Edwards v State of Queensland (Department of Education) [2021] QIRC 382

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION : Edwards v State of Queensland (Department of Education) [2021] QIRC 382 PARTIES: Edwards, Corey (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2021/144 PROCEEDING: Public Service Appeal – Conversion to higher classification level DELIVERED ON: 9 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 – where decision is deemed under s 149C(6) – consideration of 'genuine operational requirement' LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 149C, 194, 195 and 196 Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7 -- 1 of 11 -- 2 CASES: Barker v State of Queensland (Department of Housing and Public Works) [2020] QIRC 224 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) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Khan v State of Queensland (Department of Housing and Public Works) [2020] QIRC 193 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision [1] Mr Corey Edwards ('the Appellant') is currently employed in a higher classification position as a Head of Department ('HOD') at the Cairns School of Distance Education ('Cairns SDE') with the State of Queensland (Department of Education) ('the Respondent'). [2] The Appellant appeals a deemed decision by the Respondent that his employment is to continue according to the terms of his higher duties arrangement pursuant to s 194(1)(e)(iii) of the Public Service Act 2008 (Qld) ('the PS Act'). [3] The deemed decision was made pursuant to s 149C(6) of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). Appeal principles [4] 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. [5] 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 1 IR Act s 562B(2). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. -- 2 of 11 -- 3 rehearing,3 but involves a review of the decision arrived at and the decision-making process associated therewith. [6] 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. What decisions can the Industrial Commissioner make? [7] 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 [8] In the appeal notice, the Appellant does not appear to have outlined any grounds of appeal in which the Appellant intends to rely. Instead, Part C of the appeal notice outlines a chronology: I am appealing as a public service employee acting in a position at higher classification level under 149C for a continuous period of at least 2 years. The application process exceeded the 28 days required by Section 149C of the Public Services[sic] Act without a decision being made. As such, I have been affected and aggrieved by the Employment Review, Integrity and Employeed[sic] Relations Department's failure to act. An initial application was made to the Employment Review, Integrity and Employeed[sic] Relations Department on the 14th December 2020. This application was not acknowledged, and on Thursday the 4th of March, I spoke with HR Consultant Kathryn Genge. Ms Genge acknowledged that failure to acknowledge the receipt of my application dated 14 December 2020 was a breach of procedure and that the team had been "completely overwhelmed" by applications. I was then invited by Ms Genge to submit my application again. On Thursday the 4th of March, I submitted a second application as requested and received an acknowledgement of receipt advising me that "a decision must be made within 28 days after receipt of your request." When no decision was reached on or by the nominated date, I made contact with Ms Genge in the form of a voicemail requesting that she contact me on my mobile phone to advise the reason no decision had been reached, so that I would know on what basis to appeal against the decision. Ms Genge left a message on my work voicemail on 06/04/2021 asking me to contact her at my earliest convenience. On returning to work, I contacted Ms Genge on 19/04/2021, at which point she advised me that no decision had been made about my application and asked if I was familiar with how public service appointments were made. I advised her that I was not and she told me that in the event that an application had not been addressed within 28 days, "the legislation makes the decision for us." 3 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 PS Act. 4 IR Act s 562B(3). -- 3 of 11 -- 4 Ms Genge then reiterated her earlier advice (05/03/2021) that if I was unhappy with the decision, I should lodge an appeal. The relevant provisions of the PS Act and the Directive [9] 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) 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— -- 4 of 11 -- 5 (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. [10] 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. 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 [11] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Respondent's submissions [12] The Respondent filed submissions in response to the Appellant's appeal notice. In summary, the Respondent submits that: (a) the chronology of events as provided by the Appellant in the appeal notice is accurate, however, the 14 December 2020 and 4 March 2021 applications are to be separately regarded under s 149C of the PS Act and the Directive; -- 5 of 11 -- 6 (b) at the time the 14 December 2020 application was submitted, the Appellant had been continuously acting at the higher classification level for a period of 21 months, one week and one day. The Appellant did not have the right to appeal the decision as the Appellant had been acting in a higher classification level for a continuous period of less than two years; (c) the Respondent acknowledges that the Appellant was eligible to submit a subsequent application on or after 4 March 2021; and (d) in accordance with s 149C(6) of the PS Act and clause 6.3 of the Directive, as a decision was not made in respect of the 4 March 2021 application by 1 April 2021 (within 28 days), the chief executive or delegate is taken to have refused the request. [13] The Respondent submits that there exist genuine operational reasons not to appoint the Appellant to the higher classification role and to continue the Appellant's engagement according to the terms of the existing higher duties arrangement. The Respondent submits that: (a) the higher classification level role became temporarily vacant due the current incumbent taking maternity leave commencing on 18 March 2019 and immediately followed by approved unpaid special leave commencing on 13 July 2020 and due to conclude on 10 December 2021; (b) the incumbent HOD will return to the role when her leave concludes on 10 December 2021; (c) the circumstances underpinning the temporary engagement of the Appellant as HOD, Cairns SDE are consistent with those set out in clause 4.2(a) of the Directive and that it is appropriate to engage the Appellant in the higher classification level role of HOD, Cairns SDE only for the duration of the incumbent's approved leave; (d) the return of a substantive incumbent employee represents a genuine operational reason to appoint an employee temporarily to the higher classification level role;5 and (e) if the incumbent employee seeks to further extend their leave, and is approved, it would be appropriate for the Appellant to be extended in the role on a temporary basis.6 Appellant's submissions [14] The Appellant filed submissions in response to the Respondent's submissions. In summary, the Appellant submits that: (a) the validity of the Respondent seeking to separate the applications made on 14 December 2020 and 4 March 2021 is contested as the actions or the failure to 5 Barker v State of Queensland (Department of Housing and Public Works) [2020] QIRC 224 [41]. 6 Khan v State of Queensland (Department of Housing and Public Works) [2020] QIRC 193 [22]. -- 6 of 11 -- 7 act of the Employment Review Team in both cases are relevant to both the Appellant's aggrieved status and subsequent appeal. The Appellant submits that the Commission should consider both applications, despite the fact that the Appellant was not entitled to appeal the 14 December 2020 decision; (b) the acknowledgment by Ms Genge of the Employment Review Team's failure to acknowledge receipt of the Appellant's application was a breach of procedure and constitutes a failure to follow due process and a failure by the Employment Review Team to act in a fair and transparent manner in relation to a person's employment status; (c) by allowing applications to languish in a holding state until a deemed decision is made, and by directing people to the Commission, the Employment Review Team are not adequately executing their responsibilities, to the detriment of employees. This is reinforced by the fact that the Employment Review Team did not have time to act within 28 days of receiving the Appellant's application but were able to prepare a 16 page submission to the Commission upon receipt of the Appellant's appeal; (d) the return of the substantive incumbent employee as a genuine operational reason to refuse the application is refuted by the Appellant. The role of HOD is not unique to Cairns SDE. At the point of the substantive incumbent employee's return to duties, if there was no identified need at Cairns SDE, it would be appropriate for the Respondent to effect a required transfer to a school within the Cairns region. This is in keeping with other branches of Government, where substantive employees acting in temporary positions are transferred to a surplus officers' pool and re-tasked as needed within the department. The assertion that there will not be a vacant HOD position in the Cairns region as of 10 December 2021 is unlikely and only forms part of the Respondent's submission as an attempt to justify their previous failure to act; (e) the assertion that the return of a substantive incumbent employee constitutes a genuine operational reason to refuse the application is flawed, as many temporary HODs acting in school-funded or self-funded positions have been converted to permanency under the Directive and s 149C of the PS Act. Should school funding become unavailable or if self-funded positions are no longer deemed necessary, then those employees would need to be relocated in exactly the same way as an employee whose position is being reclaimed by a substantive incumbent; and (f) other employees who were acting behind a substantive incumbent have been made permanent under the Directive. Respondent's submissions in reply [15] The Respondent, in accordance with the Directions Order, filed submissions in reply to the Appellant's submissions. In summary, the Respondent submits that: (a) section 149C of the PS Act expressly anticipates the situation where a decision cannot be, or is not made, within 28 days and explicitly provides for a default position of refusal to be deemed through the effluxion of time. While the -- 7 of 11 -- 8 Respondent endeavours to decide applications in a timely manner, high workload demands have in a number of instances negatively impacted on the ability to do so, as has been the case in this matter; (b) the Appellant has been afforded the opportunity to be informed about the Respondent's consideration of his application through this appeal process; (c) the Respondent disputes that the genuine operational requirements provided in its original submissions is flawed. The Commission has, on several occasions, considered that the return of a substantive incumbent to the position represents a genuine operational requirement. The position subject of this appeal is substantively owned by another incumbent and employing two people permanently against the same role is not tenable. Further, future speculative considerations are insufficient to displace genuine operational requirements relevant to the application at the time of decision (deemed or otherwise made); and (d) the Respondent contends that consideration of other purported decisions is not a relevant consideration to either the decision the subject of this appeal or the appeal itself and that each application is to be considered based upon its own facts and circumstances at the relevant time. Consideration [16] An appeal of this type requires a consideration of whether the decision by the Respondent was fair and reasonable in all of the circumstances. A decision following a review of the Appellant's request to be appointed at the higher classification level was not made by the Respondent within the required period and consequently a decision is deemed to have been made, pursuant to s 149C(6) of the PS Act. [17] Pursuant to ss 194(1)(e)(iii) and 196(e) of the PS Act, the chief executive of the Respondent was taken to have made a decision against which the Appellant can appeal. The deemed decision to not appoint the Appellant to the higher classification level must be reviewed to determine if it is fair and reasonable. [18] Section 149C(6) of the PS Act provides the following: (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. [19] Clause 6.3 of the Directive provides the following: 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. [20] Both s 149C(6) of the PS Act and clause 6.3 of the Directive contemplate circumstances in which a decision has not been made with respect to a conversion. In these -- 8 of 11 -- 9 circumstances, the employment continues according to the terms of the existing arrangement. [21] A 'decision' is a specific action associated with s 149C(4) that invokes the provisions under ss 149C(4A) and (5) of the PS Act. The requirement for a notice pursuant to subsection (5) applies only when a decision has been made to refuse the request for conversion. The specific requirements that are mandatory7 following a decision do not apply to subsection (6). [22] The Directive outlines the requirements for 'Statement of Reasons' in clause 7: 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. [emphasis added] [23] In consideration of both clause 7.2 of the Directive and s 149C(6) of the PS Act, the Respondent was not obliged to provide the Appellant with a written notice in these circumstances. [24] Although there is no statutory requirement that reasons be furnished if the decision is 'deemed' in accordance with s 149C(6) of the PS Act, a fair appeal process relies upon the Appellant being made aware of the Respondent's reasons for the outcome of the conversion application. I am satisfied that the Appellant has had the opportunity to examine the Respondent's submissions dated 11 May 2021 and 23 June 2021, outlining the considerations of the review and was afforded the opportunity to provide submissions in reply. [25] The criteria the chief executive must have regard to when deciding the request are the reasons for each decision previously made, or deemed to have been made, and the genuine operational requirements of the department.8 [26] The Appellant submits that he made an application for conversion on 14 December 2020 and that this application had not been acknowledged. The Respondent submits that at the time the 14 December 2020 application was submitted, the Appellant had been continuously acting at the higher classification level for a period of 21 months, one week and one day. Section 149C(3) of the PS Act provides that an employee can apply for conversion to the higher classification level one year after being seconded or assuming the duties of the higher classification level. No decision was made within 28 days of the request and as such the request is taken to be refused in accordance with s 149C(6). As outlined in [23], the Respondent is not required to provide reasons 'after the fact' to support a deemed decision. Pursuant to 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee 7 As per ss 149C(4), (4A) and (5) of the PS Act. 8 s 149C(4A) of the PS Act and at cl 6.2 of the Directive. -- 9 of 11 -- 10 to the higher classification level if the employee has been seconded to or acting at the higher classification level for less than two years. The deemed decision following the 14 December 2020 application was therefore not appealable. [27] The decision of 4 March 2021, relating to an application for conversion following the Appellant acting in the higher classification level for more than two years, is able to be appealed pursuant to 194(1)(e)(iii) of the PS Act. Genuine operational requirements [28] The PS Act requires that, in making the decision, the decision-maker must have regard to the genuine operational requirements of the department. [29] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),9 the phrase 'genuine operational requirements of the 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.'10 [30] The Appellant submits that the return of the substantive incumbent employee is not a genuine operational reason for refusing his application for conversion. The Appellant notes the role of HOD is not unique to Cairns SDE. The Respondent submits that the incumbent HOD will return to the role of HOD, Cairns SDE when her leave concludes on 10 December 2021. [31] 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. [32] As noted in Barker v State of Queensland (Department for using and Public Works),11 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 two permanent employees would then occupy the position of HOD, Cairns SDE upon the incumbent employee's return. In these circumstances, it was reasonable to conclude that the effective, efficient and appropriate management of the department did not require two employees in this role. The genuine operational requirements of the department therefore 9 [2020] QIRC 203. 10 Ibid [40]. 11 [2020] QIRC 224. -- 10 of 11 -- 11 support the retention of the Appellant's appointment on a temporary basis only prior to the return of the incumbent to the role. [33] The Appellant submits that at the time the substantive incumbent employee returns, it would be appropriate for the Respondent to transfer the Appellant to another HOD role in Cairns SDE or within the Cairns Geographic Area. Although the entitlement to request a review requires that the person be engaged in a higher classification level for the requisite period, s 149C of the PS Act refers to appointment being to 'the position' rather than to a higher classification level. As considered in Holcombe v State of Queensland (Department of Housing and Public Works),12 the Respondent's authority is confined to appointment to the position in which the employee is temporarily placed at the time of the review. [34] The Appellant's submissions regarding purported departmental decisions relating to other employees are not relevant to this matter, with this appeal a determination of whether the deemed decision by the Respondent was fair and reasonable in the particular circumstances of this matter. [35] In consideration of the material before me and the submissions made by the parties, the decision made by the Respondent was fair and reasonable. Order [36] 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 [2020] QIRC 195. -- 11 of 11 --