Chen v State of Queensland (Queensland Health) [2021] QIRC 369

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v State of Queensland (Queensland Health) [2021] QIRC 369 PARTIES: Chen, Victor (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2020/225 & PSA/2020/449 PROCEEDING: Public Service Appeal – Conversion of Casual Employment DELIVERED ON: 28 October 2021 MEMBER: HEARD AT: Knight IC On the papers ORDER: The appeals in PSA/2020/225 and PSA/2020/449 are dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – consideration of whether to dismiss two appeals – where the appellant was employed on a casual basis – where employment reviewed pursuant to s 149B of the Public Service Act 2008 (Qld) – decision not to convert – where the appellant brought two appeals – where the appellant subsequently ceased employment – whether the first appeal lapsed under s 207 of the Public Service Act 2008 (Qld) – whether the Commission should decline to hear the second appeal under s 562A of the Industrial Relations Act 2016 (Qld) – compelling reasons – appeals dismissed -- 1 of 13 -- 2 LEGISLATION AND INSTRUMENTS: Directive 01/17 Conversion of casual employees to permanent employment (superseded) Directive 08/20 Casual employment Industrial Relations Act 2016 (Qld) ss 451, 562A, 562C Public Service Act 2008 (Qld) (as in force from 31 August 2020) s 207 Public Service Act 2008 (Qld) (as in force from 14 September 2020) ss 193, 194, 196, 197, 149B, 290, 298 Public Service and Other Legislation Amendment Act 2020 (Qld) CASES: Metropolitan Gas Co v Federated Gas Employees Industrial Union (1924) 35 CLR 449 Reasons for Decision [1] Dr Victor Chen is a former employee of the State of Queensland. Dr Chen was employed by Queensland Health through the Gold Coast Hospital and Health Service ('GCHHS') as a Visiting Medical Officer (Cardiologist) in Diagnostic and Sub-Speciality Services. Dr Chen worked as a cardiologist with GCHHS on a temporary and casual basis from 2014 to May 2021. At the time of lodging these appeals, he was employed on a casual basis. [2] Dr Chen presently has two public service appeals before this Commission, each brought pursuant to the provisions of the Public Service Act 2008 (Qld) ('the PS Act'), in relation to GCHHS's decision to not convert his employment status from casual to permanent: PSA/2020/225 – appeal notice filed 11 September 2020; and PSA/2020/449 – appeal notice filed 24 December 2020, ('the Appeals'). [3] Subsequent to filing the Appeals, Dr Chen also filed a General Protections Application and an Unfair Dismissal Application which are both before a different member of this Commission. -- 2 of 13 -- 3 [4] The Appeals which are the subject of this decision were placed in abeyance for a period of time pending the resolution of a jurisdictional issue, which in turn had a direct bearing on the issue of whether Dr Chen retained standing to bring the Appeals. [5] This matter was raised and discussed during a mention of the Appeals on 13 July 2021. As a consequence of the parties' submissions, I issued a Directions Order seeking written submissions as to whether the Commission ought to continue to hear the Appeals.1 [6] For the reasons that follow, the Appeals must be dismissed. Background [7] In March 2020, Dr Chen successfully appealed a decision of GCHHS refusing his request for conversion and it was ordered that the matter be returned to the decision-maker for reconsideration.2 [8] GCHHS did not immediately undertake the fresh review on the basis that a disciplinary investigation had since been commenced involving allegations against Dr Chen. Due to the seriousness of the allegations, GCHHS determined to delay reviewing Dr Chen's conversion request until the outcome of the investigation was known. [9] By appeal notice filed 11 September 2020, Dr Chen commenced proceedings in PSA/2020/225 seeking to challenge GCHHS's failure to reconsider his request. [10] The matter was set down for conference on 17 September 2020, after which GCHHS undertook to re-assess Dr Chen's application for conversion from casual to permanent employment. [11] In circumstances where Directive 01/17 Conversion of casual employees to permanent employment ('Directive 01/17') was superseded by Directive 08/20 Casual employment ('Directive 08/20') on 25 September 2020, GCHHS relied on the latter directive when undertaking the review. [12] GCHHS delivered a written decision on 5 November 2020 in which it formally refused Dr Chen's request for conversion. [13] On 23 December 2020, Dr Chen filed a General Protections Application with the Commission. In support of his application, Dr Chen alleged he had been removed from the cardiology roster because he had filed the appeal in PSA/2020/225. [14] Dr Chen then filed a further appeal notice on 24 December 2020 challenging the decision of 5 November 2020 and commencing proceedings in PSA/2020/449. 1 Further Directions Order issued 13 July 2021. 2 PSA/2019/157. -- 3 of 13 -- 4 [15] Correspondence was subsequently forwarded to the Commission on behalf of GCHHS in relation to Dr Chen's General Protections Application, Unfair Dismissal Application and the Appeals which are now the subject of this decision. [16] Within that correspondence, GCHHS sought to make submissions in relation to s 196 of the PS Act and whether a former employee retains standing to bring the Appeals, pending the resolution of a jurisdictional matter arising out of Dr Chen's Unfair Dismissal Application. [17] GCHHS subsequently confirmed Dr Chen's employment was formally brought to an end in late May 2021. The 5 November 2020 Decision [18] The 5 November 2020 decision relevantly provided:3 ... I refer to the decision issued on 12 March 2020 by Industrial Commissioner Dwyer (IC Dwyer) regarding your application for conversion from casual to permanent status. In the decision, IC Dwyer advised that the original decision made by [GCHHS] was set aside and the matter was returned to the GCHHS for reconsideration. Since that time, a complaint was made about your behaviour towards another employee, and the complaint has been managed through a disciplinary process. I understand you were advised of this matter in a letter dated 21 April 2020 and that the GCHHS had decided to postpone making a decision regarding your application for conversion to permanent status pending the outcome of the disciplinary process. I am advised you lodged an appeal against both the disciplinary decision and reopened the dispute regarding the previous management of your application for conversion to permanent status. I can confirm that your eligibility for conversion has not been reviewed prior to this assessment as the disciplinary process had not yet concluded. However, as the matter is now subject to a public service appeal, I have decided to reassess your application based on the information currently available to me. Considerations when making the decision I have considered the requirements of the Public Service Act 2008, Directive 08/20 Casual [employment] and your employment history in this agency. The following factors must be considered when deciding whether to convert a casual employee to permanent employment. I have addressed these considerations below. Whether the directive applies to you as a Visiting Medical Officer As a Visiting Medical Officer, you are engaged via the Health Employment Directive 05/18 Visiting Medical Officers Employment Framework. Clause 3.3 of the Directive 08/20 states that the 'directive does not apply to a non-industrial instrument employee'. An industrial instrument is defined in the Industrial Relations Act 2016 as any of the following: a. A modern award; 3 Decision letter attached to the Appeal Notice filed in PSA/2020/449 on 24 December 2020. -- 4 of 13 -- 5 b. A certified agreement or bargaining award; or c. An arbitration determination. As a Visiting Medical Officer engaged via a Health Employment Directive, I am of the view that provisions of Directive 08/20 do not apply as you are a 'non-industrial instrument employee'. On this basis, you are not eligible for conversion to permanent status under these provisions. Continuing need The Cardiology Department is currently fully staffed and the need for casual employment has significantly reduced. The team is currently adequately resourced to cover planned leave and the on-call roster internally. In most cases, emergent leave can also be covered internally. This significantly reduces the likelihood of regular and systematic work and on this basis, I am of the view that there is not a continuing need for your role. Merit Your application for conversion has been assessed over the past two-year period, including your performance and conduct in the workplace. As explained above, I am aware you are currently subject to disciplinary action relating to an incident which occurred in January 2020. At this time, the disciplinary process is ongoing and has not been finalised, I am of the view you do not meet the 'merit' requirement due to these unresolved performance concerns. My decision Based on the information available to me, I am of the view you are not eligible for conversion from casual to permanent status under the provisions of Directive 08/20 Casual Employment. ... Legislative Changes [19] This matter is somewhat complicated by the fact that between Dr Chen filing his appeal in PSA/2020/225 and filing the appeal in PSA/2020/449, both the PS Act and the Industrial Relations Act 2016 (Qld) ('the IR Act') were amended by virtue of the Public Service and Other Legislation Amendment Act 2020 (Qld). [20] For clarity, I will refer to the PS Act and IR Act in this decision as either the 'pre-amendment' Act (as in force prior to 14 September 2020), or the 'amended' Act as in force thereafter. [21] Around the same time, a suite of public service directives was repealed and superseded by directives reflecting the statutory amendments. Relevant to present purposes, and as mentioned at [11] above, Directive 01/17 was superseded by Directive 08/20 on 25 September 2020. Submissions [22] Before turning to the parties' submissions, it is relevant to note that both Dr Chen and GCHHS made submissions in respect of the substantive proceedings. -- 5 of 13 -- 6 [23] To the extent those submissions are not relevant to the present issue at hand, being whether the Commission ought to continue to hear the Appeals, those submissions are not reflected in this decision. GCHHS's Submissions [24] GCHHS contends the Commission should dismiss the Appeals under s 451 of the IR Act on the grounds that Dr Chen's dismissal:4 has the effect of lapsing the appeal in PSA/2020/225;5 removes Dr Chen's standing to bring and maintain either of the Appeals; and is otherwise a compelling reason to decline the hear the Appeals. [25] It submits that, as PSA/2020/225 was commenced prior to its amendment, the pre-amendment PS Act continues to apply.6 Consequently, it argues when Dr Chen ceased being a public service employee, this had the effect of lapsing the appeal under s 207 of the pre-amendment PS Act.7 However, it concedes PSA/2020/449 did not similarly lapse.8 [26] Rather, it contends the wording of the relevant directive and amended PS Act make it clear only a current public service employee may bring and maintain an appeal against a conversion decision.9 GCHHS therefore submits Dr Chen's dismissal meant he no longer had standing to bring or maintain PSA/2020/449 (or PSA/2020/225 if it had not otherwise lapsed).10 [27] Finally, or in the alternative, GCHHS submits Dr Chen's dismissal is a compelling reason to decline to hear the Appeals under s 562A(3)(b)(iii) of the amended IR Act.11 In making that submission it argues there is no public interest or utility in determining whether he should be converted to permanent employment in circumstances where Dr Chen has brought an application for reinstatement.12 Dr Chen's Submissions [28] Dr Chen submits that any decision by the Commission that the appeal in PSA/2020/449 has lapsed would be 'manifestly wrong, breaches rational due process, is expressly unlawful, contrary to current statute, cites no legal authorities [and] would represent 4 GCHHS's submissions filed 16 July 2021, [5]. 5 Citing Public Service Act 2008 (Qld) s 207. 6 GCHHS's submissions filed 16 July 2021, [8]-[10]. 7 Ibid [11]. 8 Ibid. 9 Ibid [13]-[18]. 10 Ibid [12]. 11 Ibid [19]. 12 Ibid [20]. -- 6 of 13 -- 7 unacceptable legal precedent.'13 He contends the repeal of s 207 and amendment to s 196(e) reflects a deliberate legislative intent to allow an individual to continue a public service appeal where they are no longer a public service employee.14 [29] He adds it also reflects a deliberate attempt to close a 'loophole' through which casual and fixed term conversions could be improperly defeated without addressing substantive circumstances or legal issues of employer conduct which are in the public interest for the Commission to review.15 [30] Finally, Dr Chen argues that because PSA/2020/449 was filed in December 2020 the amended PS Act applies to the appeal. He therefore submits he retains standing to maintain the appeal as 'the employee the subject of the decision'.16 He denies his dismissal can or should lapse his appeal, submitting there is no substantive reasoning, legal precedent or authority which supports such a conclusion.17 [31] Dr Chen's submissions are silent as to his appeal in PSA/2020/225. GCHHS's Reply Submissions [32] In reply, GCHHS resists Dr Chen's submissions, arguing they fail to recognise that conversion of an employee's employment status presupposes an extant employment relationship, in circumstances where none currently exists.18 Relevant Principles [33] The pre-amendment PS Act relevantly provided: 207 Lapse of appeal An appeal lapses if the appellant stops being— (a) a public service employee; or (b) a person who may appeal against the decision the subject of the appeal. Note— This section has no relevance to an appeal against a disciplinary declaration. 13 Dr Chen's submissions filed 21 July 2021, [5]. 14 Ibid [8]. 15 Ibid [9]. 16 Ibid [10], [17] citing Public Service Act 2008 (Qld) s 196(e). 17 Ibid [11], [18]. 18 GCHHS's reply submissions filed 23 July 2021, [8]. -- 7 of 13 -- 8 [34] Section 207 was repealed in the amended PS Act and the following provision was inserted in the amended IR Act:19 562A Commission may decide not to hear particular public service appeals ... (3) The commission may decide it will not hear a public service appeal against a decision if— (a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or (b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal— (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. [35] With respect to transitional provisions, the amended PS Act relevantly provides: 290 Appeals under ch 7, pt 1 (1) An appeal started, but not completed, under chapter 7, part 1 immediately before the commencement is taken to be an appeal under chapter 7, part 1. (1A) However, chapter 7, part 1 and any commission chief executive directive mentioned in that part, as in force immediately before the commencement, continue to apply for an appeal against a decision mentioned in section 194(1)(a) or (e) that was made before the commencement. ... 298 Appeals started before commencement (1) This section applies if— (a) before the commencement, an appeal was started under chapter 7, part 1; and (b) on the commencement, the appeal has not been decided or withdrawn. (2) The appeal must be heard and decided under chapter 7 as in force immediately before the commencement, as if the Public Service and Other Legislation Amendment Act 2020 had not commenced. [36] In so far as it relates to appeals, the amended PS Act relevantly provides: 193 Appeals A person may appeal against a decision if— (a) an appeal may be made against the decision, under section 194; and (b) the person is entitled to appeal against the decision under section 196. 19 My emphasis. -- 8 of 13 -- 9 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— ... (e) a decision (each a conversion decision)— (i) under section 149B not to convert the basis of employment of an employee; or (ii) under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B(8A); or (iii) under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years; ... (3) In this section— temporary employee— (a) includes a general employee employed on a temporary basis; but (b) does not include a person employed under section 147 or 148 on a casual basis. ... 196 Who may appeal The following persons may appeal against the following decisions— ... (b) for a decision mentioned in section 194(1)(b)—a public service employee or former public service employee aggrieved by the decision to discipline the employee if the employee is entitled to appeal under a directive of the commission chief executive; ... (e) for a conversion decision—the employee the subject of the decision; ... [37] Directive 08/20 relevantly provides: 9. Appeals 9.1 A casual employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert. 9.2 In accordance with section 195(1)(i) of the PS Act, a casual employee does not have a right of appeal in relation to a decision not to convert them in response to an application made under section 149. 9.3 In accordance with section 194(1)(e)(ii), a casual employee may appeal an offer for conversion to permanent employment under section 149B(3)(b) as a general employee on tenure or a public service officer in the circumstances where the hours of work offered are less than the hours required to be offered by clause 7.4. -- 9 of 13 -- 10 Should the Commission Continue to Hear PSA/2020/225? [38] It is clear from s 298(2) of the amended PS Act above that where an appeal was commenced prior to the amendments, the pre-amendment PS Act continues to apply. [39] Dr Chen commenced the appeal in PSA/2020/225 on 11 September 2020, prior to the amendments taking effect. Consequently, I must hear and decide PSA/2020/225 according to ch 7 of the pre-amendment PS Act which relevantly includes the lapsing provision under s 207. [40] GCHHS argues that, as Dr Chen has stopped being a public service employee, s 207 of the pre-amendment PS Act had the effect of lapsing PSA/2020/225. [41] I have been unable to identify within Dr Chen's submissions any arguments in support of a position that PSA/2020/225 should continue to be heard, in circumstances where it is accepted by both parties his employment has come to an end. [42] Section 207 explicitly provides that an appeal will lapse where the appellant stops being 'a public service employee'.20 In my view, GCHHS has correctly identified PSA/2020/225 lapsed when Dr Chen's employment ceased. [43] It follows the appeal in PSA/2020/225 must be dismissed. Should the Commission Continue to Hear PSA/2020/449? [44] The same cannot be said for PSA/2020/449 which was not filed until 24 December 2020, well after the amendments commenced. [45] Despite this, GCHHS argues the PS Act can only be construed to give the Commission jurisdiction to hear conversion appeals in respect of current public service employees. Conversely Dr Chen maintains:21 The effect of repeal of s207 and amendment s 196(e) combining temporary and casual employees under one clause, indicates mindful legislative intent [that] appellants continue to hold standing in circumstances [where] they are no longer public service employees... [46] The review of Dr Chen's employment, which is the subject of PSA/2020/449, was undertaken on or before 5 November 2020. In correspondence of the same date, Ms Karlene Willcocks confirmed that Directive 08/20 was considered for the purposes of undertaking the review. [47] In my view, it is the amended PS Act which is relevant for the purposes of determining whether Dr Chen has standing to bring his appeal. 20 Public Service Act 2008 (Qld) s 207(a). 21 Dr Chen's submissions filed 21 July 2021, [8]. -- 10 of 13 -- 11 [48] Section 193 of the PS Act provides that a person may appeal against a decision if an appeal may be made against the decision under s 194, and the person is entitled to appeal against the decision under s 196.22 [49] It is not in contention Dr Chen was seeking to have his casual employment status converted to permanent, having completed more than two years of service at GCHHS. Relevantly, on 5 November 2020, GCHHC determined Dr Chen was not eligible for conversion from casual to permanent status. [50] Decisions listed within s 194 against which appeals may be made, include a decision under s 149B not to convert the basis of employment for an employee with two or more years' service. [51] Separately, s 196 sets out who may appeal against particular types of decisions, that is, a person who has standing to bring or maintain an appeal. In the case of a conversion decision, s 196(e) provides: 'for a conversion decision – the employee the subject of the decision' (my emphasis). [52] Schedule 4 (Dictionary) of the amended PS Act does not include a definition for 'employee', however the ordinary meaning of 'employee' taken from the Macquarie Dictionary is 'a person working for another person or a business firm for pay'.23 Similarly, the Oxford Dictionary defines an employee as 'a person who works for an employer; spec. a person employed for wages or a salary under an employment contract, esp at non-executive level'.24 [53] Here, Dr Chen is no longer working for GCHHS and, in my view, could not be considered to be an employee for the purposes of s 196(e), in the context of determining who has standing to bring an appeal. [54] In any event, the meaning of a word in a provision must be determined by reference to the language of the statute viewed as a whole.25 In that respect, it is helpful to consider s 196(b) of the PS Act, which specifically provides for an appeal to be brought by a 'former public service employee'. Although the provision relates to a disciplinary decision, it is notable that s 196(e) has not, in the same way, explicitly provided for a circumstance where a former employee could bring an appeal against a conversion decision. [55] In circumstances where it is a requirement that a person be employed, either on a casual or fixed term basis, in order to be 'converted', the decision by the Parliament not to include 'former employees' alongside 'employees' as a category of persons who may appeal conversion decisions is entirely logical. 22 Public Service Act 2008 (Qld) s 193. 23 Macquarie Dictionary (online at 28 October 2021) ‘employee’. 24 Oxford English Dictionary (online at 28 October 2021) ‘employee’ (def 1). 25 Metropolitan Gas Co v Federated Gas Employees Industrial Union (1924) 35 CLR 449. -- 11 of 13 -- 12 [56] Having considered the plain and ordinary meaning of s 196(e), the manner in which the amended PS Act specifically provides appeal rights for former public service employees in so far as it relates to some decisions but not others – including conversion, and the legislative intent underpinning conversion rights, I am satisfied it is not open to the Commission to hear conversion appeals from persons who are no longer employed by the public service. [57] Even if I was to be wrong on that point, I consider there would be little practical utility in hearing the appeal, given Dr Chen is no longer an employee of GCHHS. [58] In deciding this appeal, s 562C(1) of the amended IR Act provides that I may: confirm the decision appealed against; or set the decision aside and substitute another decision; or set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate. [59] Now that Dr Chen is no longer employed by GCHHS, I am limited in any decision which I may substitute in lieu of the decision not to convert. In this respect, notwithstanding Dr Chen's submissions in relation to the substantive aspects of PSA/2020/449, I note it is beyond the remit of this Commission to order that a person be re-employed in a proceeding of this kind.26 [60] I also consider there would be little utility in requiring GCHHS to undertake a fresh review where Dr Chen's employment has been terminated, and where that is a basis on which it may refuse to convert him in any event. [61] The primary relief sought by Dr Chen, being conversion to permanent employment status, is no longer available to him. Dr Chen is no longer an employee of the State of Queensland, therefore there is an absence of an extant employment relationship of a temporary nature upon which conversion could be predicated. [62] Given the above, I am not persuaded that an order under s 562C allowing the appeal in favour of Dr Chen is reasonably open to be made. [63] For all the reasons set out above, I therefore consider there are compelling reasons to decline to hear the appeal in PSA/2020/449 pursuant to s 562A(3)(b)(iii) of the IR Act. 26 cf. Industrial Relations Act 2016 (Qld) s 321(2) which empowers the Commission to make an order that an employee who has been unfairly dismissed be reinstated to their former position. No such power exists in respect of public service appeals brought under s 197 of the Public Service Act 2008 (Qld). -- 12 of 13 -- 13 Conclusion [64] For the reasons given above, the Appeals must be dismissed. [65] I order accordingly. Order The appeals in PSA/2020/225 and PSA/2020/449 are dismissed. -- 13 of 13 --