Doggett v State of Queensland (Department of Energy and Public Works) [2021] QIRC 354

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Doggett v State of Queensland (Department of Energy and Public Works) [2021] QIRC 354 PARTIES: Doggett, Michael (Appellant) v State of Queensland (Department of Energy and Public Works) (Respondent) CASE NO: PSA/2021/230 PROCEEDING: Public Service Appeal – Appointment to position at higher classification DELIVERED ON: 21 October 2021 MEMBER: Dwyer IC HEARD AT: On the papers ORDER: In accordance with s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) the Commission will not hear the appeal. CATCHWORDS: PUBLIC SERVICE - APPEAL – application for permanent employment at higher classification – jurisdiction to deal with conversion decision appeal – appellant not assuming duties in the public service agency in which he is substantively employed – meaning of appointment – meaning of employed – appellant outside operation of section LEGISLATION: Directive 13/20 Appointing a public service employee to a higher classification level cl 3 -- 1 of 14 -- 2 Reasons for Decision Background [1] Mr Michael Doggett is substantively employed in the position of AO6 Senior Customer Service Manager within the Housing and Homelessness Services division of the Department of Communities, Housing and Digital Economies ('CHDE'). [2] Between 1 January 2020 and 11 November 2020, Mr Doggett had been continuously acting in the higher classification level position of AO8, Manager, Business Support Group (position number 734532) ('the position'). The position was in the Technology Industrial Relations Act 2016 (Qld) ss 562A, 562B, 562C, 564 Public Service Act 2008 (Qld) ss 119, 120, 194, 149C, ch 5 pt 5 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Katae v State of Queensland & Anor [2018] QSC 225 King-Koi v State of Queensland (Department of Education) [2020] QIRC 209 Luong v State of Queensland (Department of Housing and Public Works) [2021] QIRC 256 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Truffet v Workers' Compensation Regulator [2020] ICQ 013 -- 2 of 14 -- 3 Service Group ('TSG') of the Corporate Services division of the (then) Department of Housing and Public Works ('HPW'). First request for conversion [3] On 22 September 2020, Mr Doggett requested to be permanently appointed to the position in accordance with Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). [4] On 22 October 2020, Mr Peter Borserini, HR Manager HPW, advised Mr Doggett that, in accordance with the Directive, he was ineligible to apply for conversion as he had only been engaged in the higher duties position for nine months and his engagement would continue according to the terms of the existing temporary placement.1 Machinery of Government ('MOG') changes [5] On 12 November 2021, MOG changes took effect. HPW became CHDE and certain divisions of HPW became the Department of Energy and Public Works ('EPW'). [6] Mr Doggett's substantive AO6 position and the higher duties AO8 position temporarily became part of CHDE while the effects of the MOG changes on the Corporate Services division of HPW were being determined. Second request for conversion [7] On 29 January 2021, Mr Doggett requested to be permanently appointed to the higher duties position which was now in CHDE. [8] In a letter dated 12 February 2021 (received on 16 February), Mr Allan Davis, Senior HR Consultant HPW, advised Mr Doggett that the Assistant Director-General had determined that his engagement would continue according to the terms of the existing temporary placement.2 The reasons for the decisions were as follows: • The purpose of your current engagement in the position of AO8, Manager, Business Support Group – Reside Support (734532) within TSG, is to perform work for the Reside Transition, with a known end date of 30 June 2021 • At the conclusion of the Reside Transition there will no longer be a continuing need for the AO8, Manager, Business Support Group – Reside Support (734532) within TSG, that you are currently performing higher duties in. 1 Submissions of the Respondent filed 21 July 2021, attachment 1. 2 Submissions of the Respondent filed 21 July 2021, attachment 2. -- 3 of 14 -- 4 Further MOG changes [9] On 17 March 2021, the Corporate Services division of the former HPW was formally divided between CHDE and EPW. As a result, Mr Doggett's substantive AO6 position remained in CHDE and the AO8 higher duties position became part of EPW. [10] On 9 June 2021, team of the Corporate Services division of the (then) HPW which held the higher duties position was renamed from TSG to Technology and Digital Solutions ('TDS'). Third request for conversion [11] On 9 June 2021, Mr Doggett requested that the decision dated 12 February 2021 be reconsidered as he believed his request had been incorrectly assessed. [12] That same day, Mr David Horton, Director Business Solution Services EWP, advised Mr Doggett via email that he was ineligible to request conversion as his substantive position was now within a different department to his higher classification level position. The reasons were as follows: After consultation with Allan Davis in HR, the position is that your substantive position is within another agency, this excludes you from being able to request the appointment at a higher level Under the s149C (1)(a) of the Public Service Act 2008, an employee is only eligible to ask the department's chief executive to appoint the employee to the position at the higher classification level, if they are seconded to or are acting at, a higher classification level in the department in which the employee holds an appointment. This is supported by clause 3.1 of Directive 13.20 Appointing a public service employee to a higher classification level, which provides that: 3. Application 3.1 This directive applies to: (a) a public service officer who is seconded to, or (b) a public service employee (including fixed term temporary employee) who is assuming the duties and responsibilities of, a higher classification level in the public service agency (agency) in which the employee is substantively employed. As your substantive appointment now sits within the Department of Communities, Housing and Digital Economy (CHDE) you are not eligible to ask the relevant authorised delegate in the Department of Energy and Public Works (DEPW) to appoint him to the higher classification position within DEPW. (Emphasis added) -- 4 of 14 -- 5 Appeal Notice [13] Mr Doggett filed an Appeal Notice on 22 June 2021, appealing the reasons contained in the email received on 9 June 2021. His Appeal Notice identifies the current contract as expiring on 30 September 2021. In his appeal he submitted that: • He has been working in the higher duties position since 23 January 2017, excluding other absences when relieving in other higher classification positions; • Regarding the first decision dated 22 October 2020, the Department incorrectly determined his commencement date in the higher duties position due to "the program progressing from project stage to the business as usual (BAU) support stage", and the position being renamed to its current name; • Regarding the second decision dated 12 February 2021, it was declined on the basis that the higher duties position had a known end date of 30 June 2021. Subsequently, Mr Doggett requested a review of the 'decision-making' on the basis that the end date was incorrect and 'relevant information' was not fully considered in making the decision; • Mr Doggett notes that he is appealing 'the decision' as the Department has erred in its decision-making in not considering relevant information such as the four-phase transition, ongoing BAU support and incorrect determination of his commencement date; • The decision is not fair and reasonable due to the inconsistency of the reasons provided by the department and the unfair disadvantage caused by the MOG changes; and • He notes at the end of his submissions that he had 21 days to appeal each decision and is 'out of jurisdiction'. What decisions can the Industrial Commissioner make? [14] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may: (a) confirm the decision appealed against; or (b) for a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or (c) for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. -- 5 of 14 -- 6 [15] In addition, in this matter there are two jurisdictional objections raised by the Department. I note that Mr Doggett has had an opportunity to provide a written response to these jurisdictional arguments in his reply submissions dated 18 August 2021. Nature of appeal [16] Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.3 The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.4 [17] An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,5 but rather, it is a review of the decision and the decision-making process.6 The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.7 [18] Subject to my determination on the jurisdictional issue raised by the Department, the issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Mr Doggett to the higher position was fair and reasonable.8 Submissions of the parties [19] The parties filed written submissions in accordance with a Directions Order dated 23 June 2021. The parties' submissions primarily concern the jurisdictional objection that Mr Doggett's appeal was filed out of time. Submissions of the Department [20] The Department contends, for the reasons set out in their submissions dated 21 July 2021, that Mr Doggett cannot appeal the decisions of the department. In summary, it submits that: • Section 564(3) of the IR Act requires an appeal to be filed within 21 days after the decision appealed against is given. Mr Doggett is excluded from appealing the decisions of 22 October 2020 and 12 February 2021 as he is 243 days and 130 days out of time for the respective decisions; and 3 Industrial Relations Act 2016 (Qld) s 562B. 4 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 5 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 6 Ibid. 7 Industrial Relations Act 2016 (Qld) s 562B(3). 8 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61. -- 6 of 14 -- 7 • Regarding the decision on 9 June 2021, at the time of the request and decision Mr Doggett was not assuming the duties and responsibilities of a higher classification level in the public service agency in which he was substantively employed. As this is a prequalifying condition for conversion per s 149C of the PS Act and the Directive, s 149C of the PS Act will not apply and Mr Doggett cannot appeal the decision in accordance with s 194 of the PS Act. Reply submissions of Mr Doggett [21] Mr Doggett contends, for the reasons set out in his reply submissions dated 21 July 2021, that he should be granted an extension of time to file his appeal. In summary, he submits that: • As outlined in the decision Luong v State of Queensland (Department of Housing and Public Works),9 as established in Brisbane South Regional Health Authority v Taylor,10 he bears the onus of establishing that the justice of the case requires an extension to be granted; • The principles guiding exercising the discretion were outlined in Truffet v Workers' Compensation Regulator;11 • Regarding the first decision of 22 October 2021, it was not able to be reviewed by Mr Doggett until 9 November 2021 due to taking approved leave to undertake army reserve training from 19 October – 6 November 2021; • Regarding the second decision of 12 February dated 16 February, Mr Doggett requested clarification of this decision and a response was received on 1 March 2021. From March to June 2021, Mr Doggett was required to prioritise a major upgrade of a social housing management system for Queensland; • The decision of 22 October 2021 incorrectly decided that he had not been undertaking the role for a continuous period of at least one year. He had been acting in the higher classification level position since 23 January 2017 excluding authorised absences while relieving in other higher classification positions. Further, the period had been incorrectly calculated due to a change in the position name (the role and position number remained the same); • The decision of 12 February 2021 advised that his request would not be granted as the higher duties position had a known end date of 30 June 2021 and there would no longer be a continuing need for the position. The project which he was working 9 [2021] QIRC 256, 5 [18]. 10 (1996) 186 CLR 541. 11 [2020] ICQ 013, 3 [9]. -- 7 of 14 -- 8 on has been extended until 30 September 2021 and the position will be required for enduring support of the project. Citing the decision of Katae v State of Queensland & Anor,12 conversion should not be denied solely because the position was created for a specific project or purpose; • The decision of 9 June 2021 which refused his appointment to the position on the basis of MOG changes does not support the intent of the Directive; and • The inconsistent and incorrect reasons given by the Department is unfair and unreasonable and the Department was 'buying time' until a legitimate reason could be presented to exclude Mr Doggett from appointment in the higher classification position. He is now unfairly disadvantaged in his career progression. Identifying the 'decision' and the question of statutory compliance [22] Having regard to the submissions, I noted firstly that the Department raised two jurisdictional barriers to the appeal proceeding. In addition to those matters, my review of the material filed by the parties gave rise to certain matters that I considered that the parties needed to address before I could properly dispose of the appeal, namely: • the precise identity of the decision under appeal i.e. was it the email of 9 June 2021; and secondly (assuming it was) • a submissions from the parties as to whether the email of 9 June 2021 had complied with the statutory requirements for the content of a decision set out in s 149C(5) of the PS Act. [23] A mention was held concerning these matters on 14 September 2021. Mr Doggett identified the decision under review was indeed the email of 9 June 2021. This immediately resolved the issue as to whether the appeal was filed out of time. Clearly, the appeal against that decision was filed within 21 days as required. [24] On the issue of statutory compliance with s 149C(5), I raised with the Department that the email of 9 June 2021 (being now identified as the decision under review) appeared to be deficient with respect to the formal requirements set out in s 149C(5). The representative for the Department responded by effectively reiterating the second jurisdictional argument raised in their earlier submissions. [25] Subsequent to the mention, a directions order was issued on 14 September 2021 giving both parties an opportunity to directly and specifically address the question of whether the decision was in technical compliance with s 149C(5) (or if not, why not). 12 [2018] QSC 225. -- 8 of 14 -- 9 [26] In accordance with the directions order, the Department filed submissions on 24 September 2021, in summary it submitted that: • At the time of Mr Doggett's request for appointment, he was not assuming the duties and responsibilities of a higher classification level position in the public service agency of his substantive position. Accordingly, he fails to meet the preconditions as outlined in s 149C(1)(a) of the PS Act; and • As a consequence, the decision of 9 June 2021 does not need to contain the prescribed contents as required by s 149C(5) of the PS Act. [27] Mr Doggett elected not to respond or provide further submissions. [28] Having regard to the submissions of the Department filed 24 September 2021, it is more than apparent the decision under review would not comply with the statutory requirements of s 149C(5). In the ordinary course of events this conclusion would likely lead to the appeal being upheld and the matter being referred back to the decision-maker. [29] However, in this matter the Department has effectively conceded that the decision under review is non-compliant but further submits that it does not need to be, given that s 149C(1) provides that none of s 149C (including s 149C(5)) has application to Mr Doggett. [30] If I accept the submission of the Department in this regard then that is a compelling reason not to hear the appeal. If it is the case that s 149C of the PS Act has no application to Mr Doggett by virtue of him having no standing to apply for permanent appointment, then no other considerations ordinarily taken into account in such appeals can have any relevance in Mr Doggett's appeal. Such a conclusion would trigger an exercise of my discretion under s 562A(3)(b)(iii) of the IR Act. Relevant statutory framework [31] Section 149C of the PS Act provides the preconditions for requesting a review and the prescribed content required in a decision notice. Section 149C relevantly provides as follows: 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 -- 9 of 14 -- 10 (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. … (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) . … (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. [32] Clause 3 of the Directive relevantly provides: 3. Application 3.1 This directive applies to: (a) a public service officer who is seconded to, or (b) a public service employee (including fixed term temporary employee) who is assuming the duties and responsibilities of, a higher classification level in the public service agency (agency) in which the employee is substantively employed. Consideration [33] It is not controversial that the decision contained in the email of 9 June 2021 does not conform with the strict requirements of s 149C(5). In those circumstances, the issue is whether s 149C(1) excludes Mr Doggett from the operation of s 149C generally. [34] More specifically, there is no submission that Mr Doggett is excluded by operation of s 149C(1)(b) or (c), and as such it appears the singular issue is whether s 149C(1)(a) excludes him. -- 10 of 14 -- 11 'Substantively employed' [35] There is no dispute that Mr Doggett is, in the generally understood parlance, 'substantively' employed as an AO6 with CHDE. Similarly, there is no dispute that Mr Doggett had been acting in the AO8 position (number 734532) since January 2017 and that, as a consequence of Machinery of Government changes, that position was now contained within EPW. [36] In simple terms, at the time immediately preceding the decision on 9 June 2021 Mr Doggett was substantively employed with CHDE while performing duties at a higher classification level with EPW. [37] It is the effect of the submissions made by the Department that an employee of one department performing higher duties in a position in a second department cannot apply to be permanently appointed to that second department pursuant to s 149C. [38] The Department has variously relied on the language of both the PS Act and the Directive to argue that Mr Doggett is excluded from the operation of s 149C. For example, in the decision of 9 June 2021 the Department refers to the language of the PS Act and says: Under the s149C (1)(a) of the Public Service Act 2008, an employee is only eligible to ask the department's chief executive to appoint the employee to the position at the higher classification level, if they are seconded to or are acting at, a higher classification level in the department in which the employee holds an appointment. [39] This portion of the decision is an attempt to paraphrase the provisions of s 149C(1) and one which I note is neither an accurate nor complete representation of the actual terms of the section. It fails to include the additional words “or is employed” found in s 149C(1)(a). [40] In the same decision, the Department draws upon the reference to 'substantively employed' found in the Directive and says: As your substantive appointment now sits within the Department of Communities, Housing and Digital Economy (CHDE) you are not eligible… [41] Again, the decision maker inaccurately paraphrases the Directive and conflates the terms 'appointment' and 'employment'. [42] In submissions filed on 21 July 2021 and on 24 September 2021, the Department submitted that s 149C did not apply to Mr Doggett because he was not assuming responsibilities of a higher classification level in an agency in which he was substantively employed. I note that these submissions adopt the language of clause 3 of the Directive. -- 11 of 14 -- 12 [43] None of the Department's submissions filed in this matter or the decision of 9 June 2021 have comprehensively considered or applied each of the exclusory terms found in s 149C and the Directive. In particular, there does not appear to have been an accurate or complete consideration by the Department of the terms of s 149C(1)(a) of the PS Act in reference to Mr Doggett. [44] The Department's submissions rely heavily on the Directive and the term 'substantively employed'. I note that there is no reference to an employee being 'substantively' employed in s 149C. That term is exclusively used in the Directive. [45] Further, while it appears clear from the language of clause 3 of the Directive that it purports to apply only to an employee who is 'substantively employed' in a department in which they are performing the higher duties, the term is not defined in the Directive or in the PS Act. [46] In circumstances where the Directive purports to apply exclusively to employees in a category that is not defined in the Directive and not mentioned at all in the PS Act, there must be a proper consideration of s 149C(1) of the PS Act in order to determine whether his circumstances bring him within its operation. [47] Significantly, I would hasten to observe that where a directive is inconsistent with the PS Act, the PS Act will prevail.13 The terms of section 149C [48] Mr Doggett is not seconded pursuant to s 120(1)(a) of the PS Act. The remaining portions of s 149C(1)(a) apply to a public service employee who relevantly: • Is acting at a higher classification level; • In the department in which: - The employee holds an appointment; or - The employee is employed. i. acting at a higher classification [49] Mr Doggett has been acting at a higher classification since 2017. He clearly satisfies the first element of s 149C(1)(a). 13 Public Service Act 2008 (Qld) s 51. -- 12 of 14 -- 13 ii. holds an appointment [50] With respect to the remaining elements i.e. 'holds an appointment'' and 'is employed' s 149C(1)(a) expressly distinguishes these concepts by the use of the term 'or'. That is, it is clearly the intent of the legislature that these terms should denote different categories of employees with different status. [51] The term 'holds an appointment' is not defined in the PS Act or in the Directive. In the absence of a definition, the meaning of language of s 149C must be taken from the context in which it appears in the PS Act.14 [52] Chapter 5 of the PS Act deals with 'Staffing Generally' and Part 2 of Chapter 5 refers to 'Appointment'. Section 119 of the PS Act relevantly provides: 119 Appointment (1) A chief executive may, by signed notice, appoint public service officers in the chief executive's department. [53] The phrase 'holds an appointment' as it appears in s 149C(1)(a) of the PS Act can only be a reference to the circumstances contemplated by s 119 of the PS Act. Importantly, while such an appointment will be inextricably linked to the employment of a public service officer, 'appointment' as contemplated by s 119 is a discrete event describing the formal engagement of a public service employee with a department (as opposed to e.g. designating their job, position, or duties etc). [54] On this construction of s 149C(a)(1) of the PS Act, Mr Doggett does not 'hold an appointment' with the Department. He holds an appointment with CHDE. [55] Accordingly, the only remaining consideration of s 149C(1)(a) that can determine Mr Doggett's exclusion from the operation of s 149C(1)(a) is whether he was 'employed' in the Department. iii. employed [56] The term 'employed' is not defined. As noted above, in the absence of a definition the term employed takes its meaning from the context in which it appears in the PS Act.15 [57] Chapter 5, Part 5 of the PS Act deals with circumstances under which a chief executive may 'employ' a person in three broad categories namely, as general, fixed term or casual employees.16 14 King-Koi v State of Queensland (Department of Education) [2020] QIRC 209, 5-6 [18]-[22]. 15 Ibid. 16 Public Service Act 2008 (Qld) ss 147–148A. -- 13 of 14 -- 14 [58] While the ordinary meaning of the term 'employed' might arguably cover a much broader range of scenarios (including the circumstances of Mr Doggett's performance of duties at a higher classification with the Department) the limiting nature of the proximate contextual references in the PS Act require the term found in s 149C(1)(a) to be read in that narrower context. [59] I am therefore satisfied that Mr Doggett is not 'employed' in the Department within the meaning of s 149C(1)(a). [60] Further, having been satisfied that he is also neither seconded nor holds an appointment in the Department, I am satisfied that Mr Doggett is not covered by the operation of s 149C and is ineligible to apply for permanent appointment to the higher classification in which he has been acting. [61] I note that Mr Doggett declined to take the opportunity provided to him in the directions issued on 14 September 2021 to make reply submissions to the Department's jurisdictional challenge to the appeal. I am satisfied that Mr Doggett had notice of the jurisdictional arguments made by the Department and that he had an opportunity to provide written submissions in accordance with the requirements of s 562A of the IR Act. [62] In those circumstances, I propose to exercise my discretion to decline to deal with the appeal filed on 22 June 2021 in accordance with s 562A(3)(b)(iii) of the IR Act, and more particularly, because Mr Doggett is not eligible to seek permanent appointment pursuant to s 149C of the PS Act. Order [63] For the reasons set out above I make the following order: In accordance with s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld the Commission will not hear the appeal. -- 14 of 14 --