Dwyer v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Dwyer v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 164 Dwyer, Jessica (Appellant) v State of Queensland (Department of Communities, Housing and Digital Economy) (Respondent) CASE NO: PSA/2021/147 PROCEEDING: Public Service Appeal - Higher Duties Conversion Decision DELIVERED ON: 14 May 2021 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: The Decision appealed against is confirmed. CATCHWORDS: LEGISLATION: CASES: INDUSTRIAL LAW - Public Service Appeal - where the appellant requests appointment to higher classification level - where the appellant was not appointed due to genuine operational requirements of the department - whether the decision was fair and reasonable Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562C Directive 13/20 Appointing a public service employee to a higher classification level. -- 1 of 10 -- 2 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Reasons for Decision Appeal Details [1] Ms Dwyer is employed by the State of Queensland (Department of Communities, Housing and Digital Economy). Ms Dwyer is substantively employed in the position of AO5, Customer Service Manager in Location A. Since 13 August 2018, Ms Dwyer has been performing higher duties in the role of Senior Customer Service Manager (AO6) in order to backfill the substantive employee while they are relieving in another position. [2] Ms Dwyer has therefore been undertaking the role for approximately 31 months and her engagement in the higher duties role has been extended 27 times. The current arrangement is scheduled to end on 30 June 2021. [3] On 31 March 2020, Sam Leblang, Manager Human Resources wrote to Ms Dwyer on behalf of the Deputy Director-General following a direction from the Commission to complete a further review of Ms Dwyer's request to be appointed to the higher classification level. [4] The decision letter stated: After considering your request to be permanently employed in the position of AO6, Senior Customer Service Manager (the position) within Location A, and the circumstances of your temporary placement in that position, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reasons for the Deputy Director-General's decision are: • The purpose of our current placement in the position within Location A is to backfill the substantive employee while the substantive employee is relieving in an alternative position. • When the substantive employee returns to their position, there will no longer be a continuing need for you to be engaged in the position within Location A. Relevant sections of the Act and Directive [5] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive"). [6] 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 -- 2 of 10 -- 3 (b) has been seconded to or acting at the higher classification level for a continuous period of at least one year; and (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). … (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. The Directive [7] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles 4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive. 4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: (a) when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return (b) when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles (c) to perform work for a particular project or purpose that has a known end date (d) to perform work necessary to meet an unexpected short-term increase in workload. … 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 -- 3 of 10 -- 4 consider whether the employee has any performance concerns that have been put to the employee and documents 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. 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. 8. Appeals 8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level. … What decisions can the Commission make? [8] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may: (a) confirm the decision appealed against; 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. Ms Dwyer's reasons for appeal [9] Ms Dwyer says that she is eligible for appointment to the higher duties position as she has undertaken the role for over 12 months and she meets the merit principle. [10] Ms Dwyer does not believe that the genuine operational requirements of the department have been considered when making the decision. Ms Dwyer says that none of the circumstances listed under 4.2 of Directive 13/20 apply. Ms Dwyer says that the substantive occupant is currently undertaking relieving at level in an alternative location, for an indefinite period of time, due to personal circumstances causing Location A to be an unsuitable work location. -- 4 of 10 -- 5 [11] Ms Dwyer says that in similar circumstances when making decisions under the relevant HR Directives, the department has taken a risk management approach. Department submissions [12] The Department agrees that Ms Dwyer is eligible to request appointment to the higher classification and that she meets the merit principle. [13] The Department says that the provisions in Directive cls 4.2, 6.2 and s 149C(4A) of the PS Act are quite clear that temporary circumstances still exist and therefore there is a place, where appropriate, to temporarily engaged or place employees at a higher classification level. [14] The Department submits that in particular, cl 4.2 of the Directive clearly demonstrates that an employee temporarily placed in a higher classification level position, does not need to be appointed permanently to that higher level role, where their skills are only temporarily required prior to the permanent employee returning to their substantive position. [15] With regard to Ms Dwyer's submissions regarding the Department taking a risk management approach, the Department submits that a requesting employee can only request and be considered for appointment to the specific position the employee is performing at the time they submit their conversion request. [16] The Department submits that, as Ms Dwyer's current temporary placement in the AO6 role is to backfill the substantive employee, who is relieving in an alternative position within the Department, there will no longer be a continuing need for Ms Dwyer to be placed in the position once the substantive employee returns to work in their substantive role. [17] The Department says that it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO6, Senior Customer Manager role within Location A and that it is not appropriate or viable for the Department to offer to permanently employ Ms Dwyer in that role. [18] In response to Ms Dwyer's submission that the employee she is backfilling is relieving at level, for an indefinite period due to personal circumstances deeming Location A an unsuitable work location, the Department submits: • the substantive employee is performing duties in an alternative role for the purpose of backfilling the substantive employee of that role; • this is clearly a circumstance that would support a temporary engagement as listed in cl 4.2(b); • on return of the substantive employee to that position, the substantive employee Ms Dwyer is backfilling will return to their substantive role of Senior Customer Service Manager, Location A; and -- 5 of 10 -- 6 • in relation to personal circumstances, these are confidential and not subject to discussion in the workplace. [19] The Department respectfully requests that the decision of the Deputy Director-General be confirmed. Ms Dwyer's submissions in reply [20] Ms Dwyer provided submissions in reply to the Department on 4 May 2021. [21] Ms Dwyer refutes the Department 's view that the purpose of the substantive employee relieving in an alternative position is to backfill the substantive employee of that role because: • The substantive occupant of the position was instructed to work in an alternate work location, Location B, due personal circumstances deeming Location A an unsuitable work location; • the substantive occupant of the Location B role has not undertaken the role for an extended period of time, in the vicinity of ten years, and has no known intention of returning to the role; and • the long-term relieving incumbent of the Location B role was offered alternative positions at the higher classification level to facilitate the transfer at level of the substantive occupant of the Location A Manager position to Location B due to personal circumstances. [22] Ms Dwyer says that the personal circumstances of that employee are not being raised as a topic of discussion in the workplace but as a genuine operational requirement that ought be considered in the decision with respect to her request for permanent employment at the higher classification level. [23] While Ms Dwyer notes that there is not a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO6 role within Location A, she submits that there is a genuine operational requirement to have employed, on a full- time basis, one AO6 Senior Customer Service Manager in Location A and one AO6 Senior Customer Service Manager at Location B. [24] Ms Dwyer considers that she should be permanently appointed to the AO6 position because: • Secondment to a higher classification level should only be used when permanent appointment to the role is not viable or appropriate; -- 6 of 10 -- 7 • the substantive employee is currently unable to return to their usual work location for an indefinite period of time, which is not a circumstance outlined in cl 4.2 of the directive; • while the position is not permanently vacant, there is little risk to the department in permanently appointing Ms Dwyer because the substantive employee she is backfilling is undertaking the role at Location B indefinitely and the person that substantive employee is backfilling has not undertaken the role for a number of years. [25] Ms Dwyer attaches a de-identified temporary to permanent request and consideration which she says evidences a risk management approach taken by the Department on that occasion. [26] When considering the right of the substantive employee to return to the Location A should a decision later be made that the personal circumstances no longer prohibit them from returning, Ms Dwyer submits that the Department still requires one AO6 Senior Customer Service Manager in both Locations A and B. [27] Ms Dwyer points to the Department's support for flexible working arrangements and the provisions of ss 27-29 of the Industrial Relations Act 2016 and says that there is no operational reason prohibiting both Ms Dwyer and the substantive employee she is backfilling from being permanently appointed to the role of Senior Customer Service Manager. [28] Ms Dwyer provides an email trail demonstrating that movement of position numbers to alternate work locations as required is operationally viable and has been previously used in appropriate circumstances. Department submissions in reply [29] With regard to Ms Dwyer's submission regarding the Department adopting a risk management approach and moving positions to alternative work locations, the Department says: • Establishment management changes are made only with regard to the operational requirements of the Department and not to facilitate the conversion of an employee to a position at the higher classification level; • the documentation provided by Ms Dwyer regarding a temporary to permanent conversion contains confidential information that is not relevant to Ms Dwyer's appeal and is not a review made in accordance with s 149C of the PS Act and the Directive; -- 7 of 10 -- 8 • the current provisions relating to a decision whether to convert a temporary employee's employment to tenure and the decision to appoint an employee to a position at the higher classification level are separate and distinct. They are not related and the considerations and decision requirements are different; and • Ms Dwyer cannot rely on criteria in another provision or instrument that does not apply to her. [30] With regard to Ms Dwyer's submissions that there is no operational reason prohibiting Ms Dwyer and the substantive employee being appointed to the position of AO6, Senior Customer Service Manager, the Department opposes Ms Dwyer's view and submits that the Department does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same position. [31] The Department says that the decision in Holcombe v State of Queensland (Department of Housing and Public Works)1 confirms that Ms Dwyer can only be considered for appointment to the position she is currently undertaking and that if she were to be converted to this position, the Department would have two full-time basis employees in that same position. [32] With regard to Ms Dwyer's submissions regarding flexible working arrangements, the Department says that it supports flexible working arrangements in consideration of circumstantial operational requirements. The Department does not consider that a potential request of Ms Dwyer for flexible working arrangements is relevant to the decision not to appoint her to the higher classification position. [33] With regard to Ms Dwyer's submissions about the substantive employee and their personal circumstances, the Department says: • Any disclosure regarding personal circumstances made by an employee is confidential; • the substantive employee is not a party to Ms Dwyer's appeal and the Department does not intend to provide information regarding an employee's confidential circumstances; • the Department confirms that it has not made a decision, as alleged by Ms Dwyer, that the substantive employee cannot return to the position for any reason (including due to their personal circumstances). 1 [2020] QIRC 195. -- 8 of 10 -- 9 [34] The Department reiterates that Ms Dwyer's current temporary placement in an AO6, Senior Customer Service Manager position is to backfill the substantive employee, while the substantive employee is performing duties in an alternative position. [35] Ms Dwyer's current temporary placement is due to expire on 30 June 2021 and that the substantive employee being backfilled will, on their return, return to their substantive position of Senior Customer Service Manager, Location A. [36] With regard to Ms Dwyer's submissions about the substantive occupant of the Location B Customer Service Manager role, the Department submits that this employee has not relinquished or otherwise resigned from that position and that the substantive employee is performing duties in an alternative position which has a current expiry date of 30 June 2021. [37] The Department also refutes Ms Dwyer's submission that the substantive employee of the Location A position was transferred at level. The Department submits that both the AO6, Senior Customer Service Manager in Location A and Location B have substantive occupants who are currently performing duties in an alternative position for a temporary period of time. Consideration of submissions [38] There is no dispute between the parties that Ms Dwyer is eligible to request appointment to the higher classification position and that she meets the merit requirements. [39] I have considered the submissions of Ms Dwyer and the Department and find the following: • The position Ms Dwyer is undertaking at Location A has a substantive employee permanently appointed to it; • the has been no decision made by the Department which would preclude the substantive employee returning to the position at some point in the future; • the substantive employee is currently relieving at level in Location B, backfilling in a position that also has a substantive employee permanently appointed to it; • the substantive employee in that position has not relinquished the Location B position and remains permanently appointed to it; • even if a flexible work arrangement were to be put in place for Ms Dwyer to undertake her temporary appointment to the higher classification position, there would still be no reason for her to continue to be employed in the position once the -- 9 of 10 -- 10 substantive employee returned and recommenced performance of the duties of that role; • the Department does not have a need for two people to be permanently appointed to the one AO6 position Ms Dwyer is currently undertaking; and • the example of a 'risk management' approach taken by the Department provided by Ms Dwyer was in relation to a temporary to permanent conversion undertaken pursuant to a now superseded Directive and the circumstances surrounding that process and the appointment to higher duties process are quite distinct from one another. [40] While Ms Dwyer has been undertaking the higher classification position for a considerable period of time, I accept that the position has a substantive employee appointed it and that when that employee returns, there is no need for two people to be employed in that same role. [41] The genuine operational requirements of the Department have been considered and the decision letter adequately explains to Ms Dwyer the reasons why a decision was made not to appoint her to the higher classification level. [42] The decision dated 31 March 2021 that Ms Dwyer not be appointed to the higher classification level was fair and reasonable and is confirmed. -- 10 of 10 --