Carmody v State of Queensland (Department of Education) [2023] QIRC 274

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carmody v State of Queensland (Department of Education) [2023] QIRC 274 PARTIES: Carmody, Brooke (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2022/1012 PROCEEDING: Public Sector Appeal DELIVERED ON: 22 September 2023 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant requested conversion to a higher classification position – consideration of the scope of a review– consideration of 'genuine operational requirement' LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Sector Act 2022 (Qld), ss 120, 129, 324 Public Service Act 2008 (Qld), ss 149C and 194 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) -- 1 of 12 -- 2 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for decision Introduction [1] Ms Brooke Carmody ('the Appellant') is substantively employed by the State of Queensland (Department of Education) ('the Respondent') as an AO4, Classroom Teacher and has been engaged to act in a higher classification position of ES4, Deputy Principal at Mareeba State School since July 2020 ('the position'). [2] On 8 November 2022, the Appellant requested to be permanently appointed to the position, pursuant to s 149C of the Public Service Act 2008 (Qld) and Directive 13/20 Appointing public service employee to a higher classification level ('the Directive'). [3] No decision was made by the Respondent within the required 28 day period and consequently, a deemed decision was made whereby the chief executive is taken to have refused the Appellant's request, pursuant to s 149C(6) of the Public Service Act 2008 (Qld) ('the decision'). [4] By appeal notice filed on 8 December 2022, the Appellant appealed against the decision, pursuant to s 194(1)(e). [5] The Public Sector Act 2022 (Qld) ('PS Act') commenced operation on 1 March 2023. In accordance with s 324, the appeal must be decided under chp 3, pt 10 of the PS Act. Appeal principles [6] The appeal must be decided by reviewing the decision appealed against.1 As 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) ('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 deemed decision to deny conversion of the Appellant's employment in the higher classification position to permanent was fair and reasonable in all of the circumstances. 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. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 2 of 12 -- 3 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 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. [10] The decision maker considered s 149C of the Public Service Act 2008 (Qld) which was operative at the time. The equivalent provision is s 120 of the PS Act which provides: (1) If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis, after— (a) the end of 1 year of acting at, or being seconded to, the higher classification level; and (b) the end of each subsequent 1-year period. (2) The employee's chief executive must decide the request within the required period. (3) The employee's chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role. (4) In making the decision, the employee's chief executive must have regard to— (a) the genuine operational requirements of the public sector entity; and (b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of acting at, or secondment to, the higher classification level. (5) If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and (c) how many times the employee's acting arrangement or secondment has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the employee during the employee's continuous period of acting at, or secondment to, the higher classification level. (6) If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. (7) The commissioner must make a directive about employing an employee at a higher classification level under this section. -- 3 of 12 -- 4 (8) In this section— continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive. required period, for making a decision under subsection (2), means— (a) the period stated in an industrial instrument within which the decision must be made; or (b) if paragraph (a) does not apply—28 days after the request is made. suitable, in relation to an employee performing a role, has the meaning given under a directive. [11] Directive 03/23 Review of acting or secondment at higher classification level ('the Directive') became operative on 1 March 2023 and supersedes Directive 13/20.5 Directive 03/23 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. [12] The purpose of Directive 03/23 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 [13] The Appellant outlined the following reasons for appealing the decision in the appeal notice: I am appealing a conversion decision as I have been in my current Deputy Principal role for 2.5 years. I was supported by my Principal to apply for this conversion from temporary to permanent employment in my current role. Upon applying, the school was then informed that we were no longer entitled to our 3rd DP which had not been communicated to the school. I was only informed of this last Tuesday, 29th which has meant that any opportunity for me to apply for other positions 5 clause 3.5. -- 4 of 12 -- 5 was taken from me as I was assured by the school that I would return in 2023 in my DP role therefore did not apply for any vacant positions. Appellant's submissions [14] The Appellant contends that the decision is unfair and unreasonable, submitting, in summary, that: (a) the Appellant holds the required qualification for the position; (b) the Appellant has performed in the position for a continuous period of over 12 months; (c) the Appellant has met the merit requirements of the position; and (d) the Appellant has played an integral part in the everyday running of the school. [15] The Appellant outlines examples of projects in which she was involved in whilst acting in the position and submits the following: … I have worked tirelessly and passionately to ensure Mareeba State School continued to work towards targets always building my own capability along the way, which ensured I was an integral part of the Leadership Team which was often reported back to me by fellow team members, our principal Hannah Simpson and our ARD Monica Halbert. My dedication to the school and my hard work resulted in the Principal supporting my transition from temporary to permanent in my role of Deputy Principal P-2 … The Principal contacted my substantive school principal Dan Hollis informing him that I would be with Mareeba State School for all of 2023 regardless of the conversion as another contract would be offered … Respondent's submissions [16] The Respondent outlines four attempts were made between 9 November 2022 and 5 December 2022 to obtain relevant information from the Appellant's business unit, however, did not obtain the information until 5 December 2022, being one business day prior to the date of the decision. Consequently, the Respondent submits that, in all of the circumstances, there was insufficient time for it to conduct a review and make a decision with regards to the Appellant's employment within the required period. [17] The Respondent submits that, upon review of the relevant information provided by the Appellant's business unit on 5 December 2022, the decision was fair and reasonable because of the following genuine operational reasons: a. Mareeba State School (MSS) has an indicative enrolment-based staffing allocation of two full-time Deputy Principal positions for the 2023 school year. b. MSS already employs two permanent, full-time Deputy Principals. c. MSS will not require a third Deputy Principal in 2023. d. A decision to appoint the Appellant to the higher classification would not represent proper and efficient management of public resources. … [18] The Respondent further submits that the decision to refuse the Appellant's request is consistent with managing the Respondent in a way that promotes the effective, efficient and appropriate management of public resources. -- 5 of 12 -- 6 [19] The Respondent does not concede that the Appellant's ability to 'apply for other positions was taken' from her and does not accept any part in her decision to 'not apply for any vacant positions'. Appellant's submissions in reply [20] In reply, the Appellant submits that the four attempts made by the Respondent means that the Respondent has placed 'such a low importance' on their duty to attain the relevant information. The Appellant submits that this does not bode well for the efficient functioning of the department, and it is disingenuous for the Respondent to indicate that it lacked the time to respond judiciously. [21] The Appellant submits that there is some conjecture as to the relevance of the Respondent's submissions regarding Mareeba State School (MSS) returning to two Deputy Principals in 2023 as the Directive refers to the agency and the fact that the Appellant is entitled to conversion as she has been employed at the same position continuously without a break in service for 2.5 years since 13 July 2020. [22] The Appellant refutes the relevance of the lack of requirement for the additional support provided by the additional Deputy Principal and submits that this should not be taken into consideration. The Appellant further submits that the Respondent does not consider the following complexities of MSS: a) 42% of students are Aboriginal or Torres Strait Islander. b) 10% are verified as students with a disability and 29% identified through NCCD. c) 20% of students are EAL/D (Indigenous English as an additional language or dialect). d) The transient nature of the community. [23] The Appellant submits that the Respondent did not further consider the following with respect to MSS: The decision also does not consider the fact that Mareeba State School is an extremely transient school which fluctuates enrolment numbers of approximately 30-40 students throughout the year. The decision to return to two (2) Deputies was based on predictions on Day 8 numbers (this is an arbitrary date in which school staffing is determined) and this projection showed that we would not meet the enrolment numbers of 823 which we required for the 3rd Deputy by Day 8 based on previous years but does not consider the fact that throughout the year, we will more than likely exceed this number. This shows impetus for the ongoing genuine operational requirements for the appointment of the 3rd deputy. [24] The Appellant further submits that the efficient management of public resources do not justify why she is not entitled to be converted. Supplementary Submissions from parties Appellant's Supplementary Submissions [25] The Appellant provided supplementary submissions, summarised below. • Regarding the Appellant's merited appointment as Deputy Principal on 13 July 2020 at MSS. When awarded this role due to merit, the Appellant was backfilling Ms Hannah Simpson who held the substantive Deputy Principal position. At this time, she herself had won the position as principal of Acting Principal at MSS. Also working as Deputies were Ms Nyree Burton who was substantive in her role and -- 6 of 12 -- 7 Mr Michael Nielsen who was their third Deputy, half of which was funded by the department and half funded by the school. At the end of 2021, a workplace reform was conducted and Mr Nielsen's role became permanent. At this stage the Appellant was still acting as Deputy Principal in the acting role for the position for Ms Simpson who held the substantive position. • In mid-2022, Ms Simpson applied for a conversion from temporary to permanent in her role as Principal at MSS in which she was successful. This then meant that her position in which the Appellant was acting in, had become available as a substantive position. The Appellant then applied for her conversion from temporary to permanent employment in this role after 2.5 years' service in November 2022 to be then told on 5 December 2022 that this position was no longer available. The Appellant felt this decision was unjust and did not align with the expectations of the Department in regards to conversion of staff after 24 months uninterrupted service in the same position. • The Appellant was made aware that since the beginning of the 2023 school year, MSS has now had to appoint a third Deputy principal due to the detrimental impact it was having on the school after the decision was made by the DOE to reduce MSS' allocation to two Deputies. Due to the complexity of the school this decision was not feasible and was impacting staff well-being and the general day to day running of the school. This decision to employ a third Deputy disproves what was submitted by the Respondent that a 'third deputy would not be required and would not represent efficient management of public resources'. [26] The Appellant submits that it should be noted that the Respondent's submission stating that "MSS will not require a third Deputy Principal in 2023." Further submitting that: This is a point that is not based in fact by their actions and the employment of the additional Deputy Principal for the early in the year 2023. The Appellant is concerned that this act appears on the surface, as a malice attempt to create a "break in service" which would place the Appellant in a situation whereas I would be offered an "opportunity" to continue in an acting capacity without an ability to request appointment under Directive 13/20 – Appointing a Public Service Employee to a Higher Classification Level for another 12 months. [27] The Appellant submits that this reinforces her concerns at the lack of due diligence and lack of rigor by the department in determining the decision to discontinue her engagement in a classification that the Appellant was successfully merited and working for a period of two and a half years. Supplementary Submissions of the Respondent [28] The Respondent provided further supplementary submissions, noting that the Appellant's Supplementary Submissions purport to provide additional information to the Commission that was either not available at the time of previous provided submissions or has become available since those submissions were provided. [29] In summary, the Respondent's supplementary submissions are as follows: (a) Until the end of 2022, Mareeba State School (MSS) employed three Deputy Principals (DP). Prior to this, in mid-2022 Ms Hannah Simpson, one of the three DPs applied and was successful for permanent appointment to the vacant Principal position at MSS. The Appellant -- 7 of 12 -- 8 had been undertaking the higher classification duties of Ms Simpson's vacant DP position and this arrangement continued until it was concluded on 9 December 2022. (b) Since the filing of the Appellant's further submissions dated 24 January 2022, the Appellant has become aware that MSS has now appointed a third DP from the beginning of 2023. The Appellant asserts this appointment has been made due to the detrimental impacts on the school caused by the decision to reduce MSS's allocation to two DPs. (c) The Appellant further asserts that the Respondent's submissions that MSS will not require a third DP in 2023, is not based in fact by their actions and the employment of an additional DP early in 2023. (d) The Appellant raises a further concern that the act of the Respondent appears to be a malicious attempt to create a break in service which in effect ceases her eligibility to apply for appointment to the higher classification role. [30] The Respondent confirmed that a third Deputy Principal was engaged at MSS for the duration of Term 1, 2023, however submits that the Appellant's assertion that this engagement was made on the basis of detrimental impacts caused to the school by the reduction to two Deputy Principals is factually incorrect. [31] The Respondent submits that for the 2023 school year, MSS has an indicative enrolment- based staffing allocation of two full-time DP positions. In terms of ongoing staffing levels, the school will continue to operate in accordance with its allocation of two Deputy Principals. [32] The Respondent further submits that the decision to engage a temporary additional Deputy Principal for term 1 was made due to the sudden emergence of circumstances of a personal, private and sensitive nature that necessitated the need to provide short term support to an existing Deputy Principal. The Respondent asserts that these circumstances require the provision of short term support, funded directly by the Regional Office, for a discreet purpose only for Term 1, 2023. The employee selected to perform these short term Deputy Principal duties is a current Head of Department at the school who has had direct involvement in the 2023 start of school year processes. [33] The Respondent categorically denies that the engagement of a third Deputy Principal at MSS for term 1 is indicative of an ongoing need to maintain a third Deputy Principal position at the school. [34] The Respondent submits that the Appellant's concern that the temporary engagement of a third Deputy Principal at MSS is a malicious attempt to cause a break in her service is extraordinarily misconceived and is rejected completely. As stated above, matters of a personal, private and sensitive nature have created an emergent need for a compassionate response to provide short term support to an existing Deputy Principal. [35] The Respondent submits that the decision being appealed against, namely the deemed decision of 6 December 2022 was fair and reasonable because the decision to refuse the Appellant's request is consistent with managing the Department in a way that promotes the effective, efficient and appropriate management of public resources. -- 8 of 12 -- 9 Consideration [36] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable having regard to the requirements of the Directive and the PS Act. [37] The Appellant made a request to be permanently appointed to the position in which she was acting on 8 November 2022. The Appellant did not receive a response to the request within 28 days. Accordingly, the chief executive is taken to have decided that the terms of the Appellant's employment will continue according to the current terms of the higher duties arrangement. [38] Section 120(4) of the PS Act provides the following: (4) In making the decision, the employee’s chief executive must have regard to- (a) the genuine operational requirements of the public sector entity; and (b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of acting at, or secondment to, the higher classification level. [39] Pursuant to a directions order issued by the Commission, the Appellant filed submissions on 23 December 2022, 24 January 2023 and 20 February 2023. The Respondent filed submissions on 17 January 2023 and 9 March 2023. [40] There is no dispute that the Appellant is eligible for conversion, having been employed in the higher duties position of Deputy Principal since July 2020. There is also no dispute that the Appellant satisfied the criteria of s 120(3) in that she is suitable to perform the role. [41] The Appellant made submissions about the extensive work undertaken in her role as Acting Deputy Principal. The Respondent notes the valuable contributions made by the Appellant whilst acting in this role. [42] The Respondent submits that the material provided to Mr Clifford, the Director of Employment Review, supports a decision that the request for appointment at the higher classification level be refused because of genuine operational requirements. These requirements were that at the time of the request, MSS had an indicative enrolment-based staffing allocation of two full-time Deputy Principal positions for the 2023 school year. MSS already employs two permanent full-time Deputy Principals and did not require a third Deputy Principal in 2023. Accordingly, a decision to appoint the Appellant to the higher classification would not represent proper and efficient management of public resources. [43] The Appellant submits that Mr Clifford was being disingenuous in indicating that he lacked the time to respond judiciously to her application. The Directive clearly contemplates circumstances in which a decision is unable to be made within the statutory time period of 28 days. The reasons as to why a decision was not made within the time period are not relevant to the determination of this appeal. This is the case -- 9 of 12 -- 10 notwithstanding the operation of s 120(4)(b) which requires consideration of the reasons for each decision previously made. [44] The Appellant outlines complexities relating to the demographic enrolment at MSS and submits that the Respondent's contention regarding the lack of requirement should be refuted. The Appellant also refers to the transient nature of the school, noting that the return to two Deputy Principals was based on predictions on Day 8 numbers only. The Appellant contends that enrolment will 'more than likely exceed this number'. The Respondent's assessment of the appropriate staffing levels reflect regard for the genuine operational requirements of the school. An assessment of the staffing needs of a school has to be made at some date, and the consistent use of Day 8 numbers allows for a fair assessment of resource allocation amongst all schools. The enrolment number may increase or decrease after this point, however it was open to the decision maker to determine that the enrolment numbers at MSS did not warrant a third Deputy Principal. [45] The Appellant makes a number of submissions contending that she is entitled to conversion on the basis of merit and time served in the role. The Directive and the Act both provide that in making the decision to convert, regard must be had to the genuine operational requirements of the entity. It was entirely appropriate, and in fact mandatory, that the Respondent consider the operational requirements of MSS. [46] The Appellant contends that her Principal supported the application for this conversion due to the Appellant's consistent efforts throughout her time at MSS. Whilst this reflects well upon the Appellant, the support of the Principal is not a determinative factor under the Directive or the Act. There is no dispute that the Appellant satisfied the requirements with respect to suitability for the position. [47] The Respondent rejects the Appellant's contention that her ability to apply for other positions was taken away. It is understandable that employees may consider that they will have an opportunity for conversion after demonstrating suitability over 24 months in a higher classification position, however this conversion is not guaranteed. As noted above, s 120(4)(a) requires the decision maker to have regard for the genuine operational requirements of the entity. It was entirely a matter for the Appellant to determine if she wished to apply for other positions as conversion was never a guaranteed outcome. [48] The Appellant provided additional submissions on 20 February 2023 contending that MSS had appointed a third Deputy Principal 'due to the detrimental impact it was having on the school' after the decision was made by the Respondent to reduce MSS to two Deputy Principals. The Appellant contends that the Respondent's actions appear to be a malicious attempt to create a break in service to impact her eligibility to apply for appointment to the higher classification role. [49] The Respondent agrees that a third Deputy Principal was engaged for the duration of Term 1 2023 however disputes the Appellant's assertion that this engagement was made on the basis of detrimental impacts cause to the school by the reduction to two Deputy Principals. The Respondent contends that MSS has an indicative enrolment-based staffing allocation of two full-time Deputy Principal positions and that in terms of ongoing staffing levels, the school will continue to operate in accordance with its allocation of two Deputy Principals. [50] The Respondent submits that the decision to engage a temporary additional Deputy Principal for term 1 was made due to the 'sudden emergence of circumstances of a -- 10 of 12 -- 11 personal, private and sensitive nature that necessitated the need to provide short term support to an existing Deputy Principal.' The Respondent contends that these circumstances require the provision of short term support only. [51] The Respondent maintains that the engagement of a third Deputy Principal at MSS for short term support is not indicative of an ongoing requirement for a third Deputy Principal at MSS, and rejects the assertion that this short term engagement is a malicious attempt to cause a break in the Appellant’s service as 'extraordinarily misconceived'. [52] There does not appear to be a dispute that the staffing allocation at MSS based on Day 8 enrolment numbers would ordinarily result in an allocation of two Deputy Principals. In these circumstances, I am satisfied the decision not to convert the Appellant's employment to the higher classification position was fair and reasonable. I acknowledge the Appellant's submissions with respect to the particular demographic mix at the school and the possibility of the enrolment numbers increasing. There is no material before me to indicate that these issues are to be considered when determining the enrolment based staffing allocation. There is no evidence that a short term appointment of a third Deputy Principal to support an existing Deputy Principal in unique circumstances will result in an ongoing operational requirement of a third Deputy Principal at MSS. There is also no evidence that these actions taken by the Respondent were done so out of malice to impact the Appellant's length of service. [53] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),6 the phrase '… genuine operational requirements of the department' in s 149C(4A)(a) of the Public Service Act 2008 (Qld) and in clause 6.2(a) of the Directive, construed in context, would at least include consideration of the following: …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.'7 [54] An assessment that the indicative enrolment-based staffing allocations would require two Deputy Principals at MSS was open to the Respondent. Staffing allocations are primarily tied to enrolments throughout the school system and whilst many schools would undoubtedly benefit from an additional Deputy Principal, it is reasonable to determine that an additional position cannot be created independent of enrolments. Enrolments are indicative of need, and it was open to the Respondent to determine there was not an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to allocate a third Deputy Principal to MSS. In these circumstances, the decision to not convert the Appellant to a permanent Deputy Principal position was fair and reasonable. Conclusion [55] In consideration of the material before me and the submissions made by the parties, I am of the view that the decision made by the Respondent was fair and reasonable. 6 [2020] QIRC 203. 7 Ibid [40]. -- 11 of 12 -- 12 Order [56] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 12 of 12 --