Dale v State of Queensland (Department of Housing and Public Works) [2026] QIRC 154

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Dale v State of Queensland (Department of Housing and Public Works) [2026] QIRC 154 Dale, Rhiannon (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2025/61 PROCEEDING: Public Service Appeal – Fair Treatment decision DELIVERED ON: 1 May 2026 MEMBER: HEARD AT: McLennan IC On the papers ORDERS: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the appeal is upheld. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES OF THE CROWN GENERALLY – appeal against a fair treatment decision – where the appellant is employed substantively in the role of housing officer, where the appellant had been acting in a higher classification role, where the respondent decided to revert the appellant back to her substantive role – where the appellant appealed that decision – where the appeal was filed out of time – whether the appeal should be extended – where the appeal was heard out of time – whether or not the decision was fair and reasonable – decision not fair and reasonable – appeal upheld -- 1 of 20 -- 2 LEGISLATION & OTHER INSTRUMENTS: CASES: Directive 04/23: Appeals cl 9 Directive 07/23: Recruitment and Selection cls 8.5, 8.6 Industrial Relations Act 2016 (Qld) ss 74(2)(b), 562B(3), 562C, 564 Public Sector Act 2022 (Qld) ss 3, 40, 120, 131, 133, 129 Abercrombie v State of Queensland (Department of Health) [2021] QIRC 204 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 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 Dale v State of Queensland (Department of Housing and Public Works) [2026] QIRC 150 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Goodall v State of Queensland & Anor [2018] QSC 319 House v The King (1936) 55 CLR 499 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010 -- 2 of 20 -- 3 Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138 Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189 Reasons for Decision Background [1] Ms Rhiannon Dale (the Appellant) appeals against a fair treatment decision of the Department of Housing and Public Works, State of Queensland (the Department; the Respondent). [2] This Decision assumes some knowledge of the Appellant's appeal against a promotional decision, Dale v State of Queensland (Department of Housing and Public Works) (Dale).1 [3] The Appellant's substantive position is AO3 Housing Officer, Bundaberg Housing Service Centre (HSC). [4] The Appellant was acting in the higher classification role of Senior Housing Officer, Bundaberg HSC, Central Queensland / North Queensland (CQNQ) Region, Service Delivery, Housing and Homelessness Services (HHS), AO4. Her contract in the higher classification role was extended thirteen times. [5] The Appellant commenced acting in the higher classification role on 4 March 2024. About a month before the Appellant was to reach her one year anniversary acting at the higher classification level, the Department commenced a recruitment and selection process to permanently fill that position (position number 30100221).2 [6] The Appellant applied for the position she had been successfully performing for almost a year, but was not even shortlisted for interview (The Appellant has now successfully appealed that promotional decision). [7] The Appellant was informed that she had not been shortlisted for interview via email dated 27 February 2025. 1 [2026] QIRC 150. 2 The position was advertised on 28 January 2025, Applications closed on 11 February 2025, only one applicant was shortlisted and interviewed, and the selection panel’s recommendation was approved by the Delegate on 4 March 2025. -- 3 of 20 -- 4 [8] Mr James O'Brien3 (the Delegate) approved the recommendation of the selection panel4 on 4 March 2025. The successful candidate was permanently appointed to the AO4 position that the Appellant had been acting in, taking up the position on 9 March 2025.5 [9] On 5 March 2025 (the day after the Delegate had approved the selection panel's recommendation to permanently appoint the successful candidate, but before she had taken up the position), the Appellant formally requested to be permanently appointed to the higher classification position she had been acting in for a year, pursuant to s 120(1) of the Public Sector Act 2022 (Qld) (PS Act). [10] At approximately 3:15 pm on 14 March 2025, a meeting was held and the Appellant was informed that she would revert back to her substantive AO3 position the very next day.6 [11] The Appellant submitted that two named colleagues received different treatment in similar circumstances. The Appellant submitted that those two colleagues had also both been previously unsuccessful in applications for permanent AO4 positions, yet had been permitted to continue to act in AO4 roles in the Bundaberg HSC.7 [12] On 28 March 2025, Ms Kirby Cook8 (the Delegate) issued the higher classification conversion decision, refusing to permanently appoint the Appellant to the higher classification position because the position was now permanently filled. [13] The Appellant has further questioned whether the decision was made "…due to disclosure of my own personal circumstances…and affects to my…health from this, or due to raising concerns with panel members. 9 [14] In the Appeal Notice, the Appellant clearly identified that she has filed this complaint as an appeal against a fair treatment decision.10 Specifically, "my demotion from acting duties." The Appellant has submitted, and the Respondent agrees, that the decision to return the Appellant to her substantive position or not extend her higher duties was provided to the Appellant at the meeting with management on 14 March 2025.11 At that meeting, the Appellant was advised she would return to her substantive AO3 position the next day.12 3 Executive Director, Homelessness Rapid Response. 4 Cheryl Thomas (Senior Customer Service Manager, Bundaberg HSC), Benita Mangin (Rent Connect Officer, Bundaberg HSC), Elise Golusin (Acting Senior Service Centre Manager, Maryborough HSC). 5 Respondent’s submissions filed in the Industrial Registry on 13 May 2025, [10]. 6 Appeal Notice filed in the Industrial Registry on 11 April 2025, Attachment 1, 4. 7 Ibid, Attachment 1, 4-5. 8 Acting General Manager, Service Delivery, Housing and Homelessness Services. 9 Appeal Notice (n 6), 4. 10 Ibid, 2. 11 Respondent’s submissions (n 5), [13]. 12 15 March 2025. -- 4 of 20 -- 5 [15] That is the decision that is the subject of this appeal. [16] The Appellant identified the particular 'unfairness' of that decision to be: (a) The nature and timing of the meeting held, to inform the Appellant she would revert to her substantive AO3 position; (b) Different treatment afforded to another two colleagues, who had also been unsuccessful in prior applications for AO4 permanent positions, but who were permitted to continue to act in higher classification level AO4 roles; and (c) Impact of her disclosure of personal circumstances and resultant health issues. [17] Notwithstanding the above, I do note that the Appeal Notice additionally made reference to the appeal "…being completed for: … A conversion decision: due to myself being demoted back to the AO3 permanent role and the permanent request for my request for permanent at higher classification being declined as the recruitment had been finalised noting this is believed to be due to unfair treatment of others." While the Appellant is within the 21 day time limit for filing an appeal against the conversion refusal decision dated 28 March 2025, I have not taken that decision to be the subject of this appeal because the Appellant did not elect that this was an appeal against "a conversion decision" and further, the Appellant's submissions have clearly focused on matters pertaining to the 14 March 2025 meeting, during which she was informed by management that she would revert back to her substantive AO3 position the following day. [18] As I have earlier noted, the decision given on 14 March 2025 to revert the Appellant's substantive AO3 position followed: a continuous period of her acting at the higher classification AO4 level for more than one year; and thirteen contract extensions.13 [19] Similarly, this decision does not exhaustively address the Appellant's concerns with the promotional decision. Those matters have been well ventilated and determined by me in the separate decision of Dale. Decision against which an appeal may be made [20] Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act provides that an appeal may be made against a fair treatment decision. Section 129 defines a fair treatment decision to be "a decision a public sector employee believes is unfair and unreasonable." 13 Appeal Notice (n 6), Attachment 1, 1,3. -- 5 of 20 -- 6 [21] Section 133(d) of the PS Act prescribes that "a public sector employee aggrieved by the decision" may appeal against a fair treatment decision. [22] Clause 9 of Directive 04/23 Appeals (the Appeals Directive) stipulates an array of requirements with respect to appeals against a fair treatment decision. The Appellant meets those clause 9 requirements. [23] I am satisfied that the fair treatment decision to revert the Appellant back to her substantive AO3 position constitutes a decision made by the Department and is capable of appeal. That is not disputed by the parties.14 Appeal principles [24] The appeal is decided by reviewing the decision "to decide whether the decision appealed against was fair and reasonable".15 [25] The appeal is not conducted by way of re-hearing but rather involves a review of the decision arrived at by the Department and the associated decision-making process.16 [26] A decision made by the Department, which was reasonably open to it, should not be disturbed on appeal. What decisions can the Commission make? [27] Section 562C(1) of the Industrial Relations Act 2016 (Qld) (IR Act) prescribes that the Commission may determine to either: (a) confirm the decision appealed against; or (b) set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate. Timeframe to Appeal [28] The IR Act requires that an Appeal Notice be lodged within 21 days after the decision appealed against is given.17 [29] I am empowered by the IR Act to extend the time for giving an appeal notice.18 14 Respondent’s submissions (n 5), [12]. 15 Industrial Relations Act 2016 (Qld) s 562B(3) (IR Act). 16 Goodall v State of Queensland & Anor [2018] QSC 319, 5. 17 IR Act, s 564. 18 Ibid s 564(2). -- 6 of 20 -- 7 How long out of time was the Appeal filed? [30] In this case, the Appellant has filed the appeal on 11 April 2025. The decision to return the Appellant to her substantive position or not extend her higher duties was provided to her on 14 March 2025.19 [31] Therefore, the Appellant has filed this appeal 5 days late,20 after the 21 day timeframe expired. Jurisdictional objection [32] The Respondent submitted that the Appellant is 'out of time' to file an appeal against the decision that she revert back to her substantive AO3 position on 15 March 2025. [33] The Respondent submitted that I should decline to hear the appeal on that basis.21 [34] The Appellant asks that I exercise discretion to extend time to hear her appeal.22 Should time for filing be extended? [35] The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal notice 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.23 [36] In exercising my discretion, I will consider several factors and assess whether the Appellant has a reasonable ground for that extension. [37] The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal.24 [38] In Breust v Qantas Airways Ltd,25 Hall P set out the following considerations: 19 Respondent’s submissions (n 5), [11], [13]; Appellant’s submissions filed in the Industrial Registry on 6 May 2025, 1. 20 Respondent’s submissions (n 5), [13], [16]. 21 Ibid, [12]. 22 Appeal Notice (n 6), 4. 23 House v The King (1936) 55 CLR 499, [2]. 24 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. 25 (1995) 149 QGIG 777. -- 7 of 20 -- 8 (a) The length of the delay; (b) The explanation for the delay; (c) The prejudice to the Appellant if the extension of time is not granted; (d) The prejudice to the Respondent if the extension of time is granted; and (e) Any relevant conduct of the Respondent. [39] Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.26 These were usefully summarised by Thompson IC in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services),27 which is paraphrased below: (a) The 21-day time limit must be respected and should not easily be dispensed with; and (b) The Appellant's prospects of success at a substantive hearing are always a relevant matter where it appears an Appellant has no, or very limited, prospects of success. In that instance, the Queensland Industrial Relations Commission would not normally grant an extension of time. [40] Those cases were considering s 74(2)(b) of the IR Act. However, they were answering substantively the same question as in this case; what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion. [41] Additionally, my discretion is informed by the purposes of the PS Act, including promoting the effectiveness and efficiency of government entities.28 In that regard, I am guided by the commentary of French CJ in Aon Risk Services Australia Limited v Australian National University: 29 Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification. Length of delay 26 (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232. 27 [2015] QIRC 138. 28 PS Act, s 3. 29 (2009) 239 CLR 175, [30]. -- 8 of 20 -- 9 [42] The Appeal was filed 5 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act and Appeals Directive. [43] The Respondent submitted that filing the appeal 5 days late is not insignificant.30 [44] The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.31 It is true that in some cases delays of several weeks have been considered to be not excessive.32 However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like. That is not the case here. [45] However, given the surrounding circumstances with respect to the Appellant's explanation for the delay, prejudice, and the conduct of the Respondent considered below, I have determined that 5 days delay is not significant and unreasonable in this particular instance. Explanation for the delay [46] In the Appeal Notice filed 11 April 2025, the Appellant provided an explanation for the delay to be that: During a meeting with People and Culture I was advised my appeal could be submitted within 21 days of the decision being posted in the Gazette, this occurred on 28 March 2025, therefore if it was correct information provided by People and Culture this would be in time frame. The application I submitted with multiple appeals was incorrect and I have now been advised these need to be conducted separately.33 … During the time of these concerns being raised I met with HR Business Partner…who advised I was able to complete an appeal within 21 days of the decision being published on the Gazette, which has been published on 28 March 2025.34 [47] By email to the Industrial Registry on 24 April 2025, the Appellant further explained that: …I am unable to supply any formal decision or written evidence on my demotion as this was verbally relayed to me in a one on one meeting with Senior Customer Service Manager Cheryl Thomas on…14 March 2025. The only evidence I can provide in relation to this that may be of interest, is a teams message screenshot from my line manager at the time Acting Customer Service Manager Ana-Leisa Burgess 30 Respondent’s submissions (n 5), [16]. 31Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189. 32 See, eg, Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138. 33 Appeal Notice (n 6), 3. 34 Ibid, 4. -- 9 of 20 -- 10 stating she was sorry. As it was evident that this was not only a shock to myself but all staff who were notified prior to me, as well as causing further upset and distress as stated in my original appeal documentation… [48] The Respondent submitted that the advice from HR that the Appellant has referred to was in relation to the promotional appeal process – and not with respect to any appeal against a fair treatment decision. The Respondent stated that: 35 …Upon being dissatisfied with the decision to return back to her substantive role…it should be the Appellant's responsibility to seek to understand her review rights and submit any appeals within the required timeframe. [49] I have carefully considered the parties' respective submissions regarding the explanation for delay. I consider that there are a number of factors in this case that weigh in favour of exercising discretion to extend time to hear the appeal. [50] Firstly, the 14 March 2025 decision that the Appellant revert back to her AO3 position was given verbally. The effect of that was that the Appellant was not appraised of any appeal rights and timeframes, as would normally be the case in circumstances where a written decision was given. The Respondent's submissions refer to my decision in Abercrombie v State of Queensland (Department of Health)36 where discretion was not exercised to extend time for filing an appeal. However, that is not analogous to this matter because Ms Abercrombie was advised of her appeal rights and timeframes in writing, in the review notice provided. [51] Secondly, the Appellant did make appropriate inquiries to HR with respect to her appeal rights. It appears that while HR did properly advise the Appellant of the timeframes to appeal against the promotional decision, in this instance HR stopped short of discerning that there was a second limb to her chronicle of 'unfairness' that the Appellant sought to challenge by way of a further appeal. That is appropriately accepted by the Respondent, as I note the submission that "People and Culture did not provide advice to the Appellant in relation to the fair treatment appeal and associated timelines".37 In the circumstances of this case, the Appellant acted expeditiously (within time) to seek and obtain advice on her appeal rights and timeframes from HR. The Appellant then followed the advice she was provided, with respect to timeframes for appeal. I cannot accept then the Respondent's contention that the Appellant ought to have continued to seek advice from other sources – she had asked HR for the answer to that question and followed the advice she received. That was entirely reasonable, in my view. [52] In the particular circumstances of this case, I find that the Appellant has offered adequate explanation or justification for the delay in filing this appeal. 35 Respondent’s submissions (n 5), [15]. 36 [2021] QIRC 204. 37 Respondent’s submissions (n 5), [15]. -- 10 of 20 -- 11 Prejudice to the Appellant [53] The Appellant will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that she would lose the opportunity for an independent review of the decision. [54] That outcome is of course not an insubstantial detriment to the Appellant. [55] I accept that there is some prejudice to the Appellant should I not exercise my discretion to extend time to hear the appeal. Prejudice to the Respondent [56] The Respondent has not made particular submission with respect to the specific prejudice it would suffer should the Appeal be heard out of time. [57] However, I do accept that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.38 Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.39 [58] For those reasons, I find that the Respondent would also suffer some prejudice should I decide to exercise my discretion to hear the Appeal out of time. Conduct of the Respondent [59] The Appellant contends that the actions of the Respondent caused or contributed to the delay in bringing these proceedings. That is because while the Appellant had acted to promptly seek and obtain advice from HR regarding her appeal rights and timeframes, she had only received appropriate information with respect to the promotional decision and not the remaining matters that are subject of this further appeal. As I have earlier noted, the circumstance of a verbal decision given at the 14 March 2025 meeting presented a further challenge, as information about appeal rights and timeframes was not provided as would normally be the case for a written decision. [60] These contentions have been extensively considered under the heading Explanation for delay earlier in this Decision and so need not be repeated here. [61] I do not consider there was anything intentionally deceptive about the narrow advice provided to the Appellant by HR, but rather it appears more likely that the full gamut of the Appellant's concerns were not fully grasped and responded to. While I do not consider the advice provided by HR to have been deliberately misleading, the Respondent's 38 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556. 39 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 300. -- 11 of 20 -- 12 conduct can be considered to have contributed to the Appellant's delay in filing this fair treatment appeal. Therefore, I consider that the conduct of the Respondent (by omission) in this case supports the proposition that the length of the delay was reasonable, and that the explanation for the delay provided by the Appellant is sufficient.40 Prospects of success [62] An Appellant's prospects of success at a substantive hearing is a relevant consideration.41 However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed): 42 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. [63] The Appellant makes several comments regarding the unfairness or unreasonableness of the 14 March 2025 decision. [64] Firstly, that is based on how the Appellant perceives other colleagues to have been treated in circumstances she asserts to be similar to her own. [65] Secondly, I have noted the Appellant's contention that the alleged unfair treatment occurred because of her personal circumstances and resultant health impacts. [66] I accept that these are the Appellant's genuinely held beliefs and further exploration is appropriate in this case. [67] Finally, there is the matter of the 14 March 2025 decision to revert the Appellant to her substantive AO3 position the following day. [68] In combination, those submissions are concerning and require further testing, in my view. [69] As such, this criterion does also inform the exercise of my discretion. Outcome – Discretion is exercised to hear the appeal out of time 40 Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [32]. 41 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232. 42 [2010] ICQ 35, [6]. -- 12 of 20 -- 13 [70] The Appellant filed her Appeal Notice 5 days out of time and seeks that I exercise my discretion to extend the time for filing that appeal.43 [71] There is a suite of relevant considerations in exercising such a discretion. Foremost, I should be satisfied that the Appellant had a reasonable ground for extending the time. [72] I have found that the Respondent relayed information regarding the Appellant's rights of appeal, including the relevant timeframe, with respect to the promotional decision that she has separately appealed, and I have decided that matter in her favour. I do not believe that HR deliberately withheld information from the Appellant regarding timeframes for filing this fair treatment appeal, but rather, it is more likely that there were several instances of 'unfairness' canvassed by the Appellant in her discussions with HR and the primary complaint regarding the promotional decision was focused on in the advice provided to her. For those reasons, I am not satisfied that the Appellant was provided with all the relevant information she required to file this Appeal within time. [73] In my view, the Appellant has provided an adequate explanation for the delay. That is an acceptable reason to depart from the legislatively prescribed timeframe of 21 days. [74] The Appellant would suffer some prejudice if I were to decline to hear the Appeal out of time because she will not receive an independent review of the decision. [75] If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant. [76] I have further considered the Appellant's prospects of success to be a relevant matter. [77] For the reasons above, I find that the Appeal was filed out of time, and there are reasonable grounds to extend the time for filing, in the particular circumstances of this case. [78] I will proceed to consider the Appellant's appeal against the fair treatment decision. Parties' submissions [79] The parties' submissions have been referred to within my consideration of each ground of appeal below. Consideration 43 IR Act, s 564(2). -- 13 of 20 -- 14 [80] The question to be determined in this case is whether the 14 March 2025 decision to revert the Appellant to her substantive AO3 position the following day was fair and reasonable. [81] I will now proceed to consider each of the Appellant's grounds of appeal. Nature and timing of the meeting held, to inform the Appellant she would revert to her substantive AO3 position [82] At approximately 3:15 pm on 14 March 2025, a meeting was held with management and the Appellant was informed that she would revert back to her substantive AO3 position the very next day.44 The Appellant stated that (emphasis added): 45 Following these concerns, my acting duties as a senior housing officer ended on 14 March 2025. At approximately 3:15 pm I arrived back at the Bundaberg HSC after attending a personal appointment, … I received a teams message from Cheryl Thomas requesting to speak with me. I attended her desk in which it was requested to meet in a meeting room. It was noted by both Cheryl Thomas and Karryn O'Beirne I was visibly upset and had been crying on return. Cheryl and myself proceeded to a meeting room, where it was advised that the direction was given by management that due to not being deemed suitable for the permanent vacancy, I was no longer able to act in the alternate vacant AO4 position (Ana-Liesa Burgess) and was reverting to my permanent AO3 position. [83] The Respondent submitted that (emphasis added): 46 …in accordance with the terms of the higher duties placement, the Appellant's higher duties in the AO4 Senior Housing Officer, Bundaberg HSC (PN 30100221) position concluded on the agreed end date of 14 March 2025. While the department recognises that providing the Appellant with greater notice regarding the non-extension of her higher duties would be preferable, there is no requirement under the PS Act or any directive that obligates the department to inform the Appellant in advance of a decision regarding the extension or non-extension of a higher duties placement. Further, the department notes that there was no operational need for the Appellant to continue acting in the AO4 Senior Housing Officer, Bundaberg HSC (PN 30100221) position following the recruitment process which had resulted in a permanent appointment of another officer to that position. The most recent extension of the Appellant's higher duties occurred on 1 March 2025, which was 13 days prior to the date the Appellant's higher duties end date. The department submits that the decision to return the Appellant to her substantive position after the conclusion of her higher duties is not unfair or unreasonable solely on the basis that the Appellant could have benefited from greater notice. 44 Appeal Notice (n 6), Attachment 1, 4. 45 Ibid. 46 Respondent’s submissions (n 5), [19]-[21]. -- 14 of 20 -- 15 [84] The Appellant's contract in the AO4 higher classification role was extended thirteen times, for a continuous period of at least a year, for three reasons: 4 March – 1 November 2024 backfill substantive employee whilst they were performing higher duties in an alternative role (PN 30101006) 2 November 2024 – 3 January 2025 backfill substantive employee whilst they were on leave (PN 30100221) 4 January 2025 – 14 March 2025 undertake the duties of a substantively vacant position following the substantive employee's separation (PN 30100221)47 [85] I accept that the date of cessation for the period the Appellant was acting in the higher classification was set as 14 March 2025. That was on the basis of the latest of the thirteenth extension to it in a little over one year. The Respondent submitted that the "most recent extension of the Appellant's higher duties occurred on 1 March 2025, which was 13 days prior to the date the Appellant's higher duties end date." While it is correct that the Respondent is not required to provide any particular notice to the Appellant that her period acting in the higher classification will soon conclude, it is fair and reasonable to do so as a matter of care and courtesy to an employee. [86] In this case, the Appellant had already been acting in the higher classification AO4 level for a year. I expect she had counted on that AO4 level of income in planning her household budget. In circumstances where the Appellant's contract had been continually extended, but only ever in short bursts of time periods, she may well have expected that pattern would continue. I further note that the Appellant has submitted that "Leading up to the acting duties expiring [she] … asked multiple times if acting duties were going to be extended, it was noted this had not been discussed or decided."48 [87] I also note the circumstances of the meeting were that it was about 3:15 pm (late in the working day), she had been called to a meeting with management without notice to be advised of the decision that her higher duties would not be again extended, and that she was visibly upset upon return from a personal appointment. While that may not constitute a breach of the PS Act or a Directive, the combination of those factors amount to very poor treatment of an employee, in my view. [88] While I have accepted the Respondent's submission that providing notice of the cessation date was not mandatory, I believe it is nonetheless an appropriate way for management to treat an employee. I would invite Bundaberg HSC management to reflect on s 40(3) of the PS Act in this regard: 47 Correspondence from Ms Kirby Cook to Ms Rhiannon Dale, dated 28 March 2025. 48 Appellant’s submissions (n 19), 1. -- 15 of 20 -- 16 …a public sector manager must – (a) provide working environments in which all public sector employees are – (i) treated fairly and reasonably; … (c) ensure fairness and integrity in performing managerial functions, including when making decisions; [89] While the provision of notice to the Appellant is not mandatory, it is nonetheless courteous and considerate. [90] With respect to the particular reason provided to the Appellant for not extending her period acting in the higher classification for a fourteenth time, I note that the reason for this offered in the Respondent's submission differs from the Appellant's account of why that was determined to be the case. [91] The Appellant stated she was told by management at the 14 March 2025 meeting that the reason she would not continue to act in the AO4 higher classification was because she was not "deemed suitable for the permanent vacancy". [92] As I have now found the recruitment and selection process to be deficient in Dale, it follows then that management's reason given for not extending the Appellant's period acting at the higher classification was not fair and reasonable. Different treatment afforded to another two colleagues, who had also been unsuccessful in prior applications for AO4 permanent positions, but who were permitted to continue to act in higher classification level AO4 roles [93] The Appellant named two colleagues that she submitted received different treatment to herself, in similar circumstances. The Appellant submitted that those two colleagues had also both been previously unsuccessful in applications for permanent AO4 positions, yet had been permitted to continue to act in AO4 roles in the Bundaberg HSC.49 [94] The Appellant expressed her concern with the different treatment she had received as follows: 50 …the same process did not apply to me, and I was notified an hour before my acting duties expired that this was no longer an option due to being deemed not suitable without any performance concerns, the only reasoning was advised my application was not suitable, which previously was deemed suitable. [95] The Respondent submitted that: 51 49 Appeal Notice (n 6), Attachment 1, 4-5. 50 Ibid, Attachment 1, 5. 51 Respondent’s submissions (n 5), [22]-[24]. -- 16 of 20 -- 17 …each employee's acting arrangements are unique and cannot be directly compared. The department assesses positions as they become vacant on a case-by-case basis, considering multiple factors such as the duration of the vacancy, operational needs and also ensuring compliance with the Recruitment and Selection (Directive 07/23). The arrangements that were made for the employees mentioned in the Appellant's response were based on a range of different circumstances and operational needs at the time. The Appellant highlighted in her response two employees whom she believed were receiving different treatment compared to her. The department would like to clarify that the two named individuals were both deemed suitable through relevant selection processes that enabled them to be considered for other opportunities (as highlighted by the Appellant, into the AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006) position) where operationally required. In contrast, the Appellant was not deemed suitable during this particular process and as outlined, there was no operational need for the Appellant to continue acting in the AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006) or AO4 Senior Housing Officer, Bundaberg HSC (PN 30100221) positions at the time. In response to the Appellant's claim as to why she is unable to be placed into the other AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006) position, whilst it was currently vacant, at the time of the Appellant's higher duties arrangement in the AO4 Senior Housing Officer, Bundaberg HSC (PN 30100221) position had ceased, the business area had arranged for another permanent AO4 officer to perform the duties of the AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006) position at level. This decision is made in accordance with Directive 07/23 which states that recruitment is not required to be advertised if it is proposed to be filled by a public sector employee at level. Furthermore, the department will note that the AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006) position will not be vacant beyond 16 May 2025 as the substantive incumbent will be returning to the position. [96] I accept the Respondent's submission that it is difficult to directly compare each employee's acting arrangements, and note the further information provided about the different circumstances enables greater visibility over those particular arrangements. [97] In raising this ground of appeal, I recognise that the Appellant only had knowledge of the two named colleagues' failed applications for permanent AO4 positions, yet had been permitted to continue to act in AO4 roles in the Bundaberg HSC. On the face of it, absent the further information that has now been provided in the course of this appeal, that would have appeared to the Appellant to be most unfair. [98] However, the Respondent has now provided reasons for the apparent "different" treatment. That was that "the two named individuals were both deemed suitable through relevant selection processes that enabled them to be considered for other opportunities…where operationally required. In contrast, the Appellant was not deemed suitable during this particular process and as outlined, there was no operational need for the Appellant to continue acting in the AO4 Senior Housing Officer, Bundaberg HSC…" [99] Two things flow from that submission. [100] Firstly, I have upheld the Appellant's appeal against the promotional decision made. The recruitment and selection process conducted by the panel - in which the determination was made not to shortlist the Appellant for interview - was riddled with unfairness, and I have found it to be deficient. While the Respondent submitted here that the Appellant -- 17 of 20 -- 18 was prevented from continuing to act in higher classification AO4 roles because she "was not deemed suitable during this particular process", I have decided that the deficiency here lay with the recruitment and selection process conducted by the panel. [101] As I have disturbed the process conducted by the panel, it follows then that its determination that the Appellant was "not deemed suitable" is also so disturbed. [102] For those reasons, I will uphold this ground of appeal because it was not fair and reasonable for the Respondent to bar her from acting at a higher classification AO4 role in such circumstances. [103] Secondly, the Respondent submitted that "there was no operational need for the Appellant to continue acting in the AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006) or AO4 Senior Housing Officer, Bundaberg HSC (PN 30100221) positions at the time." [104] The position of AO4 Senior Housing Officer, Bundaberg HSC (PN 30100221) was the one subject of the recruitment and selection process that I have found to be deficient. There was no need for the Appellant to continue to act in it because that position was permanently filled by the successful candidate under a deficient process. [105] With respect to the Respondent's explanation as to why the Appellant was not required to act in the position of AO4 Senior Housing Officer, Bundaberg HSC (PN 30101006), I accept that the Recruitment and Selection Directive52 permits a position to be filled by another AO4 public sector employee 'at level' without the requirement to advertise for a limited time. Impact of the Appellant's disclosure of personal circumstances and resultant health issues [106] The Appellant submitted that: 53 …I am questioning several aspects of the process. I also question as to whether decision making was enforced due to disclosure of my own personal circumstances…and affects to my…health from this, or due to raising concerns with panel members. [107] The Respondent has not made any submission with respect to that matter. [108] In the Appellant's separate appeal against the promotional decision, this matter was also raised and considered. I had earlier noted that the Respondent made no response to the Appellant's contention that the disclosure of her personal circumstances to management may have negatively influenced the outcome of the recruitment and selection process. As I determined in the promotional decision, I cannot reasonably discern whether or not 52 Directive 07/23: Recruitment and Selection, cls 8.5, 8.6. 53 Appeal Notice (n 6), 4. -- 18 of 20 -- 19 the Appellant's disclosure did count against her in that process or not. Consistent with my earlier finding then, I can take that particular submission no further.54 [109] While I have insufficient information before me to make a finding with respect to that particular ground of appeal, I draw Bundaberg HSC management's attention to Directive 03/20. Higher classification conversion request [110] Although the Appellant has filed this matter as a fair treatment appeal, not an appeal against a conversion decision, I will make some brief comments on the material before me. [111] The Appellant formally requested to be permanently appointed to the higher classification position she had been acting in for a year, pursuant to s 120(1) of the PS Act. Section 120(1) of the PS Act provides that "If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis, after – (a) the end of 1 year acting at, or being seconded to, the higher classification level…" As soon as the Appellant became eligible to do so, she made the formal request to be permanently appointed to the AO4 position she had been acting in. [112] On 28 March 2025, Ms Kirby Cook55 (the Delegate) issued the higher classification conversion decision, refusing to permanently appoint the Appellant to the higher classification position because: (a) The position of AO4, Senior Housing Officer, PN 30100221, within Bundaberg HSC, CQNC Region was advertised on 28 January 2025. This recruitment process was finalised with the delegate's approval on 4 March 2025, resulting in the position being permanently filled. (b) As such, the position of AO4, Senior Housing Officer, PN 30100221, within Bundaberg HSC, CQNC Region is no longer substantively vacant, and there are no longer genuine operational requirements for you to continue performing higher duties in the AO4, Senior Housing Officer position, PN 30100221. [113] The section 120 provisions only apply to "the position" that the Appellant is acting in at the time of making the application - AO4, Senior Housing Officer, PN 30100221. It does not go beyond that particular position to include any wider exploration of other AO4 roles that the Appellant may be permanently appointed to. 54 Dale v State of Queensland (Department of Housing and Public Works) [2026] QIRC 150, [96]. 55 Acting General Manager, Service Delivery, Housing and Homelessness Services. -- 19 of 20 -- 20 [114] It is also true that by the date the Appellant became eligible to make the application for permanent appointment, the Delegate had approved the Selection Report recommendation of the panel. By 5 March 2025, when the Appellant became eligible to make the conversion request and did so, the position she had been acting in had been permanently filled. [115] Commission Decisions about higher classification conversion appeals consistently find that two people are not required to fill one "position", in this case, position number 30100221. [116] While the Department acted with remarkable alacrity, with respect to the short timeframe between advertising the position and approving the sole candidate shortlisted for interview - and the curiosity of the Selection Report approval given the day before the Appellant became eligible to make the s 120 request - the facts remain that the position identified by PN 30100221 was nonetheless 'filled' at that time. Conclusion [117] For the foregoing reasons, the appeal is upheld. [118] The decision to return the Appellant to her substantive position or not extend her higher duties that was provided to the Appellant at the meeting with management on 14 March 202556 was not fair and reasonable. [119] I order accordingly: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the appeal is upheld. 56 Respondent’s submissions (n 5), [13]. -- 20 of 20 --