Bade v State of Queensland (Department of Education) [2023] QIRC 227

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bade v State of Queensland (Department of Education) [2023] QIRC 227 PARTIES: Bade, Ischa Ebelina (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2023/7 PROCEEDING: Public Sector Appeal – Appeal against a promotion decision DELIVERED ON: 2 August 2023 MEMBER: HEARD AT: Hartigan DP 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 sector appeal – appeal against a promotion decision – where appellant was unsuccessful for the position – where respondent raises a jurisdictional objection – consideration of relevant factors – where appellant is not a person who may appeal the decision – appeal dismissed LEGISLATION: Appeals: Directive 04/23 Appeals: Directive 07/20 cl 5 Industrial Relations Act 2016 (Qld) s 562C -- 1 of 5 -- 2 CASES: Public Service Act 2008 (Qld) s 119, s 148 and s 196 Public Sector Act 2022 (Qld) Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). Reasons for Decision Introduction [1] Ms Ischa Ebelina Bade is employed with the Department of Education ('the Department') as a Teacher. [2] At the time of filing this appeal, Ms Bade was employed with the Department on a fixed term full time basis in the role of Acting Deputy Principal, Head of Department at Babinda State School. [3] In response to an internal job advertisement, Ms Bade applied for the position of Head of Department (Curriculum), Babinda State School, Far North Queensland Region. [4] The successful appointee's promotion to the position was published by way of the Queensland Government Gazette on 6 January 2023. [5] By notice of appeal filed in the Industrial Registry on 13 January 2023, Ms Bade appeals the promotion decision pursuant to s 194(1)(c) of the Public Service Act 2008 (Qld) ('the PS Act') and relies on the following in support of her appeal, as set out in her appeal notice: 1. The failure to correctly consider the Merit Principle 2. Flawed recruitment and section(sic) process 3. Incorrect application of point (7.2b) Directive12-20 Recruitment and Selection 4. Issues related to panel member selection 5. Confusion as to the Principal of Babina State School, Mr O'Brien's role as my direct supervision, panel chair and referee 6. Fitness for duty of Panel Chair Principal Mr O'Brien 7. There is no need to advertise a position that can be applied for under Directive 09/20. I continuously undertook duties of HOD/Primary from June 29, 2021. I had undertaken the same role in the same school for a period of unbroken engagement. I was successful in previous recruitment procedure for this position. … -- 2 of 5 -- 3 [6] The Department objects to the hearing of the appeal on the ground that Ms Bade does not have standing. [7] The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission. [8] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. [9] I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.1 An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.2 [10] However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard. Jurisdictional objection [11] The Respondent contends that Ms Bade has no standing to lodge an appeal on the basis that she is not a public service officer or a tenured general employee. [12] In its submissions, the Department contends that pursuant to Appeals: Directive 07/20 ('Directive 07/20'), provided certain conditions are met, a promotion appeal may only be lodged by either a tenured general employee or a public service officer. Further, the Department notes in its submissions that a public service officer is appointed under s 119 of the PS Act whereas a fixed term employee is employed under s 148 of the PS Act. [13] In her reply submissions, Ms Bade submits that she is eligible to lodge an appeal as she has met the conditions outlined in Directive 07/20. Ms Bade contends that the Department's "focus on the term public service 'officer' is a technical, jurisdictional approach, designed to impede the process" and that this approach is contrary to the Department's employment policy which is "designed to ensure procedural fairness, to maximise permanency and to provide security of tenure". Ms Bade also notes in her submissions that on 19 January 2023, she became a permanently appointed employee. 1 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). 2 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). -- 3 of 5 -- 4 Relevant legislation and directive [14] Section 196(c) of the PS Act3 provides the following: 196 Who may appeal The following persons may appeal against the following decisions— … (c) for a promotion decision—a public service officer aggrieved by the decision who is entitled to appeal under a directive of the commission chief executive; … [15] Directive 07/20 commenced operation on 25 September 2020.4 [16] Directive 07/20 sets out in cl 5.2 the persons who may lodge a public service appeal. Clause 5.2(e) provides that for a promotion decision, a tenured general employee or public service officer aggrieved by the decision may appeal so long as the prescribed conditions are met. [17] At the time Ms Bade file the appeal, she was employed as a fixed term temporary employee. [18] Section 119 of the PS Act provides for the appointment of a public service officer pursuant to s 119 of the PS Act. At the relevant time, Ms Bade was not appointed pursuant to s 119 of the PS Act. Rather, Ms Bade was a fixed term temporary employee pursuant to s 148 of the PS Act. Section 148(5) of the PS Act provides that a person employed pursuant to s 148 of the PS Act is not a public service officer. [19] Consequently, at the time of filing the appeal, Ms Bade did not have standing as a person who could appeal the promotion decision. [20] It is clear by s 196 of the PS Act the legislative intended to limit the type of employee who may appeal a promotion decision. That limitation goes beyond a mere technicality as submitted by Ms Bade. [21] The fact that Ms Bade's circumstances have subsequently changed following the filing of the appeal, whilst potentially relevant to a future appeal, does not alter her standing at the time this appeal was filed. [22] It is further noted that the PS Act and Directive 07/20 have each been superseded by the Public Sector Act 2022 (Qld) and Appeals: Directive 04/23. Consequently, any future promotion decision that Ms Bade would seek to appeal would be dealt with pursuant to these new provisions. 3 The Public Sector Act 2022 (Qld) became operative on 1 March 2023 after this appeal was filed. 4 Appeals: Directive 04/23 ('Directive 04/23') became operative on 1 March 2023 after this appeal was filed. -- 4 of 5 -- 5 [23] I understand that Ms Bade is aggrieved by the decision. However, at the time the appeal was filed Ms Bade was not a person who could appeal the decision pursuant to s 196 of the PS Act. Consequently, the appeal is dismissed. Order [24] Accordingly, I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 5 of 5 --