Stoyel v State of Queensland

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 Peter Robert Stoyel is employed by the State of Queensland, Department of Environment and Science ('the Department') substantively as a Ranger (W003).

[2] Mr Stoyel commenced employment with the Department on 7 September 2006.

[3] On 31 January 2022, the Department put the following allegation to Mr Stoyel for his response:

On Tuesday 15 June 2021, at around 2.32pm on the Zamia Trail, Mount Archer National Park, you inappropriately used departmental equipment which posed a significant health and safety risk to yourself and others.

[4] By letter dated 9 May 2022, the Department advised Mr Stoyel, after considering his response, that the allegation was substantiated and that the Department was proposing disciplinary action. The Department provided Mr Stoyel with seven days to respond as to why disciplinary action should not be taken. The Department placed Mr Stoyel on notice that it was considering taking the following action:

Taking into account all of the above findings and reasons, I am currently giving serious consideration to:

• Reducing your remuneration level from 003/Q to 003/4 for a period of 12 months which includes a prohibition on your ability to undertake higher duties in the same period.

I am also giving serious consideration to the following management actions:

• A performance development plan (PDP) to be commenced with regular reviews (at least every 3 months for at least a 12-month period) which will include a specific item about the safe operation of Power Carrier and other equipment
• a requirement to undertake a formal induction training in the safe operation of Power Carriers (and Power Carrier-like equipment) by an appropriately competent person.

[5] On 19 May 2022, Mr Stoyel responded as to why the disciplinary action should not be taken and urged the Department to consider a reprimand due to his personal circumstances.

[6] By letter dated 13 July 2022, the Department advised Mr Stoyel that they had decided to impose a reprimand as disciplinary action and to take administrative action as follows:

In addition, I am imposing the following administrative actions:

• a prohibition on your ability to undertake higher duties for a period of 12 months
• an updated performance development plan (PDP) to be commenced with regular reviews (at least every 3 months for at least a 12-month period) which will include a specific item about the safe operation of Power Carrier and other general equipment
• a requirement to undertake formal induction training in the safe operation of Power Carriers (and Power Carrier-like equipment) by an appropriately competent person.

[7] Mr Stoyel received a discipline notation on 14 July 2022, signed it the same day and returned it to the delegate.

[8] By notice of appeal filed on 25 August 2022, Mr Stoyel appeals the decision dated 13 July 2022.

[9] The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('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) by the Queensland Industrial Relations Commission.

[10] 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 or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.

[11] 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]

[12] However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard.

[13] The Department raises the following two matters for the consideration of the Commission:

• (1) that Mr Stoyel's appeal should not be heard as it was filed out of time; and

• (2) that Mr Stoyel has misled the Commission in his submissions dated 7 September 2022.

[14] I will consider the Department's jurisdictional objection on the basis that the appeal was filed out of time.

[15] The Department, in its written submissions, notes that the appeal has been filed 20 days out of time and contends that Mr Stoyel has not provided an explanation for the delay, nor has he requested that an extension of time be granted.

[16] Section 564(2) of 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] The length of the delay is 20 days beyond the time prescribed by the Act and 41 days after the decision was received. That is not insignificant in circumstances where Parliament imposed an appeal period of 21 days.

[23] Despite the Department's submission to the contrary, I consider Mr Stoyel did apply for an extension of time in his Appeal Notice. He stated the following brief reasons for the application for an extension of time as follows:

Since receiving discip(sic) action in July have also been under considerable pressure from bullying and discrimination.

[24] By directions issued on 29 August 2022, it was ordered that Mr Stoyel file and serve written submissions in support of the appeal including with respect to the filing of the appeal out of time.

[25] Mr Stoyel's written submissions filed on 16 September 2022 did not address in any further detail the reasons for the request for the extension of time to file the appeal. Whilst the Appeal Notice, as noted above, referred to reasons including covid and pre-covid reasons and that Mr Stoyel had been under pressure from bullying and discrimination, no further details were provided to give any meaning to those stated reasons.

[26] In his reply submission, Mr Stoyel stated as follows:

I am not as educated as the DES representative, nor am I working in this disciplinary space, so I can't quote a part of the Act with respect to this but I shouldn't be disadvantaged for this reason. The fact that I also was in the field working whilst trying to meet these legislative disciplinary deadlines delivered by DES. I am not as aware of the stipulations in relation to these decisions as the DES representative is, however, I did supply a reason to the Commissioner and wasn't aware I had to also supply one to the DES or elaborate any further. My family and I all had covid late July to August and other mitigating factors. I am not as abreast of the processes as the Department or their representative, I have supplied a reason/explanation to Commissioner and if anything further is required, I can supply additional information. There are provisions for extension of time and that is what I applied for. I did not address this in my submission as I was not aware I had to advise the DES I wasn't aware I needed to add any more than what was supplied on form 89. I had no choice but to acknowledge the notation I felt pressured to sign this notation, not being in this position before I didn't really know what it was for or why I had to sign it and what its actual relevance was to this process.

1. Commission Chief Executive Guideline 01/17: Discipline. S.17 The department has not implemented the disciplinary and administrative outcomes following the appeal process. The Department has not conducted its affairs as per 01/17: Discipline s.17. I have not received anything since the expiration of the 21 days appeal process this adds further weight to my delay in lodging my appeal, as I expected to receive a final outcome and to date haven't. the department is stressing timeframes and has taken over a year to come to a disciplinary decision against me that I don't find fair and reasonable.

[27] The difficulty with Mr Stoyel's submissions is that he was provided with a further opportunity to provide written submissions addressing the out of time issue pursuant to the Directions Order but did not do so until his submissions in reply and that response was not detailed or fulsome.

[28] I do not consider that a reasonable explanation for the length of the delay has been provided by Mr Stoyel. Whilst Mr Stoyel's submissions in reply provide some further information, it is lacking in details and refers to Mr Stoyel and his family as having had COVID-19 in late July to August and "other mitigating factors" without stating what factors he refers to, and the basis upon which he asserts that those matters provide a reasonable explanation for the delay. I do not consider that the reasons provided by Mr Stoyel are detailed such that they provide a reasonable explanation for the delay.

[29] The length of the delay and the failure to provide a reasonable explanation for the delay are matters which weigh against the Commission exercising its discretion to extend the time to file the appeal.

[30] The Department submitted that it has taken action to implement the reprimand and "respectfully submits that it ought to be able to conduct its affairs based on the statutory time limits" prescribed by legislation. The Department has not identified any further or additional prejudice it might suffer. Whilst I note that the Department has taken action to implement the decision, I consider prejudice to the Respondent to be a neutral consideration.

[31] Mr Stoyel contends that the incident that was the subject of the disciplinary action does not meet the definition of 'notifiable incident' under the Work Health and Safety Act 2008 (Qld) ('the WHS Act') and therefore disputes whether an incident actually occurred. However, Mr Stoyel also submits that "I realise there may be a breach in relation to the procedure and/or policy that requires some management input and action but no more than this".

[32] The Department submits that the incident is of "considerable concern" because the incident had the potential to cause "injury and/or a fatality". In support of this, the Department rely on the definition of "incident" in the Incident Reporting, Recording and Investigation Procedure, which provides that:

Incident - is an unexpected, unplanned occurrence, which resulted in injury, illness, property damage and/or has the potential to cause property damage and/or injury (i.e. near hit/miss).

[33] In its submissions, the Department notes that given the nature of the incident, it was open to the Department to take necessary action in response, which included an investigation and the subsequent disciplinary process.

[34] Accordingly, on the material it appears that there was an incident[6] and Mr Stoyel concedes in his submissions that there may have been a breach in relation to the procedure and/or policy with respect to his conduct.

[35] The Department initially proposed disciplinary action in the form of a reduction in remuneration level from 003/Q to 003/4 for a period of 12 months. Mr Stoyel was given an opportunity to respond to the proposed disciplinary action. In Mr Stoyel's response to the proposed disciplinary action he submitted as follows:

Of the proposed penalty inflicted I urge you to consider a reprimand due to the information already provided, my willingness to cooperate, my overall work history with no WHS incidents over a period of 17 + years, and working in remote locations in harsh conditions.

[36] Following receipt of this submission from Mr Stoyel the Department abandoned the proposed disciplinary action of a reduction in remuneration and imposed a reprimand instead. In this regard, it is apparent that the Department not only had regard to Mr Stoyel's submissions but accepted Mr Stoyel's submissions that a reprimand was appropriate disciplinary action in the circumstances of the matter.

[37] In these circumstances I consider that Mr Stoyel has limited prospects in establishing that the decision to impose a reprimand was not fair and reasonable.

[38] Mr Stoyel further contends that the decision to impose administrative action to prohibit Mr Stoyel's ability to undertake higher duties for a period of 12 months is not fair and reasonable.

[39] Disciplinary action and administrative (or management) action are not interchangeable concepts. Accordingly, the prohibition to undertake higher duties for 12 months is administrative action rather than disciplinary action and subsequently falls outside the scope of this appeal. As such, I consider that Mr Stoyel has limited prospects of success and the merits of the appeal are poor. This is a factor that weighs against the exercise of my discretion to grant an extension of time to appeal the decision.

[40] For the above reasons and taking into account the relevant factors, I refuse to exercise my discretion to hear the appeal filed out of time and I decline to hear the appeal.

Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the appeal.

[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] It is not necessary to determine whether the incident falls under s 35 of the WHS Act.