Epong v State of Queensland (Queensland Health) [2025] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO: PROCEEDING: DELIVERED ON: MEMBER: HEARD AT: Epong v State of Queensland (Queensland Health) [2025] QIRC 007 Epong, Andrew Appellant v State of Queensland (Queensland Health) Respondent PSA/2024/178 Public Service Appeal – Temporary Employment 15 January 2025 O’Neill IC On the papers ORDERS: 1. The appeal is allowed. 2. Pursuant to section 562C(1)(c) of the Industrial Relations Act 2016, the decision that Mr Epong not have his temporary employment converted to permanent employment is set aside and another decision is substituted. 3. Mr Epong’s temporary employment status as a HP4 Senior Occupational Therapist be converted to permanent employment. CATCHWORDS: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a conversion decision – where the -- 1 of 28 -- 2 appellant is employed by the respondent as a temporary Senior Occupational Therapist – where the appellant is filling a temporary vacancy and the incumbent is to return in June 2025 – where the appellant was reviewed for conversion to permanent employment – whether there is a continuing need for appellant to be employed in the same role – whether respondent adequately considered continuing need for appellant to be employed in a role that is substantially the same – consideration of genuine operational requirements – whether the respondent conducted review as required – whether the decision is fair and reasonable LEGISLATION: CASES: Acts Interpretation Act 1954, s 27B Industrial Relations Act 2016, s 562B, s 562C. Public Sector Act 2022, s 113, s 114, s 115, s 131 Directive 02/23 – Review of non-permanent employment, cl 13 Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 4) 2022, cl 12.2, cl 12.3 Battaglia v State of Queensland (Queensland Health) [2023] QIRC 055 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Goodall v State of Queensland [2018] QSC 319 -- 2 of 28 -- 3 Morison v State of Queensland (Department of Child Safety, Youth & Women) [2020] QIRC 203 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Palomino v State of Queensland (Department of Education) [2021] QIRC 129 Power v State of Queensland (Department of State Developments, Tourism and Innovation) [2021] QIRC 53 Stievano v State of Queensland (Queensland Health) [2022] QIRC 404 Taylor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 053 Wood v State of Queensland (Queensland Health) [2024] QIRC 173 Reasons for Decision Introduction [1] Mr Andrew Epong ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent'), as a fixed-term temporary employee in the health practitioner stream at the Cairns and Hinterland Hospital and Health Service ('CHHHS'). [2] On 3 October 2022, the Appellant obtained a fixed-term temporary contract in the Cairns Home and Community Care Services ('HACC') as an Occupational Therapist. The Appellant was originally engaged in a temporary capacity in the Health Practitioners stream until 25 December 2022.1 [3] The Respondent conducted an employer-initiated review of the Appellant’s non- permanent employment status on his anniversary date of 26 September 2024 in accordance with the requirements of s 115 of the Public Sector Act 2022 (Qld) ('the PS Act') and Directive 02/23 – Review of non-permanent employment ('the Directive').2 1 Respondent’s Outline of Submissions ('Respondent’s submissions') filed 28 November 2024, [8]. 2 Ibid, [10], Attachment 2. -- 3 of 28 -- 4 [4] As of 26 September 2024, the Appellant was employed as a HP4 Senior Occupational Therapist on a fixed-term temporary contract for the period 29 September 2024 to 29 June 2025.3 [5] The Appellant has been extended in his current temporary engagement as a HP4 Senior Occupational Therapist on ten occasions.4 [6] The Appellant is employed under the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 4) 2022 ('the Agreement'). [7] By letter dated 23 October 20245 ('the decision letter') the Appellant was advised that he was not being converted to permanent employment and that he would remain as non- permanent fixed term temporary employee. [8] On 5 November 2024, the Appellant filed an appeal against the conversion decision made by the Respondent.6 [9] For the reasons that follow, I have found that the decision was not fair and reasonable, and I have set aside the decision made on 23 October 2024 and substituted a decision that the Appellant’s temporary employment status as a HP4 Senior Occupational Therapist be converted to permanent employment. The Decision Letter [10] The decision letter confirmed that the Appellant was to continue in the role of Senior Occupational Therapist, Cairns Commonwealth Home Support Program ('CCHSP') until 29 June 2025 when the substantive incumbent was expected to return from secondment. [11] The decision letter also confirmed that there was a continuing need for the Appellant to fill the role, or a role that was substantially the same and that he was suitable to perform the role. [12] The Respondent then noted that there were 'genuine operational requirements' that meant that it was not viable or appropriate to convert the Appellant to permanent employment, those being: …there is no permanent vacancy within the Cairns Commonwealth Home Support Program and the substantive incumbent is expected to return from secondment the (sic) 3 Ibid, [11]. 4 Appellant’s Outline of Submissions filed 14 November 2024, [5]. 5 Respondent’s submissions (n 1), Attachment 3 – correspondence from Mellise Anderson dated 23 October 2024. 6 Appeal Notice filed on 5 November 2024. -- 4 of 28 -- 5 30 June 2025. Grounds of Appeal [13] In the Appeal Notice the Appellant provides the following grounds: 1. The Decision being appealed was made pursuant to section 115 of the Public Sector Act 2022 (the PS Act). 2. I am eligible to appeal this decision as per section 131(a) of the PS Act. 3. I have been employed with Cairns and Hinterland Hospital and Health Service (CHHHS) for a total of 24 months. 4. I am currently employed as an occupational therapist (HP4). 5. I have been extended in my current temporary engagement 10 times as a HP4. 6. I received a letter advising of the outcome of the review on the 24th of October 2024 informing me that my request for permanency had been rejected. 7. The letter advises that there is a continuing need for me to employed in my current role or a role that is substantially the same. However, the letter does not expressly state whether the review included a search for roles that are substantially the same. 8. If there was a search for other roles that may be substantially the same, this was not expressly stated nor was there any identification on what roles were considered. This appears to be in contravention of section 27B of the Acts Interpretation Act 1954 as there is no reference to evidence or other material which demonstrates that these other roles that are substantially the same have been considered. 9. The CHHHS submit that there are genuine operational requirements which have prevented my conversion to permanent employment. 10. The CHHHS state that these genuine operational requirements are due to there being 'No permanent vacancy within the Cairns Commonwealth Home Support program (CHSP).' It is submitted that the review should have considered other roles within the CHHHS rather than confining the review to the CHSP. -- 5 of 28 -- 6 Is the Appellant entitled to appeal? [14] Section 131(1)(a) of the PS Act provides that an appeal may be made against a conversion decision. Section 133 provides that for conversion decisions, it is the public sector employee the subject of the decision who may appeal. [15] Section 129 of the PS Act relevantly provides: 129 Definitions for part In this part— Conversion decision means a decision— (a) under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis; [16] I am satisfied that the decision is one that is able to be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal. [17] Section 564(3) of the Industrial Relations Act 2016 ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given [18] The Appellant received the decision letter on 24 October 2024 and the Appeal Notice was filed in the Industrial Registry on 5 November 2024. I am satisfied that the appeal has been brought within the required time. What decisions can the Commission make? [19] Section 562C(1) of the IR Act prescribes that the Commission may determine to either: • confirm the decision appealed against; • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or • set the decision aside and substitute another decision. Appeal Principles [20] Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". -- 6 of 28 -- 7 [21] The appeal is not conducted by way of re-hearing,7 but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.8 [22] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.9 [23] The issue for my determination is whether the decision appealed against was fair and reasonable.10 Relevant legislation and provisions of the Directive 02/23 and Agreement [24] Section 81 of the PS Act provides:11 81 Basis of employment – generally on permanent basis (1) Employment of a public sector employee is on a permanent basis unless the employee is employed on a non-permanent basis under this Act or another Act that enables the person to be employed on a non-permanent basis, including, for example— (a) on a temporary basis for a fixed term; or (b) on a casual basis. (2) However, a public sector employee may be employed under this Act or another Act on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate. (3) Without limiting subsection (2), employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes— (a) in relation to employment on a temporary basis for a fixed term— (i) to fill a temporary vacancy arising because a person is absent for a known period; or Examples of absence for a known period— approved leave (including parental leave), a secondment (ii) to perform work for a particular project or purpose that has a known end date; or Example— employment for a set period as part of a training program or placement program (iii) to fill a position for which funding is unlikely or unknown; or Example— employment relating to performing work for which funding is subject to change or is not expected to be renewed. 7 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1). 8 Ibid; Industrial Relations Act 2016, s 562B(2). 9 Industrial Relations Act 2016, s 567(2). 10 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA). 11 Emphasis added. -- 7 of 28 -- 8 (iv) to fill a short-term vacancy before a person is employed on a permanent basis; or (v) to perform work necessary to meet an unexpected short-term increase in workload; Example— an unexpected increase in workload for disaster management and recovery … (4) Without limiting subsection (3)(a), employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis. Example— An ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments … (7) To remove any doubt, it is declared that this section applies in relation to a public sector employee's employment on a temporary basis for a fixed term if the employment is extended under this Act or another Act. [25] Section 114 of the PS Act relevantly provides:12 114 Chief executive must make decision on employee's request … (3) The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if— (a) the employee's chief executive considers— (i) there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and (ii) the employee is suitable to perform the role; and (b) any requirements of an industrial instrument are complied with in relation to the decision. (4) If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity. [26] Section 115 of the PS Act provides: 115 Chief executive must review status after 2 years of continuous employment (1) If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee's chief executive must decide whether to— (a) continue the employee's employment according to the terms of the employee's existing employment; or (b) offer to convert the employee's employment to a permanent basis. 12 Emphasis added. -- 8 of 28 -- 9 (2) The employee's chief executive must make the decision within the required period after— (a) the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and (b) each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity. (3) In making the decision— (a) section 114(3) and (4) applies to the employee's chief executive; and (b) the employee's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment. (4) If the employee's chief executive decides not to offer to convert the employee's employment to a permanent basis, the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and (c) how many times the employee's employment on a non-permanent basis has been extended; and (d) each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment. [27] Section 27B of the Acts Interpretation Act 1954 (Qld) ('the AI Act') is in the following terms: 27B Content of statement of reasons for decision If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also— (a) set out the findings on material questions of fact; and (b) refer to the evidence or other material on which those findings were base [28] Clause 13 of the Directive provides: 13. Obligations when a decision is made not to offer to convert an employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment 13.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to: a. set out the findings on material questions of fact, and b. refer to the evidence or other material on which those findings were based. -- 9 of 28 -- 10 13.2 Any notice provided to the employee must include information about any relevant appeal rights available to the employee. 13.3 Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role, and notice provided to the employee must also include information about an employee's right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role. [29] Clause 12.2 of the Agreement relevantly provides: Permanent Employment 12.2.1 The parties recognise that permanent employment is the default type of engagement under this Agreement and are committed to maximising permanent employment where possible. Non-permanent forms of employment should only be utilised where permanent employment is not viable or appropriate. The employer will utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs. [30] Clause 12.3.1 of the Agreement relevantly provides: Permanent Employment for Fixed Term Temporary and Casual Employees 12.3.1 The parties are committed to maximising permanent employment opportunities for non- permanent employees. The parties agree to implement the whole-of-government Directive and policy which implements section 114 of the PS Act. Proceedings in the Commission [31] A Directions Order was issued by the Commission on 6 November 2024. [32] In accordance with that Directions Order the parties have provided written submissions as follows: • Appellant’s outline of submissions filed on 14 November 2024. • Respondent’s outline of submissions filed on 28 November 2024. • Appellant’s reply submissions filed on 13 December 2024. [33] I have considered all of the submissions and the attached evidence provided by the parties although it may not be specifically referenced in these reasons. -- 10 of 28 -- 11 [34] The parties have not applied for leave to make oral submissions, as a consequence the matter will be dealt with on the papers pursuant to s 451(1) of the IR Act. Submissions of the parties Appellant’s submissions [35] The Appellant notes that the decision letter states that there are two considerations for determining whether conversion to permanent employment is viable, with the first of those stated to be that 'there is a continuing need for you to perform your role or a role that is substantially the same'.13 [36] The Appellant submits that s 114(3)(a)(i) of the PS Act confers a broad approach by requiring that the consideration is whether there is a continuing need for someone to employed in the employee’s role or a role that is substantially the same, rather than confining the review to a question of whether there is a continuing need for the Appellant to be in the current role.14 [37] The Appellant also submits that in the decision letter, there is no mention on whether a search for other roles that may be substantially the same has occurred. Despite this, the Appellant notes that the Respondent in the decision letter claims to have addressed the criterion listed at s 114(3)(a)(i) of the PS Act.15 [38] The Appellant contends that the Respondent is in contravention of s 27B of the AI Act because in the decision letter there is no reference to the evidence or other material which demonstrates that there has in fact been consideration of whether there are other roles that are substantially the same as the Appellant’s current position.16 [39] The Appellant also submits that in the decision letter there is no mention or consideration of the previous decision to decline his 12-month employee-initiated review for conversion to permanent employment which would be a failure to comply with s 115(4)(d) of the PS Act.17 [40] In relation to the issue of 'genuine operational requirements' cited by the Respondent in the decision letter, that being, there was 'no permanent vacancy within the Cairns Commonwealth Home Support Program', the Appellant submits that declining conversion to permanent employment should not be based on there being a budgeted 13 Appellant’s submissions, [8]. 14 Ibid, [9]-[10] citing Wood v State of Queensland (Queensland Health) [2024] QIRC 173. 15 Ibid, [11]-[12]. 16 Ibid, [13]. 17 Ibid, [14]. -- 11 of 28 -- 12 vacancy as this is not a requirement for conversion to permanent employment.18 [41] In circumstances where there is no budgeted vacancy the Respondent contends that the creation of a new permanent position is to be expected in such circumstances.19 [42] I summarise the balance of the Appellant’s submissions as follows: • There has been an underspend of productive FTE (ordinary hours) for the CHSP health practitioner workforce within CHHHS, with an average of 0.21 FTE variance since 2021.20 • In relation to the Respondent’s contention that the substantive incumbent was expected to return from secondment on 30 June 2025, the Appellant states that the staff member who holds position 30497688 is currently seconded to position 30476525 and both positions are funded within Cairns CHSP. The Appellant submits that if the staff member were to return to their substantive position (30497688), there will remain an 0.5 FTE senior occupational therapist funding to fill within Cairns CHSP.21 • Position number 30497688 is permanently established at 1.0 FTE and is currently over-established by 0.5 FTE via a previous conversion to permanent employment process. The Appellant contends that his appointment to permanent holds negligible risk to CHHHS due to historic inabilities to recruit allied health positions and backfill.22 • Throughout 2024 the Appellant has worked on average 0.3 FTE above his temporary part-time 0.5 FTE contract because there is a considerable underspend in the CHHHS CHSP health practitioner workforce in addition to a high demand for occupational therapy services for both CHHHS and Cairns CHSP.23 • The Appellant submits that the review should have also considered other roles within CHHHS rather than confining the review to the CHHHS Cairns CHSP. The Appellant further contends that given that CHHHS have not expressly stated whether there were any genuine operational requirements preventing conversion into other roles that may be substantially the same, that there are no known genuine operational requirements blocking conversion into a role that is substantially the 18 Ibid, [17], citing Stievano v State of Queensland (Queensland Health) [2022] QIRC 404, [56] at page 17, per McLennan IC. 19 Ibid [18], citing Battaglia v State of Queensland (Queensland Health) [2023] QIRC 055, [69] per McLennan IC. 20 Ibid, [19] referencing Attachment 3 – HSCE briefing note – Temp to Perm Conversion Over-Establishment. 21 Ibid, [20] referencing Attachment 3 (n 20). 22 Ibid, [21]-[22], referencing Attachment 3 (n 20). 23 Ibid, [23]. -- 12 of 28 -- 13 same.24 • The Appellant’s final submission is that the Chief Executive did not consider his status of being an identified Aboriginal public service officer in relation to s 27(a) and (b) of the PS Act. The Appellant notes CHHHS Human Resources have been made known of his indigenous status via the MyHR portal.25 • The Appellant seeks either to be converted to permanent employment, or in the alternative, the decision be set aside with directions for the Respondents to conduct a fresh review. Respondent’s Submissions [43] On 4 September 2024, the Appellant’s line manager was notified of the Appellant’s upcoming review of his non-permanent status. [44] On 13 September 2024, the suitability review for a Senior Occupational Therapist, within the Access Services ('Acute Care Team Centralised Intake Service') under the Mental Health, Alcohol and Other Drugs Service found the Appellant did not have the required skill set, or level of knowledge and experience specifically in mental health to undertake the role.26 [45] On 11 October 2024, the suitability review for a Senior Occupational Therapist, within the Cairns Community Care Unit, under the Mental Health, Alcohol and Other Drugs Services found that the Appellant did not have the required skill set, or level of knowledge and experience, specifically in mental health to undertake the role.27 [46] The Respondent submits that a suitability review is a preliminary review which should not be discussed with the potential employee.28 [47] The Respondent further contends that pursuant to s 115(4) of the PS Act, if the Chief Executive decides to not offer conversion to a permanent basis, the Chief Executive must give the employee a notice stating the following: (a) the reasons for the decision; 24 Ibid, [24]-[25], citing Morison v State of Queensland (Department of Child Safety, Youth & Women) [2020] QIRC 203. 25 Ibid, [26]. 26 Respondent’s Outline of Submissions filed 28 November 2024, [15], referencing Attachment 4 – email from Ms Hannah Holmes, Human Resources Advisor dated 13 September 2024. 27 Ibid, [16], referencing Attachment 5 – Email from Ms Hannah Holmes, Human Resources Advisor dated 11 October 2024. 28 Ibid, [18]. -- 13 of 28 -- 14 (b) the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and (c) how many times the employee’s employment on a non-permanent basis has been extended; and (d) each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee’s period of continuous employment.29 [48] The Respondent then submits that there is no requirement in s 115(4) of the PS Act to provide the details of preliminary review outcomes in the letter to the Appellant.30 [49] The Respondent denies that it has contravened s 27B of the AI Act and contends that CHHHS have addressed the criterion in s 114(3)(a)(i) of the PS Act.31 [50] The Respondent also rejects the Appellant’s contention that the decision letter failed to comply with the requirements of s 115(4)(d) of the PS Act because there was no mention of the Appellant’s previous employee-initiated review (12-month application). The Respondent notes that the decision letter provided to the Appellant outlined the following under the heading entitled 'Considerations when making the review'32: I have considered the requirements of the Public Sector Act 2022 (the Act), the Review of non-permanent employment (Directive 02/23) and your employment history, including any previous review decisions. [51] I summarise the further submissions of the Respondent as follows: • The Senior Occupational Therapist position (30497688) is a Commonwealth Home Support Program funded position and is established at 1.00 FTE and is permanently over-established by 0.50 FTE.33 • The substantive incumbent for the position is seconded to a temporarily funded position with Torres and Cape Health Service, in an Outreach Senior Occupational Therapist position until 30 June 2025, at 0.50 FTE per fortnight. The Respondent notes that this position is Commonwealth Home Support Program funded, and temporarily established. The Respondent further notes that the substantive incumbent is on secondment and will return to their permanent appointment of 0.50 FTE which means that there will be no additional FTE available.34 29 Ibid, [19]. 30 Ibid, [20]. 31 Ibid, [21]. 32 Ibid, [22] – Attachment 3 (n 20). 33 Ibid, [23]. 34 Ibid,[24]-[25]. -- 14 of 28 -- 15 • The Respondent references an email dated Tuesday, 1 October 2024 from Ms Natasha Bridson, Executive Support Officer which relevantly provides35: Please find attached a conversion request that has not been endorsed due to there being no FTE available and the over establishment of FTE would create an overspend that we are unable to fund. • The Respondent then makes reference to s 81 of the PS Act highlighting s 81(1)(a)(i) that provides that employment of a person on a permanent basis may not be viable or appropriate if a person is employed on a fixed-term temporary basis, to fill a vacancy arising because a person is absent for a known period.36 • In relation to the issue of whether there was any consideration of Senior Occupational Therapy roles that may be substantially the same, the Respondent notes that: o Contact was made by the Appellant’s line manager, Ms Joanne Darker, Commonwealth Home Support Program Nurse Unit Manager to other Community Health teams looking for permanent vacancies for a HP4 Senior Occupational Therapist position;37 o Two positions outside of CHHHS Commonwealth Home Support Program were reviewed through out the Appellant’s review, in which it was found that the Appellant was not suitable. The Respondent accepts that this information could have been provided in the decision letter provided to the Appellant.38 • The Respondent seeks an order that the appeal be dismissed. Appellant’s Reply Submissions [52] In accordance with the directions order the Appellant filed reply submissions on 13 December 2024. [53] In summarising the Appellant’s reply submissions, I will not repeat submissions that the Appellant has made in his primary submissions. [54] In relation to the issue of genuine operational requirements, the Appellant submits: 35 Ibid, [26] – Attachment 6 – Email chain including email from Natasha Bridson dated 1 October 2024. 36 Ibid, [27]-[28]. 37 Ibid, [29] – Attachment 8 – Email chain involving Ms Joanne Darker between 10 October 2024 and 21 October 2024. 38 Ibid, [30] – Attachment 9 – Email from Ms Joanne Darker, CHSP NUM dated 14 November 2024. -- 15 of 28 -- 16 • There is a genuine need for someone to perform the role (that the Appellant is backfilling) for the foreseeable future.39 • The CHSP Nurse Unit Manager ('NUM') has advised that she expects the incumbent who is seconded to position 30476525 to be extended within that position in alignment with the CHHHS CHSP until the end of June 2027. The Appellant therefore submits that the need will not conclude at the end of the Appellant’s current fixed term contract, and that the requirement to backfill position 30497688 will be continuing and ongoing.40 • The Appellant refutes the Respondent’s claim regarding the substantive incumbent being expected to return from secondment. The Appellant notes that at present the substantive incumbent may appear to be due to return to their substantive role, however, contracts for the 2025-2026 financial year for all temporarily funded CHHHS CHSP roles are yet to be provided and the Appellant predicts that they will be offered in 2025.41 • Position 30497688 is permanently over-established by 0.5 FTE and CHHHS has funded the over-established position for at least 24 months, which contradicts the CHHHS claim that it will not be able to fund an additional overspend. Additional funding has been utilised by CHHHS CHSP Allied Health budget underspend to provide the Appellant with an average of 64 hours per fortnight employment (approximately 0.84 FTE) between 8 January 2024 and 29 September 2024.42 • The Appellant submits that CHHHS did not meet the requirements of s 114(3)(a)(i) of the PS Act as the two roles the Appellant was reported to be reviewed against were not substantially the same: o if the roles were substantially the same the Appellant would have been deemed suitable. o CHHHS do not specifically mention the roles reviewed were on a permanent basis.43 • The Appellant submits that there is a very high likelihood that an additional 12-month contract extension will be offered as all CHHHS CHSP roles are expected to be extended. The ongoing need for someone in the role is 39 Appellant’s reply submissions, [7](a). 40 Ibid, [7](b) referencing Attachment 2 email from Ms Joanne Darker, CHSP NUM dated 14 November 2024. 41 Ibid, [7](c). 42 Ibid, [7](d) and (f) and Attachment 3 to the reply submissions, Position Occupancy Report for 72000427 – Period 202411. 43 Ibid, [9]. -- 16 of 28 -- 17 supported by the numerous previous contract extensions the Appellant has received.44 Consideration [55] I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised and the decision arrived at. [56] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)45 ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.46 [57] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.47 His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.48 The decision criteria [58] The PS Act states that an employee must be converted to permanent if the following tests are met,49 "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity" (emphasis added):50 (a) there is a continuing need for someone to be employed in the role, or a role that is substantially the same; and (b) the employee is suitable to perform the role; and (c) any requirements of an industrial instrument are complied with in relation to the decision. [59] In the present case the only ground relied upon by the decision maker in refusing to convert the Appellant’s temporary employment to permanent was the genuine operational requirements exception. 44 Ibid, [11](b) referencing Attachment 7, list of the Appellant’s contract extensions. 45 [2022] QIRC 16. 46 Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 47 Colebourne (n 15) at [21]-[22] and [25]. 48 Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008. 49 Public Sector Act 2022 (Qld) s 114(3). 50 Ibid s 114(4). -- 17 of 28 -- 18 Merit [60] The decision letter confirms that the Appellant is suitable to perform the role. This is consistent with the Appellant having been acting in the role for some time and his current temporary engagement being extended on ten occasions. [61] As a consequence, this issue does not require further consideration in this appeal. Requirements under an industrial instrument [62] As noted above, the Appellant is employed under the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 4) 2022. [63] The Agreement is referenced in the decision letter dated 23 October 2024 but only with respect to clause 12.4 which provides an employee with the ability to request an internal review. [64] The decision letter does not reference clauses 12.2 and 12.3 of the Agreement which are relevantly excerpted in paragraphs [29] and [30] above. [65] The Appellant does mention clause 12.3.1 of the Agreement in his Outline of Submissions51, but only to the extent of noting that the clause provides that the parties are committed to maximising permanent employment where possible. [66] As these clauses of the Agreement reflect the requirements of s 81 of the PS Act and the Directive for permanent employment to be the default basis for employment, I am satisfied that these provisions do not require further consideration in the appeal. Regard to reasons for any previous decisions [67] This is an issue in dispute between the parties. [68] In his submissions, the Appellant contends that there is no mention of the previous decision to decline his 12-month employee-initiated review for conversion to permanent employment.52 [69] In response to this allegation, the Respondent contends that there has been compliance with s 115(4)(d) of the PS Act because the decision letter states: I have considered the requirements of the Public Sector Act 2022 (the Act), the Review of non- 51 Appellant’s Outline of Submissions, [27]. 52 Ibid, [14]. -- 18 of 28 -- 19 permanent employment (Directive 02/23) and your employment history, including any previous review decisions.53 (Emphasis added) [70] I do not consider that what is effectively a motherhood statement that any previous review has been considered is sufficient to satisfy the requirements of s 115(4)(d) of the PS Act. [71] The Directive at clause 13 provides the following – 13. Obligations when a decision is made not to offer to convert an employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment 13.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to: a. set out the findings on material questions of fact, and b. refer to the evidence or other material on which those findings were based. [72] Industrial Commissioner Dwyer in Power v State of Queensland (Department of State Developments, Tourism and Innovation),54 noted that where the PS Act compels mandatory content in decisions such as the one set out in s 115(4)(d) of the PS Act, the presence of that content is a prerequisite for a conclusion that the decision is fair and reasonable. [73] In addressing a similar argument and a similar failure by a decision maker in Battaglia v State of Queensland (Queensland Health)55, Industrial Commissioner McLennan noted that the decision did not refer to reasons for each decision made, nor was she was privy to those reasons. Industrial Commissioner McLennan then observed: This omission is another factor that supports the unreasonableness of the Decision. A careful consideration of the Appellant’s employment history and the reasons for why she has been denied permanency in the past may have supported a different conclusion.56 [74] I consider that in order to comply with s 115(4)(d) and s 27 of the AI Act, it is necessary for the decision letter to provide the factual background to the earlier refusal decision and to analyse the relevant reasoning for that decision. [75] In failing to comply with this, I consider that the decision is not fair and reasonable. Whether there is a continuing need for the person to be employed in the role – or a role which is substantially the same 53 Respondent’s submissions, [22]. 54 [2021] QIRC 053 at [32]-[33] per Dwyer IC. 55 [2023] QIRC 055 at [80]-[81]. 56 Ibid, [81]. -- 19 of 28 -- 20 [76] In the decision letter dated 23 October 2024 the decision maker, Ms Mellise Anderson, Acting Director confirms that there was a continuing need for the Appellant to fill the role or a role that is substantially the same. [77] Despite this finding, which would appear to make this a non-issue for this appeal, both parties have provided submissions addressing the second element of this criterion, that is, whether there is a continuing need for employment in a role which is substantially the same. Given the parties have chosen to address the issue I will consider the respective submissions. [78] In summary, the Appellant in his submissions contends that there is no information provided in the decision letter about the search for roles that may have been substantially the same. As a consequence, he contends that the Respondent’s decision-maker has contravened s 27B of the AI Act and impliedly failed to fully comply with s 114(3)(a)(i) of the Act. [79] The Respondent in its submissions unsurprisingly denies the allegation of non- compliance with s 27B of the AI Act and provides submissions and attached evidence which establishes that some enquiry was made with other units within CHHHS regarding whether there was a position available for a HP4 Senior Occupational Therapist. [80] The decision letter dated 23 October 2024 provides no information regarding these enquiries nor is there any discussion or reference to the supporting evidence. The Respondent contends that the suitability reviews conducted with other units within CHHHS are effectively confidential and should not be discussed with the Appellant. Further, the Respondent states that there is no indication in s 115(4) of the PS Act of a requirement to provide the details of the preliminary review outcomes in the decision letter. [81] The Respondent also notes in its submissions that the Appellant’s line manager, Ms Darker made contact with other Community Health teams "looking for permanent vacancies for a HP4 Occupational Therapist Senior position".57 [82] In Attachment 8 to the Respondent’s submissions, which is the evidence relied upon to establish the enquiries made by Ms Darker contains the following: • An email from Ms Darker to Michelle Bremer, Director of Occupational Therapy dated 10 October 2024 (following up an earlier email request) about any permanent vacancies in OT (emphasis added). I note no information is provided about the Appellant, his work history or experience, or the nature of the role he was currently undertaking. 57 Respondent’s submissions, [29] referencing Attachment 8. (Emphasis added) -- 20 of 28 -- 21 • Ms Bremer replies the same day that there were no vacancies in her team. • An email from Ms Darker dated 10 October 2024 to Ms Juliane Wone, Acting Allied Health Team Leader, Sub Acute Care Unit once again asking if SACU has any permanent OT vacancies. Once again the email is silent regarding information about the Appellant, or his current role and duties. • Ms Wone ultimately replies on 21 October 2024 (two days prior to the decision letter) providing information about a new HP3 vacancy. Ms Darker sends an email reply the same day telling Ms Wone that it is a HP4 vacancy that is required. Ms Wone replies confirming that there are no HP4 vacancies. [83] The Respondent ultimately and belatedly, but appropriately, concedes in its written submissions that the above information could have been included in the decision letter.58 [84] I do not accept the Respondent’s submission that it has not breached s 27B of the AI Act or that it has appropriately considered the criterion listed in s 114(3)(a)(i) of the PS Act. [85] In Taylor v State of Queensland (Department of Transport and Main Roads)59, Industrial Commissioner McLennan in dealing with the same issue made the following pertinent observations: [119] The fact of this case is that the decision-maker did not define a role which is substantially the same in the Decision. Nor has the Department's subsequent submissions adequately addressed this requirement. Notwithstanding that, the duty to do so must properly be discharged. [120] In addition to neglecting the key issue of defining a role which is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by Ms Taylor. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same. [86] Those observations apply with equal force to the present appeal. The Respondent did not define a role which is substantially the same in the decision letter. As I have noted above, in making the enquiry about other roles, the Respondent appears to have failed to provide any information about the Appellant and has limited its enquiry to whether there were any vacancies for a HP4 Senior Occupational Therapist and has not made enquiries addressing whether the Appellant could be placed with another unit despite the lack of advertised vacancies. [87] In Palomino v State of Queensland (Department of Education), Deputy President Merrell considered cl 8.4 of Directive 09/20 and concluded the following: In my view, the decision to not comply with the requirements of section 27B of the Acts Interpretation Act, as required by clause 8.4 of the Directive, and did not comply with the other 58 Ibid, [30]. 59 [2022] QIRC 053 at [119]-[120]. -- 21 of 28 -- 22 principles or the adequacy of reasons of administrative decision makers I have referred to above, in respect of the consideration by the decision maker as to whether there was a role that was substantially the same as Mr Palomino’s role. It is not sufficient for decision makers, as occurred in the present case, to merely state that the decision maker has taken into consideration, "Whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing".60 [88] Deputy President Merrell continued: In my view, decision makers must, where the matter of the availability of a role that is substantially the same as the employee's role is being considered, and a decision is made about that matter, set out the findings on material questions of fact, and refer to the evidence or other material in which those findings were based. Further, in my view, in giving reasons for the decision, as required by section 149B(6)(a) of the PS Act, the findings and reasons of that decision must deal with the substantial issues upon which the decision turned, so that the person aggrieved by the decision can understand why the decision went against him or her.61 [89] In Power v State of Queensland (Department of State Developments, Tourism and Innovation), Industrial Commissioner Dwyer concluded the following: [35] Section 149A(4)(a) and s 149B(6)(a) require the chief executive to give the person a notice stating the reasons for the decision. Section 27B of the AI Act and Cl 8.4 of the Directive prescribe what such reasons must address. The decision in this instance fails to meet this standard in my view. I would, for example, expect that a decision of this nature would not simply refer to ‘genuine operational requirements’ without some degree of particulars relevant to Ms Power. [36] Further, even while the reference to ‘the return of an incumbent’ might adequately address the particulars as to why Ms Power’s current role is not ongoing, a broad reference to ‘all potential roles have been considered’ is insufficient in my view to explain the apparent absence of a role substantially the same. [37] In my view, the decision needed to refer to evidence relied on to support this conclusion. This would include e.g. details of other roles considered and why some might have been rejected. It must be sufficient to inform Ms Power why the decision was made.62 [90] Clause 5.3 of the Directive notes that a decision maker, when considering a review of an employee’s non-permanent employment status, must make a decision by applying the relevant sections of the Act. (emphasis added) Further, clause 5.5 of the Directive confirms that the requirements set out in the directions are binding and must be followed. [91] The Respondent did not define a role which is substantially the same as that being currently undertaken by the Appellant in the decision letter. There is also no evidence in the decision letter of the Respondent conducting any analysis of the capability requirements of the role being undertaken by the Appellant as a Senior Occupational Therapist. Equally, there is no real evidence that has been provided of either of these steps having been appropriately undertaken in the submissions and attached evidence provided by the Respondent. 60 [2021] QIRC 129, 9-10. 61 Ibid. 62 [2021] QIRC 53. -- 22 of 28 -- 23 [92] This perhaps explains why Ms Darker in attempting to locate a role which was substantially the same as the Appellant’s current position, made enquiries of roles which involved mental health experience and skills, something that the Appellant lacked. [93] The Appellant in his reply submissions contends that CHHHS did not meet the requirements of s 114(3)(a)(i) of the PS Act because the two roles that the Appellant was reviewed against were not substantially the same.63 I agree with the Appellant that the two roles within the Mental Health, Alcohol and Other Drugs Service were not substantially the same as his current role. [94] The approach taken by the Respondent to address the second enquiry posited by s 114(3)(a)(i) of the PS Act was flawed from the outset because of the failures to undertake the preliminary steps identified in paragraph [91] above. This means that the decision to not convert the Appellant’s employment from temporary to permanent is one that could not be seen to be fair and reasonable. [95] The Respondent has also erred in undertaking the enquiry about roles that were substantially the same by limiting the enquiry to similar roles that were vacant. In Taylor v State of Queensland (State of Queensland) ('Taylor'),64 Industrial Commissioner McLennan in a conversion appeal arising under the now repealed Public Service Act 2008 observed: [117] It is relevant that s 149A(2)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Department has stopped short of demonstrating its consideration of the entirety of the mandatory criteria as it appears its consideration was limited to identifying roles that are currently vacant or about to become vacant. Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals. [96] In Taylor, Industrial Commissioner McLennan also confirmed that for the purposes of a temporary to permanent conversion a budgeted vacancy is not required and if conversion occurs the creation of a new permanent position is to be expected in the circumstances.65 [97] Finally, in my view there has been a significant failure by the Respondent to comply with s 27B of the AI Act regarding the contents of the decision letter and the information conveyed about the steps taken by the Respondent to identify a position or positions that were substantially the same as the Appellant’s role. These additional errors by the Respondent also confirm that the decision was not fair and reasonable. [98] The decision-maker confirmed in the decision letter that there was a continuing need for the Appellant to fill the role or a role that was substantially the same, given this, the relevance of the above failings regarding the second element of s 114(3)(a)(i) of the PS 63 Appellant’s reply submissions, [8]. 64 [2022] QIRC 053, [117]. 65 Ibid, [137]. -- 23 of 28 -- 24 Act may be brought into question. In my view, given that finding, it became arguably even more important that the enquiry to identify roles that were substantially the same as the Appellant’s role was undertaken properly and also properly documented in the decision letter. [99] The Appellant’s errors are relevant because in the absence of a finding that there were genuine operational requirements that prevented the permanent appointment of the Appellant to a role that was substantially the same (an issue that was not addressed in the decision letter at all), if an appropriate role was identified, the Appellant should have been converted to permanent employment as a HP4 Senior Occupational Therapist. [100] In these circumstances it was therefore incumbent upon the Respondent in complying both with s 114(3)(a)(i) of the PS Act, but also s 27B of the AI Act, for the Respondent to provide information in the decision letter setting out the steps taken to identify a role that was substantially the same and why this could, or could not, be done. The Respondent has failed to do so, and as a consequence the decision refusing to convert the Appellant’s employment was not fair and reasonable in the circumstances. Genuine Operational Requirements [101] The phrase 'genuine operational requirements' is not defined in either the PS Act or in the Directive. [102] Guidance as to the meaning of this phrase has been provided by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women).66 In that decision His Honour observed as follows: (Emphasis added) [37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive. [38] The adjective 'genuine' relevantly means '…being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things: • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and 66 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203. -- 24 of 28 -- 25 • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. … [40] The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'67 [103] The only matters raised by the Respondent in the decision letter as constituting the genuine operational requirements relied upon in denying the conversion application were: • There was no permanent vacancy within the Cairns Commonwealth Home Support Program; and • The substantive incumbent is expected to return from secondment on 30 June 2025. [104] In the Respondent’s Outline of Submissions, the Respondent has attempted to also develop an argument that permanently appointing the Appellant would lead to an over establishment of FTE that CHHHS would not be able to fund. [105] The first observation that should be made about the operational requirements relied upon to deny the temporary to permanent conversion is that they must be genuine, that is, authentic or real. [106] Dealing firstly with the issue of the substantive incumbent being expected to return from secondment on 30 June 2025, evidence actually supplied by the Respondent as an attachment to its submissions appears to contradict this finding. [107] The email from Ms Darker, CHSP Nurse Unit Manager to the Human Resources unit of CHHHS dated 14 November 202468 (and therefore post-dating the decision letter) relevantly provides: How long has the substantiatve (sic) incumbent has been seconded – Andrew started work in the Cairns CHSP Senior OT position on 3.10.22. Any expected dates of return for the incumbent – The incumbent is currently contracted to work in the Cape & Torres outreach senior OT position (0.5FTE) until 29.6.24 and will be extended in that position in alignment with the CHHHS CHSP program til the end of June 2027. (Emphasis added) 67 Ibid. 68 Respondent’s Outline of Submissions, Attachment 9. -- 25 of 28 -- 26 [108] This inconsistency in the Respondent’s evidence is not addressed or otherwise explained in the Respondent’s submissions. [109] If the substantive incumbent is going to be further seconded and contracted until June 2027, this would be a significant factor favouring the conversion of the Appellant’s employment. [110] The decision letter is silent as to how many times the substantive incumbent’s secondment has been extended or varied. This information would be highly relevant to any assessment as to whether the expected return date of 29 June 2024 is realistic in the circumstances. [111] Given the conflict in the Respondent’s own evidence, I cannot be satisfied that the expected return of the substantive incumbent is a genuine reason which blocks the Appellant’s application for conversion to permanent employment. [112] As to the other ground relied upon in the decision letter, that is, there was no permanent vacancy for a HP4 Senior Occupational Therapist in the Cairns CHSP, as noted above, authorities from the Commission have confirmed that a budgeted vacancy is not required and it would be expected that in this scenario a permanent position would be created.69 [113] I will address this ground and also that belatedly raised by the Respondent of a budget overspend in the following paragraphs. [114] I note the contents of the HSCE Briefing Note authored by Ms Darker and submitted on 12 September 2024. In that document Ms Darker records (emphasis added): 2. Position 30497688 Occupational Therapist Senior is CHSP funded position. It is permanently established at 1.00FTE and is substantively held by Shannon Andrejic at 1.00FTE and Elizabeth Womersley at 0.5FTE. 3. Currently, Shannon is seconded to position 30476525 at 0.50FTE until 30.6.2024. Position 30476525 is CHSP funded and temporarily established. 4. Funding for both CHSP positions will likely continue as there is an ongoing clinical requirement for OT services within the HHS. 69 Battaglia v State of Queensland (Queensland Health) [2023] QIRC 055, [69] per McLennan IC; Taylor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 053, [137] per McLennan IC. -- 26 of 28 -- 27 5. Converting Andrew Epong permanently at 0.80FTE will result in permanent over-establishment in position 30497688 by 1.10FTE, however as per below DSS FTE budget slip overall spend for Health Practitioners in CHSP is under. 6. Historically productive FTE (ordinary hours) within the CHSP Health Practitioner workforce has been under, with an average of 0.21FTE variance since 2021. This appointment is negligible risk to CHHHS with historic inability to recruit to allied health positions and backfill, both in this directorate and the HHS. 7. M Bremner, Director of Occupational Therapy advised she has no permanent vacant FTE available and therefore requests that this position be over established to honour the temp to permanent, under the Public Sector Act 2022 (Act) and the Review of non-permanent employment directive 02/23 (Directive 02/23). 8. Requesting for approval due to demand in services, to help reach our commonwealth target and to support an increasing number of elderly clients to remain in their own homes for longer.70 [115] It therefore appears that the Respondent has previously made decisions to convert a temporary employee to permanent employment status in the Cairns CHSP for Position 30497688 Occupational Therapist Senior which has resulted in an over establishment of the position. Further, the Respondent has been able to fund that over establishment over a significant period of time. [116] The information provided by Ms Darker confirms the continuing need for the Appellant to provide his services as an Occupational Therapist in the CHSP. Further, the implication in the information provided by Ms Darker in the HSCE Briefing Note is that the expectation is that demand for such services will only increase in the future in the background of contextual history of difficulties in recruiting allied health practitioners into such roles with CHHHS. [117] This will particularly be the case if, as Ms Darker expects, the secondment of Ms Andrejic is extended until June 2027. [118] The Appellant in both his original Outline of Submission and his Reply Submissions has contended that there has been an underspend on allied health services by CHHHS, and this appears to be confirmed in the HSCE Briefing Note by Ms Darker. This would appear to cast doubt over the Respondent’s argument that the Appellant’s permanent appointment would create an overspend that the Respondent would not be able to fund. 70 Appellant’s Outline of Submissions, Attachment 3. -- 27 of 28 -- 28 [119] The other evidence that also casts doubt over the Respondent’s contention of an unfunded overspend is provided by the Appellant in his Reply Submissions where he notes that he has been provided with an average of 64 hours per fortnight employment (well in excess of his contracted hours and approximately 0.84FTE) between 8 January 2024 and 29 September 2024.71 [120] When all of this evidence is considered, I am not satisfied that the Respondent has successfully established genuine operational requirements to refuse the conversion of the Appellant’s employment from temporary to permanent. This further confirms that the decision to not convert the Appellant’s employment was not fair and reasonable. [121] The final issue relating to genuine operational requirements, the decision letter is completely silent on the issue of there being any operational requirements which would prevent the Appellant’s appointment to a HP4 Senior Occupational Therapist role with another unit within CHHHS. This further supports the finding that the decision was not fair and reasonable. Conclusion [122] In light of the above, I find the decision to maintain the Appellant’s employment on a temporary basis was not fair and reasonable. [123] I am satisfied that there is a continuing need for the Appellant to fill the role of a HP4 Senior Occupational Therapist or a role that is substantially the same. I am also satisfied that the Appellant is suitable to perform the role and that the Respondent has failed to establish a genuine operational requirement that prevents the conversion of the Appellant to permanent employment. Order 1. The appeal is allowed. 2. Pursuant to section 562C(1)(c) of the Industrial Relations Act 2016, the decision that Mr Epong not have his temporary employment converted to permanent employment is set aside and another decision is substituted. 3. Mr Epong’s temporary employment status as a HP4 Senior Occupational Therapist be converted to permanent employment. 71 Appellant’s Reply Submissions, [7](f). -- 28 of 28 --