O'Keefe v State of Queensland

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

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

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

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

• [1] Mr Michael O'Keefe is employed by the Queensland Police Service ('the QPS') substantively as an Administration Officer (A03).

• [2] Mr O'Keefe has been employed with the QPS since approximately 13 April 2015.

• [3] On 22 April 2022, the QPS advised Mr O'Keefe that he was subject to an open complaint with the Ethical Standards Command and that a decision had been made to remove Mr O'Keefe from his current role as Senior Strategy Officer (A06) to his substantive role as Administration Officer (A03) ('the decision'). The complaint was in respect to Mr O'Keefe's previous role as Project Officer (A06) which he had been removed from on 22 November 2021.

• [4] On 18 May 2022, Mr O'Keefe filed an appeal against the decision ('the appeal'). Mr O'Keefe relies on the following grounds in support of his appeal, as set out in his appeal notice:

1. The Appellant submits that the Second Decision (and First Decision) were made without substantiation, nor in accordance with the relevant directives, and there is insufficient evidence to substantiate the allegations underpinning each direction.
2. The Respondent failed to comply with the positive performance management directive prior to commencement of this disciplinary process.

• [5] In the notice of appeal, Mr O'Keefe refers to two (2) decisions that were made by the QPS and labels them as the 'first decision' and the 'second decision'. The first decision was a decision of the QPS to remove Mr O'Keefe from his previous position as Project Officer (A06) on 22 November 2021. While the second decision was a decision by the QPS to remove Mr O'Keefe from his position as Senior Strategy Position (A06) on 22 April 2022.

• [6] On 24 May 2022, following a review of the appeal, the Commission listed the matter for mention to seek clarification from Mr O'Keefe with respect to the appeal filed, in particular, identifying the relevant decision that is subject to the appeal.

• [7] Following the mention, the Commission issued directions for the filing and serving of written material in support of the appeal. Both parties complied with the direction.

• [8] The appeal is made pursuant to s 197 of the PS Act which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission ("the Commission").

• [9] Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable.

• [10] I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing, but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]

• [11] The appeal has been filed 5 days out of time. I will consider whether I should exercise my discretion to grant an extension of time to file the appeal further below. I will then consider the substance of the appeal.

• [12] On 22 April 2022, the QPS made a decision to remove Mr O'Keefe from the Senior Strategy Position (A06). In communicating this decision to Mr O'Keefe, the decision maker provided the following email:

As you are aware you are subject to an open complaint with Ethical Standards Command. This complaint is currently with Crime and intelligence Command and is under assessment.

As such, in consultation between Executive Director Paul Friedman & Policy & Ethical Standards Command Chief Superintendent Virginia Nelson, you are to return to your substantive position as A03 on Tuesday 26 April 2022.

• [13] The notice of appeal indicated that Mr O'Keefe was applying for an extension of time to lodge the appeal and provided in his submissions, filed on 5 June 2022, the following reasons as to why the appeal could not be lodged within the 21-day time period:

1. The Appeal notice was not accepted for filing electronically because it exceeds 30 pages. That is, had the Appeal notice and annexures been 30 pages or less, the Appeal would have been filed in time.

1. The Appellant relies on the matters set out by hand in Part B of the Appeal Notice.

1. On 16 May 2022, the Appellant's agent received notice that the application needed to be filed in person. As the severe weather event commencing 12 May 2022 had cut off access to the Industrial Registry and caused damage to the property of the Appellant's agent, the agent was unable to attend Brisbane until the afternoon of 17 May 2022. An attempt was made to file the appeal on the afternoon of 17 May 2022, and when there were concerns that the agent would be unable to attend by close of registry, the registry was contacted by telephone and advised of the situation.

1. The Appeal notice filed on 18 May 2022 is substantively the same as the one sent electronically to the Industrial Registry on 13 May 2022, except for the insertion of a handwritten explanation for the delayed filing, and the striking out of the words at paragraph 7(b) of the Appeal notice.

• [14] Part B of the Appeal Notice detailing the reason for the delay provides that:

The electronic copy was filed by 5.00pm on the 21st day. On that day, the agent was working from Spicer's Gap national park and had been unable to leave the area due to flooding of access roads (2) advised by QPWS to remain in the NP until flood waters subsided. The agent was first able to attend work on Tuesday, 17 May 2022, when arrangements were made to file in the registry by 5pm, but upon leaving the office, it was discovered that the registry closed at 4.45pm.

• [15] The appeal has been filed five (5) days out of time.

• [16] Section 564(2) of the Industrial Relations Act 2016 (Qld) ('the IR Act') bestows a discretion on the Commission to allow an appeal to be started within a longer period. In this regard, s 564(2) of the IR Act provides as follows:

(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.

• [17] Section 564(2) of the IR Act was considered by President Martin J in A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations)[4] 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." (citations omitted)

• [18] Accordingly, an appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised.

• [19] In Hunter Valley Developments Pty Ltd v Cohen,[5] Wilcox J set out a number of principles that can act as a useful guide in determining whether to exercise a discretion to extend a time frame to allow a person to lodge an application or an appeal. These principles need not be considered in an exhaustive manner. The principles include, as relevantly summarised:

(a) whether the appellant demonstrated an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;

(b) whether the appellant has taken any action, other than by lodging an appeal which would go towards the consideration of whether an acceptable explanation for the delay has been furnished;

(c) whether the respondent will suffer any prejudice from the delay;

• [20] Prior to determining whether a decision is fair and reasonable, I must, firstly, be satisfied that I have jurisdiction to determine the appeal.

• [21] Accordingly, I will consider whether to exercise the discretion as provided by s 564(2) of the IR Act, having regard to the above principles.

• [22] As noted above, s 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given.

• [23] The appeal was filed five (5) days out of time.

• [24] The explanation for the delay appears to be because of the Appellant's agent's error. From the material provided there is limited details with respect to how the error arose and whether the Appellant was relying on the agent to file the appeal within time, whether the Appellant became aware of the agent's failure to file within time, and what steps were taken by the Appellant with respect to that failure.

• [25] The agent contends that an attempt was made to file the appeal electronically on 13 May 2022 (which would have been within time) however that attempt was unsuccessful as the appeal document exceeded 30 pages. That should have come as no surprise to the Appellant or his agent as the Appeal Notice relevantly has the following note ('the Note'):

PLEASE NOTE: Practice Direction 3 of 2021 - ELECTRONIC FILING AND HARD COPIES OF DOCUMENTS. Documents which are longer than 30 pages in length must be supplied to the Industrial Registry in hard copy before it will be accepted for filing.

• [26] No explanation is provided as to why the Note or Practice Direction 3 of 2021 ('the Practice Direction') were disregarded. Further, no explanation is provided as to why the Appeal notice was not filed without the supporting documentation. Such a course would have ensured that the appeal was filed within time.

• [27] Further there is no information provided as to why the Appellant himself was not in a position to file the appeal once it became clear that his agent had failed to do so.

• [28] I do not consider that the Appellant has provided an explanation for the delay that weighs in favour of the exercise of my discretion to extend time.

• [29] The Respondent does not raise any specific matters with respect to prejudice to the Respondent if the extension of time was to be granted.

• [30] The Appellant made no direct written submissions as to the merits of the substantive matter in the context of his request that the Commission exercise its discretion by granting him an extension of time.

• [31] The Respondent contends that the Commission should exercise its discretion to not hear this appeal on the basis that the Appellant has failed to use the procedures required to be used by the employee in relation to the decision under a directive of the IR Act, including Directive 11/20: Individual Employee Grievance ('Directive 11/20').[6]

• [32] The Respondent states that the Appellant has not utilised the process set out in Directive 11/20 prior to filing the appeal and accordingly, the Commission should exercise its discretion to decline to hear the appeal.

• [33] In reply, the Appellant argues that the decision is a disciplinary decision and he is excluded from complying with the process set out in Directive 11/20 prior to filing the appeal.[7]

• [34] The decision that is the subject of this appeal is not a disciplinary decision. Relevantly the terms of that decision was that the Appellant return to performing his substantive position. The reason provided for that decision was because the Appellant was subject to an open complaint which, at the time the decision was made, was with the Crime and Intelligence Command and under assessment.

• [35] There has been no disciplinary finding[8] or disciplinary action commenced in accordance with the relevant terms of the PS Act.[9]

• [36] For these reasons, the decision made to return the Appellant to his substantive position was management action and not disciplinary action.

• [37] I do not consider that it is unreasonable in the circumstances of this matter for the internal grievance procedure to be adhered to. Whilst the Appellant complains of delay in terms of the investigation process, those matters will no doubt able to be considered during the internal grievance process.

• [38] I consider that this a matter in which it is likely that the Commission would decline to exercise its discretion to hear the appeal due to the Appellant's failure to follow the process contained within Directive 11/20. It is for these reasons that I consider that the appeal has limited prospects of success.

• [39] These factors weigh in favour of the Commission declining to exercise its discretion to grant an extension of time for the filing of the appeal.

• [40] Accordingly, I make the following order:

The Appellant's application for an extension of time to file the appeal is refused.

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [2019] ICQ 16.

[5] [1984] FCA 176; (1984) 3 FCR 344.

[6] Industrial Relations Act 2016 (Qld) ss 562A(1)(a), (b).

[8] Public Services Act 2008 (Qld) s 187.