that decision had to be filed on or before 5 September 2025. The delay was therefore 18 days. In the context of a 21-day limitation period, I consider that this is a significant delay.

[127] The deemed decision was made on 27 June 2025. This means that pursuant to s 564(1) and (3) of the IR Act, the appeal had to be filed on or before 17 July 2025.

[128] The Appeal notice was filed on 23 September 2025, as a consequence, the delay in filing the appeal was 68-days. In the context of a 21-day limitation period, I am satisfied that this also constitutes a significant delay.

[129] The significant delay in filing the appeal is a factor which militates against the granting of an extension of time.

[130] The authorities confirm that whether the applicant for an extension of time provides an adequate and reasonable explanation for the delay is an important factor in determining whether the extension should be granted.

[131] In the Appellant's submissions, she confirms that she has considered the decision of WorkCover Queensland v Zanoletti,[28] and the passages from that decision referred to in Cooper v Q-COMP[29] (`Cooper'). The Appellant also refers to and relies on Drage v State of Queensland (Queensland Health).[30]

[132] Each of those decisions is a decision of the Industrial Court dealing with an appeal arising the determination of an extension of time issue. In each of those matters, the period of delay was of relatively short duration, being one day for two of the appeals, and three days in the case of Cooper. I consider the decisions to be of limited relevance where the period of delay is more extensive in the present appeal.

[133] In each of those decisions however, it is confirmed that there is an obligation cast upon someone in the position of the Appellant, to provide an explanation for the delay. In Cooper, President Hall confirmed:

In the ordinary case, the key factors will be the length of the delay, the explanation for the delay, the prejudice to the putative appellant if an extension is not granted, the prejudice to the putative respondent if an appeal is permitted after delay and (if capable of expeditious assessment) the prospects of an appeal being successful.[31]

[134] I am therefore satisfied that the Appellant was aware of the necessity of providing a reasonable explanation for the delay in filing her appeal.

[135] In her submissions the Appellant has heavily concentrated on the failings, or her perceptions of the failings of the chief executive in complying with the requirements of the PS Act and Directive 02/23.

[136] In terms of any explanation for the delay, the Appellant states that she recognises her personal responsibility to uphold the Act (presumably the PS Act) and demonstrate its principles and values in the way she performs her duty. The Appellant then acknowledges her own failure in meeting appeal timeframes, but maintains that her oversight was not deliberate or excessive.

[137] The Appellant maintains that the filing outside the 21-day period is ultimately an oversight on her part. The Appellant submits that it is simply the case of an applicant struggling to come to grips with the statutory and procedural regime and concerned over undue repercussions for appealing.

[138] The Respondent rejects the Appellant's explanation because the statements are vague and the Appellant has provided no evidence of threats of adverse treatments in response to the appeal have been provided by the Appellant.

[139] The Respondent further submits that the Appellant has not provided any further explanation for why she did not appeal either decision within the required period, or state other action taken relevant to the consideration of delay. The Respondent contends that awaiting further information regarding the Talent Pipeline, which was received by the Appellant on 27 August 2025, is not a sufficient explanation.

[140] The Respondent finally submits that the Appellant has not provided any explanation as to why it is fair and equitable to allow the appeal out of time, other than referencing the failure of MNHHS to complete the review within the required time period.

[141] The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[32] An important part of that will be providing an adequate explanation for the delay in filing the appeal.

[142] The Appellant in her submissions confirms that she relinquished her substantive employment with an understanding of the conversion process (taking a 4 year contract with the intention to apply for conversation after 2 years). This indicates that the Appellant had knowledge of, and familiarity with, the process for seeking conversion of her temporary employment.

[143] Attached to the decision letter dated 5 August 2025 were 4 pages entitled 'Additional Information' which relevantly included the following information:

Where a decision is not made - sections 114 and 115

If the decision maker does not make a decision within 28 calendar days after the eligibility date, the decision maker is taken to have decided not to convert the non-permanent employee to permanent.

Appeal rights - sections 131(1)(a), 132(1)(j) and 133(a)

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

In accordance with section 115(9)(b) of the Act, a public sector employee may appeal an offer made under section 115(1)(b) to convert the employee's employment to a permanent basis in the circumstances where the hours of work offered are less than the hours required to be offered by clause 10 of the review of non-permanent employment directive.

There are procedural requirements, including time limits, under the Industrial Relations Act 2016 that you must fulfil in order to appeal this decision. Further information is available in the Queensland Industrial Relations Commission's public service appeals guide found at: https://www.qirc.qld.gov.au/public-service-appeals.

[144] The additional information also goes on to inform the Appellant of the right to make an additional request for review pursuant to s 116 of the PS Act.

[145] The Appellant was placed on notice of her appeal rights, including the right to appeal the deemed decision on 15 August 2025.

[146] The Appellant has attached to her submissions as Attachment 5, a trail of emails over various dates relating to her request for temporary to permanent conversion. Some of the relevant emails are as follows:

• 4 April 2025 - the initial email request from the Appellant to Metro North Recruitment for a s 115 review to be undertaken.

• 26 May 2025 - the Appellant emails Metro North Conversions following up the 4 April email and noting that she has not received a response. The email goes on to state:

My understanding is that there is a required response time for such enquiries.

• On 10 June 2025, the Appellant sends a further email noting that she still has not received a response, and enquiring as to whether there was a pathway for escalation.

• On 18 June 2025, the Appellant emails further confirming she was yet to receive a response and she was contacting the union for advice.

• On 20 August 2025, the Appellant sent an email to DMN-Resourcing which states:

... I can confirm that Tee was able to advise me of the outcome of this review on Friday the 15th of August.

Looking for confirmation regarding the extended timeframe for this decision, noting the industrial obligation of 28 days.

[147] The Appellant providing early notification to the employer on 4 April 2025 of her desire to have her temporary employment converted is a further indication of her knowledge of Part 9, Division 1 of the PS Act and the contents of Directive 02/23.

[148] The email of 26 May 2025 also provides evidence of the Appellant being familiar with the fact that timelines were imposed by the PS Act regarding reviews of temporary employment to permanent employment.

[149] The email of 20 August 2025 confirms the Appellant's awareness of the requirement for the review to be completed within 28 days. After indicating her knowledge of the requirement for the review to be completed within 28 days, the Appellant delayed a further 34 days prior to filing the appeal.

[150] In the email from Ms Pogoda dated 27 August 2025,[33] the following information was also provided to the Appellant:

As provided earlier, please see the below options following the outcome of your Temporary to Permanent Conversion:

• Grievance
  • PSC Directive 11/20 - Individual employee grievances
  • HR Policy E12 - Individual employee grievances
  • Employee guide: Raising a workplace complaint or grievance
• Appeal
  • PSC Directive 04/23 - Appeals
  • QIRC public service appeals guide
  • Please note that you have 21 days to appeal once you have been provided with an outcome for this process as stated in Clause 15 of PSC Directive 04/23 - Appeals
• Another Temporary to Permanent Conversion review will be conducted in 12 months provided that you meet the eligibility criteria

[151] Given that analysis of the contemporaneous email correspondence, it is somewhat difficult to accept the Appellant's characterisation of herself that she was struggling to come to grips with the statutory and procedural regime.

[152] The Appellant has provided no evidence to support the very general assertion that she feared repercussions if she filed an appeal. In the absence of supporting evidence I do not accept that there was any basis for her to fear repercussions if she appealed. I also do not accept that this provides any explanation for the failure to lodge her appeal within time.

[153] Even if the Appellant was not familiar with the statutory and procedural regime (and for the reasons set out above, I do not accept this), in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations)[34] President Martin J stated:

While I accept that the applicant was not aware of the time requirement, that cannot be a panacea for an error of this kind. The time provision is not hidden. Section 564 is quite clear.

[154] I am satisfied that those observations apply with equal force to the requirements of the PS Act and Directive 02/23.

[155] Following the deemed decision being made, the Respondent failed to provide the Appellant with the notification within 14-days as required by cl 14 of Directive 02/23.

[156] The Appellant has not relied upon this failure as an explanation for her failure to lodge her appeal within time. In light of the contemporaneous email correspondence from the Appellant, I would have some difficulty in accepting that this would constitute an adequate or reasonable explanation for the delay in any event.

[157] For all of these reasons, I am not persuaded that the Appellant has provided an acceptable explanation for her delay in filing the appeal with the Industrial Registry.

[158] This is a factor which strongly militates against the granting of an extension of time.

[159] There will clearly be prejudice sustained by the Appellant if an extension is not granted, as she will be unable to proceed with her appeal of the conversion decision.

[160] The Appellant does not raise any specific prejudice she will suffer if the extension of time is not granted.

[161] The Respondent in its submissions does not raise any issue of prejudice that it will suffer if an extension of time is granted. To the contrary, the Respondent concedes that the Appellant is likely to suffer greater prejudice than the Respondent if the appeal is not allowed.

[162] I note however, that minimal prejudice to the Respondent, in itself is an insufficient basis to grant an extension of time.[35]

[163] The prejudice that the Respondent will suffer if an extension of time is granted is having to respond to an appeal which is currently time barred.

[164] This factor provides some support for an extension of time being granted, however, I afford it less weight than the factors relating to the length of the delay and the explanation for the delay.

[165] What is relevant for this factor is conduct by the Respondent that contributes to the Appellant's delay in filing her appeal.

[166] The Appellant in her submissions is highly critical of the actions or inactions of the Respondent relating to her request for a s 115 review of her temporary employment.

[167] I have considered the Appellant's submissions regarding the various failings by the chief executive.

[168] Clause 7.5 of Directive 02/23 provides that when a chief executive starts a review of an employee's employment status under section 115 of the Act, the chief executive must notify the employee. Clause 7.6 of Directive 02/23 then sets out what the notification should include regarding information to be provided to the employee.

[169] There is no evidence available to me that the Respondent complied with the requirements of cls 7.5 and 7.6 of Directive 02/23.

[170] The Respondent has then failed to complete the s 115 review within the statutory period of 28 days.

[171] Following the failure to complete the review within 28 days, the Respondent has then failed to comply with the notification requirements in clause 14.3 to advise the Appellant of her right to seek a further review pursuant to s 116 and of her appeal rights.

[172] It is a fair observation in my view, that the Respondent's compliance with its statutory obligations pursuant to the PS Act and Directive 02/23 in relation to the Appellant's request for conversion of her temporary employment could only be described as abysmal.

[173] Those repeated failures by the Respondent are a matter of significant concern, however, the difficulty for the Appellant is that she does not appear to submit or contend that those failures have caused her to file her appeal late. If that were the case, it would be a significant factor justifying the exercise of a discretion to grant an extension of time.

[174] Instead, the Appellant appears to rely upon those failures as denying her the opportunity of pursuing the Talent Pipeline option to be converted to permanent employment. The local process regarding the Talent Pipeline, which was operative at MNHHS, is not something that falls within Division 9, Part 1 of the PS Act. Nor is it something that is addressed in Directive 02/23.

[175] In any event, the Respondent submits that the elements of Directive 02/23 must still be satisfied to convert the employee, whether by the Talent Pipeline or other means. The Respondent submits that the Talent Pipeline is a system in which converted employees are allocated where there was a continuing need, but no vacant position. (Emphasis added)

[176] That is, a fundamental eligibility requirement to be allocated or placed on a Talent Pipeline was that the employee's employment had been converted to permanent.

[177] The Respondent's position appears to be consistent with evidence provided by the Appellant.[36]

[178] The Appellant in her reply submissions alleges that the Respondent has misstated the purpose, operation and decision-making aspects of the Talent Pipeline. The Appellant submits that the Pipeline is not contingent on "continuing need" and contends that the Respondent's insistence on that as a prerequisite and the exclusion of finitely funded roles is incorrect.

[179] I consider that the Appellant misapprehends the Respondent's submission, and the focus of the submission was that the Talent Pipeline was a mechanism to maintain the employment of employees who had been converted to permanent employment in circumstances where there was not an immediate vacant role for them.

[180] As the Appellant was at no stage found to be eligible to be converted to permanent employment, whether as a consequence of the deemed decision, or the decision dated 5 August 2025, it is difficult to see how the Respondent's many failures prevented her from accessing the Talent Pipeline.

[181] The repeated procedural failures by the Respondent during this review process are deserving of significant criticism. I consider that this is a factor which supports the granting of an extension of time.

[182] Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

[183] The appeal is not conducted by way of re-hearing,[37] but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.[38]

[184] The Applicant's prospects of success at in the substantive appeal are a relevant consideration.[39]

[185] Guidance on this factor was provided by President Hall in Bruce Anthony Piggott v State of Queensland[40] (emphasis added and 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.

[186] As noted above, s 115(3) of the PS Act confirms that in undertaking the s 115 review, s 114(3) and (4) of the PS Act apply to the chief executive, and the chief executive must have regard to the reasons for each decision previously made, or taken to have been made under either s 114 or s 115 in relation to the employee.

[187] The Appellant's submissions regarding the merits of the substantive appeal once again heavily focus upon the Respondent's failures in the way that it has managed the process. The Appellant submits that failures regarding mandated response periods should be considered as a whole.

[188] The Appellant further submits that a decision that does not allow her to progress the appeal based on timeframe protects the chief executive in failures to:

• Demonstrate there are equal conditions of employment and equality in access to employment opportunities (s 24(1)(c) of the PS Act).

• Promote, support and progress equity in the entity in relation to employment matters (s 27(a) of the PS Act).

[189] The Appellant in her submissions does not address in any meaningful way, the requirements of s 114(3) and (4) of the PS Act which will be a fundamental consideration in the substantive appeal in determining whether the decision to refuse to convert her temporary employment was fair and reasonable.

[190] The Respondent in its submissions submits that the Appellant has not made out a case for why she meets the eligibility and suitability criteria for conversion, or why there is a continuing need for someone in her role or a substantially similar role.

[191] As noted in the preceding section, the Respondent contends that the Appellant's prospects of success on the basis of a Talent Pipeline argument are low.

[192] The submission further contends that the Appellant's prospects of success are low on the basis that her role is a project role. The Respondent notes that s 81(3)(ii) of the PS Act states specific circumstances where the employee may be required on a temporary basis, including a project with a known end date.

[193] The Respondent submits that the Appellant accepted the role knowing that the project had a limited scope, with no extensions.

[194] The Appellant in her reply submissions contends that she is not obliged to show a prima facie case of continuing need for her current role. The Appellant then submits that the Pipeline:

considers the extent to which you have abilities, aptitude, skills, qualifications, knowledge, experience, personal qualities and registrations relevant to carrying out the duties and the extent to which you have potential for development. As part of this process you will be assessed for what training and development you might require to undertake a role. If the training and development requirements are reasonable, you are likely to be deemed as suitable for that specific role.[41]

[195] I consider that the passage from the Metro North Talent Pipeline Employee Guidelines (excerpted in the preceding paragraph) actually refers to the process of assessing the suitability of an employee for roles, rather than whether the employee should be appointed to the Talent Pipeline (or indeed, have their temporary employment converted to permanent under the provisions of the PS Act).

[196] I further consider that this is another example of the Appellant conflating the Talent Pipeline with the process for conversion under the Division 9, Part 1 of the PS Act and Directive 02/23.

[197] In assessing the Appellant's prospects in the substantive appeal, I note the grounds of refusal contained in the correspondence of Dr Brown dated 5 August 2025 which relevantly provides:

... I have determined there is no continuing need for someone to be employed in the role you are currently employed in or a role that is substantially the same. This

is a temporary project role to support the rollout of the ieMR program which has a known end date of May 2027 when the final Metro North site has been rolled out.

I have considered other alternate roles, however I was unable to identify any positions which could be considered substantially similar to your current role. As such I have decided that I am unable to offer to convert your employment to a permanent basis. Specifically, my reasons are there is no continuing need for you to perform your current role because the role was temporary for a specified period and purpose which is coming to an end.[42]

[198] From the Respondent's submissions in this matter, it appears that a similar defence will be raised in the substantive appeal.

[199] In Morris v State of Queensland (Queensland Police Service),[43] Industrial Commissioner Knight was faced with a somewhat analogous factual situation. The Appellant Ms Morris was one of four temporary administration staff employed as the Cold Case Project Team who were tasked with converting historical media held on VHS, C90s and micro cassettes into more suitable files which could be uploaded onto IMAC, the police document management system.

[200] Once the materials had been digitised, the project would come to an end.

[201] Ms Morris sought the conversion of her temporary employment to permanent pursuant to s 115 of the PS Act. Industrial Commissioner Knight ultimately determined that the decision to not convert Ms Morris' employment was fair and reasonable because:

• She has been appointed to the Cold Case Project Team to work on a singular project, namely the digitisation of historical investigative records. When those records are digitised, the project would conclude.[44]

• That funding for the Cold Case digitisation project team would not only come to an end but that the current funding could well be repurposed earlier than the project completion date due to organisational reform (as a result of over 800 recommendations from various inquiries).[45]

• Those circumstances fell squarely within the examples set out in s 81(3)(a)(ii) and (iii) of the PS Act.

[202] In my view, a similar conclusion may be drawn in the substantive appeal in this matter.

[203] On the basis of the material currently available to me, the Appellant has failed to satisfy me that her prospects of success in the substantive appeal are more than limited. This is a factor which weighs against the exercise of a discretion to extend the time for the filing of the Appeal notice.

[204] For the reasons set out above I have concluded that filing the appeal 68 days out of time in the context of a 21-day limitation period is a significant and unreasonable period of delay. The significance of the delay militates against the granting of an extension of time.

[205] I am not satisfied that the Appellant has provided an adequate explanation for the delay in filing the appeal. This is also a significant consideration which militates against the grant of an extension of time.

[206] The Appellant will suffer greater prejudice if an extension of time is not granted. This provides some support for the exercise of a discretion to grant an extension of time.

[207] There has been conduct by the Respondent in not complying with its statutory obligations, however, the Appellant has not established that this caused her to file her Appeal notice late. I consider this factor provides some support for the granting of an extension of time.

[208] The Appellant has not established that she has a meritorious appeal.

[209] For the reasons set out immediately above, I am not persuaded that the Appellant has established that this case warrants an exercise of a discretion to grant an extension of time within which to file an appeal against the deemed refusal decision of 27 June 2025 (or the decision of 5 August 2025).

[210] In reaching that conclusion I have placed particular weight on the significance of the delay, the failure by the Appellant to provide an adequate explanation for the delay and the failure by the Appellant to establish that the substantive appeal has merit.

[211] Having considered the matters referred to above, I have determined to not exercise my discretion to extend the period for the filing of the appeal.

1. The Appeal, being filed out of time, is dismissed for want of jurisdiction.

[1] Respondent's submissions filed 8 December 2025, [7].

[2] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1).

[3] Ibid; Industrial Relations Act 2016, s 562B(2).

[4] Industrial Relations Act 2016, s 567(2).

[5] The Talent Pipeline is an internal MNHHS process that allows temporary employees to be offered permanency where there are no substantively vacant positions. Employees in the Talent Pipeline are permanently employed but undertake temporary roles until a suitable permanent role is identified. The Talent Pipeline was decommissioned on 18 August 2025.

[6] [2021] QIRC 395.

[7] [2019] ICQ 16.

[9] Collins v State of Queensland (Department of Education) [2024] QIRC 086, [22]; Lockhart v Queensland Health [2014] QIRC 012, [14]; Cullen v State of Queensland (Queensland Health) [2021] QIRC 258, [35]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 554.

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

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

[12] (1968) SASR 277, 280.

[13] [2021] QIRC 395, [16] citing Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 ('Hunter Valley'), 348 and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J).

[14] Appellant's submissions, Attachment 5.

[15] Ambrey v Oswin [2004] QSC 224.

[16] Ibid [32] citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 337.

[17] [1990] HCA 33; (1990) 170 CLR 321.

[19] (2000) QSC 395.

[21] Respondent's submissions, Appendix 1 Notification Form dated 4 April 2025.

[22] Appellant's submissions, Attachment 4.

[28] [2001] ICQ 43; (2001) 167 QGIC 669.

[29] [2012] ICQ 5.

[30] [2023] ICQ 22.

[32] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[34] [2019] ICQ 16.

[35] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300; Douglas v Allen and Ors [1984] FCA 77.

[36] Appellant's submissions, Attachment 7 - Metro North Talent Pipeline Employee Guidelines.

[37] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1).

[38] Ibid; Industrial Relations Act 2016, s 562B(2).

[39] Chapman v State of Queensland [2003] QCA 172, [3].

[40] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35, [6].

[41] Appellant's Reply Submissions, Attachment 2 - Metro North Talent Pipeline Employee Guidelines.

[42] Appellant's submissions, Appendix 2.

[43] [2023] QIRC 196.