Bode v State of Queensland (Queensland Health) [2022] QIRC 260

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bode v State of Queensland (Queensland Health) [2022] QIRC 260 PARTIES: Bode, Stephen (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/90 PROCEEDING: Public Service Appeal DELIVERED ON: 6 July 2022 MEMBER: HEARD AT: Power IC On the papers ORDER: The appeal is dismissed for want of jurisdiction. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where appellant appeals a conversion decision and fair treatment decision – whether appellant has standing to lodge a public service appeal – appeal misconceived – no appealable decisions pursuant to s 194 of the Public Service Act 2008 (Qld) LEGISLATION: Industrial Relations Act 2016 (Qld), s 562B Public Service Act 2008 (Qld), ss 149C, 194 and 195 CASES: 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) -- 1 of 7 -- 2 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] The Appellant had been acting in a higher classification position as a HP5, Team Leader, Palliative Care from 18 January 2021 to 9 January 2022. [3] On 21 January 2022, the Appellant filed an appeal notice, indicating that he is appealing against both a conversion decision and fair treatment decision with respect to the now vacant position of Team Leader, Palliative Care, GCHHS, pursuant to s 194 of the Public Service Act 2008 (Qld) ('the PS Act'). Appeal principles [4] 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. [5] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. Grounds of Appeal [6] The Appellant appeals on the grounds that his higher classification contract should have continued while a recruitment process occurred for the Team Leader position. The Appellant contends that his higher duties contract ended unfairly six days prior to being eligible to apply for conversion to higher duties. Appellant's submissions [7] The Appellant submits that his higher classification contract was not extended in order to preclude him from being eligible to make an application for appointment to the higher classification of either the Team Leader position at Palliative Care or the Specialist Palliative Care Rural and Remote Telehealth Service ('SPARTA'). Further, the Appellant submits that the decision not to offer the Appellant an ongoing contract is not fair and reasonable as there is an ongoing need for both roles and no concerns were raised about the Appellant's work performance. 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 Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 2 of 7 -- 3 [8] The Appellant highlights 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. The Appellant 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. The Appellant submits that this is unfair as the staff member did not interview as part of an expression of interest process. [9] The Appellant submits that the decision maker, Ms Stephanie Thompson, Nursing Director Infectious Diseases, Sexual Health, Palliative Care, Infection Control, Radiology, Rheumatology and Dermatology had not considered the genuine operational requirements of the department as required by s 149C(4A)(a) of the PS Act in that there is a continuing need for more than one person to be employed in both Team Leader positions. The Appellant notes that both positions have permanent funding and that those positions had permanent vacancies at the time of the appeal. [10] The Appellant submits that a pause on the HP5 recruitment within GCHHS is another flaw in the process. The Appellant highlights the following: …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 appeal through the QIRC and internal appeal within QLD Health, QLD health have still elected to permanently appoint the Team Leader of Community Palliative Care from this disbanded team. I don't believe the Community Palliative Care Team Leader position should have been filled by this process as my understanding is that the Workforce development team at GCHHS still have vacant HP5 positions. The other issue is that the community palliative care team leader position is a Multidisciplinary position that could be filled by a nurse of an Allied Health member and by appointing someone in this manner also disadvantages nursing staff that could have also wished to apply. Furthermore, my understanding on the pause on HP5 recruitment within the Gold Coast Hospital and Health Service is that it was paused half way through 2021. In my opinion QLD health should have appointed someone to a team leader position at that time and not lead me to believe that I would be able to re-interview for the position or reach the 12 months of service to convert to higher duties. [11] The Appellant outlines that he interviewed for the Community Palliative Care Team Leader position in August 2021 but did not meet the merit requirement. The Appellant continued in the role regardless for a further three to four months. [12] The Appellant submits that he regrets not submitting the higher duties conversion request form as there was a question asking whether the Appellant has acted in the higher classification role for 12 months and that if 'no' was selected, that the application would not be progressed. The Appellant submits that during a meeting with GCHHS, at no stage did they encourage the Appellant to submits the paperwork for higher duties conversion. The Appellant opines that GCHHS did not act in the Appellant's best interest. Respondent's submissions [13] At the outset, the Respondent rejects the Appellant's appeal and submits that the appeal must fail on the basis that the Appellant does not have standing to bring a public service appeal. [14] The Respondent notes that the Appellant was engaged in successive fixed term temporary contracts in a HP5 position as Team Leader, Palliative Care from 18 January 2021 to 9 -- 3 of 7 -- 4 January 2022 and submits that there was no obligation on GCHHS to extend the Appellant's temporary contract beyond its end date. [15] The Respondent submits, with respect to the Appellant's appeal of a conversion decision, that there has been no conversion made which can be appealed. The Respondent submits that the Appellant was not eligible to apply for appointment to the higher classification position as he has not met the requirements of s 149C(1)(b) of the PS Act in that he did not act in the higher classification level for a continuous period of at least one year. Further, the Respondent submits that the Appellant's standing to bring a public service appeal with respect to a decision not to appoint him to a position at a higher classification level only arises if the Appellant has been seconded to or acting at the higher classification level for a continuous period of at least 2 years in accordance with s 194(1)(e)(iii) of the PS Act. [16] The Respondent submits, with respect to the Appellant's appeal of a fair treatment decision, that the Appellant commenced an employee grievance process, however, has not progressed it beyond stage 2, and that there has been no stage 3 decision by the GCHHS Chief Executive which can be appealed. The Respondent notes that the Appellant's stage 2 grievance was submitted on 25 February 2022 and that a response to the stage 2 grievance was provided on 9 March 2022 by Mr Patrick Turner, General Manager Division of Medicine, GCHHS. [17] Notwithstanding that the Appellant should have exhausted the grievance process prior to lodging a fair treatment appeal, the Respondent submits that the allegations raised regarding 'unfair treatment' in the Appellant's stage 2 grievance are not supported by any evidence and are personal opinion and further, the following: i. GCHHS acknowledges Mr Bode was initially advised that it was anticipated the position of Team Leader, Palliative Care would be advertised, an open merit process would be conducted, and he would be able to apply. ii. Subsequently on 4 January 2022 Ms Thompson, Nursing Director Infectious Diseases, Sexual Health, Palliative Care, Infection Control, Radiology, Rheumatology and Dermatology advised Mr Bode the anticipated recruitment process had been put on hold. iii. A number of GCHHS employees classified at HP5 level who had been declared surplus due to a major workplace restructure across the health service had been identified, and the recruitment process for the position of Team Leader, Palliative Care was necessarily put on hold, pending assessment of those surplus officers. iv. A number of the identified HP5 employees affected by workplace change and requiring placement lodged an industrial dispute in the QIRC late in 2021. As an outcome of conciliation conducted in that dispute, on 22 December 2021 the Health Service provided Commissioner Hartigan with a commitment that it would comply with it's obligations under Queensland Health's HR Policy B36 Employees Requiring placement (the Policy)… and PSC Directive 6/13 - Employees Requiring Placement (the Directive) and those HP5 employees who had been displaced from their substantive positions would be considered first for any vacant HP5 roles in GCHHS, as required by the Policy and the Directive. v. It was further agreed at the QIRC conciliation that if only one employee requiring placement expressed interest in a particular position, then a suitability assessment would be completed for possible direct matching. If more than one eligible surplus employee expressed interest in a position, they would be subject to a closed merit recruitment process. vi. Two eligible surplus officers expressed interest in the Community Palliative Care HP5 Team Leader position. Accordingly in January 2022 a closed merit recruitment process was conducted for HP5 employees requiring placement. Interviews were conducted on 21 January 2022. The successful candidate, who was deemed meritorious was appointed permanently to the role of Team Leader, Palliative Care, and commenced in the role on 28 February 2022. -- 4 of 7 -- 5 Consideration [18] Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable. In this matter, however, I must first determine whether the Appellant has jurisdiction to lodge a public service appeal. Conversion decision [19] The Appellant was acting in the higher classification position of HP5 Team Leader, Palliative Care from 18 January 2021 to 9 January 2022. 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. [20] Section 194 of the PS Act outlines the decisions against which appeals may be made, with s 194(2)(b) providing that an appeal cannot be made if s 195 of the PS Act applies to the decision. Section 195 outlines the decisions against which appeals cannot be made, with s 195(1)(j) relevantly stating: 195 Decisions against which appeals can not be made (1) A person can not appeal against any of the following decisions— … (j) a decision 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 less than 2 years; … [21] Section 195(1)(j) of the PS Act provides that appeals cannot be made against a decision under s 149C of the PS Act 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 level for less than two years. 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. [22] 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. Fair treatment decision [23] From the material before me, it appears that a grievance was lodged sometime before 16 February 2022. The Appellant subsequently lodged an internal review with the Respondent alleging that his higher classification contract was not extended to preclude -- 5 of 7 -- 6 him from being eligible to make an application for appointment to the higher classification position. The reasons for the grievance also relate to alleged flaws in the selection process in permanently filling the Team Leader role, resulting in an unfair treatment of the Appellant. 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'). [24] Clause 9 of Directive 11/20 provides for procedures for managing and resolving individual employee grievances: 9.1 Stage 1–local action (a) An employee must submit their individual employee grievance in writing to the appropriate delegate in their agency. … 9.2 Stage 2–internal review (a) If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review. … 9.3 Stage 3–external review (a) If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include: (i) a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act … [25] At the time the appeal was filed, no review request had been made by the Appellant. It appears that an internal review was requested by the Appellant after the appeal was lodged in the Commission by letter dated 17 February 2022 and a review decision was provided by the Respondent on 9 March 2022. The Appellant advised the Commission via email on 31 May 2022 that a Stage 3 external review had been progressed to the chief executive of the GCHHS. [26] The process of pursuing a fair treatment appeal pursuant to s 194(1)(eb) of the PS Act occurs following the exhaustion of the employer's grievance process. Clause 5.2(h) of Directive 07/20 Appeals provides the following: (h) for a decision under section 194(1)(eb) (fair treatment decision)–a public service employee who is aggrieved by the decision. The public service employee should comply with the agency's complaints management process prior to lodging the appeal. [27] It is contrary to cl 5.2(h) to file an appeal whilst simultaneously utilising the grievance processes outlined in the employer's grievance procedure or Directive 11/20. [28] At a conference convened on 29 June 2022, the Respondent advised that a Stage 3 external review decision by the Chief Executive GCHHS would be sent to the Appellant imminently. The Appellant was informed that the 21 day timeframe to lodge any appeal against the Stage 3 external review would commence upon receipt of that decision. -- 6 of 7 -- 7 Conclusion [29] For the reasons outlined above, 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. Order [30] I make the following order: The appeal is dismissed for want of jurisdiction. -- 7 of 7 --