Findlater v State of Queensland (Department of Education) [2021] QIRC 389

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION : Findlater v State of Queensland (Department of Education) [2021] QIRC 389 PARTIES: Findlater, Rachel Alexandra (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2021/317 PROCEEDING: Public Service Appeal – Conversion to higher classification level DELIVERED ON: 12 November 2021 MEMBER: HEARD AT: Power IC On the papers ORDER: CATCHWORDS: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant was reviewed under s 149C of the Public Service Act 2008 (Qld) – consideration of 'genuine operational requirement' LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562A, 562B and 562C Public Service Act 2008 (Qld), ss 149C and 194 Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7 CASES: Barker v State of Queensland (Department for using and Public Works) [2020] QIRC 224 -- 1 of 8 -- 2 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) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision [1] Ms Rachel Alexandra Findlater ('the Appellant') is currently employed in a higher classification position as a H01, Guidance Officer at Upper Coomera State College with the State of Queensland (Department of Education) ('the Respondent'). [2] As outlined in the appeal notice, the Appellant appeals a deemed decision made pursuant to s 149C(6) of the Public Service Act 2008 (Qld) ('the PS Act') and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive') by the Respondent that her employment is to continue according to the terms of her higher duties arrangement, pursuant to s 194(1)(e)(iii) of the PS Act. Appeal principles [3] Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. [4] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under chapter 11, part 6, division 4 of 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. [5] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision to refuse the Appellant's request to be appointed to the higher classification level was fair and reasonable in all of the circumstances. 1 IR Act s 562B(2). 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 8 -- 3 What decisions can the Industrial Commissioner make? [6] 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. Grounds of Appeal [7] The Appellant outlined the following under Part C of the appeal notice: On the 3 August the following (below) application was submitted. Application receipt was acknowledged by HR consultant Jo Turner for the Department of Education. As of 02 September 2021, no response has been received. As stated in receipt email from Jo Turner – "that if a decision is not made and sent to you in writing on or before Tuesday, 31 August 2021, the decision maker is taken to have refused the request to be appointed to the higher classification level position (a deemed conversion decision)." Therefore I am exercising the right to appeal through completing and submitting this Form 89 as a public service employee acting in a position at higher classification level under 149C of the PS Act for a continuous period of at least two years Application for conversion request – I am requesting, pursuant to section 149C of the Public Service Act and section 5 of the Public Service Commission Directive 13/20 – Appointing a public service employee to a higher classification level, to have my higher duties converted to permanent. I have been 'Relieving Above Level' as a Guidance Officer since January, 2019. My duties were initially .5 at Pacific Pines SHS until August 2019, where I was then allocated a 1 FTE role at Upper Coomera State College. I have been in the FTE role of RAL Guidance Officer since August 2019. … The relevant provisions of the PS Act and the Directive [8] Section 149C of the PS Act relevantly provides: 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee— (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. (2) However, this section does not apply to the following public services employees— (a) a casual employee; (b) a non-industrial instrument employee; (c) an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee. -- 3 of 8 -- 4 (3) The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after— (a) the end of 1 year of being seconded to or acting at the higher classification level; and (b) each 1-year period after the end of the period mentioned in paragraph (a). (4) The department's chief executive must decide the request within the required period. (4A) In making the decision, the department's chief executive must have regard to— (a) the genuine operational requirements of the department; 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 employment at the higher classification level. (5) If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person's engagement at the higher classification level has been extended; and (d) 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 employment at the higher classification level. (6) If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. (7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section. (8) In this section— continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7). required period, for making a decision under subsection (4), 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. [9] The Directive relevantly provides: 6. Decision making 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle. 6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to: (a) the genuine operational requirements of the department, and (b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level. -- 4 of 8 -- 5 6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement. 6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act. 7. Statement of reasons 7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954: (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. 7.2 A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3. Submissions [10] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Respondent's submissions [11] The Respondent disagrees with the premise of the appeal, submitting that there was no deemed decision and: (a) on 31 August 2021, the Respondent issued a written notice to the Appellant about a decision it made pursuant to s 149C of the PS Act; (b) the decision made by the Respondent on 31 August 2021 was made within the required period, being specifically that it was within 28 days after the Appellant's request was made under s 149C(3) of the PS Act; and (c) the conditions required for a deemed decision to have been made, pursuant to s 149C(6) of the PS Act, were not present at the relevant time because the chief executive had made an decision within the required period. [12] The Respondent further submits that while the Appellant may have rights to appeal the decision dated 31 August 2021, the Appellant's present attempt to appeal a deemed decision is misconceived because no such decision exists. Appellant's submissions [13] By correspondence to the Industrial Registry dated 25 October 2021, the Appellant notified the Commission that she did not intend on filing submissions. -- 5 of 8 -- 6 Consideration [14] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. [15] The Appellant submits that no decision was made by the Respondent within the required period and as such a deemed decision refused the Appellant's request for conversion to the higher classification level position. The Respondent submits that a decision on the Appellant's request for conversion was made and issued to the Appellant on 31 August 2021. The Respondent attached the decision of 31 August 2021 to its submissions. [16] The Appellant did not provide submissions addressing the Respondent's contention that a decision had in fact been made and issued to the Appellant on 31 August 2021. In the absence of any contrary submissions, I accept that the Respondent issued the Appellant a decision dated 31 August 2021 outlining the reasons for the decision to reject the application for conversion to the higher classification level. [17] The appeal notice outlined the decision to be appealed as a 'deemed decision', however it is not possible for a deemed decision to exist when an actual decision had been made within the statutory timeframe pursuant to s 149C of the PS Act. [18] If it is the case that the Appellant intended to appeal the decision dated 31 August 2021, I will consider whether that decision was fair and reasonable in the circumstances. I note that the appeal notice does not outline any specific grounds of appeal. [19] The reasons for the decision confirm that the Appellant worked in a higher classification level for a period of at least two years and has satisfied the merit principle. [20] For completeness, I note that the decision complies with s 149C(5) of the PS Act, in that the decision has outlined: (a) the reasons for the decision to refuse the Appellant's request for conversion to the higher classification position; (b) the total continuous period for which the Appellant has been acting at the higher classification level, being two years and three weeks; (c) the number of times the Appellant's engagement at the higher classification level has been extended, being three occasions; and (d) one previous decision made under s 149C dated 5 January 2021. [21] The PS Act requires that, in making the decision, the decision-maker must also have regard to the genuine operational requirements of the department. [22] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),5 the phrase 'genuine operational requirements of the 5 [2020] QIRC 203. -- 6 of 8 -- 7 department' in s 149C(4A)(a) of the PS Act 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.'6 [23] The temporary nature of the Appellant's higher classification level role is due to the incumbent employees being absent from the role for a known period. These employees are due to return on 11 December 2021 to resume both the 0.9 FTE role and the 0.1 FTE role in which the Appellant has been temporarily employed. [24] Clause 4.2 of the Directive contemplates circumstances which support the temporary engagement of an employee at a higher classification level, including: (a) when an existing employee takes a period of leave such as parental leave, long service leave, recreation or long-term sick leave and needs to be replaced until the date of their expected return … (c) to perform work for a particular project or purpose that has a known end date … [25] As noted in Barker v State of Queensland (Department for using and Public Works),7 the Commission has generally considered that the return of a substantive incumbent to the position represents a genuine operational requirement to support the temporary appointment of an employee at a higher classification level. The consequence of appointing the Appellant to the higher classification position would be that a surplus of an additional permanent employee would then occupy the Guidance Officer position upon the return of the 0.1 FTE and 0.9 FTE incumbent employees. In these circumstances, it was reasonable to conclude that the effective, efficient and appropriate management of the department does not require multiple employees in this role. The genuine operational requirements of the department therefore support the retention of the Appellant's appointment on a temporary basis prior to the return of the incumbents to the role. [26] It appears that this appeal is misconceived as the decision on appeal, the 'deemed decision', does not exist pursuant to s 149C(6) as the Respondent made a decision within the requisite 28 day period. Alternatively, the Respondent's decision that genuine operational requirements exist to refuse the Appellant's request for appointment to the higher classification position was fair and reasonable in the circumstances. [27] In consideration of the material before me, I am of the view that the decision made by the Respondent was fair and reasonable. 6 Ibid [40]. 7 [2020] QIRC 224. -- 7 of 8 -- 8 Order [28] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 8 of 8 --