Brydon v State of Queensland (Queensland Health) [2024] QIRC 116

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Brydon v State of Queensland (Queensland Health) [2024] QIRC 116 Brydon, Troy (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2024/45 PROCEEDING: Public Sector Appeal – Appeal against a conversion decision DELIVERED ON: 15 May 2024 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant is substantively employed by the respondent as an Operational Services Officer Team Leader (OO2) – where the appellant's request for permanent appointment at the higher classification was rejected – where the respondent relies on its genuine operational requirements – whether the decision is fair and reasonable – decision appealed against is confirmed. LEGISLATION AND OTHERINSTRUMENTS: Industrial Relations Act 2016 (Qld) ss 562B(3) 562C(1) Public Sector Act 2022 (Qld) ss 120, 121, 129, 131, 132(k), 133 Directive 03/23 Review of acting or secondment at higher classification level cls 4.2, 7.1, 8 -- 1 of 11 -- 2 CASES: Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Reasons for Decision Introduction [1] Mr Troy Brydon ('the Appellant') is substantively employed by the State of Queensland (Queensland Health) ('the Respondent'), as an Operational Services Officer (OO2) at Robina Hospital. [2] On 30 January 2024, Ms Kelsey Hills of the Australian Workers’ Union ('the AWU') wrote to Ms Kerry Lee Thomas by email and requested that a review of acting or secondment at higher classification level be undertaken in accordance with Directive 03/23 Review of acting or secondment at higher classification level ('the Directive'). The position the AWU requested to be reviewed was an OO4 Team Leader role at Robina Hospital. [3] The Appellant began performing duties at the higher classification level of OO4 on 26 July 2021. He ceased working in this position on 29 October 2023. The Appellant applied for and was appointed to a temporary Assistant Manager position (OO5) on 5 November 2023. Mr Brydon ceased the OO5 role on 26 February 2024 and was returned to his substantive OO2 role. The decision letter [4] Mr Brydon appeals the decision of Mr Grant Brown, Executive Director, People and Operations ('the decision-maker'), dated 21 February 2024. This decision denied Mr Brydon's request of 30 January 2024 to be appointed to the position at the higher classification level on a permanent basis. [5] Mr Brown begins the decision letter by acknowledging Mr Brydon's request for conversion to permanent employment in the role he was acting in at the time of request. Mr Brown went on to say: … You are not eligible for review under the provisions of section 120 or section 121 of the Public Sector Act 2022 (the Act), relating to Review of acting or secondment to higher classification level (Directive 03/23) because you have been in the role you are currently acting, specifically the Assistant Manager role, for less than one year. I note in the correspondence provided by Ms Kelsey Hills, Southern District Organiser, Australian Workers’ Union dated 29 January 2024, requested consideration under the Public Sector Act 2022 -- 2 of 11 -- 3 (the Act) relating to Review of acting or secondment to higher classification level (Directive 03/23) for you to be appointed to a Team Leader role. Ms Hills cited you have been employed as a team leader at Robina Hospital for at least two years. While your tenure in the team leader role is not in question, it is not relevant to your application under this directive. It is a requirement of this directive for you to be currently performing the position, at the higher classification level, that you are applying for. At the time of the application, you were acting in the Assistant Manager role and as such cannot be considered for a team leader position. I have attached additional information about the decision-making framework and appeal rights at the end of this letter. … [6] It is the decision discussed at [4] and [5] that Mr Brydon appeals. Appeal principles [7] Section 562B(3) of the Industrial Relations Act 2016 ('the IR Act') provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. [8] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal. [9] A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. [10] In deciding this appeal, s 562C(1) of the 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. Legislative framework and other instruments The PS Act [11] Section 131 of the Public Sector Act 2022 (Qld), ('the PS Act') lists various categories of decisions against which an appeal may be made. Section 131(1)(a) provides that an appeal may be made against a conversion decision. [12] Section 129 of the PS Act relevantly provides: 129 Definitions for part In this part— -- 3 of 11 -- 4 conversion decision means a decision— … (e) under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years. [13] Section 120 of the PS Act provides for the appointment of a public sector employee to a higher classification level in the following terms: 120 Employee may request employment at a higher classification level after 1 year of continuous acting or secondment (1) If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis, after— (a) the end of 1 year of acting at, or being seconded to, the higher classification level; and (b) the end of each subsequent 1-year period. (2) The employee's chief executive must decide the request within the required period. (3) The employee's chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role. (4) In making the decision, the employee's chief executive must have regard to— (a) the genuine operational requirements of the public sector entity; 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 acting at, or secondment to, the higher classification level. (5) If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and (c) how many times the employee's acting arrangement or secondment has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the employee during the employee's continuous period of acting at, or secondment to, the higher classification level. -- 4 of 11 -- 5 (6) If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. (7) The commissioner must make a directive about employing an employee at a higher classification level under this section. (8) In this section— continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive. required period, for making a decision under subsection (2), means— (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. suitable, in relation to an employee performing a role, has the meaning given under a directive. [14] Section 133 of the PS Act explains who may appeal a conversion decision: 133 Who may appeal The following persons may appeal against the following decisions— (a) for a conversion decision—the public sector employee the subject of the decision The Directive [15] While all of the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles … 4.2 Chief executives are required to act in a way that is compatible with the main purpose of this Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment. … 7. Decision-making 7.1 When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity. 8. Meaning of continuous period -- 5 of 11 -- 6 8.1 Continuous period, for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification in the same role, in the same public sector entity. 8.2 Additionally, a public sector employee has been acting at, or seconded to, the higher classification level, where they have been remunerated at the full rate of the higher classification level during the pe3riod of unbroken engagement mentioned in clause 8.1. 8.3 Authorised leave, as provided for in clause 8.1, includes any period of leave that has been approved by the chief executive, including leave without pay for any period, where it is intended that the employee will return to the position at the higher classification level following the period of leave. 8.4 It is at the discretion of a chief executive to determine what constitutes an authorised absence, as provided for in clause 8.1. For example, a chief executive may determine an authorised absence to include acting at, or being seconded to, an alternative position at a higher classification level, where it was always intended that the employee would return to the position at the higher classification following the period of absence. Mr Brydon's reasons for appeal [16] Mr Brydon filed his appeal on 15 March 2024. His appeal grounds are that: a. The Respondent has conducted the review in respect to a role that was not referred to in the request made by Ms Hills b. The Respondent's decision does not confirm (sic) with the requirements of s 120(5) of the Act, in that the decision does not include the following details: o The total continuous period for which the appellant has been acting at, or second (sic) to; o How many times the appellants (sic) acting arrangement of secondment has been extended; o Each decision previously made, or taken to have been made, under this section in relation to the appellant during the appellant's continuous period of acting at, or secondment to, the higher classification level. c. The Respondent's decision did not comply with the required timeframe of 28 days of the request date in accordance with s 120(8)(b) of the Act. Respondent's submissions [17] The Respondent says that Mr Brydon began acting in the OO4 role on 26 July 2021 and ceased acting in the OO4 role on 29 October 2023. Mr Brydon did not request a conversion after one year of service in accordance with s 120(1)(a) of the PS Act. Nor did Mr Brydon request a conversion to a higher classification after a subsequent year of service, on 19 October 2023 in accordance with s 120(1)(b). -- 6 of 11 -- 7 [18] The Respondent contends there is no legislative power which allows for Mr Brydon to be converted to the OO4 role as he was not acting in the OO4 role at the time of making his application for conversion to higher duties. [19] The Respondent points to Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 (citations omitted), where the Commission clarified that the 'power afforded to the department to permanently appoint Mrs Holcombe is confined to the position into which she has been seconded at the time of the review'. Further, the Respondent makes reference to [49] of that decision, which states that, '…it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position'. [20] The Respondent says that at the time Mr Brydon made the application for conversion to a higher classification, he was engaged in the role of an OO5 Assistant Manager. He began acting in the OO5 higher classification on 5 November 2023 and ceased on 25 February 2024, completing less than four months of service in that position. [21] Mr Brydon therefore did not meet the threshold contained within s 120(1) of the PS Act to convert his employment to a higher level as he did not have at least one year of service in the OO5 role. [22] The Respondent says in any event, the decision is not appealable where the Appellant has less than two years of service in the position. [23] The Respondent also addresses the genuine operational needs of the entity. Namely, that the OO5 Assistant Manager role was created to cater for a temporary increase in demand for managers at this work location. There is no genuine operational demand for this role to be filled or occupied on an ongoing basis and this is what resulted in the Appellant being returned to his substantive OO2 role on 26 February 2024. [24] The Department's submissions are that: • Mr Brydon cannot be converted to the OO4 position as requested because he was not occupying that position at the time of making the application. • Mr Brydon did not serve at least 12-months in the OO5 position, and this precludes any application for permanent appointment to the role. • In any event, if Mr Brydon had been eligible and had requested appointment to the OO5 position, there is no continuing need, nor is there any genuine operational requirement for Mr Brydon to act in the position as the position was temporary in nature and has now been abolished. • The decision is non-appealable under s 132(k) of the PS Act. -- 7 of 11 -- 8 • The decision not to appoint Mr Brydon to the higher classification is fair, reasonable and consistent with the PS Act and Directive. Appellant’s submissions in reply [25] The Appellant notes that the Respondent has confirmed in their submissions that Mr Brydon worked in the higher duties OO4 Team Leader role for more than two years (from 26 July 2021 to 29 October 2023). [26] At the time of making the request, Mr Brydon was performing higher duties in the OO5 role. [27] When the request for appointment to the higher classification was made by the AWU Organiser, the request clearly stated that the review was to occur in reference to the OO4 level position. [28] The Appellant points to the meaning of 'continuous period' in the Directive and notes that 'it is at the discretion of a chief executive to determine what constitutes an authorised absence as provided in cl 8.1'. [29] The Appellant says that cl 8.1 of the Directive provides that a continuous period means 'a period of unbroken engagement, including periods of authorised leave or absence at the higher classification level in the same role, in the same public entity'. [30] The Appellant submits that the chief executive inappropriately exercised his discretion in determining that performing higher duties at the OO5 level broke the continuous period for which he had been performing higher duties. The Appellant says that they had served two years at the OO4 level as of 26 July 2023 and that he has been unfairly disadvantaged as a consequence of undertaking a short period of acting in higher duties at the OO5 level. [31] The Appellant says that had it been apparent to him that by agreeing to perform a short period of higher duties at the OO5 level he would be prevented from pursuing conversion to OO4, it is unlikely he would have agreed to assist his employer by performing the higher OO5 duties. [32] The Appellant says that he should not be disadvantaged in seeking conversion to the higher OO4 level on the basis of the Respondent’s interpretation of s 120 of the PS Act. In circumstances where it was open to the Respondent to exercise its discretion to determine that the period of time the Appellant was temporarily performing OO5 higher duties did not break the continuous period for his performance of OO4 higher duties. -- 8 of 11 -- 9 [33] The Appellant refers to the purpose of s 120 of the PS Act which is to encourage employment on a permanent basis and maximise employment security. [34] The Appellant says that there was and is no impediment to the chief executive exercising discretion appropriately, reasonably and fairly in accordance with cl 8.4 of the Directive. Consideration Mr Brydon was not eligible for appointment to the OO5 position [35] I am satisfied that Mr Brydon was not eligible for permanent appointment to the higher classification OO5 position he was undertaking at the time the request was made on 29 January 2024. This is because he had not continuously performed that role for the requisite period. [36] I understand that one of the grounds of appeal is that 'the review was conducted in respect to a role that was not referred to in the request made by Ms Hills'. However, for the reasons set out at [45] to [48], I consider that the letter contained sufficient information for Mr Brydon to understand why the review was not conducted in respect to the role referred to in Ms Hills' request. I understand that Mr Brydon and the AWU believed the wrong role was considered and that this is what has led to this appeal. Mr Brydon’s request for appointment to the OO4 position he was previously engaged in [37] Mr Brydon’s request for permanent appointment related to the OO4 position he had undertaken at Robina Hospital from 26 July 2021 to 29 October 2023 despite being submitted on 30 January 2024, while he was engaged in the OO5 role. [38] The Respondent applied cl 8.1 of the Directive and determined that as Mr Brydon was not performing the OO4 role at the time the request for permanent appointment was made, the continuous period of acting had been broken. [39] The Appellant argues that Mr Brydon's continuous period of acting in the OO4 role was unbroken on the basis that the chief executive officer should have applied cl 8.1 of the Directive to determine that his engagement to act in the OO5 position he occupied at the time of making the request was an ‘authorised absence’. [40] I understand the argument put forward by the Appellant, but I consider that submission is defeated by the remaining parts of cl 8. For the period Mr Brydon was acting at the OO5 level to be considered an ‘authorised absence’ pursuant to cl 8.1, it has to have been the case that it was ‘intended that the employee will return to the position at the higher classification level following the period of leave’. -- 9 of 11 -- 10 [41] The Respondent’s submissions state that Mr Brydon acted in the OO5 position from 5 November 2023 until 25 February 2024. The Respondent’s submissions also state that Mr Brydon returned to his substantive OO2 role on 26 February 2024. Had Mr Brydon returned to the acting OO4 role on 26 February 2024, he may have been captured by cls 8.3 and 8.4. As I understand it, Mr Brydon ceased to be employed in the OO4 role on 29 October 2023. There is no evidence before me to suggest that he was told he would return to that OO4 role after concluding his engagement in the OO5 position. [42] For this reason, Mr Brydon has not demonstrated that the chief executive has not acted fairly or reasonably by not considering the time engaged in the OO5 position to be an ‘authorised absence’ for the purposes of recognising a continuous period in the OO4 role. Mr Brydon had previously been eligible to apply for appointment to the OO4 classification but did not do so [43] I understand that it must be frustrating for Mr Brydon to return to his substantive OO2 position after having acted at the OO4 level and the OO5 level for the period from 26 July 2021 until 25 February 2024. There are no submissions before me as to why Mr Brydon did not request appointment to the OO4 position after his first or second year of being continuously employed at the higher classification. [44] I further understand that Mr Brydon may not have agreed to undertake the OO5 position had he known it would break his continuous engagement in the OO4 position and prevent conversion. The legislative scheme enabling employees to request appointment to the higher classification level has been in place for a considerable period. There is freely available information about the process and as Mr Brydon’s submissions have been prepared by the AWU, his union, I imagine he will be sure to access their assistance and advice in relation to his engagement in higher classification positions in the future. Does the decision conform with the requirements of s 120(5)? [45] Section 120(5) is set out at [13]. The Appellant's appeal notice states that the decision does not comply with s 120(5) as it does not refer to: the total continuous period Mr Brydon has been acting at the higher classification; how many times Mr Brydon’s acting arrangement had been extended; each decision previously made, or taken to be made during Mr Brydon’s continuous period of acting at the higher classification. [46] I have reviewed the letter provided to Mr Brydon. The letter informed Mr Brydon that the reason he was not being appointed to the higher classification was that he was not eligible for conversion due to his tenure in the role that he was currently occupying. Given the decision-maker had determined that Mr Brydon was not eligible for review as he had not met the requirement set out in s 120(1)(a), it was appropriate for the letter to contain the information it did. -- 10 of 11 -- 11 [47] The letter acknowledged Ms Hills' submission that Mr Brydon had had been employed in the OO4 role for at least two years. The letter also informed Mr Brydon of the reason that the decision-maker did not consider the time engaged in the OO4 role to be relevant. The letter noted that Mr Brydon had been acting in the OO5 role for less than one year. In those circumstances, I do not think that the omission of the date Mr Brydon commenced in the OO5 role serves to make the decision letter non-compliant with s 120(5) of the PS Act. Having determined that Mr Brydon was ineligible for conversion, I do not think the decision-maker was required to go on to list matters such as the how many times (if any) Mr Brydon had been extended in the OO5 role or to inform him that no previous decisions had been made or taken to be made during his continuous period of acting at the higher classification. [48] The decision-maker could have provided further information about the operation of cl 8 of the Directive and informed Mr Brydon that as he was not returning to the OO4 role at the end of his engagement in the OO5 role, his time in the OO5 role could not be considered an 'authorised absence'. The omission of this information does not render the decision not fair and reasonable. Conclusion [49] For the reasons provided above from [35] – [48], the decision of Mr Grant Brown dated 28 February 2024 was fair and reasonable, and is confirmed. Order [50] I make the following order: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 11 of 11 --