Canning v State of Queensland (Queensland Health) [2023] QIRC 72

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Canning v State of Queensland (Queensland Health) [2023] QIRC 072 PARTIES: Canning, Jack (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/970 PROCEEDING: Public Service Appeal - Conversion of fixed term temporary employment DELIVERED ON: HEARING DATE: 15 February 2023 15 February 2023 MEMBER: HEARD AT: Merrell DP Brisbane DATES OF WRITTEN SUBMISSIONS: Appellant's written submissions filed on 1 December 2022 and Respondent's written submissions filed on 20 December 2022 ORDER: Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived. CATCHWORDS: PUBLIC SERVICE - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - Appellant employed on a fixed term temporary basis as a Protective Services Officer at the Gympie Hospital for one year - Appellant, pursuant to s 149 of the Public Service Act 2008, requested a review of his fixed term temporary employment - decision made by Respondent that Appellant would remain as a fixed term temporary employee - Appellant appealed against decision - whether appeal competent having regard to s 195(1)(i) of the Public Service Act 2008 - Appellant's appeal not competent - decision pursuant to s 562A(3)(b)(ii) of the Industrial -- 1 of 3 -- 2 Relations Act 2016 not to hear Appellant's appeal because it is misconceived LEGISLATION: Industrial Relations Act 2016, s 562A Public Service Act 2008, s 149, s 149B and s 195 APPEARANCES: The Appellant in person. Mr W. Campbell and Ms J. Russell of the Sunshine Coast Hospital and Health Service for the Respondent. Reasons for Decision (ex tempore) [1] Mr Jack Canning is currently employed, on a temporary basis, in the position of Protective Services Officer, classification OO3, Operational Support Services ('the position') at the Gympie Hospital. Mr Canning is employed by the State of Queensland and is employed in the Sunshine Coast Hospital and Health Service ('the Health Service') which is part of Queensland Health. [2] Mr Canning commenced fixed term temporary employment in the position on 20 September 2021. On 20 September 2022, Mr Canning requested that the Health Service conduct a review of his fixed term temporary employment. Because Mr Canning had been employed as a fixed term temporary employee for over one year, but for a period of less than two years, his request was made pursuant to s 149 of the Public Service Act 2008 ('the PS Act'). [3] By letter dated 18 October 2022, Ms Joanne Shaw, Chief Operating Officer of the Health Service, advised Mr Canning that he would remain employed as a fixed term temporary employee. The reason given by Ms Shaw for that decision was that Mr Canning was a fixed term temporary employee for the purposes of backfilling an existing employee who had taken a period of leave, and the position required backfilling until the date the substantive occupant of the position was expected to return ('the decision'). [4] By appeal notice filed on 3 November 2022, Mr Canning appealed against the decision. [5] Having regard to the written submissions filed by the Health Service on behalf of the State, a preliminary question arises as to whether Mr Canning's appeal is competent. This comes about because of the effect of s 195(1)(i) of the PS Act which provides that a person cannot appeal against a decision under s 149 of the PS Act not to convert the employment basis of a fixed term temporary employee. [6] The principal question for my determination is whether Mr Canning's appeal is competent having regard to s 195(1)(i) of the PS Act. -- 2 of 3 -- 3 Mr Canning's appeal is not competent [7] There is no doubt, given Mr Canning's length of fixed term temporary employment as at 20 September 2022, that the request by Mr Canning of the review of his fixed term temporary employment was made by him pursuant to s 149(1) of the PS Act. This has to be the case because Mr Canning commenced fixed term temporary employment, in the position, on 20 September 2021. That is to say, the review of Mr Canning's fixed term temporary employment was not conducted by the Health Service, on behalf of the State, pursuant to s 149B of the PS Act because, as at 20 September 2022, Mr Canning had not been employed in Queensland Health for two years or more. [8] In these circumstances, s 195(1)(i) of the PS Act has operation. As referred to earlier, that section provides that a person cannot appeal against a decision under s 149 of the PS Act not to convert the employment basis of a fixed term temporary employee. [9] The result is that Mr Canning cannot appeal against the decision. [10] Mr Canning's appeal is not competent. Mr Canning did not advance any reasons in his written submissions or in submissions he made to me today that persuades me that his appeal is competent. [11] The appropriate order to make is that, pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, I will decide not to hear Mr Canning's appeal because it is misconceived. Order [12] I make the following order: Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived. -- 3 of 3 --