Bell v State of Queensland (Queensland Police Service) [2024] QIRC 110

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bell v State of Queensland (Queensland Police Service) [2024] QIRC 110 PARTIES: Bell, Jennifer June (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2024/4 PROCEEDING: Public Sector Appeal – Appeal against Conversion Decision DELIVERED ON: 10 May 2024 MEMBER: HEARD AT: Dwyer IC On the papers ORDER: The decision appealed against is confirmed CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against conversion decision – where appellant requested permanent appointment to a higher classification – requirement of continuous service for a period of at least 1 year in the position – where appellant lacks period of continuous service – consideration of eligibility PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where appellant’s request for permanent appointment to a higher classification was rejected – where the respondent relies on its genuine operational requirements as the basis -- 1 of 16 -- 2 for rejection – whether decision fair and reasonable – decision fair and reasonable. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 120 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360 Gatla v State of Queensland (Queensland Police Service) [2022] QIRC 436 Goodall v State of Queensland [2018] QSC 319 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Wilson v State of Queensland (Public Trust Office) [2021] QIRC 84 Reasons for Decision Introduction [1] Ms Jennifer Bell has been employed by the Queensland Police Service (‘the respondent’) since March 2017. The Appellant is currently a substantive AO5 Software Developer in the Software Development Group, ICT Delivery, Frontline and Digital Division (‘FDD’) of the respondent. -- 2 of 16 -- 3 [2] Since April 2021 Ms Bell has acted in higher duties across a range of positions varying between AO7 to AO8. She has performed these duties in four distinct positions designated by four unique position numbers. The respondent’s submissions set out these appointments:1 Classification Position number Position title Date from Date to AO7 4-958739 Principle Solutions Architect 15/04/21 14/04/22 AO7 1-913551 Principle Solutions Architect 15/04/22 05/02/23 AO8 1-953937 Lead Solutions Architect 06/02/23 31/03/23 AO7 1-913551 Principle Solutions Architect 01/04/23 01/01/24 AO8 1-953934 Lead Solutions Architect 02/01/24 19/01/24 AO7 1-913551 Principle Solutions Architect 20/01/24 30/06/24 [3] From 1 April 2023 until 1 January 2024 Ms Bell was engaged in a higher duties position of AO7 Principal Solutions Architect (position number 1-913551) (‘the position’). On 7 December 2023 (during that engagement), Ms Bell formally requested to be converted to the position pursuant to s 120 of the Public Sector Act 2022 (Qld) (‘the PS Act’). [4] Relevantly, at the time of her application for permanent appointment, Ms Bell had been engaged in the position for a continuous period of just over eight months.2 [5] By way of email dated 22 December 2023, the Respondent advised the Appellant that her request for permanent conversion to the higher classification of the AO7 Role had been denied (‘the decision’). That is the decision which is the subject of the appeal. [6] The reasons for decision provided by the Respondent reveal Ms Bell’s request for conversion to a higher classification was declined on the basis of genuine operational requirements and cite s 120(4) of the PS Act and the Queensland Government directive - Directive 03/23 "Review of acting or secondment at higher classification level" (‘the Directive’). [7] The salient portion of the reasons provides: At this time, the genuine operational requirements of this entity do not support your permanent employment to the role you are currently performing as the role in question currently sits within FDD. FDD is undergoing significant workforce change flowing from the disestablishment of the Public Sector Business Agency. The role that you are performing higher duties in, as well as several other roles within FDD, are currently being reviewed. It is possible the role you have been engaged in will be subject to change and may transition to either the Queensland Fire and Emergency Services or Queensland Ambulance Service. Until such time as the transitional arrangements are finalised in 2024, QPS is unable to convert you the higher classification. 1 Respondent’s submissions filed 2 February 2024 at paragraph 3. 2 Queensland Government directive - Directive 03/23 "Review of acting or secondment at higher classification level" cl 8.1. -- 3 of 16 -- 4 (Emphasis added) [8] In response to the decision, the Ms Bell filed an Appeal Notice on 5 January 2024. [9] In her Appeal Notice, Ms Bell contended that: • She has been acting in the higher classification AO7 Role for 2.67 years and her engagement in the higher duties position has been extended several times; • Her knowledge and skills are Queensland Police Service focused, and organisationally her role is situated within Queensland Police Service initiatives; • Prior to making the application for permanency, she was given no indication during the period acting in the AO7 Role that she may be transitioned to another portfolio. Further, she contends that there was no communication regarding a hold on permanent appointments during the transition period flowing from the disestablishment of the Public Safety Business Agency; • Her application for permanency in the AO7 Role was made at the earliest opportunity, being the day the higher classification position became vacant; • The day she made her application, the person who had held the position was appointed permanently to another position in which they had been acting; • Considering the above circumstances, withholding a conversion to permanency on the grounds of genuine operational requirements, based upon a transitional change which commenced in July 2022 and has no apparent finalisation date, is unfair and unreasonable and otherwise inconsistent with the Public Service principles of maximising employment security and permanency of employment; and • The decision has inflicted unnecessary personal stress in a process that should be a ‘straightforward administrative consideration’. Nature of appeal [10] 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 3 Industrial Relations Act 2016 (Qld) s 562B. 4 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. -- 4 of 16 -- 5 [11] 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 role of the Commission in such an appeal is to decide whether the decision appealed against was fair and reasonable.7 [12] The issue for determination in this appeal is whether the decision to refuse to permanently appoint Ms Bell to the higher classification AO7 Role was fair and reasonable. What decisions can the Commission make? [13] In deciding this appeal, s 562C of the IR Act provides that the Commission may: a. Confirm the decision appealed against; or b. Set the decision aside and substitute another decision; or c. Set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Relevant sections of the PS Act and Directive [14] The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below. [15] Section 120 of the PS Act provides: 120 Employee may request employment at higher classification level after 1 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. 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). -- 5 of 16 -- 6 (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) … (6) … (7) … (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. … (Emphasis added) [16] Clause 7 of the Directive provides as follows: 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. [17] Clause 8 of the Directive provides as follows: 8. Meaning of continuous period 8.1 Continuous period, for the purposes of this directive, means a period of unbroken engagement…at the higher classification level in the same role, in the same public sector entity. (Emphasis added) Submissions [18] The parties filed written submissions in accordance with a Directions Order dated 5 January 2024. The appeal has been dealt with on the papers. -- 6 of 16 -- 7 The Respondent’s submissions [19] The Respondent contends, for the reasons set out in their submissions filed 2 February 2024, that genuine operational requirements preclude the Appellant’s employment from being converted to the higher classification AO7 Role. In summary, it submits that: • The Respondent is restructuring such that it is in the process of redistributing funding and re-allocating operational roles to different agencies. It may be the case that it will not require the AO7 Role as part of its restructured operations. • The AO7 Role that Ms Bell is requesting to convert to has permanent funding, and so can be distinguished from former conversion cases such as Catterall v State of Queensland (Queensland Police Service) (‘Catterall’),8 where funding for the position in question had been continually renewed. • The reason why the Respondent declined the conversion request is that further restructuring will soon occur when it expands its operations into new areas. The Respondent submits that this is a genuine operational requirement for pausing conversions from 13 October 2023. • The Respondent has a responsibility to ensure that it is ‘responsive to the community it serves by – taking measures to promote the effectiveness and efficiency of public sector entities’, and that in order to achieve this, it must work together with other Government entities in a collaborative and transparent manner, showing each proper consideration when transitioning functions and positions from one entity to another. [20] Taken together, the Respondent contends that the simultaneous restructuring and expansion of its operations indicate that the AO7 Role may be operationally unnecessary moving forward, and that Ms Bell’s conversion application was denied on the basis of genuine operational requirements. The Appellant’s submissions [21] The submissions filed 4 March 2024 by Ms Bell largely canvas the same propositions set out in her Appeal Notice. In summary, Ms Bell submits that: • The Respondent has failed to give consideration to the necessary criteria of fairness by the decision maker and the decision-making process was inconsistent with the requirements of the PS Act and Directive. • The Respondent can conveniently avoid making conversion decisions by relying on a “platitudinous” reference to harming its strong working relationships with Public 8 [2021] QIRC 360. -- 7 of 16 -- 8 Sector Agencies. Relying on this convenience imposes impermanency and uncertainty on the Appellant. • Particularly, and with reference to the now superseded Public Service Act, the decision maker must consider criteria in addition to genuine operational requirements, including: a. the purpose of the Act to provide a framework for a fair public sector; b. ensuring the default basis of employment is permanent and ensuring fairness in decision making; c. employment should be on a generally permanent basis, and only on a non- permanent basis in situations where it is not viable or appropriate. • The recommendation that all conversions be paused in FDD during the “ICT Service Transition” process lacks evidence to support its necessity, and in any event, is unfair and unreasonable. On this submission, the Appellant raises several points. Firstly, the Appellant references the previous conversion cases of Catterall and Gatla v State of Queensland (Queensland Police Service) (‘Gatla’),9 suggesting this Commission has established that ‘mere’ reference to the freeze on transfers as a necessary component of the disestablishment of FDD does not in itself justify the lack of viability of conversion to a higher classification. • Secondly, in relation to the above submission, the indicated target date of 30 June 2024 for completion of the ICT Service Transition cannot be reasonably relied upon. The Appellant submits that the transition has been underway since July 2022 with no communication to staff on the actual progress achieved, or tangible results to date. The protracted and unclear nature of the transition, juxtaposed with the Respondent’s implication that the pause is only for a limited period, is incompatible and leaves the Appellant in a state of flux as to her conversion to a higher classification (which she submits is unfair). • Thirdly, the pause on conversion of temporary employees is a clear diminution of job opportunities or job tenure, resulting in a major change to the Queensland Police Service workforce. This requires consultation pursuant to clause 11 of the Queensland Police Service Employees Award. • The substantive holder of the AO7 Role in which the Appellant has been acting, Mr Dhillon, was permanently transferred to his acting position within FDD on 30 November 2023. Further, the Appellant identifies additional colleagues, being Mr Tuazon and Mr Jayakumar, that have been formally appointed to a higher 9 [2022] QIRC 436. -- 8 of 16 -- 9 classification role within her business group between November 2023 and February 2024. The Appellant submits that these appointments are inconsistent with the Respondent’s submission that it has honoured the recommendation it received from the QFES on 13 October 2023 that all conversions be paused. The Respondent’s submissions in reply [22] The Respondent filed submissions in reply on 15 March 2024. The essence of those reply submissions are as follows: • The permanent transfer of Mr Dhillon falls under a transfer at level. A transfer at level involves a permanent employee of a particular classification level moving laterally into another permanent position of the same classification level. This means the classification of Mr Dhillon has not changed and there is no effect on funding. • The permanent appointments of Mr Tuazon and Mr Jayakumar are appointments to Queensland Police Service specific growth positions. In August 2023, a number of new positions were created within the Queensland Police Service due to specific funding to increase capacity in the Corporate Division, which encompasses FDD. As such, the Respondent contends that the Appellant’s argument that these appointments support her application for conversion is misconstrued. • The Respondent refutes the Appellant’s submission that it can conveniently avoid making conversion decisions. Consistent with the submissions above, the Respondent affirms that a number of decisions have been made to transfer at level and to decline higher duties conversion. Consequently, it re-iterates that it has, in fact, honoured the QFES recommendation to pause conversions to higher duties positions. • The Respondent disputes the submission that the decision burdens Ms Bell with impermanency and uncertainty. Ms Bell is a permanent employee and has employment security. There is no uncertainty. • The totality of the submissions demonstrates the existence of genuine operational requirements to preclude the conversion of the Appellant to the higher classification A07 Role. Consideration [23] Both parties have missed a critical point. In fairness to them, the mutual oversight is undoubtedly a product of the less than ideal language found at s 120 of the PS Act and Clause 8 of the Directive. -- 9 of 16 -- 10 [24] Both parties have approached the decision and this appeal on a presumption that Ms Bell met the criteria contained at s 120 of the PS Act and that she was eligible to request permanent appointment to the position. Both parties appear to have assumed that Ms Bell’s service in various positions and higher classifications since 2021 amounted to 2.67 years of ‘continuous service’ and was sufficient to meet the requirement that Ms Bell have ‘at least 1 year’ of continuous service. But, on the uncontested facts of this matter, the language of s 120 of the PS Act does not accommodate that view. [25] The right to request permanent appointment is limited to employees who meet the key elements of s 120 of the PS Act. In Ms Bell’s case the relevant elements require her to demonstrate she has been: • Acting at a higher classification level; • For a continuous period of at least 1 year; • In the position. ‘a higher classification level’ [26] The phrase ‘a higher classification level’ might, at first glance, have some degree of ambiguity. In isolation, it might be argued that the phrase ‘acting at a higher classification level for at least 1 year’ would include scenarios where an individual had worked at numerous higher classification levels over a number of years. But on proper consideration of the phrase in the context of the surrounding language of s 120 of the PS Act and also the Directive, the character of the phrase is decidedly singular. [27] The terms ‘a’ and ‘level’, especially when combined, ordinarily denote singular. They would exclude a scenario where an employee has been acting at higher classification levels (plural). To the extent there is any doubt, this construction becomes especially clear when regard is had to the adjoining language in s 120(1) of the PS Act with respect to ‘continuous period’ and the meaning ascribed to it by the Directive. ‘continuous period’ [28] Section 120(8) of the PS Act defers the task of defining ‘continuous period’ found at s 120(1) of the PS Act to the Directive. Clause 8.1 of the Directive contains the definition and is set out earlier in these reasons. The key terms of the definition of ‘continuous period’ found in the Directive are: • A period of unbroken engagement; • At the higher classification level; -- 10 of 16 -- 11 • In the same role. [29] As Ms Bell’s service history shows, she had a series of engagements in distinct positions between 15 April 2021 and (relevantly) 7 December 2023 when she made her request for permanent appointment. In that time Ms Bell had two separate engagements in the position in question, but they were separated by an additional engagement in another position. Over the course of those three engagements Ms Bell’s higher classifications were variously AO7, AO8 and AO7. [30] The definition of continuous period in the Directive requires ‘unbroken engagement’ at ‘the higher classification’ (singular). It does not apply more broadly to multiple engagements across a number of (different) higher classifications. This conclusion is made plainer when having regard to the language of the subsequent element of the Directive referring (with express singularity) to ‘the same role’. [31] As such, the ordinary meaning of ‘continuous service’ derived from the language of the Directive applies exclusively to circumstances where an employee has been acting at a single higher classification level e.g.AO7 in a single position (as designated by its position number). [32] The respondent erroneously refers in the decision to Ms Bell having been ‘engaged at the higher classification level’ for a total of 2.67 years. While this might be broadly accurate in the colloquial sense, for the purposes of s 120(1) of the PS Act Ms Bell’s relevant work history is more properly described as ‘having undertaken multiple engagements at higher classification levels over a period of 2.67 years.’ [33] While Ms Bell’s work history demonstrates her undoubted capability to serve at a classification level well above her substantive AO5 position, it places her outside of contention for permanent appointment to the position in question because, at the time of her request, she had only been engaged for a continuous period of 8 months in the same role. ‘in the position’ [34] For completeness it ought to be observed that a request for permanent appointment as prescribed by s 120 of the PS Act is restricted to the unique position in which the applicant is acting at the time of their request.10 It is the view of the Commission that this precision further supports the more restrictive reading of the surrounding language of s 120(1) of the PS Act. 10 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 (‘Holcombe’). While this decision deals with the s 149C of the now repealed Public Service Act 2008 (Qld), the language is not materially different to that of s 120 of the PS Act. -- 11 of 16 -- 12 [35] Further, while the term ‘role’ that appears in the Directive is distinct from the term ‘position’ that appears in s 120(1) of the PS Act, in the view of the Commission, the preface ‘the same’ in the Directive makes the term ‘role’ synonymous with ‘the position’ as it appears in s 120 of the PS Act. Summary – s 120 of the PS Act [36] The construction and application of s 120 of the PS Act (and its predecessor) has historically proved problematic for some public service employees and decision makers.11 It continues to be problematic, largely due to its somewhat awkward language, which is compounded by the use of inconsistent terminology in the Directive. [37] Put in simple terms, the proper construction of s 120 of the PS Act provides the limited function of conferring a right on a public service employee to request permanent appointment to a position at a higher classification where they have been acting in that position continuously for an unbroken period of at least 12 months, and where there is no other employee who substantively holds that position. [38] Ms Bell’s eligibility to make the request is defeated by the requirement of continuous unbroken engagement in the position for a period of at least 1 year. [39] As previously noted, both parties to this appeal have failed to identify Ms Bell’s ineligibility to make the request for permanent appointment. In the ordinary course of events where the Commission identifies such an oversight by parties, procedural fairness would require that it be brought to the parties’ attention and that further submissions be invited. Consideration was given to this approach but, for the further reasons that follow, there is no utility in inviting the parties to make such submissions. [40] For completeness it ought to be noted that in circumstances where the Commission has not sought submissions from the parties as to the construction of s 120 of the PS Act, the Commission’s conclusions in that regard will not form a basis for its decision in this appeal. The Commission will instead rely on its alternative finding that immediately follows. In the alternative [41] If it is assumed that the Commission’s construction of s 120 of the PS Act and the Directive is incorrect, and that Ms Bell was eligible to make her request, consideration of this appeal then turns to the respondent’s reasons for their decision i.e., the genuine operational requirements. 11 Ibid; Wilson v State of Queensland (Public Trust Office) [2021] QIRC 84, [29] – [35]. -- 12 of 16 -- 13 [42] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or the Directive. The phrase was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) (‘Morison’),12 where Merrell DP stated:13 [37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive. [38] The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things: • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. [43] In 2013 the State government announced the establishment of the Public Safety Business Agency (PSBA). The PSBA was created to provide corporate services to inter alia the respondent and other related agencies. [44] In what was no doubt a complete shock to everyone concerned, this gigantic public sector entity, that was created to produce cost efficiency, instead produced inefficiency, complexity, and higher costs. And so, in 2020, it was announced that the PSBA would be ‘disestablished’.14 [45] The process of disestablishment of such an entity is inevitably (but necessarily) an exercise fraught with its own inefficiencies and complexity. Having regard to the respondent’s submissions it is readily anticipated that the disestablishment of such a complex entity would take careful and ongoing planning and, no doubt, innumerable meetings for the purpose of consultation with multiple committees, working groups, and other stake holders.15 It is a process of disentanglement that would reasonably be expected to take years because of inter alia the significant organisational change required 12 [2020] QIRC 203. Note the decision in Morison concerned s 149C of the (now repealed) Public Service Act 2008 (Qld) but the language is not materially different to s 120 of the PS Act. 13 Citations omitted. 14 Respondent’s submissions filed 2 February 2024 at paragraph 10. 15 Respondent’s submissions filed 2 February 2024 at paragraph 13-14. -- 13 of 16 -- 14 with each affected entity and the redistribution of funding etc. While the respondent has exhibited a ’Transition plan’ with a timeline of approximately 6 months, there has plainly been significant planning and effort required to create that plan. [46] In the course of undertaking this task, involving multiple agencies, there would understandably be any number of instances of uncertainty about all manner of the logistics occurring from time to time. As any one vaguely familiar with organisational change in the Public Sector will attest, matters of funding and organisational structure in a dynamic transitional process will often fall into a state of flux. This typically occurs while decisions affecting those aspects of the change weave their way up the bureaucratic chain for approval, before weaving their way back down again for implementation, often stopping along the way for earnest consideration and input by various levels of management. [47] The decision under review plainly describes the operational requirements to Ms Bell. There is no dispute that disestablishment is taking place. There is no dispute that Ms Bell’s agency is affected. There is no dispute that disestablishment is not yet completed. [48] In support of the decision the respondent provided correspondence from Mr Kevin Walsh, Acting Deputy Commissioner, Chief Strategy Officer, Queensland Fire and Emergency Services (‘QFES’).16 While the language of that letter is not a precise match for the submission accompanying it, the sentiment is consistent.17 [49] In short and simple terms, Ms Bell’s request was declined because of an agreement by the respondent with QFES to, in essence, refrain from certain recruitment or conversions pending more clarity about the transition and restructure associated with disestablishment. In all of the circumstances, a more plausible and reasonable explanation for the decision would be difficult to imagine. [50] The task of the Commission in reviewing a decision does not extend to re-hearing the merits of the decision. With all due respect to Ms Bell her submissions in this appeal contain numerous attempts to cast the decision as being flawed or otherwise inconsistent with other authorities. But on consideration, each submission of Ms Bell is a misconceived attempt impose a higher standard of justification for the decision than is actually required, or to otherwise complicate the very uncomplicated reasons for the decision with considerations that are not necessary. [51] Further, to the extent that Ms Bell asserts reliance on other authorities from this Commission, she overlooks that the authorities she refers to arise in factual circumstances that are quite distinct from hers and are not true comparators to her unique circumstances. 16 Exhibit 2 of the Respondent’s submissions filed 2 February 2024. Note – the letter is undated, but the submissions confirm it was received on 13 October 2023. 17 Respondent’s submissions filed 2 February 2024 at paragraph 19. -- 14 of 16 -- 15 [52] The respondent has a wide discretion to refuse a request for permanent appointment in circumstances of demonstrated genuine operational requirements. The reasons provided by the respondent in the decision are sufficiently clear and comprehensive. Moreover, the reasons are supported by the evidence, including the correspondence exhibited to the respondent’s submissions. [53] In all of the circumstances, even if the Commission’s construction of s 120 of the PS Act is incorrect, the decision under review was otherwise fair and reasonable. In those circumstances, there is no utility in hearing further from the parties on the question of the construction of s 120 of the PS Act, as the appeal is liable to fail even if Ms Bell were to successfully argue a different construction. Conclusion [54] For all of the foregoing reasons, the Commission considers that Ms Bell was not eligible to apply for permanent appointment in December 2023 because she had only been engaged continuously in the position for a period of approximately 8 months. In those circumstances the respondent would have been reasonably entitled to refuse the request. [55] Alternatively, if that conclusion is incorrect, the respondent has plainly demonstrated genuine operational requirements that validate its decision to decline Ms Bell’s request. It is on the basis of this conclusion that the Commission will exercise its power to confirm the decision under review. [56] It is important to note in conclusion that Ms Bell appears to be a more than capable employee with skills that consistently meet the required standard for AO7 and AO8 roles. Her frustration and disappointment about this outcome are entirely understandable. Ms Bell submitted in her primary submission that the decision to permanently appoint her should be a straightforward administrative process. The Commission agrees. If common sense and practicality regulated employment in the public sector, there could be little doubt on the evidence of her work history before the Commission that Ms Bell would have achieved her ambition of permanent appointment at a higher classification long ago. But the enormity of the task of managing employment in the public sector necessarily requires far broader considerations than the circumstances of individual employees. [57] Ms Bell resumed the position in question on 20 January 2024. The transition process for disestablishment is no doubt well advanced from where it was at the time of filing of this appeal. Assuming her engagement remains unbroken, and the role is not otherwise restructured or filled in the remaining period of transition, Ms Bell should have every reason to anticipate a successful request for permanent appointment in early 2025 at the latest. Whatever the case may be, the respondent ought to make a concerted effort to ensure that Ms Bell’s ambitions are achieved as soon as practically possible. -- 15 of 16 -- 16 Order The decision appealed against is confirmed. -- 16 of 16 --