Eid v State of Queensland (Queensland Health) [2025] QIRC 24

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Eid v State of Queensland (Queensland Health) [2025] QIRC 024 PARTIES: Eid, Tamara (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2024/125 PROCEEDING: Public Service Appeal – Appeal against a conversion decision DELIVERED ON: 28 January 2025 MEMBER: HEARD AT: Power IC On the papers ORDER: 1. Application for extension of time is refused. 2. Appeal is dismissed for want of jurisdiction. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where respondent raises jurisdictional objections – where appeal filed out of time – whether extension of time application should be granted – where extension of time not granted – appeal dismissed for want of jurisdiction LEGISLATION AND OTHER INSTRUMENTS: Directive 03/23 - Review of acting or secondment at higher classification level, cl 1, cl 7, cl 12 Industrial Relations Act 2016 (Qld), s 75, s 562B, s 562C, s 564 Public Sector Act 2022 (Qld), s 120, 129, 131 -- 1 of 12 -- 2 CASES: A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Goodall v State of Qld & Anor [2018] QSC 319 Reasons for decision Introduction [1] Ms Tamara Eid ('the Appellant') is substantively employed by the State of Queensland (Queensland Health) ('the Respondent') as a Pharmacist Rotational (HP3), Princess Alexandra Hospital, Metro South Health ('MSH') on a permanent full-time basis. [2] Since 6 March 2017, the Appellant has been acting in higher duties in the position of Pharmacist Senior (HP4), Clinical Trials, Princess Alexandra Hospital, Metro South Health ('the Position') in both a full-time and part-time capacity. Since 13 March 2017, the substantive holder of the Position has been on either parental leave or working in a part-time capacity. [3] The Appellant submitted a request to be permanently appointed to the Position, pursuant to s 131(1)(a) of the Public Sector Act 2022 (Qld) ('the PS Act') and Directive 03/23 – Review of acting or secondment at higher classification level ('the Directive'). [4] Following the request, the Appellant was issued a letter on 8 July 2024 from Ms Lorna Morton, Acting Executive Director Human Resources, MSH ('the decision maker') advising that the Appellant would not be appointed to the position due to the genuine operational requirements of the agency ('the decision'). [5] By appeal notice filed in the Industrial Registry on 2 August 2024, the Appellant appealed against the decision. Appeal principles [6] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. -- 2 of 12 -- 3 ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [7] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision to deny conversion of the Appellant to a higher classification level was fair and reasonable in all of the circumstances. What decisions can the Industrial Commissioner make? [8] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: a. confirm the decision appealed against; or b. set the decision aside and substitute another decision; or c. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Relevant provisions of the PS Act and the Directive [9] Pursuant to s 129(e) of the Public Sector Act 2022 (Qld) ('the PS Act'), a 'conversion decision' means a decision: …under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years.5 [10] The Directive became operative on 1 March 2023 and provides: 7. Decision-making 7.1 When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity. … 12. Appeals 12.1 Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act. 3 Goodall v State of Qld & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). 5 Public Sector Act 2022 (Qld) s 129(e) ('PS Act'). -- 3 of 12 -- 4 [11] The purpose of the Directive is outlined as follows: 1. Purpose 1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector. 1.2 This directive supports and supplements the provisions of the Act with respect to the review of public sector employees acting at, or seconded to, a higher classification level. 1.3 This directive sets out procedures for reviews and requirements for decisions in the context of reviewing an employee acting, or seconded to, a higher classification level. Reasons for Appeal [12] The Appellant's grounds for appeal as stated in the appeal notice are outlined as follows: … I've been told there is no position/funding available to give me a 0.4FTE permanent position, however in the same cost-centre of research pharmacy there is a 3- day clinical trials position, under main and cancer pharmacy trials [0.6FTE] that is temporary. This position has only been available for 6 months and has been extended for another 6 months. Doesn't that mean there is funding to grant me a 0.4FTE permanent position as a clinical trials pharmacist, as that temporary position is available? … Submissions [13] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Appellant's submissions [14] The Appellant's submissions are, in summary, as follows: (a) The Appellant submits that she has been acting, to some extent, in a higher- level pharmacist position continuously since March 2017. This position has been providing maternity leave cover since the owner of the full-time position has had extended periods of time off work to have two children and has not returned in a full-time capacity to work yet. (b) The Appellant's higher duties contract position as a senior pharmacist has been extended 30 times over the last 7 years of maternity leave coverage. (c) The Appellant applied for a permanent position conversion to the higher duties level of 2 days per week, which is equivalent to the number of days -- 4 of 12 -- 5 the Appellant is currently acting in this role. This application was declined stating "no position available, due to maternity leave coverage" and "there is no continuing need to be permanently employed". (d) The Appellant applied for this permanent conversion with guidance from the Human Resources Team at the Department, who stated that she was eligible for permanent conversion as it was in accordance with s 120 of the PS Act and the Directive. Clause 8.1 of the Directive states that a continuous period "… for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same public sector entity." (e) The Appellant submits that she has been working in a higher duties role since March 2017, and has had her contract position extended 30 times. (f) The Appellant argues that the financial cost-centre for clinical trials pharmacy is operating at an annual surplus that would sufficiently be able to fund the additional FTE of HP4 or HP5 permanent clinical trials pharmacist on an ongoing basis. (g) The Appellant submits that there are multiple temporary contract positions in this cost centre that would allow a temporary to permanent conversion for the Appellant's contract easily within the budgeted FTE for staff. (h) The Appellant further submits that the permanent staff are working continuous periods of overtime throughout the years, due to increased trial activity demands from pharmacy staff. (i) The Appellant argues that as the Pharmacy Clinical Trials Cost centre has continued to increase its incoming revenue and is meant to be cost neutral, this additional revenue should be used on additional staffing. (j) The Appellant submits that the annual spend on pharmacists' overtime alone would be sufficient to cover the additional FTE required to change the Appellant's contract from temporary to permanent. Additional permanent FTE would also relieve pressure on existing staff. (k) The Appellant also made submissions outlining the multiple FTE pharmacist positions in a permanent and non-permanent setting. Respondent's submissions [15] The Respondent's submissions are, in summary, as follows: (a) Section 564 of the Industrial Relations Act 2016 requires that an appeal must be started within 21 days after the decision appealed against is given, that -- 5 of 12 -- 6 being 29 July 2024. The Appellant's appeal was lodged on 2 August 2024. Whilst the delay was only four days, the Respondent argues that statutory time limits should not be considered as being arbitrary but rather seen as the expectation outside of exceptional circumstances. (b) The Appellant's rationale for not commencing her appeal within the statutory time limit was that she was unaware of her right to appeal the decision or that an appeal of the decision was open to her. (c) The Respondent submits that the Appellant was notified of her appeal rights in the decision letter of 8 July 2024, including that there are procedural requirements such as time limits to commence an appeal of the decision. The Appellant was notified of her appeal avenues but did not access them in accordance with the required time limits. (d) The Respondent argues that the Appellant has not provided any information that would suggest her circumstances are exceptional to an extent that they outweigh the statutory time limits to commence an appeal. (e) The Respondent submits that the Appellant's appeal should not be heard on the basis that the appeal was submitted outside of the statutory time limit, and she has provided no exceptional circumstances that would warrant the delay. (f) The appeal filed by the Appellant has been made on the following basis: (i) The Appellant has been acting in higher duties in the Position since March 2017 and since that date she has been extended thirty times. (ii) The cost centre that the Position is part of has an annual budget surplus that could be utilised to fund additional FTE on an ongoing basis. (iii) There are other temporary or permanent positions available within the work unit. (iv) Existing staff within the work unit have been required to work overtime. (v) There is continued growth within the work unit. (g) The Respondent argues that consideration was given to the Appellant's suitability for the Position. There were, and are, no concerns regarding the Appellant's suitability to perform the Position. The Appellant satisfies the principle of suitability in relation to the Position. -- 6 of 12 -- 7 (h) The decision maker considered if there were any previous higher duties conversion decisions and found that no prior requests for conversion had been made. (i) In considering operational requirements, the decision maker is required to consider whether there is a genuine ongoing need to convert the Appellant to the Position having regard to the effective, efficient, and appropriate management of MSH and public resources. (j) While the Appellant has had her acting at higher duties engagement extended multiple times, each engagement has been for a genuine operational requirement to backfill the same substantive position holder's periods of leave or reduced working hours arrangements. (k) The Respondent argues that although there is a current requirement to backfill the Position, the substantive position holder is scheduled to resume full-time hours on 19 January 2025, at which point there will no longer be a genuine operational requirement to backfill the Position, which is a sufficient operational reason to not convert the Appellant to the Position. (l) At the time of the Appellant's application, she was backfilling the substantive occupant of the Position, who is currently accessing a period of reduced hours having returned from parental leave in accordance with their statutory entitlements under the Queensland Employment Standards ('QES'), prescribed within the IR Act. (m) Further, in accordance with the QES as outlined in s 75(2) of the IR Act, the permanent incumbent is permitted to access temporary part-time arrangements until their child is required to be enrolled for compulsory schooling. Consequently, while the period which the Appellant has been acting in higher duties is significant, in accordance with the QES entitlements of the permanent incumbent of that role, it is finite. (n) The Respondent submits that the compounding effect of parental leave entitlements has in this case prolonged the period in which the Appellant has been acting at higher duties. This is due to the Position's permanent incumbent taking a period of reduced hours having returned from the first parental leave period, which was then followed by a second period of parental leave and then a further period of reduced hours. (o) It is evident from the fact that the Appellant's temporary higher duties in the Position are based upon the substantive position holder's FTE status that the Appellant is currently backfilling the higher duties position in a part-time capacity due to the substantive position holder returning from parental leave in a part-time capacity. -- 7 of 12 -- 8 (p) The Respondent submits that if the Appellant was permanently appointed to the Position, there would be an excess of the total employee FTE required by MSH upon the return of the existing substantive position holder, resulting in inappropriate management of public resources as there is no genuine operational need for greater than 1 FTE appointed to the Position. (q) The Respondent further submits that the Appellant's submissions outlined several additional factors which she argues should be taken into consideration when deciding if the decision not to convert her employment to higher duties was fair and reasonable. (r) The Respondent argues that the financial position of the work unit is irrelevant in determining if the decision was fair and reasonable and is not required for consideration per the PS Act. (s) The Respondent further argues that while the Appellant has identified several other positions she considers as suitable to facilitate her conversion to higher duties, it is not open to the decision maker to pick and choose which position could be utilised, as the scope is limited to the Position and no consideration should be given to other higher duties positions. Appellant's submissions in reply [16] The Appellant's submissions in reply are, in summary, as follows: a) The Appellant disputes the Respondent's submission that the substantive holder of the Position would resume full-time employment on 19 January 2025 and argues that this date is the end of her contract. The Appellant submits that the contract has been extended and will continue to do so until the substantive position holder chooses to return to her full-time position. The Appellant's contract will continue to have roughly 6-monthly turnarounds and will continue to be extended as at this point in time the substantive holder does not wish to come back to full time work and has stated that she will not return to full-time work next year. b) The Appellant argues that she is not requesting to convert to permanent to take from the current substantive holder but instead submitting that there is precedence for additional permanent pharmacist HP4/HP5 FTE in Clinical Trials, with which the Appellant is requesting a conversion to. c) In response to the Respondent's submissions about the deadline to lodge an appeal, the Appellant argues that she was informed, via a private interview with the deputy director of pharmacy, that her application to convert to permanency was declined. The Appellant informed the deputy director that she disagreed with the reasoning provided as there is precedent for the -- 8 of 12 -- 9 conversion. d) The Appellant later received an official rejection from MSH and assumed that there was nothing further she could do. The Appellant concedes that this rejection letter contains information on the bottom of the third page of appealing the decision but argues that it did not occur to her that this option was possible for her to pursue. e) The Appellant assumed that the Respondent understood that she had appealed, and they still rejected the appeal. Therefore, the Appellant assumed that she was fairly judged by MSH and appealing this decision would not lead to anything further except potentially causing issues with management in her workplace, which she did not want to do. f) The Appellant submits that the reason she realised that she had an opportunity to assess if she was fairly judged is that a couple of colleagues informed her of their experience. g) The Appellant submits that she can re-apply for permanent conversion next year on 11 June 2025, and that she will be in the same position then as she currently is now. The Appellant argues that the re-application will ultimately result in another rejection and that this time she will apply to the tribunal for review. The Appellant submits that as this process repetition will be time consuming for all parties involved, she is requesting that the present 4-day delay in application to be approved. Consideration [17] The Respondent has raised a jurisdictional objection to this appeal being heard on the basis that the notice of appeal was filed outside of the statutory timeframe. [18] Section 564 of the Industrial Relations Act 2016 (Qld) ('IR Act') provides the following: 564 Time limit for appeal (1) An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period. (2) However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period. (3) In this section— appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after— (a) if the decision is given at a hearing—the announcement of the decision at the hearing; or (b) if the decision is given through the registrar—the release of the decision; or (c) if the decision is a promotion decision—the decision is publicly notified under -- 9 of 12 -- 10 the Public Sector Act 2022; or (d) if, under another Act, the decision is given in another way—the decision is given in the other way. [19] The Appellant bears the onus of establishing that the justice of the case requires an extension of time.6 The statutory provision was considered by the Industrial Court of Queensland in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber')7 in which President Martin outlined the following - On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way: "This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."8 [20] President Martin J outlined the matters to be considered when exercising the discretion as to whether an extension of time is to be granted in A1 Rubber, stating: In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…9 [21] There are no compelling submissions provided as to the justice of the case requiring the granting of an extension of time. I note the Appellant's submission that she is eligible to re-apply for conversion in June 2025, indicating limited prejudice will be suffered if this appeal is not heard. The Appellant will have appeal rights associated with future appealable decisions regarding applications for conversion. [22] There is no indication that significant prejudice will be suffered by the Respondent if the time limit were to be extended. There is general prejudice, however, in the Respondent not being able to rely upon a statutory time limit in order to be satisfied that a process has come to an end. [23] The grounds of the Appeal primarily relate to the purported availability of other higher duties positions within the organisation due to the availability of further funding. [24] The Appellant submits that she is not requesting to convert to permanency to "take from the current substantive holder", but instead to be converted to an additional permanent pharmacist HP4/HP5 position in Clinical Trials. [25] The Directive provides that a decision may be made to appoint an employee undertaking higher duties to the specific position in which the employee is engaged. The Directive 6 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 7 [2019] ICQ 16. 8 A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16. 9 Ibid. -- 10 of 12 -- 11 does not provide for consideration of other higher-level positions. [26] In this matter, an incumbent employee is employed in the higher duties position and is currently on approved leave relating to parenting arrangements. In these circumstances, it has generally been accepted that the genuine operational requirements of the employer may prevent conversion to the higher duties position on the basis that the incumbent employee is expected to return. I note that this is a general proposition, and other factors must also be considered as outlined in the Directive, however, there are no other submissions to indicate that this appeal has reasonable prospects of success. [27] Section 564 of the IR Act provides that an appeal must be filed within 21 days of the decision. In this matter, the 21-day time period ended on 29 July 2024. The Appellant filed the notice of appeal on 2 August 2024, being four days beyond the time period. [28] The Appellant submits that when she was told that her application to convert to permanency was declined, she informed the Deputy Director that she disagreed with the decision. The Appellant contends that after receiving the 'official rejection' letter she assumed that there was nothing further she could do, stating that she assumed she had been fairly judged after raising her concerns and did not want to cause issues with management in her workplace. [29] The Appellant submits that the reason she realised that she could appeal was when her colleagues informed her of their experience. [30] The decision letter attached a detailed outline of the appeal processes available to the Appellant. The Appellant does not dispute that the letter contained this information, however, contends that "it did not even occur" to her that this option was possible for her to pursue. It is unclear why the Appellant formed this view, when the letter clearly outlined the appeal options that were available. [31] The decision letter also included reference to time limits, stating the following – There are procedural requirements, including time limits, under the Industrial Relations Act 2016 that you must fulfil in order to appeal this decision. Refer to the Appeals directive 04/23. [32] I am satisfied that the Appellant was made aware of her appeal rights and the existence of the time limits associated with the exercise of those rights. The Appellant did not explain her concerns that exercising those rights at the time may have caused issues with management, however, exercising appeal rights outside of the time period would somehow not raise similar concerns. It is also unclear why the Appellant would believe that there was 'nothing' she could do whilst acknowledging that the appeal rights were outlined in the decision. The reasons given for the delay in filing the appeal are not persuasive. [33] Although the delay in filing the appeal was not lengthy, the reasons given by the -- 11 of 12 -- 12 Appellant for filing the appeal outside of the 21-day time period are not sufficiently compelling to warrant the extension of the period to appeal. [34] For the foregoing reasons, I am not persuaded that the discretion should be exercised to extend the time for the appeal to proceed. Orders [35] I make the following orders: 1. The Appellant's application for an extension of time to lodge the appeal is refused. 2. The appeal is dismissed for want of jurisdiction. -- 12 of 12 --