Doyle v State of Queensland (Queensland Health) [2021] QIRC 174

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Doyle v State of Queensland (Queensland Health) [2021] QIRC 174 PARTIES: Doyle, Shannon (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2021/127 PROCEEDING: Public Service Appeal - Appeal against decision not to appoint a casual public service employee to permanent employment DELIVERED ON: 25 May 2021 MEMBER: HEARD AT: Merrell DP On the papers DATES OF WRITTEN SUBMISSIONS: Respondent's written submissions filed on 28 April 2021 and Appellant's submissions in reply filed on 19 May 2021 ORDER: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016: (a) the decision appealed against is set aside; (b) the matter is returned to Mr Adam Lavis, Director, Human Resources, Princess Alexandra Hospital and QEII Jubilee Hospital ('the decision maker') with a copy of the decision on appeal; and (c) the decision maker is directed to conduct a fresh review of Ms Doyle's employment status within 28 days of the date of this order. CATCHWORDS: PUBLIC SERVICE - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - public service appeal - appellant employed as a casual employee - review of appellant's -- 1 of 5 -- 2 employment status pursuant to the Public Service Act 2008 - appellant made detailed written submissions in support of her being appointed as a permanent employee at the time of the review - decision that appellant not appointed as permanent employee because there was no funding - appeal against decision - admission by respondent in its submissions that the decision maker did not have access to written submissions made by the appellant - decision not fair and reasonable - decision appealed against set aside and the matter returned to the decision maker with a copy of the decision on appeal and the direction that the decision maker conduct a fresh review of the appellant's employment status within 28 days LEGISLATION: Directive 08/20 Casual employment, cl 8.1 Industrial Relations Act 2016, s 539 and s 562C Public Service Act 2008, s 149A CASES: Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision Introduction [1] Ms Shannon Doyle is employed by the State of Queensland, through Queensland Health, as a Pharmacist. Ms Doyle is employed on a casual basis in Clinical Services, Division of Medicine at the Princess Alexandra Hospital which is part of the Metro South Hospital and Health Service ('the Health Service'). The classification of Ms Doyle's position is HP3. [2] In March of this year, a review of Ms Doyle's employment status was undertaken to determine whether to continue her employment as a casual employee or to offer to convert her employment basis to employment as a general employee on tenure or as a public service officer. In support of her assertion that she should be permanently appointed, Ms Doyle made submissions which were received by the Health Service on 4 March 2021. [3] By letter dated 22 March 2021, Mr Adam Lavis, Director, Human Resources, Princess Alexandra Hospital and QEII Jubilee Hospital, informed Ms Doyle that she was not being converted to permanent employment and would continue as a casual employee at that time ('the decision'). The decision involved the application of s 149A of the Public Service Act 2008 ('the PS Act') and cl 8.1 of Directive 08/20 Casual employment ('the Directive'). -- 2 of 5 -- 3 [4] By appeal notice filed on 6 April 2021, Ms Doyle, pursuant to ch 7 of the PS Act, appealed against the decision. The parties filed and served submissions in accordance with a Directions Order issued on 7 April 2021. Pursuant to s 539(c) of the Industrial Relations Act 2016 ('the IR Act'), the appeal is determined on the papers. [5] The question for my determination is whether the decision, and the decision-making process, was fair and reasonable.1 [6] For the reasons that follow, the decision was not fair and reasonable. Background [7] According to the Department's submissions: • Ms Doyle has been an employee of the Health Service since 21 January 2013; • her service is broken as her employment ended on 8 February 2014 and she was rehired on 23 March 2015; and • Ms Doyle was employed in a fixed term temporary capacity from 23 March 2015 to 10 April 2016, and has been employed on a casual basis since the cessation of that fixed term engagement. [8] Ms Doyle does not dispute any of these submissions. The decision [9] In the decision, Mr Lavis relevantly stated that: • Ms Doyle was not being converted to permanent employment and would continue as a casual employee; • the reason was that there was no funding, which prevented her conversion; • Ms Doyle would continue in the role of Pharmacist until a suitable role becomes vacant or funding was allocated to the role in which she currently performed; • he considered the requirements of the PS Act, the Directive and her employment history, including any previous conversion review decisions; • there were two considerations for deciding whether to convert Ms Doyle, namely: − whether there was a continuing need for Ms Doyle to perform her role or a role that was substantially the same; and − whether Ms Doyle satisfied the merit principle; 1 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [3]-[7]. -- 3 of 5 -- 4 • since 11 April 2016, Ms Doyle had demonstrated that she satisfied the merit requirements for the role; and • the decision not to permanently appoint Ms Doyle was based on continuing staffing needs at that time and that funding for her role was uncertain. The Health Service's submissions [10] The Health Service submitted that during the drafting of its submissions, it came to its attention that the decision maker, Mr Lavis, did not have access to the written submissions Ms Doyle made in support of her conversion to permanent employment. [11] The Health Service submitted that: • the submissions were substantial and that Mr Lavis was not aware of their existence; • this was an administrative oversight on its part; and • Mr Lavis was not able to make a fully informed decision taking into account all information relevant to the matter that was available at the time. [12] By way of summary, the Health Service submitted: 24. The relevant decision maker was not made aware of key components of Ms Doyle's review, including the substantial written submissions provided by Ms Doyle in support of her request to be converted to permanent and for this reason turned their mind to primarily the operating and budgetary constraints relevant to Ms Doyle's employment. All of the relevant information was not considered during the review. [13] The Health Service submitted that the matter should be returned to Mr Lavis to complete a fresh review with the benefit of having access to all the relevant information available. Ms Doyle's submissions [14] Ms Doyle made detailed submissions which were annexed to her appeal notice. Ms Doyle also made detailed submissions in response to the Health Service's submissions. In relation to the administrative error admitted by the Health Service, Ms Doyle submitted: 16. I feel that remitting the decision back to Mr Adam Lavis because of the Respondent's administrative error would be prejudicial and unfair. It is my concern, based on the Respondent's submission, that they would make the same decision, based on the Division of Medicine being over funded FTE, without any consideration as to how that discharges their obligations to the employee under the Act or the Directive. The decision was not fair and reasonable [15] Clearly, because of the admission made by the Health Service, the decision-making process was not fair and reasonable. Mr Lavis did not have before him the submissions provided by Ms Doyle in support of her contention that she be permanently employed. -- 4 of 5 -- 5 [16] In my view, the appropriate course is that proposed by the Health Service. There are two reasons for this. [17] First, the decision as to whether or not to offer to convert a person's employment basis to employment as a general employee on tenure or as a public service officer is a decision of the chief executive of the relevant department or, more accurately, the properly authorised delegate of such a chief executive. For this reason, the delegate of the chief executive of Queensland Health, who determines Ms Doyle's request, should make the decision at first instance having regard to the submissions made by Ms Doyle in support of her claim to be converted to permanent employment. [18] Secondly, I do not accept Ms Doyle's submission that remitting the decision would be prejudicial and unfair. The evidence Ms Doyle points to, in support of that submission, is the Health Service's appeal submissions that the Division of Medicine is currently operating above FTE and over budget. Because of that submission, Ms Doyle expresses a concern that Mr Lavis would make a decision without any consideration to the relevant provisions of the PS Act or the Directive. That concern cannot be reasonably drawn. The fact that the Division of Medicine is currently operating above FTE and over budget cannot reasonably mean that Mr Lavis, in conducting a fresh review of Ms Doyle's employment status, would ignore the relevant provisions of the PS Act and the Directive. Conclusion [19] For all these reasons, my view is that the fair and reasonable course is to set the decision aside, to return the matter to the decision maker with a copy of the decision on appeal and to issue a direction that the decision maker conduct a fresh review of Ms Doyle's employment status within 28 days of today. Order [20] I make the following Order: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016: (a) the decision appealed against is set aside; (b) the matter is returned to Mr Adam Lavis, Director, Human Resources, Princess Alexandra Hospital and QEII Jubilee Hospital ('the decision maker') with a copy of the decision on appeal; and (c) the decision maker is directed to conduct a fresh review of Ms Doyle's employment status within 28 days of the date of this order. -- 5 of 5 --