Dyson v State of Queensland (Queensland Health) [2024] QIRC 61

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO.: PROCEEDING: DELIVERED ON: MEMBER: HEARD AT: ORDER: CATCHWORDS: Dyson v State of Queensland (Queensland Health) [2024] QIRC 61 Dyson, Susan (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) PSA/2023/138 Public Sector Appeal 7 March 2024 Power IC On the papers Pursuant to the Industrial Relations Act 2016 (Qld) s 562C(1)(c), the decision is set aside. The decision is returned to the decision-maker with a copy of this decision on appeal and a direction that a fresh consideration of the Appellant's request to be appointed to the position at the higher classification be undertaken within 28 days. PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant is substantively employed by the respondent – where the appellant acted at a higher classification level – 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 -- 1 of 19 -- 2 decision is fair and reasonable – decision set aside and returned to the decision-maker with a copy of the decision for reconsideration. LEGISLATION: Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Sector Act 2022 (Qld), ss 120, 129, 131, 177, 289 and 324 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Edwards v State of Queensland (Queensland Ambulance Service) [2023] QIRC 247 Goodall v State of Qld & Anor [2018] QSC 319 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Lynch v State of Queensland (Department of Education [2023] QIRC 234 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision Introduction [1] Ms Susan Dyson ('the Appellant') is substantively employed by the State of Queensland (Queensland Health) ('the Respondent') as an Officer in Charge ('OIC') Level 4 Band 2 (AS42) at Kenmore Station of the Queensland Ambulance Service. [2] The Appellant has been engaged to act in a higher classification position as an OIC Level 5 Band 1 (AT51) at the Roma St Station ('the position'). [3] The Appellant submitted a request to be permanently appointed to the position, pursuant to s 120 of the Public Service Act 2008 (Qld) and Directive 03/23 – Review of acting or secondment at higher classification level ('the Directive'). -- 2 of 19 -- 3 [4] Following the request, the Appellant was issued a letter from Mr David Hill, Acting Executive Director, Workforce, Queensland Ambulance Service advising that the Appellant would not be appointed to the position due to the genuine operational requirements of the agency ('the decision'). [5] By appeal notice filed in the Industrial Registry, the Appellant appealed against the decision. Appeal principles [6] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [7] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision by Mr Hill to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. What decisions can the Industrial Commissioner make? [8] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner 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 provisions of the PS Act and the Directive [9] Pursuant to s 129(e) of the Public Sector Act 2022 (Qld) ('the PS Act'), a 'conversion decision' means a decision: 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 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Qld & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 19 -- 4 period, as defined for the employee in a directive made under section 120(7), of at least 2 years.5 [10] The decision maker considered s 149C of the Public Service Act 2008 (Qld) which was operative at the time. The equivalent provision is s 120 of the PS Act which provides: 120 Employee may request employment at 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. (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. 5 Public Sector Act 2022 (Qld) s 129(e) ('PS Act'). -- 4 of 19 -- 5 (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.6 [11] The Directive became operative on 1 March 2023 and supersedes Directive 13/20.7 The Directive provides: 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. … 12. Appeals 12.1 Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act. [12] The purpose of the Directive is outlined as follows: 1. Purpose 1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector. 1.2 This directive supports and supplements the provisions of the Act with respect to the review of public sector employees acting at, or seconded to, a higher classification level. 1.3 This directive sets out procedures for reviews and requirements for decisions in the context of reviewing an employee acting, or seconded to, a higher classification level. 6 PS Act s 120. 7 clause 3.5. -- 5 of 19 -- 6 Reasons for Appeal [13] The Appellant outlined the following reasons for appeal – The decision maker essentially refused to convert my position on the basis that QAS is developing an alternative process to recruit frontline managerial staff. My understanding is that this process is not yet in place. The presence of the FMR process does not supersede QAS' obligation under Chapter 3, Division 2 of the Public Sector Act 2022 (Qld) or the Directive to review and convert employees who are suitable, where the genuine operational requirements of the QAS are met. In rejecting my request for conversion, no meaningful response has been provided to demonstrate that it is not viable or appropriate to convert my employment. There is no evidence of workplace reform or significant projects which will impact upon the ongoing workforce mix. It points to the development of a new hiring process for managers. This ought not impact the statutory right to review and convert employees who have been acting in roles for significant periods of time. Conversion under the Public Sector Act 2022 and the Directive is an extant, clear, and transparent process which provides a pathway to conversion. QAS's failure to properly apply the process in Division 2 of Chapter 3 is procedurally unfair and not consistent with the Public Sector Act 2022. Even if the FMR process were in place, the Public Sector act 2022 would continue to apply. Submissions [14] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Appellant's submissions [15] The Appellant's submissions are summarised as follows – • The appeal turns on whether the Respondent's refusal on the basis that the FMR process forms a genuine operational requirement that prevents the Respondent from converting the Appellant to the higher duties position. • The Respondent has erred in law and acted unreasonably by using the presence of an internal recruitment process to abrogate the decison-making requirements under the PS Act, considering an irrelevant factor as the FMR is not and cannot be a genuine operational requirement; • Division 2 of the PS Act provides for the review of acting or seconded public sector employees into a higher classification. The Introductory Speech for the Public Sector Bill 2022 and associated Explanatory Note and the Directive 03/23 make it clear that the purpose of the Division is to provide employment security, establish permanent employment as the default, and emphasis that non0permanent employment should only be used where permanent employment is 'not viable or appropriate'; • Previous Commission decisions have held that the phrase 'operational requirements of the -- 6 of 19 -- 7 Department' has broad meaning and 'permits a consideration of many matters depending upon the particular circumstances of the department at a particular time'8; • Given the 'default nature' of permanent employment, the Appellant submits that the operational requirement cited in any decision refusing conversion must meet a high threshold, in that it is 'genuine' – being 'truly such; real; authentic' and would in effect prevent conversion.9; • Logically, the genuine operational requirement must be one that prevents or makes it inappropriate to convert the employee in the specific role, rather than some broader operational requirement that has little bearing on the conversion of the employee to the specific position.; • In the matter of Leatherbarrow v State of Queensland (Queensland Health)10, the appeal was successful as the decision of the relevant Delegate conflated the requirements for transfer with that of higher duties conversions, concluding the appellant did not meet the threshold for conversion; • The decision is tainted by similar error in that the delegate has conflated the existence of an independent recruitment process for managerial positions as overriding the right to request and have a higher-duties position converted; • The decision rises to the level of Wednesbury unreasonableness (see Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 22); and entirely abrogates the operation of the Division. If the FMR process is not the operational requirement relied on, the Decision is vague or has otherwise failed to provide reasons. [16] The Appellant submits that the decision making erred by fettering the decision and considering an irrelevant factor – • The Division provides a statutory pathway to permanent employment in a higher classification in which an eligible employee is acting. It represents the mechanism by which Parliament has decided to achieve this policy goal for positions ordinarily held by industrial instrument employees. It applies across the public service, and arguably provides a transparent and consistent process within QAS. • The Delegate has concluded the genuine operational requirements of the QAS require the employee to participate in the FMR process, which appears to not be operational at the time of the decision. This in effect completely abrogates the operation of the Division through the adoption of a policy position. On the reasons provided, an employee in a prescribed set of classifications will not be able to convert to higher duties employment because of this policy. Fettering decision making through the use of policy to the point that the individual merits of a request are not considered is a long understood error (see for example Howells v Nagrad Nominees Pty Ltd (1982) 41 ALR 283; Judicial Review Act 1991 (Qld) s23(f)) • The decision requires the Appellant to participate in an interview and assessment process to be hired, presumably, for vacant roles. This does not necessarily mean the Appellant would be hired into the position in which they are acting/performing higher duties. This, like in Leatherbarrow, confuses the purpose of the Division. The Division provides a statutorily enshrined conversion process that only allows for conversion to the position in which the employee is currently acting. 8 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [38]. 9 Ibid [38] citing Macquarie Dictionary (7th ed, 2017) 'genuine' (def 1). 10 [2021] QIRC 261. -- 7 of 19 -- 8 This is made clear by both the text of s 120 and the Explanatory Note. The FMR provides a recruitment and selection process. The presence of that process does not supersede an employee's right to request higher duties conversion or the ability of the Respondent to grant the conversion. Nor does it form a genuine operational requirement for the refusal of a conversion request, otherwise the presence of any recruitment process would supersede the operation of the Division. • The Delegate has considered an irrelevant factor in considering the FMR. A genuine operational requirement, in the context of the Division, is one that would prevent the appointment of the Appellant to the higher duties position (for example, a budgetary constraint, the role itself is ephemeral, the position is substantially occupied). The FMR does not rise to this level. • In relation to unreasonableness, the Delegate is required to make a finding of suitability under s 120(3). The Delegate found the Appellate suitable. The QAS has, logically, already exercised some degree of evaluation or assessment in having the Appellant act in the same higher duties position (and other even higher duty roles)_ over the course of 4.5 years. The Delegate states that the 'FMR process is designed to allow all employees, who believe they are suitably experienced, a current opportunity to demonstrate their capabilities'. The Delegate is essentially requiring the Appellant to engage in an advertising, recruitment and selection process to adjudge their suitability, when the Delegate has already held the m to be suitable. This is directly contrary to the purpose of the Division and could be viewed as the Delegate undermining or refuting their own finding of suitability. Respondent's submissions [17] The Respondent's submissions are summarised as follows – • The Roma ST station OIC position is substantively held bv another officer, who is currently acting in a Senior Operations Supervisor role in the State Operations Coordination Centre. • The substantive position holder is due to resume their position on 23 October 2023, although there is a likelihood that the incumbent may require a further extension to the end of the year. • The Appellant has held successive engagements in the position since 11 February 2019,m in among other relieving opportunities as indicated in the employment summary issued with the decision. • The Appellant's substantive OIC AS42 position at Kenmore Station is also subject to backfill, with another officer acting for the Appellant in that role. • While the QAS acknowledges that the Appellant has undertaken multiple consecutive engagements in the role, each occasion has been a discreet appointment, to cover the approved, extended absence of the incumbent, in accordance with the genuine operational needs of the QAS. • Following the Appellant's request, District Director Sally Wuersching undertook a suitability and performance confirmation to assist the QAS with its assessment. This assessment determined the Appellant met all of the suitability criteria. • There is an ongoing need to have someone undertake the role while the incumbent is engaged in relief elsewhere, the incumbent is due to return and the position is not vacant. • The AQS notes the Appellant's further submissions, particularly the points in respect of the lack of detail regarding the genuine operational requirements, and more particularly, the explanation -- 8 of 19 -- 9 provided as to the bearing of the FMR process on the decision. • The QAS concedes that there were deficiencies in its correspondence to the Appellant, specifically in respect of its advice as to the genuine operational requirements that prevented the Appellant from being appoint to the position. • The QAS now seeks to outline those genuine operational requirements in these submissions. • The QAS notes the reference to Annexure 3 in the Appellant's submissions (an extract of the explanatory notes of the Public Sector Bill 2022) and specifically, the consideration that is required when an entity needs to determine what are genuine operational requirements. • It is a genuine operational requirement that the QAS retain substantive positions held by incumbent employees in circumstances such as that described previously. • It is also a genuine operational requirement that the WAS give full regard to the effective, efficient and appropriate management of public resources as required under s 177(1)(b) of the Act. • The QAS submits that as the incumbent of the Roma St Station OIC position is due to return on 23 October 2023, and the Roma St Station OIC (AT51) role can only be occupied permanently by one incumbent at any one time (that is, the QAS only requires one Roma St OIC), the QAS has a genuine operational requirement not to employ anyone permanently in the role. • To employ the Appellant permanently to this position, which is not substantively vacant and to which the incumbent is due to return in the near future, would not represent the QAS having the necessary regard to the effective, efficient, and appropriate management of public resources. • Therefore, as a genuine operational requirement, the QAS must consider this under section 120(4)(a) of the Act, and clause 7.1 of the Directive, and the outcome of those considerations is that the Appellant cannot be appointed to the position on a permanent basis. • Recent case of the QIRC support that where a position is occupied and the incumbent is scheduled to return, that presents a genuine operational reason not to convert.11 • The QAS confirms there are some vacant supervisory positions across Queensland, however the Act requires only the consideration of whether the Appellant should be employed permanently in the position she was acting in at the time the review request was made (ie. The Roma Street Station OIC position at Level 5 Bank 1 (AT51). • Annexure 3 of the Appellant's further submissions also confirms this. • This is is contrast with the requirements of the Act with respect to reviews of employment on a non- permanent basis to employment on a permanent basis where same or substantially the same roles may be considered.12 • In addition, the QAS confirms all vacant supervisory positions across all regions, are in the process of being reviewed and those deemed genuinely vacant will be filled through its Frontline Manager Recruitment (FMR) process, in accordance with the order of merit established from all applications received. 11 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195. 12 Lynch v State of Queensland (Department of Education [2023] QIRC 234. -- 9 of 19 -- 10 [18] The Respondent made the following submissions regarding the Frontline Manager Recruitment (FMR) process, in summary – • In 2015, the WAS established a Supervisory Recruitment Campaign (SRC) as the appropriate mechanism to permanently fill its supervisory positions which operated on a 12-to18 month basis in the years prior to the COVID-19 pandemic in 2020. During the pandemic, the SRC was paused to allow the QAS to manage the surge period. • In 2022, the QAS facilitated a period of significant employee consultation seeking suggestions, ideas and feedback from its workforce at forums and regional roadshows to inform the QAS Strategy 2022-27 ('the Strategy'). • From this, the QAS developed and established the Frontline Manager Recruitment (FMR) process, replacing the SRC as part of the Strategy, to address concerns regarding the equitable appointment of officers to supervisory positions. • FMR was finalised in early 2023, promoted to all employees, and invited them to express interest and apply to be assessed for permanent frontline supervisory roles as they become available. All details for application were placed on the QAS Portal and all applicants were required to submit their preferences of positions/levels and locations. • The current FMR process has been undertaken in tranches for each supervisory group, including the OIC group which opened on 30 June 2023, and closed on 16 July 2023. An order of merit will be established for existing and future vacancies, and will remain current for twelve months. • The QAS has received 264 FMR applications from employees interested in OIC roles in this round, including those officers seeking transfer at level, redeployment and, like the Appellant, promotion. • It is the expectation of the QAS that FMR will continue to occur regularly at 12 to 18 month intervals to fulfil the requirement to have a fair, transparent and equitable way in which to appoint frontline supervisory roles and allow for the maximisation of permanent employment. • On 16 July 2023, the Appellant submitted an FMR application and underwent an interview on 29 August 2023. • Notwithstanding that the QAS was unable to appoint the Appellant to the Roma Street Station OIC position after her request for a review under the Act, the Appellant's FMR application is live in the current FMR process and she remains a prospective employee for the merit list that will be considered for current and future permanent supervisory positions in the preferred locations the Appellant identified. General [19] The FMR process was established as the mechanism to ensure the fair and transparent appointment of existing employees to supervisory roles, as operationally required. [20] QAS is fully cognisant of its obligations under the Act with respect to requests for appointment to a higher classification, and that these requests must be considered according to their circumstances on a case-by-case basis. -- 10 of 19 -- 11 [21] The QAS confirms that it considers the Appellant has met the requirement of having acted at a higher classification in the same role, being the position of OIC Roma St Station OIC (AT51) for at least 1 year, as required at s 120(1) of the Act. [22] The QAS confirms that it considers that the Appellant has been assessed as being suitable to perform the role as required at s 120(3) of the Act. [23] However, in regard to its obligation at s 120(4)(a) of the Act and clause 7.1 of the Directive, the QAS confirms its view that the Appellant's request for review was unsuccessful, only due to genuine operational requirements, with it being a genuine operational requirement for the QAS to retain the existing substantive position holder in the position for which the Appellant has sought a review and for the QAS to give necessary regard to the effective, efficient and appropriate management of public resources. [24] Had this position been genuinely vacant, notwithstanding the current FMR process, on the basis of the Appellant's request, the QAS would have been able to consider appointment to the position. [25] However, the position is not vacant, the Appellant cannot be appointed to it, and as it is not vacant, it is not a role that will be identified as part of the current round of FMR. [26] Further, in respect of its obligations at s 120(4)(b), this is the first request the Appellant has made under s 120 of the Act, and as such, there was no decision previously made requiring review. [27] The QAS reiterates its concession regarding its explanation of genuine operational requirements in its decision but submits that the decision to employ the Appellant in the position at a higher classification level on a permanent basis was, in all other respects, fair and reasonable. Appellant's submission in reply [28] The Appellant makes two submissions in reply – a. That the additional reasons provided by the Respondent do not form genuine operational requirements; b. In the alternative, the Commission ought to remit the decision to the Respondent, despite the Respondent raising additional reasons for the decision as the decision as made was not fair and reasonable. [29] The Appellant's further submissions in reply are summaries as follows – -- 11 of 19 -- 12 • The existence of a substantive position holder is a well-established genuine operation requirement. [see para 2 for multiple citations] The Commission must determine whether the position holder is in fact the substantive position holder. Indicia like whether there is an expected return date would support a finding that the position is substantively held, and in turn whether there is a genuine operational requirement. [Morison v State of Queensland.] • No evidence has been led in support of the assertion that there is a substantive position holder – the Commission is invited to rely on bar submission. Mr Brian Lehan is purportedly the substantive holder of the role. Mr Lehan left the role when the State Operations Coordination Centre first required the position of Senior Operations Supervisor (the SOCC role).13 • The SOCC role falls outside the scope of Queensland Ambulance Service Certified Agreement 2022 (CB/2023/9). Mr Lehan would not be able to apply for conversation to SOCC role, due to s 119(2)(c) of the PS Act. The Respondent's own evidence excludes the SOCC role from the FMR process. The Respondent has not advertised or implemented a hiring process for the SOCC role, to the Appellant's knowledge.14 There is no evidence before the Commission that the Respondent intends to rely on anything other than a perpetual secondment to fill the SOCC role. • There mere existence of a position holder should not be sufficient for making out that a genuine operational requirement exists under s 120(4)(a). To determine this, the Commission should interrogate whether there is in fact a reasonable expectation that the purported substantive incumbent will return to the position. Substantive has a plain meaning: real or actual; of considerable amount of quantity.15 The Commission should distinguish between acting positions that cover an extended period of leave where a substantive position holder is in fact expected to return, from positions where secondments are essentially used to permanently fill a position through repeated extensions. There should be an identifiable reason to support extensions, for example, the extension of parental leave, the acting employee covering another unrelated period of leave, or an identified project. • The Appellant has filled the OIC role for over 4.5 years. There is no indication that Mr Lehan is expected to return to the OIC role. The Respondent's assertion that the substantive position holder will resume their position on 23 October 2023 does not reflect the reality of the arrangement. The Appellant has provided evidence she is rostered to the OIC role beyond 23 October 2023, and this was known for at least 3 months. The Respondent's submissions that Mr Lehane is expected to return to the role is not factually correct and should not be accepted by the Commission without evidence that may be properly texted. • The submission that Mr Lehane is the substantive occupant is, in essence, a legal fiction. Based on this, the Commission could conclude there is in fact no expected return date for Mr Lehane. On this basis the decision should be remitted to the Respondent with direction that they are to consider the genuine operational requirements, including whether there is in fact an expected return date for the OIC role and that the FMR process does not constitute a genuine operational requirement. • In the alternative, the Respondent failed to provide reasons that considered the merits of the Appellant's application or advanced a genuine operational requirement. Their subsequent provision of operational requirements does not change the fact that the original decision is deficient.16 On this 13 Witness statement of the Appellant at [9] and [10]. 14 Ibid at [10]. 15 Macquarie Diction (Online edition), 'substantive', definitions 5 and 6. 16 See for example James v State of Queensland (Queensland Health) [2021] QIRC 207. -- 12 of 19 -- 13 basis, the decision should be set aside, and a redetermination ordered with directions that the FMR process does not constitute a genuine operational requirement. Respondent's further submissions [30] The Respondent provided further submissions in reply – • The higher classification position in question is position number 745849, OIC, Roma Street Station and is classified at Level 5 Bank 1 (AT51) • Officer Brian Lehane was transferred into this position on 2 November 2020. • At the time of his transfer, Mer Lehan had been successful in expressing an interest in a temporary rotation at-level role (not higher level) as a Sate Incident Management Room (SIMR) Logistics Office and continued in this position until 22 August 2021. In May 2021, the SIMR was restructured into the State Operations Coordination centre (SOCC). • Due to genuine operational requirements at the time, and in response to the COVID-19 Health Pandemic, Mr Lehane accepted a further at-level temporary rotation in a different role as an Operations Supervisor (COVID Supervisor) from 23 August 2021 to 30 October 2022. • From 31 October 2022 to the current time, Mr Lehan has been rotated at-level in a Senior Operations Supervisor Role with the SOCC. • For context, the SOCC is the major incident room where the QAS State Incident Management Team support regional operations. • Staffing levels necessarily fluctuate within the SOCC as required, depending upon the nature of the incident or event being managed. • A limited number of permanent positions are retained in the SOCC which support a larger number of rotating positions in which officers may be temporarily engaged and re-engaged, typically ranging from 3 to 12 month durations, depending on the role and any operationally emergent circumstances that may arise requiring a different duration. • Currently, there are 8 permanent roles in SOCC, and 18 operational positions on temporary rotations, with capacity to upscale to 74 officers as needed. The purpose of rotating officers through these roles is so that the QAS is able to respond to major emergency events, with the roles filled through both voluntary interest, and formal expressions of interest from officers interested in undertaking this work, with a view to having officers action-ready and available for these emergency events. • Given the current SOCC role in which Mr Lehane is engaged is on rotation only, and permanency cannot be offered due to the current nature of the engagement, the QAS reasserts that it is a genuine operational requirement M Lehans' substantive role of OIC at Roma Street Station be retained by him, as it is expected that he will return to it. • In reply to the Appellant's submission that the SOCC roles fall outside the scope of the Certified Agreement, the Respondent submits that this is incorrect as all positions in the SOCC except senior executive and administration officers) are operational roles that fall within scope of classifications covered by the Agreement -- 13 of 19 -- 14 • The positions in the SOCC are not quasi-permanent, they are designed to rotate amongst other officers and are essential to ensuring the QAS is service ready for any major emergency. • In respect to the Appellant's submissions that the Appellant has rosters beyond 23 October 2023, it is an industrial requirement to provide projected rosters at least 3 months in advance. The requirement to provide a projected roster, which are based on positions, should not be construed as indicating that a person performing higher duties will be extended. • Notwithstanding this, in its earlier submissions, the QAS foreshadowed the likelihood that Mr Lehan would be extended in his current rotation in the SOCC until the end of this year. • As conceded in earlier submissions, the QAS conceded the deficiencies in the decision letter, specifically in respect of its advice regarding the genuine operational requirements that prevent the Appellant from being appointed to the position, and respectfully requested that the Commission consider the genuine operational requirements outlines. Consideration [31] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable having regard to the requirements of the Directive and the PS Act. [32] Section 120(3) of the PS Act provides that a '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'. The decision outlined the following – I have been advised that you are not currently subject to any unresolved conduct or performance matters and as such you are considered suitable (as defined in the Directive) to perform the role. [33] The decision did not outline any concerns regarding the Appellant's suitability to perform the role and accordingly it is accepted that the Appellant satisfies s 120(3). Compliance with requirements of s 120(5) of the PS Act [34] Section 120(5) of the PS Act provides the following: 120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment (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 -- 14 of 19 -- 15 (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. [35] The decision provided by Mr Hill outlined the decision and the reasons for the decision. [36] Attached to the decision was an employment summary outlining the details surrounding the nine previous times that the Appellant had been acting in the higher classification level. Matters to which chief executive must have regard in accordance with s 120(4) [37] Section 120(4) provides the following: 120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment (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. Reasons for previous decisions [38] Section 120(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level. [39] In circumstances where no previous decision has been made or was deemed to have been made under this section, it was not unreasonable for the decision maker not to make specific reference to the absence of previous decisions. Genuine operational requirements [40] The Respondent outlined the following explanation of a genuine operational requirement preventing the conversion of the Appellant's employment to the higher classification position: … -- 15 of 19 -- 16 Unfortunately on this occasion, the authorised delegate has however determined that the genuine operational requirements of the QAS do not support the conversion of your employment at the higher classification level at this time. As you may be aware, the QAS has been consulting heavily with our workforce on the development of the QAS Workforce plan 2023-2028 to support the implementation of the QAS Strategy 2022- 2027. The QAS has invested significant resources in the development of the QAS Workforce Plan which is due to be released in July 2023. One of the objectives in the QAS Workforce Plan is for the QAS to ensure the leadership, development and capability needs of our workforce are aligned and meet the needs of our workforce, patients and the community. One of the focus areas within the QAS Workforce Plan is to ensure the pathways to leadership, development, growth and performance are clear, transparent and equitable. Over the last several years, the QAS has also received overwhelming staff and union feedback through various methods of engagement (such as, QAS Workforce Forums, Regional and Statewide Consultative Committees, and the Working for Queensland Survey) that the QAS needed to better utilise existing processes and systems to assure employees that promotion decisions are fair, transparent and based on clear criteria. In acknowledgement of these factors and to deliver on the expectations of our workforce, the QAS is delivering the new Frontline Manager Recruitment (FMR) process to ensure these outcomes through a consistent Statewide process for certain frontline supervisory roles. The FMR process is designed to allow all employees, who believe they are suitably experienced, a current opportunity to demonstrate their capabilities and personal attributes to an independent panel of peers and leaders. The QAS is committed to building an organisational culture that reflects the values of the QAS and this begins with recruiting the right people in these roles. Permanent appointment to regional frontline manager roles including Senior Operations Supervisor, Operations Supervisor, Officer in Charge, Senior Clinical Educator and Clinical Support Officers will be facilitated through the FMR process for the foreseeable future. Given the role you have been currently temporarily working in falls is identified above it is considered more appropriate to be permanently filled through the FMR process. Please be assured that the decision to not convert your employment at the higher classification level under the provisions of the Act is not a reflection of your performance in the role. It is expected that your experience temporarily working in this role will ensure you are competitive and well placed in the FMR process. [41] The term 'genuine operational requirements' has been the subject of many decisions by the Commission. Deputy President Merrell outlined in Morison v State of Queensland (Department of Child Safety, Youth and Women),17 the phrase '…genuine operational requirements', construed in context, would at least include consideration of the following: … whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who 17 [2020] QIRC 203. -- 16 of 19 -- 17 has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'18 [42] The difficulty with considering the 'genuine operational requirements' relied upon by the decision maker in this matter to deny conversion to permanency in the higher classification role is that the reasons given in the decision are entirely different to those outlined in the Respondent's submissions. [43] The decision maker outlined in the decision the following reason that the Appellant's request for conversion was denied – Permanent appointment to regional frontline manager roles including Senior Operations Supervisor Operations Supervisor, Officer in Charge, Senior Clinical Educator and Clinical Support Officers will be facilitated through the FMR process for the foreseeable future. Given the role you have been currently temporarily working in falls as identified above it is considered more appropriate to be permanently filled through the FMR process. [emphases added] [44] The Respondent's submissions concede that there were deficiencies in the decision regarding its advice as to the genuine operational requirements that prevented the Appellant from being appointed to the higher classification position. The Respondent notes the concerns raised by the Appellant as to the bearing of the FMR process on the decision. [45] The decision clearly stated that the reason the Appellant was not permanently appointed to the higher classification position was due to the adoption of the FMR process. As the role in which the Appellant was temporarily placed was one of the regional frontline manager roles, it was determined that permanent appointment would be facilitated through the FMR process 'for the foreseeable future.' [46] The adoption of a new recruitment process is not a genuine operational requirement that may be relied upon to deny conversion to a permanent higher duties position in circumstances where the employee otherwise satisfies the statutory criteria. Section 120 of the Act and the Directive are intended to facilitate conversion for employees who have been temporarily employed at a higher classification. The adoption of a new process may allow recruitment to particular positions to operate alongside the conversion process, but it is not a replacement for the conversion process. To deny conversion on the basis of the development of an agency recruitment process is contrary to the purpose of the relevant statutory instruments and cannot reasonably be considered a genuine operational requirement preventing conversion. [47] I note the Respondent's submission that the reasons the QAS refused the conversion have been comprehensively explained by the Respondent's submissions, and that the QAS is of the view that there would be little utility referring the matter back for redetermination, 18 Ibid [40]. -- 17 of 19 -- 18 citing Edwards v State of Queensland (Queensland Ambulance Service) ('Edwards').19 I note that in Edwards the Commission determined that the decision had provided enough information for the Appellant to understand why the decision maker refused to appoint her to a permanent position – I have reviewed the written decision provided to Ms Edwards and I am satisfied that the decision satisfactorily sets out findings on material questions of fact and makes reference to evidence or other material on which the findings were based. There is enough information contained in the letter for Ms Edwards to understand why the review of her employment resulted in a refusal to appoint her to a permanent position. [footnotes omitted] [48] The same cannot be said in this matter. The decision cannot be accepted as having set out relevant findings based on evidence if those findings were not in fact the reasons for the decision. The decision did not contain enough information, or it appears the correct information, for the Appellant to understand why the decision had been made to deny her appointment to the permanent position. [49] It is clear from the Respondent's submissions that an entirely different reason existed for the decision to not convert the Appellant's appointment. The Respondent's submission was that the Appellant was not converted because the substantive position was held by Mr Lehane who was currently working in a higher duties role elsewhere in the QAS. [50] The position of the substantive position holder and the likelihood of his return were not mentioned in the decision. The only reference to the return of the substantive position holder to the role occurred in the Respondent's submissions. [51] As noted by the Respondents, the refusal to convert an employee to a role in which there is an employee permanently employed and who is intending on returning to the role has generally been considered a genuine operational requirement that may prevent conversion of a temporary employee to that higher duties position. This is of course a general proposition that is dependent on the particular circumstances of each matter. The difficulty in this matter is that the return of the incumbent employee was not the reason provided to the Appellant. The Appellant should have been provided with the genuine reason that the conversion was denied. [52] The role of the Commission in public sector appeals is to determine if the decision made was fair and reasonable. It is not possible to conclude that the decision was fair and reasonable in this matter where the decision does not in fact convey the actual reason for the decision. Conclusion [53] In consideration of the material before the Commission and the submissions made by the 19 [2023] QIRC 247. -- 18 of 19 -- 19 parties, the decision cannot be accepted as fair and reasonable. Whilst decisions may be supported by more fulsome submissions on appeal, submissions cannot cure a decision that was made on the basis of reasons that were unfair and unreasonable. It is not in my view reasonable that entirely different reasons be relied upon in submissions to those which were provided to the Appellant at first instance. Where a written decision was provided, the Appellant was entitled to know the genuine reason that the conversion of her employment to the higher duties position was denied. [54] I order accordingly. Order Pursuant to the Industrial Relations Act 2016 (Qld) s 562C(1)(c), the decision is set aside. The decision is returned to the decision-maker with a copy of this decision on appeal and a direction that a fresh consideration of the Appellant's request to be appointed to the position at the higher classification be undertaken within 28 days. -- 19 of 19 --