Bode v State of Queensland (Queensland Health) [2022] QIRC 450

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bode v State of Queensland (Queensland Health) [2022] QIRC 450 PARTIES: Bode, Stephen (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/647 PROCEEDING: Public Service Appeal DELIVERED ON: 18 November 2022 MEMBER: HEARD AT: McLennan IC On the papers ORDER: The appeal is dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where appellant appeals a fair treatment decision about a higher classification conversion process – appeal dismissed LEGISLATION & OTHER INSTRUMENTS: Acts Interpretation Act 1954 (Qld) s 14A Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Service Act 2008 (Qld) s 149A, s 149B, s 149C, s 194, s 195, s 196, s 214B Statutory Instruments Act 1992 (Qld) s 7, s 14 Directive 07/20 Appeals cl 5 Directive 11/20 Individual employee grievances Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 3, cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11 -- 1 of 24 -- 2 CASES: Bode v State of Queensland (Queensland Health) [2022] QIRC 260 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Katae v State of Queensland & Anor [2018] QSC 225 Reasons for Decision Introduction [1] Mr Stephen Bode ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Senior Physiotherapist, Palliative Care at the Gold Coast Hospital and Health Service ('GCHHS'). [2] Mr Bode had been acting in a higher classification position as a HP5, Team Leader, Community Palliative Care from 18 January 2021 to 9 January 2022. [3] Mr Bode has embarked upon a process seeking the outcome to be permanently appointed "…to the Community Palliative Care Team Leader position or pay me HP5 to do my current job as a Senior Physiotherapist or find me a suitable HP5 position within the GCHHS."1 [4] It is noted that Mr Bode acted at the higher classification level for a period of time that was only about a week short of the "continuous period of at least 1 year" that he was required to do so, in order to request appointment to the position under s 149C of the Public Service Act 2008 (Qld) ('the PS Act'). [5] While email exchanges demonstrate Mr Bode certainly did consider whether or not to make an early request for appointment to the higher classification position, ultimately he did not do so. He has acknowledged that to be a matter of some regret. [6] However, in the absence of any such early request from Mr Bode, there was no corresponding requirement for the chief executive to formally 'decide it' having regard to the department's genuine operational requirements. As there was no 'request' by Mr Bode, there was no 'decision' about it to appeal in any case. [7] Significantly too, Mr Bode had not acted in the higher classification position for two years. Thus even if Mr Bode had made an early request for appointment to the higher 1 Appellant's submissions, 13 July 2022, 5. -- 2 of 24 -- 3 classification position, and that request had been formally decided and refused, he would have been precluded from appealing any such resultant decision under s 195(1)(j) of the PS Act. First Appeal [8] On 21 January 2022, Mr Bode filed an appeal notice, indicating that he was appealing against both a conversion decision and fair treatment decision with respect to the then vacant position of Team Leader, Community Palliative Care, GCHHS, pursuant to s 194 of the PS Act. [9] In deciding that first appeal on 6 July 2022, Industrial Commissioner Power concluded: …the Appellant's appeal against both a conversion decision and a fair treatment decision is misconceived on the basis that the Appellant has not acted in the higher classification position for two years and hence cannot appeal in accordance with s 195(1)(j) of the PS Act and further, the Appellant had not exhausted the employer's grievance procedure prior to filing the appeal. Consequently, the appeal is dismissed for want of jurisdiction.2 [10] Power IC's reasons for reaching her conclusions about the 'conversion decision' element of Mr Bode's first appeal are clearly explained at paragraphs [19] – [22] of her Decision and need not be repeated here. [11] With respect to the 'fair treatment decision' element of the first appeal, Mr Bode had complained both that: • his higher classification contract was not extended to prevent him from being eligible to make an application for appointment to the higher classification position; and • the selection process undertaken to permanently fill the Team Leader role was flawed, resulting in an unfair treatment of him. [12] Power IC observed that: …The difficulty with the Appellant's appeal against a fair treatment decision is that, on the material before me, the Appellant has not exhausted the grievance process in accordance with employer's grievance procedure or the Directive 11/20 Individual employee grievances ('Directive 11/20').3 [13] Mr Bode has since remedied that particular oversight, escalating his complaints through the grievance procedure ahead of filing this second appeal. Second Appeal [14] On 4 July 2022, Mr Bode filed a second appeal. That is the subject of this Decision. 2 Bode v State of Queensland (Queensland Health) [2022] QIRC 260, [29]. 3 Ibid [23]. -- 3 of 24 -- 4 [15] In the second Appeal Notice, Mr Bode indicated that he was both "appealing a promotion decision"4 and "appealing a fair treatment decision"5. Appealing a promotion decision [16] Section 562C(2) of the IR Act provides: In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act. [17] Section 194(1)(c) of the PS Act relevantly provides that a promotion decision may be appealed against: 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (c) a decision to promote a public service officer (a promotion decision); … [18] Section 196(c) of the PS Act describes who may appeal against a particular decision (emphasis added): 196 Who may appeal (c) for a promotion decision – a public service officer aggrieved by the decision who is entitled to appeal under a directive of the commission chief executive. [19] Section 214B of the PS Act states that the commission chief executive must make a directive that makes provision for: (i) the decisions, if any, against which an appeal may be made; and (ii) the persons who are entitled to appeal against a decision mentioned in section 194(1); and (iii) the directions, if any, the IRC may give under section 208(1)(b); and … Directive 07/20 Appeals ('Appeals Directive') fulfils the requirement that the commission chief executive must make such directive under s 214B of the PS Act. [20] The Appeals Directive, Directive 12/20 Recruitment and Selection ('Recruitment and Selection Directive') and Queensland Health Human Resource Policy Recruitment and Selection ('Recruitment and Selection Policy') are relevant here. [21] Clause 5.2(e) of the Appeals Directive provides that an appeal against a promotion decision may only be lodged if particular conditions are satisfied: 5.2 An appeal may only be lodged by the following persons: 4 Appeal Notice, 4 July 2022, Part A, 2. 5 Ibid 3. -- 4 of 24 -- 5 … (e) for a decision under section 194(1)(c) of the PS Act (promotion decision)—a tenured general employee or public service officer aggrieved by the decision (an aggrieved officer), provided the following conditions are met: (i) the decision relates to the gazetted promotion of a public service officer or tenured general employee (ii) the aggrieved officer's application to the role being appealed was received on or before the deadline for the receipt of applications or in the case of continuous applicant pools, the application was received prior to the date of distribution to the selection panel for the relevant promotion (iii) the aggrieved officer has sought post-selection feedback in accordance with the provisions of the directive relating to recruitment and selection, and (iv) for an appeal against a promotion from a limited advertising process conducted in accordance with the directive relating to recruitment [22] Mr Bode did not confirm whether or not those particular conditions for appealing a promotion decision had been met upon filing the second appeal, as required. [23] Neither did Mr Bode supply information necessary to enable consideration of the entirety of those matters. [24] In light of that omission, I am unable to determine any "appeal of a promotion decision". Appealing a fair treatment decision [25] Mr Bode's subsequent submissions clarified his intentions to be (emphasis added): I would like an external review to be conducted by the QIRC relating to fair treatment around a conversion to Higher Duties for the permanent Team Leader for Community Palliative Care and the Team Leader for the Specialist Palliative Care Rural and Remote Telehealth Service (SPARTA). I believe my higher duties contract within the Community Palliative Care Team leader position was not extended to preclude me from meeting eligibility requirements to make application for appointment to the Community Palliative Care Team leader position or the Team Leader for SPARTA. I have exhausted the internal review process within QLD health and am now seeking an external review…6 [26] Mr Bode contended that the unfair treatment included: • his higher classification contract was not extended to prevent him from being eligible to make an application for appointment to a position at the higher classification. (That is, either the Community Palliative Care Team leader position or the Team Leader for SPARTA); • he was not given the opportunity to apply to be appointed to a higher classification; and • the HP5 Community Palliative Care Team Leader role was not readvertised and was instead filled through closed merit. That flawed process resulted in unfair treatment of him. [27] I will proceed now to consider Mr Bode's fair treatment appeal. 6 Appellant's submissions, 13 July 2022, 1. -- 5 of 24 -- 6 Appeal principles [28] The appeal must be decided by reviewing the decision appealed against.7 As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.8 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,9 but involves a review of the decision arrived at and the decision making process associated therewith. [29] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.10 Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. Submissions [30] The Appeal Notice was filed on 4 July 2022. [31] A further Appeal Notice was filed on 7 July 2022. [32] The Appellant's submissions were filed on 13 July 2022. [33] The Respondent's submissions were filed on 22 July 2022. [34] Neither party sought leave to make further written or oral submissions. Appellant's submissions [35] Mr Bode submits that his higher classification contract was not extended in order to preclude him from meeting the eligibility requirements to make an application for appointment to the higher classification positions of either the Team Leader position at Palliative Care or the Specialist Palliative Care Rural and Remote Telehealth Service ('SPARTA'). [36] Mr Bode submits that the decision not to offer him further contracts while the recruitment process was being undertaken was not fair and reasonable because he had already had seven contract extensions in approximately 12 months. [37] Mr Bode stated that there is an ongoing need for both roles. [38] Mr Bode stated "there were no concerns were raised about my work performance throughout the almost 12 months of team leader in both the Community Palliative Care Team and while I worked as the team leader for the SPARTA." [39] Mr Bode noted that he "interviewed for the permanent Community Palliative Care Team Leader position in August 2021 but did not make merit". He stated that the feedback 7 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 8 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 9 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 10 IR Act s 562B(3). -- 6 of 24 -- 7 received "was centred around some minor wording that could be improved when I could re-interview for the position" and that he nonetheless continued in the role for several months. [40] Mr Bode contended that when his contract ended on 9 January 2022, the acting Team Leader for SPARTA was asked to increase their hours from 0.7FTE to 1.0FTE from 10 January 2022 to 18 January 2022. Mr Bode submits that the increase in hours was to cover both the Team Leader roles at Palliative Care and the SPARTA which is supposed to be a total of 1.7FTE. Mr Bode submits that this is unfair because that staff member did not interview as part of an expression of interest process. Mr Bode also contends that is unfair because that staff member "is covering 1.7 FTE while working in both team leader roles." [41] Mr Bode stated that the decision maker, Ms Stephanie Thompson, Nursing Director, had not considered the genuine operational requirements of the department as required by s 149C(4A)(a) of the PS Act in that "both Team Leader positions are likely to be ongoing and there is a continuing need for a person to be employed in both Team Leader roles". Mr Bode further noted that both positions have permanent funding and were vacant at the time of the appeal. [42] Mr Bode submits that a pause on the HP5 recruitment within GCHHS is another flaw in the process. He wrote: …I was advised on 4/1/2022, only a few days before my contract end date, that the position would likely be going to one of the disbanded workers from the Workforce Development Team. This indeed was the case and since my Conversion to Higher Duties appeal through the QIRC and internal appeal within QLD Health, QLD health elected to permanently appoint the Team Leader of Community Palliative Care from this supposedly disbanded team. The Community Palliative Care Team Leader position should not have been filled by this unfair process as it is now evident that the Workforce development team at GCHHS had vacant HP5 positions during this whole process. The proof of this is that (the staff member's) previous HP5 position within the workforce development team had been readvertised on 28/4/2022 after (they were) recruited to the Permanent Team Leader of Community Palliative Care in March 2022. [43] Mr Bode complained that he was not encouraged by either Ms Thompson or other GCHHS HR staff "to submit the necessary paperwork for higher duties conversion", despite asking whether or not he should do so. Mr Bode stated "…in my opinion HR and the GCHHS did not act in my best interest and this was misleading to my potential appeal for a higher duties conversion. However, Mr Bode goes on to refer to a 'Stage 1 Grievance' response letter sent to him by Ms Thompson which reads: As you had not been acting in the Team Leader (HP5) role for a continuous period of at least 12 months, you are deemed ineligible to be able to make application for appointment to this role under the provisions contained in the Appointing a public service employee to a higher classification level Directive 13/20. A copy of Directive 13/20 is attached for your reference.11 Mr Bode asserted that Ms Thompson "was not the suitable delegate to do so". 11 Correspondence from Ms Thompson to Mr Bode, 16 February 2022, 1. -- 7 of 24 -- 8 [44] Mr Bode further explained that he regrets not submitting the higher duties conversion request form, even though there was a question asking whether he has acted in the higher classification role for 12 months and that if 'no' was selected, that the application would not be progressed. [45] Mr Bode considered it was unfair that whilst an application may be made to be appointed to the higher classification position after 1 year, any decision to refuse conversion could only be appealed after 2 years. [46] Mr Bode stated that he had applied for two HP5 positions (one application was made for a position with GCHHS on 26 April 2022, the other with another HHS) in recent months but was as yet unsuccessful. On that basis, he rejected Mr Ron Calvert's12 statement that: …there are no provisions under any Queensland Health Policy or industrial instrument which provides me with the delegation to directly appoint you to another HP5 position within the Health Service or pay you at the level of HP5 until a suitable role becomes available as you have not applied for any other HP5 vacancy.13 Respondent's submissions [47] The GCHHS submitted that no decision was made regarding an application to appoint Ms Bode to a higher classification, as he did not make any written request in accordance with cl 4 of Directive 13/20 Appointing a public service employee to a higher classification level and s 149C(3) of the PS Act. [48] GCHHS contended that even if a decision had been made to refuse conversion, Mr Bode could not appeal it because he had not been so engaged for two years at the higher classification level. [49] In the alternate, there were genuine operational reasons not to appoint Mr Bode to a higher classification. [50] GCHHS noted that Mr Bode has never held the position of Team Leader, SPARTA - "When the role has been vacant, he has supported with some of the duties but has never been required to undertake the full scope and duties of both Team Leader CPC and SPARTA at the same time." [51] GCHHS stated that Mr Bode applied for the permanent HP5 position in July 2021 but was unsuccessful at that time - "Feedback was provided and he was advised he would be able to reapply when the role was re-advertised. Mr Bode's contract was extended to 12 Mr Ron Calvert holds the position of Chief Executive, Gold Coast Hospital and Health Service. 13 Correspondence from Mr Calvert to Mr Bode, 29 June 2022, 4. -- 8 of 24 -- 9 provide him further opportunities to develop his experience at the HP5 level and to support his application when the role was re-advertised." [52] GCHHS explained that when a Workforce Development Officer (WDO) change process commenced within the Allied Health team at GCHHS, recruitment for all HP5 level roles was placed on hold. [53] On 1 December 2021, Ms Thompson advised Mr Bode that "his HP5 position that was due to end on 19 December 2021 would be extended until 9 January 2022" and further that "she would assist him in securing a mentor for interview coaching and general leadership." It was submitted that "Ms Thompson was going to allow Mr Bode's contract to come to its natural end on 19 December 2021, however, in recognition of his time in the role, decided to extend Mr Bode's contract to 9 January 2022 so he would benefit of the additional penalties at the HP5 rate over the Christmas and New Year period and to be paid his leave at the HP5 rate too." [54] In December 2021, the WDO change process was subject of dispute and agreement reached at the QIRC for the displaced HP5 WDOs to be considered first for any current vacant HP5 position across GCHHS, in accordance with its obligations under Queensland Health HR Policy B36 Employees Requiring Placement and PSC Directive 18/20 Supporting employees affected by workplace change. [55] "On 4 January 2022, Ms Thompson met with Mr Bode to advise as a result of the agreement reached, the Team Leader CPC role would not be readvertised and would be filled through a closed merit process to those employees impacted by the change process." [56] In correspondence to Mr Bode, Mr Calvert summarised the situation as follows: - You hold a permanent substantive position at the level of HP4 with Queensland Health - You have not met merit through a recruitment process for a HP5 level role - You are currently not undertaking or meet the length of service requirements to be Appointed to a Higher Classification position - You are not subject to a workplace change which has identified you as an Employee Requiring Placement (ERP). If you were identified as an ERP, the Health Service would only be able to consider you for roles at your substantive level of HP414 [57] "The GCHHS submits the matters raised by Mr Bode were not supported by any legislation, policy, procedure or other industrial instrument but were based on his own opinion." Relevant provisions of the PS Act and Directive 13/20 [58] The legislative scheme for the review of a decision to convert an employee to a higher classification level is contained in the IR Act, PS Act and in Directive 13/20. 14 Correspondence from Mr Calvert to Mr Bode, 29 June 2022, 4. -- 9 of 24 -- 10 [59] Section 149C of the PS Act provides (emphasis added): 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee— (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. (2) However, this section does not apply to the following public services employees— (a) a casual employee; (b) a non–industrial instrument employee; (c) an employee who is seconded to or acting in a position that is ordinarily held by a non–industrial instrument employee. (3) The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after— (a) the end of 1 year of being seconded to or acting at the higher classification level; and (b) each 1–year period after the end of the period mentioned in paragraph (a). (4) The department's chief executive must decide the request within the required period. (4A) In making the decision, the department's chief executive must have regard to— (a) the genuine operational requirements of the department; and (b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level. (5) If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person's engagement at the higher classification level has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level. (6) If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. (7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section. (8) In this section— continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7). -- 10 of 24 -- 11 required period, for making a decision under subsection (4), 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. [60] Further, s 194(1)(e)(iii) of the PS Act provides (emphasis added): 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (e) a decision (each a conversion decision)— … (iii) under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years; [61] Directive 13/20 relevantly provides: 3. Application 3.4 The requirement to advertise roles in Directive 13/20 relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive. 4. Principles 4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive. 4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: (a) when an existing employee takes a period of leave such as parental, long service, recreation or long–term sick leave and needs to be replaced until the date of their expected return (b) when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles (c) to perform work for a particular project or purpose that has a known end date (d) to perform work necessary to meet an unexpected short–term increase in workload 4.3 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. 5. Employee may request to be appointed at the higher classification level -- 11 of 24 -- 12 5.1 Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer. 5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must: (a) have been seconded to or assuming the duties and responsibilities of the higher classification level (b) for a continuous period of at least one year (c) be eligible for appointment to the higher classification level having regard to the merit principle. 5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level: (a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and (b) each subsequent year where the employee continues their engagement at the higher classification level in the same role. 5.4 An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy. 5.5 The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause. 6. Decision making 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle. 6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to: (a) the genuine operational requirements of the department, and (b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level. 6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement. 6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act. 7. Statement of reasons 7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix -- 12 of 24 -- 13 A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954: (a) set out the findings on material questions of fact, and (b) refer to the evidence or other material on which those findings were based. 7.2 A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3. 8. Appeals 8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level. 8.2 In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years. 9. Exemption from advertising 9.1 Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive. 10. Transitional provisions 10.1 Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer. 11. Definitions Agency has the meaning provided in clause 3.3 of this directive. Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power. 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 level in the same role, in the same agency. Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level. Non–industrial instrument employee has the meaning given under the Industrial Relations Act 2016. Public service agency means a department or public service office as provided for in section 49A of the PS Act. Secondment has the meaning given under section 120(1)(a) of the PS Act. -- 13 of 24 -- 14 Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed. [62] Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).15 [63] Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective. [64] The stated purpose of Directive 13/20 is: 1. Purpose 1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non–industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. 1.2 This directive: (a) highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level (b) supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle (c) sets out procedures for requests and decisions.16 Interpretation of 'the position' [65] Before assessing whether there are any genuine operational requirements of the Department that may prevent a higher classification conversion request, the question of the actual position must be settled. [66] Section 149C(1)(c) of the PS Act provides that s 149C applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the Department to permanently appoint Mr Bode is confined to the position into which he has been placed at the time of any review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level. [67] In that way, 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. 15 Katae v State of Queensland & Anor [2018] QSC 225, [26]. 16 Directive 13/20 Appointing a public service employee to a higher classification level cl 1. -- 14 of 24 -- 15 [68] The question then becomes: what is the higher classification position that the employee is acting in at the time of any higher classification conversion request? They are not acting in a generic position, but rather a particular position with a specific position name, classification and number. At the point the position in which Mr Bode was acting is permanently filled, the successful candidate would be appointed to that precise position. [69] The outcome Mr Bode seeks through the filing of his appeal is to be permanently appointed "…to the Community Palliative Care Team Leader position or pay me HP5 to do my current job as a Senior Physiotherapist or find me a suitable HP5 position within the GCHHS." That means Mr Bode seeks to be permanently appointed to either the higher classification position that he was acting in for less than 12 months – or a different position entirely – or to be paid at the higher classification level for performing his substantive position. Each of these requested outcomes will be considered below. [70] Section 149C of the PS Act, in concert with Directive 13/20, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State. [71] By way of contrast, a broader ambit is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same. Following the review, the department's chief executive may "offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number. [72] The language of s 149C is narrower: the employee may ask the Department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer. That does not empower the Department's chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time. [73] The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad–ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They pointedly did not do so. [74] Clause 1.2(b) of Directive 13/20 provides that it "supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for -- 15 of 24 -- 16 one year and is eligible for appointment having regard to the merit principle". At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of Directive 13/20 as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Clause 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for Directive 13/20. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by Directive 13/20. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within s 149C of the PS Act. That same reasoning applies to a number of similar clauses in Directive 13/20, which use terms such as 'role', 'a position' and the like. It is relevant to note that the word 'role' does not actually appear in s 149C at all. [75] To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review. [76] In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been acting in at the time of requesting the review. [77] It follows that the position the subject of any potential review would have been the precise HP5 position of Community Palliative Care Team leader that Mr Bode was acting in. I accept there may well have been more than one at–level position in the team, including the (then vacant) SPARTA Team leader position. However, Mr Bode would only have been able to be appointed to the position he occupied – if he had in fact been eligible to take the step of applying for higher classification level conversion at all. Neither was the case. [78] In reviewing whether or not the actions of GCHHS were fair and reasonable, it is apparent that the position is that of Community Palliative Care Team leader. [79] That reasoning was followed in Holcombe v State of Queensland (Department of Housing and Public Works).17 The words 'the position' must be given effect. Consideration [80] Consideration of an appeal of this kind requires a review of the decision to determine if it was fair and reasonable. [81] There is no dispute about the fact that Mr Bode was acting in the higher classification position of HP5 Team Leader, Community Palliative Care from 18 January 2021 to 9 January 2022 – and that he was engaged on seven successive contracts during that time. 17 [2020] QIRC 195. -- 16 of 24 -- 17 Higher classification conversion [82] I acknowledge that Mr Bode is not specifically appealing a higher classification conversion decision here but rather "a fair treatment decision around a Conversion to Higher Duties Process for the previously vacant permanent position for the Team Leader of the Community Palliative Care Supportive and Specialist Palliative Care Service Gold Coast Hospital and Health Service." [83] It is clear that the core of his residual discontent is steeped in that particular matter. [84] The concerns canvassed by Mr Bode in his first and second appeals are of a similar flavour, so I will first address some of the apparent misconceptions about that process that persist. [85] As explained by Power IC in her earlier decision, s 195(1)(j) of the PS Act makes clear that: …The Appellant's standing to bring a conversion appeal does not arise until such time the Appellant has been seconded to or acting at the higher classification level for a continuous period of two years.18 [86] Power IC further commented that: …This timeframe is also contained in cl 8.2 of Directive 13/20 Appointing a public service employee to a higher classification level. Regardless of whether the Appellant was able to request conversion after acting in the higher classification position for one year, the Appellant is prevented from appealing any conversion decision on the basis that he has not been employed at the higher classification level for two years. I note that even if the Appellant had applied to have his employment converted, s 149C(1)(b) of the PS Act provides that conversion to a higher classification level may occur if the employee has occupied the higher duties role for a period of at least one year. This timeframe is not variable or discretionary and is a statutory requirement. In the event that the Appellant had applied for conversion, it would have been incumbent upon the Respondent to advise the Appellant that he was not eligible for conversion on the basis that he did not meet the minimum time requirement.19 [87] I concur with Power IC's assessment of the relevant provisions and its application. [88] Quite simply, Mr Bode did not make an application for higher classification conversion. So GCHHS did not make a decision to refuse it. There was no 'higher classification conversion decision'. [89] No matter how close Mr Bode was to the required 1 year acting at the higher classification level, the mandatory timeframe was not met. That means that it was not open to Mr Bode to ask the chief executive to appoint him to the position at the higher classification level under s 149C(3) of the PS Act. [90] That is rather a moot point anyway because even if Mr Bode had acted at the higher classification level for 1 year; had made an application for higher classification 18 Bode v State of Queensland (Queensland Health) [2022] QIRC 260, [19]. 19 Ibid [21] – [22]. -- 17 of 24 -- 18 conversion; and that application had been refused - he would still be unable to appeal it because he had not acted at the higher classification level for 2 years.20 [91] Mr Bode remains dissatisfied with the reality of the legislative provisions, musing that: From my recent QIRC appeal PSA/2022/90 I am also disappointed to become aware according to Section 195(1)(j) of the PS Act that essentially employees cannot appeal a conversion to higher duties decision unless they have been in a higher duties role for at least TWO years. I am of the opinion this does not fit with section 149C(1)(b) of the PS Act that provides that conversion to a higher classification level may occur if the employee has occupied the higher duties role for a period of at least ONE year. I don't believe it is fair that an employee can apply for a conversion to higher duties after ONE year in a particular higher duties role, but cannot appeal a decision around a higher duties conversion decision unless they have been in that higher duties position for at least two years. This sets up the employer to decline employees' applications unless they actually reach two years of service in the particular role. This should be reviewed at a higher level.21 [92] I have no doubt that the above commentary is Mr Bode's genuinely-held personal opinion. However, the provisions of the PS Act are the recent and current expression of the legislature. For GCHHS to do just that does not mean Mr Bode has been treated unfairly. That is what the decision-maker must apply. That is also what the Commission must mind in determining whether GCHHS acted fairly and reasonably in this case. With respect to Mr Bode's conclusion that "This should be reviewed at a higher level", it is unclear to whom that remark is directed. That is not the function of either the Commission or Queensland Health. Amending legislation is a matter for parliament. [93] Having absorbed Power IC's explanation of why his first appeal could not succeed, Mr Bode appears to have pivoted to the complaint of unfair treatment within that process more broadly in this second appeal. Fair treatment decision [94] Mr Bode considered the following to have constituted unfair treatment: a) his higher classification contract was not extended to prevent him from being eligible to make an application for appointment to a position at the higher classification - either the Community Palliative Care Team leader position or the Team Leader for SPARTA. That "was not fair and reasonable as there was and still is an ongoing need for both roles to be filled. When my contract ended on 9/1/2022 I was 5 days short of reaching the 12-month milestone making me ineligible for a permanent HP5 Team Leader position within QLD health";22 b) he was not given the opportunity to apply to be appointed to a higher classification; and 20 Public Service Act 2008 (Qld) s 195(1)(j). 21 Appellant's submissions, 13 July 2022, 5. 22 Correspondence from Mr Bode to Mr Calvert dated 26 May 2022, page 2. -- 18 of 24 -- 19 c) the HP5 Community Palliative Care Team Leader role was not readvertised and was instead filled through closed merit. That flawed process resulted in unfair treatment of him. [95] Mr Bode also identified these further issues: d) absolutely no concerns were raised with him about his work performance; e) Ms Thompson did not consider the genuine operational requirements of the department, as required by s 149C(4A) of the PS Act; f) the SPARTA Team Leader position has had recurrent funding from early this year; g) appointing the disbanded workers from the WDO team to the Team Leader CPC role was an unfair process and should not have been filled this way; h) the advertising of the WDO HP5 role on 28 March 2022 is evidence to support that GCHHS had vacant HP5 positions during the whole WDO change process; i) repeated contract extensions after failing a permanent interview process in August 2021; j) at no stage did Ms Thompson or HR encourage Mr Bode to submit the necessary paperwork for higher duties conversion / communication around paperwork submission for conversion to higher duties; k) Ms Thompson refused to convert Mr Bode to the higher classification position, even though she did not have the delegated authority to make that decision; l) Ms Katherine Richards covered two Team Leader roles denying Mr Bode's opportunity to reach a 12-month milestone; m) outcomes sought as being either to appoint Mr Bode to Community Palliative Care Team Leader position, pay Mr Bode HP5 to do current substantive HP4 role or find him a suitable HP5 position within GCHHS; and n) it is incorrect that there are no provisions for Mr Calvert to directly appoint Mr Bode to a HP5 position. [96] A useful starting point is to reflect on the analysis of s 149C of the PS Act, as explained above. Specifically, the defined parameters by which one may request appointment "to the position" at the higher classification level. [97] That is most significant because Mr Bode was acting in the higher classification position of Community Palliative Care Team Leader for a period just short of the required 1 year. If Mr Bode's contract had been extended, so that he had continued to act in that particular position for the required minimum period, he would have met that mandatory application requirement under s 149C(3)(a) of the PS Act at least. -- 19 of 24 -- 20 [98] However, as Mr Bode was never offered a contract acting in the different and separate position of SPARTA Team Leader, he would not have been able to request conversion to that particular higher classification position under s 149C of the PS Act - whether he met the "12-month milestone" anniversary or not. That was not the position that he was acting in. Doing some duties of the position while it was vacant is not the same thing as undertaking the full scope required of it by acting in it. The fact that Mr Bode's contract was not extended to enable him to reach at least 1 year acting in the position of Community Palliative Care Team Leader HP5 had absolutely no bearing on preventing him from making application for conversion to the higher classification position of SPARTA Team Leader. The two are not the same position. [99] For those reasons, Mr Bode was only ever in the hunt for the particular higher classification position of Community Palliative Care Team Leader HP5, through the s 149C conversion mechanism pathway within the PS Act. [100] There are then the hurdles of both "at least 1 year" and "merit" to clear. [101] Mr Bode considered it was unfair for GCHHS to prevent him from acting in the Community Palliative Care Team Leader position for at least 1 year, as his contract ended just over a week before then. I disagree. [102] GCHHS submitted that "There is no obligation to extend a secondment beyond its natural end date."23 That is correct. [103] GCHHS noted that "On 1 December 2021, Ms Thompson met with Mr Bode to advise his secondment, which was due to come to its natural end on 19 December 2021, would be extended and now end 9 January 2022." Ms Thompson decided to extend Mr Bode's contract into January "so he would benefit of the additional penalties at the HP5 rate over the Christmas and New Year period and to be paid his leave at the HP5 rate too."24 That cannot be characterised as unfair. In my view, Ms Thompson has gone out of her way to be accommodating. Had she not decided to take this approach, Mr Bode would have been weeks (not days) away from acting in the position for 1 year. [104] Later in January 2022, Mr Bode further complained that had he known earlier that a "new closed merit process is now occurring", "I also probably would have applied to take some recreation leave prior to knowing that I would not have been able to reapply for the permanent position. That way I would have received the Recreation Leave at the higher HP5 level that I would have been entitled to."25 With the benefit of hindsight, one may make any number of decisions differently. That is a case of simple regret - not unfair treatment that can be sheeted home to GCHHS. [105] There is also the issue of merit to consider. Section 149C(1)(c) of the PS Act specifies that the provision applies in relation to a public service employee if they are "eligible for appointment to the position at the higher classification level having regard to the merit principle." Mr Bode asserted that "Over the almost 12 months acting in the Team Leader position, I received no complaints or concerns regarding my work performance."26 23 Queensland Health Secondment HR Policy B42, Sch 1, s 3; Respondent's submissions, 22 July 2022, 3. 24 Respondent's submissions, 22 July 2022, 3. 25 Correspondence from Mr Bode titled "Employee Complaint Form", 21 January 2022, 1. 26 Ibid. -- 20 of 24 -- 21 However, Mr Bode does accept that he "interviewed for the permanent Community Palliative Care Team Leader position in August 2021 but did not make merit…" I note that post-interview feedback was provided to Mr Bode, though he relegated that to be "nothing too significant"27. In addition, the Respondent has submitted that "Whilst no formal performance management process was initiated with Mr Bode, Ms Thompson provided regular feedback to Mr Bode on his performance and highlighting areas of improvement on numerous occasions." Examples were provided. The relevance of this discussion is that even if Mr Bode's higher classification position contract was extended to enable him to have acted at HP5 level for at least 1 year, he needed also to be eligible to appointment to the higher classification level having regard to the merit principle. [106] In a similar vein, whilst Mr Bode asserted his contract acting in the position was repeatedly extended despite failing a permanent interview process in August 2021, I cannot see how this was in any way unfair to Mr Bode. The opposite appears to be the case. In circumstances where Mr Bode had not met merit for permanent appointment to the position, he continued to act in it to build his experience, support his development for future applications at the HP5 classification level and be paid at the higher rate. One struggles to find offence in any of that. [107] Mr Bode has also contended that GCHHS's failure to extend his contract in the position of Community Palliative Care Team Leader "was not fair and reasonable as there was and still is an ongoing need for both roles to be filled. Whether or not there is an "ongoing need for both roles" is not a mandatory decision criteria under s 149C of the PS Act. Whether or not there is a "continuing need for someone to be employed in the person's role, or a role that is substantially the same" is a relevant consideration where a fixed term temporary employee or casual employee seeks conversion to permanent employment in the circumstances outlined at s 149A of the PS Act – but that is entirely different. Mr Bode appears to have confused and conflated the two separate sections of the PS Act, applying to different circumstances. [108] Mr Bode has also alleged that unfairness resulted from failure to give appropriate consideration to the genuine operational requirements of the department, in determining not to extend his higher classification position contract beyond 9 January 2021. The requirement to consider "genuine operational requirements" comes into play under s 149C(4A)(a) of the PS Act when the chief executive must make a decision on an employee's request to appoint them to the position at the higher classification level. [109] As outlined earlier in this Decision, Mr Bode acknowledged that he did not make application for higher classification conversion, stating "…I decided to not submit the paperwork. I regret that decision."28 There was no application. [110] The GCHHS submission correctly asserts that there can be no 'decision' to refuse a higher classification conversion request in the absence of an application from Mr Bode. There was no decision. 27 Ibid. 28 Appellant's submissions, 13 July 2022, 3. -- 21 of 24 -- 22 [111] Therefore, although GCHHS has submitted that it did consider that element when making decisions to extend Mr Bode's contracts, there was no requirement to do so under s 149C(4A) of the PS Act. [112] In a related sense, Mr Bode's assertion that the SPARTA Team Leader position had recurrent funding from early this year is of little consequence as a particular position's funding status is not a mandatory criteria for deciding higher classification conversion applications; Mr Bode made no such application; and Mr Bode was not acting in the position of SPARTA Team Leader in any case. [113] Mr Bode asserted that "When my contract ended on 9/1/2022 I was 5 days short of reaching the 12-month milestone making me ineligible for a permanent HP5 Team Leader position within QLD health."29 Relevantly, acting at the higher classification level for less than 12 months does not prevent one applying for a permanent HP5 Team Leader position within QLD health – indeed, Mr Bode has gone on to say that he has since made such application both within GCHHS and with another HHS. As earlier explained, acting at the higher classification level for a period less than 1 year is only one of the mandatory criteria that has prevented Mr Bode from applying for appointment to a higher classification position under s 149C of the PS Act – merit is also a key consideration here. [114] Mr Bode complained that he was not advised by Ms Thompson and HR officers whether or not to lodge an application under s 149C of the PS Act. Mr Bode stated that question sent via email on 6 January 2022 remained unanswered. He therefore asserts he was unfairly denied the opportunity to apply to be appointed to a higher classification position. [115] GCHHS submitted that Mr Bode "has been provided with a significant amount of support and advice to enable him to decide to submit an application. A minimum of three (3) meetings were held with Mr Bode, to provide him advice on his enquiry…" Dates and the various attendees at each of the three meetings were then detailed. That has not been disputed by Mr Bode. [116] In my view, Mr Bode's career decisions are a matter for him. Mr Bode had access to both the PS Act and Directive 13/20, as well as the benefit of several meetings with Ms Thompson and various HR officers. It is not unreasonable that a HP5 aspirant inform themselves of the process they are considering embarking upon, including the mandatory decision criteria and requirements for applying for conversion to a higher classification position. It was also open to Mr Bode to obtain such advice from other avenues, such as from his union or a lawyer. He has not indicated that he took any such steps to obtain any such further advice. [117] Mr Bode stated "If HR and Stephanie Thompson had told me I have a right to apply even in the current circumstances of being a few days short I would have done so." I suspect that Mr Bode was not encouraged to apply because the minimum timeframe for conversion applications under s 149C of the PS Act are mandatory requirements at least. That is a not a general guideline - but a specific period of time that the legislature has determined. No wriggle room is allowed for being "a few days short." It would be unkind 29 Correspondence from Mr Bode to Mr Calvert, 26 May 2022, 2. -- 22 of 24 -- 23 to encourage Mr Bode to spend the time preparing and submitting an application that did not meet the mandatory conditions for approval. I note that Ms Thompson and the HR Officers did not so unduly encourage Mr Bode along an unwinnable path. That was appropriate in the circumstances. [118] Somewhat contradictorily, Mr Bode then later asserted that "…I actually remember Stephanie Thompson saying you could put in the conversion to higher duties paperwork but it likely won't be approved. I am now aware she doesn't have the delegation to say whether or not it would be approved and she should have told me to put the necessary paperwork in for assessment by the appropriate delegate." It is odd that Mr Bode is critical of Ms Thompson on the one hand for not advising him – and then on the other hand for saying he could submit the conversion application but it likely won't be approved. That particular challenge appears to be quite unfair to Ms Thompson. She was quite measured in telling Ms Bode that a higher classification conversion application in such circumstances would be unlikely to be approved, but that he could have a go if he liked. The clear message from Ms Thompson was that the ball was squarely in Mr Bode's court. [119] The reality though is that an application would surely not be approved in circumstances where the mandatory criteria was not met. With respect to the complaint as to whether Ms Thompson had the appropriate delegation to make that statement, Mr Bode was clearly pressing her for career advice and by that stage she gave him her view. It was not a matter of having the appropriate delegation to decide any higher classification conversion request, as Mr Bode had not made one. [120] Mr Bode has also asserted that he was unfairly treated because a flawed process resulted in the HP5 Community Palliative Care Team Leader role not being readvertised and instead filled through closed merit. I do not agree that Mr Bode was treated unfairly, for the reasons that follow: • Mr Bode had applied for the permanent position in August 2021 and had not made merit; • Mr Bode did not have the required time acting in the position to apply for higher classification conversion under s 149C of the PS Act; • the organisational change process in Allied Health resulted in the reduction of FTE in the HP5 WDO position and changes to the role description. GCHHS must comply with many legislative requirements, industrial instruments, Directives and Policies – not only those pertaining to Higher Classification conversion application, but obligations to employees requiring placement affected by workplace change as well. That was the case here. By agreement reached before the QIRC, disbanded employees who were already HP5 required placement. I am satisfied with GCHHS's explanation of that process, the placement of affected employees and the circumstance of the vacancy that was later advertised in March 2022. I consider that priority placement of disbanded employees in the first instance was eminently appropriate; and -- 23 of 24 -- 24 • Mr Bode held a permanent substantive position at HP4 level within Queensland Health. He was not such an Employee Requiring Placement (ERP). [121] Finally, Mr Bode has filed this appeal seeking the outcome of either: …appoint me to the Community Palliative Care Team Leader position or pay me HP5 to do my current Job as a Senior Physiotherapist or find me a suitable HP5 position within the GCHHS.30 [122] In my view, each of those demands are unreasonable because: • Mr Bode has not made application for Higher Classification conversion under s 149C of the PS Act for appointment to the Community Palliative Care Team Leader position. Even if he had done so, Mr Bode has not met the mandatory criteria for conversion; • Mr Bode applied for the position back in August 2021 but did not make merit at that time. He has since benefited from longer time in the position and leadership support that should enhance his prospects of successful application in the future, should the feedback provided be taken on board; • S 149C of the PS Act gives the chief executive power to appoint to the position, if the mandatory criteria are met and having regard to the genuine operational requirements of the department. There is no such power to appoint to any other position that may be available or created at HP5 level in GCHHS; • the chief executive of GCHHS does not have the power to appoint Mr Bode to a HP5 position in another HHS; • it is open to Mr Bode to apply for any higher classification position vacancies on merit; • Mr Bode is not an ERP for whom a position need be found within GCHHS. Even if he were, it would be a HP4 position identified for placement as that is his substantive level at this time; and • I consider it rather self-evident why GCHHS would not spend public money to pay Mr Bode at HP5 classification level to do his substantive HP4 position, especially in circumstances where I have not found GCHHS to have acted unfairly or unreasonably in its engagement with Mr Bode's grievances. Order [123] I make the following order: The appeal is dismissed. 30 Appellant's submissions, 13 July 2022, 5. -- 24 of 24 --