Oxford v State of Queensland (Queensland Corrective Services)
[2022] QIRC 201
•7 June 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Oxford v State of Queensland (Queensland Corrective Services) [2022] QIRC 201 |
PARTIES: | Oxford, Adam v State of Queensland (Queensland Corrective Services) |
CASE NO: | PSA/2022/380 |
PROCEEDING: | Public Service Appeal - application for longer period of time to file appeal |
DELIVERED ON: | 7 June 2022 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
ORDER: | The Appellant's application to allow their appeal to be started within a longer period of time is refused |
| CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL - where the appellant originally did not wish to appeal disciplinary decision - where the penalty was imposed and the appellant believes it was incorrect - where the appellant requests for a longer period of time to file appeal - whether it is in the interests of justice to allow a longer period of time for the appeal to be filed |
LEGISLATION: | Industrial Relations Act 2016 s 564 |
Reasons for Decision
Introduction
Mr Adam Oxford (the Appellant) is employed by the State of Queensland (Queensland Corrective Services) (the Respondent) as a Custodial Correctional Officer (CCO) at the Woodford Correctional Centre (WFDCC) since 1 July 2013. the Appellant had also been a member of the WFDCC Emergency Response Group (ERG) until such time as disciplinary action was imposed by letter dated 19 August 2021.
In the decision of 19 August 2021, Deputy Commissioner of Custodial Operations Gary McCahon said:
Accordingly, I have determined to impose the following disciplinary action under section 188(1) of the [Public Service] Act [2008]:
· a reduction in remuneration of his substantive position, from GS1-9 to GS1-7 for a period of 12 months. Pay point progression for your substantive role at the completion of the 12 month period will be in accordance with the Correctional Employees Award – State 2015;
· a restriction on your membership to the Emergency Response Group until you have completed refresher training in relation to the COPD: Use of Force and the Code of Conduct; and
· a reprimand.
The letter also sets out the Appellant's appeal entitlements and informed him that if he wished to appeal the disciplinary decision he could do so within 21 days of receiving the decision. The Appellant did not appeal that decision.
On 3 September 2021, in response to a request for clarification about the implementation of the disciplinary penalty, Acting Chief Superintendent Stuart McHaffie wrote to the Appellant
…I understand that you return to the centre week commencing 4 October 2021. There are refresher training components you will need to undertake upon your return. This will be scheduled and advised. You have been allocated a permanent line in Secure One and HR will forward your roster. This will allow you time to adjust and get up to speed with any changes that have occurred during your absence. In regards to the TRG, I understand that you have requirements to fulfil to become eligible again.
Once you have fulfilled the requirements you will be eligible to apply through the next round of TRG Expression of Interests likely to be early next year….
On 13 September 2021, McHaffie replied to correspondence from the Appellant's legal representatives:
…I note your query regarding the penalty applied to Mr Oxford and your comments that the penalty did not mention the need for Mr Oxford to reapply to the ERG upon completion of refresher training.
The role performed in the ERG is not an appointed position, placement on the ERG is managed by corrections centres and subject to suitable vacancies. Eligible officers are able to apply through an expression of interest process.
In relation to Mr Oxford, the penalty imposed by Deputy Commissioner McCahon restricted Mr Oxford's eligibility to be on the ERG until the refresher training is completed. The penalty was for Mr Oxford to complete the training to re-establish his eligibility to be on the ERG, and did not guarantee Mr Oxford a position on the ERG.
During the nine months that Mr Oxford was absent on suspension, the operational requirements of the centre continued. As a result, to ensure safe operation of the centre, Mr Oxford's post on the ERG was filled. I can confirm that at this time, there are no vacancies on the ERG. However, once Mr Oxford completes his training he will be eligible to re-apply in the future expression of interest processes for the ERG.
The Appellant's appeal notice appears focused on the actions of McHaffie who he says has overruled McCahon's disciplinary decision by filling his position on the ERG permanently and by asking the Appellant to reapply for his position on the ERG. In Part C scheduled to his appeal notice, the Appellant says:
The reason I am appealing the decision is that I believe the wrong punishment has been implemented by AGM McHaffie which is not in accordance with the actual disciplinary decision imposed by Deputy Commissioner Gary McCahon.
It seems that while the show cause notice issued to the Appellant by McCahon said that:
consideration was being given to a penalty that included a restriction on your membership to the Emergency Respondent Group (ERG) for a period of 12 months. You will be eligible to reapply for the Emergency Response Group after a period of 12 months and completion of refresher training in relation to the Custodial Operations Practice Directive: Use of Force (COPD: Use of Force).
The text of the final disciplinary decision set out above at [2] did not include the requirement to 'reapply' for the ERG. the Appellant takes issue with the implementation of this disciplinary penalty which required him to reapply to be on the ERG.
Therefore, I consider that the decision being appealed is either the McHaffie email of 3 September 2021 or the further McHaffie email of 13 September 2021. Though, given each of these emails served as clarifications of the disciplinary decision of 19 August 2021, it could also be argued that it is the McCahon decision that is being appealed. In all cases, it is clear that the appeal has been filed out of time and this jurisdictional issue will be addressed below.
Some months after the McHaffie emails of September 2021, The Respondent sent an email to the Together Union on 28 January 2022, in response to representations made on behalf of the Appellant. The email of 28 January 2022 on behalf of Assistant Commissioner Peter Shaddock set out the QCS decision with regard to the matter.
The response from Shaddock addresses the background to the matter including that on 12 October 2021, the Appellant provided advice withdrawing from the dispute and tendering his resignation from his permanent position at WDFCC. The Appellant was permanently appointed as a CCO again on 22 November 2021. Importantly, with regard to the Appellant's contention that the disciplinary action imposed on him did not require that he reapply to be on the ERG, the correspondence stated:
It is important to clarify that placement on the ERG is not a substantive appointment, membership is subject to operational requirements and is not guaranteed. As it is not a substantive appointment, officers do not maintain a right to be part of the ERG, nor does establishing eligibility provided an automatic entitlement to be part of the ERG. Operational requirements, eligibility and the application and expressions of interest process undertaken by centres are distinct form the disciplinary action imposed on the Appellant.
Maintaining the safety and security of a correctional centre is paramount. Correctional centre management resource the ERG to ensure the ability to respond to incidents. This includes ensuring adequate staffing to maintain staff safety when responding to incidents. On the basis of Mr Oxford's absence form the workplace, Chief Supt McHaffie made arrangements to ensure the safe operation of the correctional centre by filling all places on the ERG. This was undertaken to fulfil operation requirements and separate from the matters relating to Mr Oxford.
Mr Shaddock has reviewed this situation and considers Chief Supt McHaffie's decisions in filling all placements on the ERG consistent with his obligation for the safe running of the centre.
The disciplinary penalty imposed – as confirmed with Mr Oxford's legal representatives prior to the penalty being imposed and before the deadline for any appeal to be lodged – was to restrict Mr Oxford's eligibility until such time as he could re-establish his eligibility by completing training in the COPD: Use of Force and Code of Conduct. Once Mr Oxford completed the training and re-established his eligibility, he would be able to express his interest in being placed onto the ERG, pursuant to operational requirements and suitable vacancies. There was no decision made to impede Mr Oxford's placement on the ERG once eligibility had been re-established pursuant to the disciplinary action imposed and having done so, Mr Oxford was able to participate in established EOI processes.
Notwithstanding the above, Mr Oxford resigned from his permanent position in November 2021.
Mr Oxford's subsequent re-appointment does not provide automatic placement onto the ERG.
Mr Oxford, having completed the required training would be eligible to apply for placement on the ERG in the next expression of interest process undertaken at WFDCC.
The appeal has been lodged out of time
The Appellant seeks the 'original disciplinary decision of Deputy Commissioner McCahon be imposed as opposed to the punishment contemplated by Mr McHaffie'. While I understand the crux of the Appellant's appeal, I note that Shaddock has confirmed that the 'punishment contemplated by Mr McHaffie' is consistent with the 'original disciplinary decision of Deputy Commissioner McCahon'.
In this case, to be fair to the Appellant, I have considered each juncture at which a decision could be taken to have been made. For example: the date of decision could be taken as the date of the original disciplinary decision (19 August 2021) or the advice from McHaffie (3 September 2021) or the confirmation of that advice (13 September 2021), or the correspondence of 28 January (see [10]) that the Appellant would be required to reapply for his position on the ERG. In each of these circumstances, the appeal has been filed well out of time. As it was filed on 17 March 2022, the appeal has been filed 211 days following receipt of the disciplinary decision and some 196 days after the email of 3 September 2021 where McHaffie applied the disciplinary penalty (confirmed in the email of 13 September). Given the statutory appeal period is 21 days,[1] it can be established that this time frame has been well exceeded at each juncture considered.
[1]Industrial Relations Act 2016, s 564.
The Appellant's reasons for lodging the appeal out of time
The Appellant says that he did not initially file an appeal as he planned on transferring out of the centre due to the unfair and unreasonable treatment he experienced in relation to this matter. His transfer request was denied and he then changed his employed status from full time to casual for a period of two weeks. The Appellant says that he had a conversation with McHaffie who informed him that he was endorsing the Appellant's return to the ERG and that the Appellant then returned to full time employment.
The Appellant says that there was a delay in proceeding with his fair treatment appeal against the actions of McHaffie as negotiations were continuing between the Department and Together Union from when he returned until the end of February 2022. the Appellant says that it was only recently that the union withdrew its assistance and support.
The Appellant says that when he realised the union 'was not going to resolve the matter', he filed this appeal.
With regard to the Appellant's explanation for the delay in lodging his appeal being that he was seeking clarification of the penalty imposed, the Respondent says that seeking clarification regarding the penalty to be imposed would not have inhibited his (or his agent's) ability to file an appeal within the 21 day appeal period.
The Respondent says that the Appellant was legally represented at the time, and it can be assumed that he was aware of his appeal rights and the timeframes for submitting an appeal. The Respondent submits that it appears that the Appellant made a conscious choice not to file an appeal within the appeal period.
The Respondent says that the Appellant has not provided any evidence that he was suffering from a medical condition preventing him or his agent from lodging an appeal during the appeal period.
The Respondent submits that the Appellant has not provided an adequate explanation for the delay in lodging his appeal that would warrant the exercise of discretion to extend the appeal period.
The Respondent says that a lack of compliance with a statutory timeframe, without adequate reason to extend time is a sufficiently compelling reason to refrain from hearing the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (IR Act).
The Appellant maintains that he 'was not well enough to turn his mind to, or pursue an industrial dispute of any nature'. I have not been provided with any documentation to support this submission, but my decision with regard to extension of time does not turn on this matter as it is clear that the Appellant was actively engaging his union and/or legal representative to act upon his dissatisfaction with the decision at a time contemporaneous to the initial appeal period.
Prospects of success of an appeal
The Respondent submits that the position remains as it was set out in the McHaffie letters of September 2021 and the email to the union of 28 January 2022. The Respondent say McHaffie's actions were consistent with the disciplinary decision of McCahon and that therefore the appeal has limited prospects of success.
In any case, the Respondent say casual CCO's are ineligible to be part of the ERG due to the operational necessity that ERG members be able to be permanently rostered and able to be on call to enable response to emergency recall situations. The Respondent says that notwithstanding the imposition of the disciplinary penalty on the Appellant, his resignation from his permanent CCO position on 31 October 2021 would have resulted in his removal from and eligibility to be part of the ERG.
The Respondent says that the Appellant is asking the Commission to review a decision which he claims was unfair and unreasonable and is effectively seeking that the Commission order that the Appellant be reappointed to the ERG in circumvention of the local EOI process.
The Respondent says that its training records indicate that the Appellant has only completed the COPD: use of force training on 4 November 2021 and has not advised any completion of code of conduct training. The completion of both training modules is an undisputed requirement of the disciplinary penalty imposed by McCahon.
The Respondent says that as the Appellant had not completed the training and was not eligible for reappointment to the ERG following his return from suspension and that he ceased to be eligible for reappointment to the ERG when he resigned from his permanent position. The Respondent says that this means the Commission would be making an order that required the Appellant's retrospective reappointment to ERG, in circumvention of the EOI process, for a short historical period between 13 July 2021 and 31 October 2021, which corresponds to a period of time when the Appellant was ineligible to be part of the ERG and was also on leave and therefore not able to participate as part of the ERG.
In reply submissions, the Appellant says that he was not aware that he had not completed the code of conduct training and had an honest but mistaken belief that he had done so. Further, he says that it was open to the Respondent to bring this to his attention and support him to comply and return to ERG.
The Appellant also submits that there is no policy precluding a casual employee from holding a position on the ERG. The Appellant says that he is aware that there are currently five vacancies at ERG and there are a number of officers from ERG who have had protracted absences from the workplace and have not been required to re-apply for their positions. This discredits any suggestion that the Appellant's position needed to be permanently filled in his temporary absence. I have not been provided with any documents or information in support of these submissions.
The Appellant says that there is strong argument in support of his case.
Prejudice to the Appellant
The Respondent submits that the prejudice to the Appellant of not extending the appeal period would be minimal.
QCS maintains that the application of the disciplinary penalty imposed has not caused any material or practical negative impact to the Appellant's employment as a CCO with respect to remuneration or his eligibility to be a member of the ERG, outside the requirement to have completed specified training.
Consequently, the only prejudice to the Appellant in not hearing his Appeal is a lost opportunity to circumvent the ERG EOI process for the period between 12 July 2021 and 31 October 2021 during the period that the Appellant remained ineligible to be part of ERG due to not having completed mandatory training resulting from the disciplinary penalty, and additionally was on paid leave and would not have been working as part of the ERG.
The Appellant submits that the above statement confirms that the only requirement in order to return to the ERG was the completion of refresher training, and that the penalty actually imposed placed no requirement on the Appellant to reapply for his position.
The Legal Framework: Jurisdiction
A Member of the Commission may allow an appeal to be started within a longer period.[2]
[2] Industrial Relations Act 2016 s 564(2).
In exercising discretion to extend time to lodge an application or appeal, there are principles that have been used for guidance. Those principles are commonly:
·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 the proceedings occasioned by the delay, is a material factor militating against the grant of 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
·consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[3]
[3] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Wilcox J) and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J).
The application of statutory time limits was addressed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. (553 per McHugh J with whom Dawson J agreed).
Consideration
While there are various dates that could be considered the date of a 'decision' the Appellant seeks to appeal, it remains the case that at best, the appeal has been lodged some 196 days following the email of 3 September 2021 (or 49 days after the January correspondence to his union). This is a significant period of time.
It is clear that at one point, the Appellant informed QCS that he was withdrawing his dispute regarding McHaffie's actions and resigning from his permanent employment. This leads me to a conclusion that the Appellant filed an appeal on 17 March 2022 because he had changed his mind and because he remained unhappy with what appeared to be a final outcome of the matters he had been raising.
When considering the entire matter, from when the disciplinary decision was delivered in August 2021 up until the provision of a response to the Appellant's union on 28 January 2022, I am unable to find that an acceptable reason has been given for the filing of the appeal. This is particularly in circumstances where the Appellant had clearly determined that he was aggrieved by the actions of McHaffie and was actively seeking advice from his union and/or legal representatives.
With regard to actions taken by the Appellant, other than filing this appeal, I note that the Appellant has pursued his matter over a period of months and that the position of the Respondent has remained the same. Rather than accept the advice of the Respondent and go about completing the required training and submitting an EOI for one of the five ERG positions the Appellant says are available, he has continued to pursue a course of action seeking to be returned to the ERG without going through the EOI process. I have no reason to doubt that the Respondent has implemented a local decision-making process for appointment to the ERG. It also appears that at the time of the decision or action the Appellant appeals, he had not completed the training which forms the prerequisite for appointment to the ERG.
I do not find that there is a significant prejudice to the Appellant if time is not extended for commencing the appeal. The Appellant remains employed in his permanent position, is able to complete the required training and based on his submissions, there are five ERG positions currently vacant which he may pursue by way of an EOI.
There is nothing in the submissions to indicate to me that the Appellant is not welcome to complete the required training and express interest in returning to the ERG or that such an expression of interest would not be favourably received in the event there are vacancies on the ERG (which the Appellant contends there are). It appears that it was open to the Appellant to take these steps upon his reappointment to a permanent position in November 2022.
Having reviewed all of the material, I do not find that the Appellant's appeal would have strong prospects of success should an extension of time be granted. Firstly, it is clear that upon seeking clarification of the disciplinary action that was to be implemented, the Appellant received a response which appeared to align with the proposed disciplinary action from the show cause letter despite the different wording of the decision. When the Appellant questioned that advice, he was provided with a further clarification regarding the intent of the disciplinary action being implemented. Rather than, as the Appellant suggests, McHaffie imposing a different action to that intended by McCahon, it appears that McHaffie was acting in accordance with McCahon's decision. This position was later confirmed by Shaddock, meaning that both McCahon's decision and McHaffie's implementation of it had been reviewed and confirmed. It seems to me that the omission of words in the decision letter to the effect that the Appellant would need to reapply for his position on the ERG upon his return, did not render a substantial change to the disciplinary decision. This is particularly the case where the submission of an EOI is the process one follows for appointment to the ERG once they have met the training requirements.
Also, as noted above, the Appellant was not at the time eligible for appointment to the ERG having not completed the required training. Further to this, even if, as he contends, the Appellant was to be automatically returned to the ERG upon his return to work, his position on the ERG would have concluded at the time he resigned from his permanent position. It follows that upon once more being permanently appointed following his resignation, the Appellant would again be required to undertake the EOI process.
In circumstances where the delay is significant, there has not been an acceptable reason provided for the late filing of the appeal, the appeal has poor prospects of success and there is limited prejudice to the Appellant if his appeal is not heard, I am unwilling to extend time for the filing of the appeal.
The appeal is dismissed.
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