Costello v State of Queensland (Queensland Ambulance Service) [2025] QIRC 93

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Costello v State of Queensland (Queensland Ambulance Service) [2025] QIRC 093 PARTIES: Costello, Ashleigh (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) CASE NO: PSA/2023/139 PROCEEDING: Public Sector Appeal – Appeal against a conversion decision DELIVERED ON: 27 March 2025 MEMBER: HEARD AT: Dwyer IC On the papers ORDER: I decline to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – consideration under s 562A of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where the appellant was employed as a paramedic on a series of fixed term appointments or casual contracts – where the appellant appeals a decision by the respondent not to convert her employment to permanent – where a further status review is undertaken before appeal is dealt with – where appellant subject to suitability issues – where appellant does not appeal subsequent status -- 1 of 11 -- 2 review decision – where the subsequent status review decision supersedes the decision being appealed – where the jurisdiction of the Commission limited to review of one decision only – where subsequent status review decision cannot be displaced – where practical utility of dealing with the appeal is diminished – alternatively, where the prospects of success of the appeal are poor – where compelling reasons displace right to be heard – appeal will not be heard LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 562A, s 562B, s 562C Public Sector Act 2022 (Qld) s 101, s 114, s 115 Carr v State of Queensland (Department of Education) [2024] QIRC 210 Edwards v State of Queensland (Queensland Ambulance Service) [2023] QIRC 111 Ewart v State of Queensland (Queensland Ambulance Service) [2023] QIRC 304 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 Talbot v State of Queensland (Department of Education) [2023] QIRC 010 Westacott v State of Queensland (Queensland Health) [2021] QIRC 417 Reasons for Decision [1] Ms Ashleigh Costello is employed by the Queensland Ambulance Service (‘the respondent’). On 19 July 2023, Ms Costello filed a Public Sector Appeal (‘the appeal’) -- 2 of 11 -- 3 in relation to a decision dated 28 June 2023 by the respondent not to convert her employment to permanent (‘the 2023 decision’). At that time, Ms Costello was employed as a paramedic on a series of fixed term appointments or casual contracts. [2] Upon the matter being allocated to me directions were issued on 21 July 2023 requiring each party to file written submissions in anticipation of a decision being made ‘on the papers’ i.e. without further involvement of the parties. The last written submission filed by Ms Costello was on 13 October 2023. Additionally, Ms Costello filed a witness statement on 18 October 2023. Relevantly, Ms Costello was represented by her union and the union contact details were included with all filed material. [3] On 19 October 2023, the respondent filed a short submission in response to the (unsolicited) statement filed by Ms Costello. This was the final filing on the matter. In the ordinary course of events the matter would then be triaged in my chambers with other reserved decisions in preparation for consideration and release of a decision. [4] In January 2024 Ms Costello’s union emailed the registry to advise of a change to the industrial officer in the matter. In May 2024 Ms Costello’s union again emailed the registry to advise of a further change to the industrial officer responsible for the matter. [5] In October 2024, I conducted an audit of my files. Upon my review of Ms Costello’s matter I noted that it was awaiting a decision and that more than 12 months had passed since that appeal was lodged. Given that Ms Costello is a temporary employee entitled to a review of her employment status every 12 months I was concerned that, given the time elapsed, Ms Costello may have had the benefit of a subsequent review of her employment status. If she had, I was concerned that the utility in dealing with the appeal may have been diminished. [6] In the circumstances I called the matter on for mention to ascertain from the parties the status of Ms Costello’s employment with the respondent. The matter was mentioned on 22 October 2024, where inter alia the following exchange occurred:1 COMMISSIONER: … I’ll address this question to you, Ms Williamson. Has there been a review conducted this year in relation to Ms Costello’s employment? MS WILLIAMSON: Commissioner, yes, there has. There was a review undertaken of Ms Costello’s status in April. Ms Costello’s circumstances have changed a little and she was issued with notification on the 17th of April that she couldn’t be considered for conversion because at the moment she’s not meeting the suitability requirements, as outlined in the directive. (Emphasis added) 1 T 1-2 to T 1-3. -- 3 of 11 -- 4 [7] This response confirmed my suspicion that Ms Costello’s employment status had been reviewed in April 2024 (‘the 2024 decision’) in accordance with s 115 of the Public Sector Act 2022 (Qld) (‘the PS Act’). Having been further reviewed and not converted, I then ascertained with Ms Costello whether she had appealed the 2024 decision. Ms Costello confirmed she had not. [8] In circumstances where a subsequent review for conversion had taken place, no conversion had occurred, and the decision was not challenged, I explained to the parties that, in my view, the practical utility of dealing further with the appeal of the 2023 decision was now in question. [9] Notwithstanding the views I expressed in this regard, Ms Costello’s union representative was insistent that the appeal proceed.2 While I accept that it was the delay in dealing with the appeal that ultimately gave rise to this situation, it did not change the fact that the (unchallenged) 2024 decision not to convert Ms Costello to permanent employment had, in my view, superseded the 2023 decision. Additionally, the (then) unresolved suitability issues were relevant (albeit subsequent) facts that impacted on the utility of dealing with the appeal. [10] Consequently, I informed the parties that I was contemplating exercising the discretion conferred by s 562A of the Industrial Relations Act 2016 (Qld) (‘IR Act’) to not hear the appeal. Consistent with the requirements of s 562A(3) of the IR Act, Ms Costello was then directed to provide submissions outlining that she has an arguable case for the appeal. A Directions Order to that effect was issued on 22 October 2024, and the parties filed submissions in compliance with those orders. The salient portions of those decisions are discussed later in these reasons. [11] The only mater for my consideration in these reasons is whether I ought to exercise my discretion pursuant to s 562A of the IR Act to not hear Ms Costello’s appeal. The relevant legislation [12] Section 562A of the IR Act provides: 562A Commission may decide not hear particular public service appeals … (3) The commission may decide it will not hear a public service appeal against a decision if— (a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or 2 T 1-4 to T 1-6. -- 4 of 11 -- 5 (b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal— (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. (Emphasis added) Consideration The delay [13] In this matter there was a delay of approximately 12 months from the last submission filed by a party until the matter came to my attention for the purposes of making a decision. While a delay of 12 months from the date of a final submission filed is not optimum, it is equally not an inordinate period relative to other reserved matters before the Commission generally. Unfortunately, it gives rise to some problems in the context of this appeal given the interceding statutory obligations of the respondent to annually review Ms Costello’s status.3 [14] There is little utility in dissecting the cause of the delay though, for transparency, it ought to be noted that a key factor includes a brief period of administrative disruption in my Chambers that immediately followed the Christmas closure. But another contributing factor might fairly be said to be the failure of Ms Costello’s union representatives to monitor the progress of her appeal and to make enquires (as they were entitled to do) about the timing for the delivery of a decision. [15] It ought to be remembered that there is no requirement for the Commission to deliver decisions within a specified time frame.4 The growing delay should have been particularly concerning to the union representatives when they (presumably) learned that the further review of Ms Costello’s status was set to be conducted in April 2024. [16] While I am content to accept the Commission should ideally have dealt with the matter sooner, I have no doubt the multiple changes in personnel at the union who had carriage of Ms Costello’s appeal has also contributed to this unfortunate situation to some extent. [17] For completeness I would add that there is a small but important error in Ms Costello’s submissions that requires rectification. Ms Costello (through her union) asserts that the delay was due to ‘the loss of the physical file’. That is not correct. The transcript plainly 3 Public Sector Act 2022 (Qld) s 115(2). 4 The imposition of mandatory time frames for the delivery of decisions is a policy generally eschewed by courts and tribunals because it is widely considered that such a practice is likely to impede a decision maker’s proper and comprehensive contemplation which in turn will increase the risk of error. That said, every judicial officer should strive to ensure reserved judgments are delivered at the earliest opportunity their workload will permit. -- 5 of 11 -- 6 records that I informed the parties that I had ‘lost track’ of the file.5 To be clear, the term ‘lost track’ refers to the administrative error that caused the system of prompts and ‘bring ups’ I rely on to fail. The physical file was never lost. [18] As blameless as Ms Costello might be in all of this, the delay that has occurred has given rise to a serious question as to the practical utility of dealing with the appeal. To understand why this is the case, an understanding of the regime established by the PS Act for the review of the employment status of temporary employees is necessary. The statutory review regime [19] The language of s 115 of the PS Act is plain. Subject to the relevant prerequisite service (which Ms Costello has) a non-permanent employee’s chief executive must review the employee’s status after an initial period of continuous service of 2 years, and thereafter, every year. Even where an employee does not seek conversion, their chief executive must consider their status and must make a decision as required. [20] The status review regime puts in place a perpetual annual review of the status of non- permanent employees once they pass the threshold of two years continuous service. This regime is no doubt designed to achieve the overarching objective cited in the PS Act that the default basis of employment should be permanent employment.6 [21] The regime established by s 115 of the PS Act is therefore one of constant compulsory review of the status of an employee but, importantly, each review culminates in an annual statutory compulsion for the chief executive to make a decision that will determine an employee’s status for the coming 12-month period. [22] Further, in the absence of mutual consent of the parties to convert, a conversion decision cannot be displaced within the next 12-month period other than by the limited methods prescribed by sections 116 and 117 of the PS Act, or by order of this Commission pursuant to s 562C of the IR Act.7 [23] Significantly, each of the prescribed exceptions can only be activated within a specified time period which, in each case, is no greater than 3 months after the date of a decision made pursuant to s 115 of the PS Act. That is to say, in each case, the process for displacement of a status review decision must be initiated within a relatively short period after that decision was made. [24] While the PS Act makes no stipulation to this effect, the relatively short time frames to displace a status review decision would appear to inter alia be intended to accommodate 5 T 1-2, ll 30-40. 6 Public Sector Act 2022 (Qld) s 39(3). See also Clause 4 Directive (2/23) – Review of non-permanent employment. 7 Westacott v State of Queensland (Queensland Health) [2021] QIRC 417. -- 6 of 11 -- 7 consideration and implementation of a change to the status before the next annual review prescribed by s 115 of the PS Act. [25] In my view, the status review regime can only be effective (and fair) where it limits the decision maker to considering suitability and operational circumstances contemporary to the time of the decision and, more importantly, where the decision made then operates prospectively. [26] It is incongruous with the nature of the prescribed regime to make a decision about conversion that descends too deeply into historical matters, including matters relevant to previous reviews. Save for any e.g. protracted performance issues that might traverse multiple review periods, each review should present a fresh opportunity to consider conversion of an employee in the relevant contemporary circumstances. [27] It is therefore my view that the effect of each status review decision is to wholly supersede the previous one. I will deal with the effect of this conclusion later in these reasons. [28] For completeness I note that the circumstances of this appeal are quite distinct from the circumstances in Talbot v State of Queensland (Department of Education) (‘Talbot’).8 In Talbot the relevant Department purported to unilaterally ‘substitute’ a decision already under review by the Commission while the appeal was pending. By contrast, the 2023 decision has not been substituted but instead, it has been superseded by the 2024 decision which occurred by virtue of the compulsory statutory obligations of the respondent contained in s 115 of the PS Act. The effect of the delay on the review regime [29] The period between October 2023 and October 2024 gave rise to a number of significant events for Ms Costello’s employment. Firstly, Ms Costello was suspended and placed on alternative duties from January 2024. Secondly, in April 2024 Ms Costello’s employment status was reviewed and conversion was declined due to the presence of unresolved suitability issues. Thirdly, Ms Costello had (but did not take) the opportunity to appeal the 2024 decision within 21 days of it being made. [30] In my view, each of these events has had (or may have had) an effect on the practical utility of dealing with the appeal of the 2023 decision. [31] Despite the (then) unresolved nature of the suitability issues impacting the 2024 decision, they remained a valid consideration for the decision maker at that time. Consideration of those unresolved issues to refuse conversion did not involve the decision maker having 8 [2023] QIRC 010. -- 7 of 11 -- 8 to reach a conclusion as to the veracity of those issues. Their mere existence was enough to refuse conversion. [32] While I am not aware what the suitability issues were, correspondence annexed to the respondent’s submission indicates that Ms Costello was suspended and placed on alternative duties (presumably pursuant to s 101(3) of the PS Act) from January 2024. It would therefore be reasonable to infer that they were sufficiently serious for the chief executive to consider Ms Costello may be liable for disciplinary action, or that it was necessary to remove her on suspension to avoid prejudice to the efficient management of the service.9 [33] However, on 22 November 2024 (well after all submissions in this matter had closed) the union acting for Ms Costello somewhat casually informed me (via email) that the ‘conduct matter’ would not be the subject of further action.10 I presume that the ‘conduct matter’ is a reference to the suitability issues that were central to the 2024 decision. [34] I am of the view that unresolved suitability issues, had they remained unresolved, would have been a compelling reason not to deal with the appeal against the 2023 decision regardless of how long after that decision they arose. The general prohibition on considering matters that were not before a decision maker when considering an appeal is confined to the consideration of the appeal. Considering whether an appeal will be dealt with pursuant to s 562A of the IR Act is an entirely different exercise that allows much broader considerations.11 [35] But the email of 22 November 2024 appears to confirm that there will be ‘no further action’ in respect of the ‘conduct matter’. It is not clear from the email whether this means action was taken and is now concluded, or whether no action was taken at all. Given there was no objections or clarification from the respondent to the email of 22 November 2024, I will presume it is the latter. [36] In those circumstances I have no need to consider the (now resolved) suitability issues as a basis to inform my discretion not to deal with the appeal. However, the superseding effect of the 2024 decision and, more particularly, the failure by Ms Costello to challenge it remain of concern to me. The 2024 decision supersedes the 2023 decision [37] There is something inherently discordant about the prospect of a status review decision from 2023 being reviewed (and potentially overturned) in circumstances where a 9 Public Sector Act 2022 (Qld) s 101(1). 10 The communication of such critical information by simple email is a less than optimum mode of communication for such matters in formal proceedings. The matter should have been raised by way of a request for further mention of the proceedings to discuss the effect (if any) of those recent developments in Ms Costello’s situation. 11 The effect of s 562A(3)(b)(iii) of the IR Act is to confer an unfettered discretion on the Commission. -- 8 of 11 -- 9 subsequent status review decision has been made in 2024. Despite there being no express statutory barrier to such an appeal, one emerges from a combination of the unique facts of this case, and the construction of the statutory appeal provisions. [38] The untenable nature of Ms Costello’s appeal truly crystalizes when she fails to appeal the April 2024 conversion decision. Had Ms Costello done so, I would almost certainly have considered that the dilemma arising from the delay in dealing with her appeal of the 2023 decision could properly be remedied by hearing the appeals together. [39] But Ms Costello did not challenge the April 2024 decision. Nothing in the material filed by Ms Costello in respect of the s 562A considerations offers any insight into whether this was a deliberate choice, or whether it was a product of some impediment or error. In the absence of any submission, I can only infer that Ms Costello elected not to appeal. In any event, the reason for the failure to appeal is largely irrelevant. [40] While one might speculate that Ms Costello perhaps considered her appeal against the 2023 status review decision was sufficient notice to the respondent that she intended to challenge her non-conversion more generally, such thinking would be misconceived in circumstances where each status review is independent and determined on the relevant contemporary circumstances. Additionally, any presumption that an appeal against an earlier decision might serve a dual purpose with respect to subsequent conversion decisions is fraught with problems. The jurisdiction of the Commission to conduct a review is limited to a single decision.12 [41] The 2024 decision considered all of the relevant contemporary circumstances, and it was the determination of the chief executive’s delegate that Ms Costello was not a viable candidate for conversion. In the absence of an appeal, that decision stands as an unassailable determination of Ms Costello’s employment status for a subsequent period of 12 months. It is here that the limited jurisdiction of the Commission negates the practical utility of the appeal against the 2023 decision. [42] The IR Act confers a jurisdiction to review certain decisions.13 The jurisdiction is expressly prescribed as follows: 562B Public service appeal to commission is by way of review (1) This section applies to a public service appeal made to the commission. (2) The commission must decide the appeal by reviewing the decision appealed against. (3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. … 12 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225, [25]-[28]; Carr v State of Queensland (Department of Education) [2024] QIRC 210; Stacey v State of Queensland (Department of Education) [2024] QIRC 220. 13 Industrial Relations Act 2016 (Qld) ch 11 div 4. -- 9 of 11 -- 10 562C Public service appeals—decision on appeal (1) In deciding a public service appeal, the commission may— (a) confirm the decision appealed against; or (b) for an appeal against a promotion decision—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; or (c) for another appeal—set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. … (Emphasis added) [43] The jurisdiction of the Commission to review ‘the’ decision and the limit on the powers conferred to e.g. confirm or set aside ‘the’ decision plainly deprives the Commission of any jurisdiction to interfere with the 2024 decision. Ms Costello’s current temporary status cannot be disturbed. In those circumstances, even if the appeal of the 2023 decision resulted in a finding of unfairness (which is unlikely) there could be no decision available pursuant to the limited powers of the Commission that could provide any practical benefit to Ms Costello’s employment. [44] It is therefore not merely the Commission’s delay in dealing with Ms Costello’s appeal that has eroded its practical benefits. Quite apart from that, it is the combination of that factor with Ms Costello’s failure to challenge the subsequent non-conversion decision that leaves no doubt that the practical utility of considering the 2023 decision has long since evaporated. [45] In those circumstances I consider there is a compelling reason not to deal with the appeal. A further compelling reason [46] While I do not intend to descend into a detailed analysis of the merit of Ms Costello’s appeal against the 2023 decision, I note that she was actually offered the opportunity for conversion in April 2023. The options offered for consideration included offers of permanent employment at regional locations, or twilight rosters at her current location. [47] The respondent’s submissions, in reliance on Ewart v State of Queensland (Queensland Ambulance Service) (‘Ewart’) contend that the offer to convert Ms Costello deprives the Commission of jurisdiction to deal with the appeal.14 I agree entirely with the views expressed by Commissioner Pidgeon in Ewart. I note the facts of Ewart are analogous 14 [2023] QIRC 304, [66], [74]. -- 10 of 11 -- 11 with Ms Costello. In those circumstances there is significant merit in the respondent’s jurisdictional objection. [48] Further, in reliance on Edwards v State of Queensland (Queensland Ambulance Service) (‘Edwards’) the respondent alternatively submits that an offer of permanent employment in a regional area is fair and reasonable given the operational requirements that must be observed.15 Again, I note the analogous facts to Ms Costello and again, I consider there is significant merit in the respondent’s submission. [49] Save for objections about an offer of conversion producing an unacceptable reduction in hours etc., there are few scenarios where I would be inclined to consider that the type of conversion offered to Ms Costello would be unfair or unreasonable. The process of conversion is not uncommonly a staged one, where employees must expect that their ideal role may not be the first permanent role offered. [50] Further, in circumstances where broader operational considerations must be taken into account (including the deployment of essential service employees), employees in roles like Ms Costello’s cannot always expect the indulgence of dictating the precise terms of their conversion. In most cases the numerous benefits acquired by an employee securing permanent employment will significantly outweigh the (likely) short term disadvantages of a change of location or rostered hours. [51] While noting that the material facts of Ms Costello’s appeal are largely analogous with those in both Ewart and Edwards, but without expressing a final view on the merits of the jurisdictional argument or the merits of Ms Costello’s appeal, I am prepared to at least posit a confident preliminary view that her prospects of success in defeating a jurisdictional challenge or succeeding in the appeal of the 2023 decision are both poor. [52] These are yet more compelling reasons not to deal with her appeal. Order I decline to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld). 15 [2023] QIRC 111. -- 11 of 11 --