Dwyer v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 117

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Dwyer v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 117 Dwyer, Jessica (Appellant) v State of Queensland (Department of Communities, Housing and Digital Economy) (Respondent) CASE NO: PSA/2021/87 PROCEEDING: Public Service Appeal - Higher Duties Conversion Decision DELIVERED ON: 8 March 2021 MEMBER: HEARD AT: DATES OF WRITTEN SUBMISSIONS: Pidgeon IC Brisbane Appellant's submissions: 2 December 2020 Respondent's submissions: 10 December 2020 Appellant's further submissions: 17 December 2020 OUTCOME: The Decision of 20 October 2020 is set aside, with a fresh review to be conducted. CATCHWORDS: LEGISLATION: INDUSTRIAL LAW - Public Service Appeal - where the appellant requests appointment to higher classification level - where the appellant was not appointed due to genuine operational requirements of the department - whether the decision was fair and reasonable Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562C -- 1 of 5 -- 2 Directive 13/20 Appointing a public service employee to a higher classification level. Reasons for Decision (delivered Ex Tempore) Appeal Details [1] Ms Dwyer is employed by the State of Queensland (Department of Communities, Housing and Digital Economy). Since 24 April 2019, Ms Dwyer has been performing higher duties in the role of Senior Customer Service Manager (AO6), the arrangement is scheduled to end on 30 June 2020. [2] On 20 October 2020, Tully Stewart, the Acting Director Human Resources (the decision maker) wrote to Ms Dwyer in response to her request of 7 October 2020 to be appointed to the higher classification level. [3] The decision letter stated that due to the genuine operational requirements of the Department, Ms Dwyer was to continue to be engaged according to the terms of the existing higher duties arrangement. Specifically: After considering your request to be permanently employed in the position of AO6, Senior Customer Service Manager within the Maroochydore HSC, and the circumstances of your temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reason for the Deputy Director-General's decision are: • The purpose of your current placement in the role of Ao6, Senior Customer Service Manager within Maroochydore HSC, is to backfill a substantive employee while the substantive employee is relieving in an alternative position. • Should the substantive employee return to their position of AO6, Senior Customer Service Manager, there will no longer be a continuing need for you to be engaged in that role. Relevant sections of the Act and Directive [4] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive"). [5] Section 149C of the PS Act relevantly provides 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 one year; and -- 2 of 5 -- 3 (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. … (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). … (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. The Directive [6] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 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. … 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 documents an remain unresolved, that would mean that the employee is no -- 3 of 5 -- 4 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. 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 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. 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. … What decisions can the Commission make? [7] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may: (a) confirm the decision appealed against; or … (c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Consideration [8] As the 21 day appeal period has lapsed, Ms Dwyer has applied for an extension of time to lodge her appeal notice based on the reason that at the time of the decision, the Respondent's view was that she had not been acting in the position for more than two years and pursuant to s 195(1)(j) Public Service Act 2008 (the PS Act) the decision is not appealable. [9] On 16 February 2021, Ms Dwyer was told that a decision had been made that her commencement date was earlier, being 13 August 2018. Consequently, Ms Dwyer's requested review should have been conducted under s 149C and was appealable. A further effect of the change of when Ms Dwyer's continuing service began, is that this unfortunately moves the date of eligibility for review to 13 August 2021, which is after the date Ms Dwyer's current higher duties contract is due to end. -- 4 of 5 -- 5 [10] Given the circumstances outlined above regarding the date Ms Dwyer's continuous service began, I convened a conference during which Ms Dwyer explained that she had asked the Human Resources team to perform the review again based on the information that she had reached the threshold of two years continuous service. [11] The Respondent concedes that an error was made regarding the date Ms Dwyer's continuous service began, and do not oppose allowing the appeal to be heard out of time. However, the Respondent said that it was unable to perform a further review out of cycle. [12] During the conference I proposed that the decision of 20 October 2020 be set aside and a fresh review be conducted within 28 days. Ms Dwyer raised concerns about this timeline because she was currently re-applying to perform to her current role. If Ms Dwyer were to be unsuccessful in her application, she would be no longer sitting in the AO6 role in question. [13] Representatives for the Respondent were unable to speak to the specific application process raised by Ms Dwyer however they were able to agree that a fresh review would be undertaken in a very short period of time to allow Ms Dwyer the opportunity to further appeal were she to be unhappy with the outcome of that review. Outcome 1. The decision of 20 October 2020 is set aside, with a fresh review to be conducted. -- 5 of 5 --