Durrand v State of Queensland (Department of Education) [2021] QIRC 94

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Durrand v State of Queensland (Department of Education) [2021] QIRC 094 Durrand, Michael James (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2020/261 PROCEEDING: Public Service Appeal – Promotion decision DELIVERED ON: 23 March 2021 MEMBER: HEARD AT: Hartigan IC On the papers ORDER: 1. The appeal is dismissed. CATCHWORDS: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – promotion decision – jurisdictional objection – whether the decision can be appealed against – whether the appointee was a permanent employee prior to appointment LEGISLATION: Public Service Act 2008 (Qld), s 194, s 195 Appeals Directive 03/17 Reasons for Decision [1] Mr Michael James Durrand applied for the permanent position of Guidance Officer at Atherton State High School. Mr Durrand was not shortlisted for the position. The only employee who was shortlisted for the position was appointed to the position on or about 25 September 2020 ("the decision"). [2] Mr Durrand appeals the decision by way of Notice of Appeal that was filed in the Industrial Registry. The appeal was lodged within time. Mr Durrand contends that the decision was a promotion decision. [3] The decision appealed against relates to a decision by the Department of Education ("the Department") to appoint another employee to the position of Guidance Officer. The -- 1 of 6 -- 2 details of the appointment decision were published in the Queensland Government Gazette No. 23, 25 September 2020 ("the Gazette"). [4] The grounds of appeal relied on by Mr Durrand is that: (a) he is a more suitable and meritorious candidate than the successful appointee; and (b) he was discriminated against in the application process due to his spirituality and his hair. Jurisdiction [5] Section 194 of the Public Service Act 2008 ("the PS Act") lists various categories of decisions against which an appeal may be made. Section 194(1)(c) of the PS Act provides that an appeal may be made against a decision to promote a public service officer ("a promotion decision"). [6] The Department objects to Mr Durrand's appeal on the basis that the Commission does not have jurisdiction to hear the appeal. [7] Firstly, the Department contends that the Commission does not have jurisdiction on the basis that the decision is not a promotion decision. [8] The Department submits that the decision was not an appealable decision pursuant to s 194 of the PS Act as the successful appointee was a temporary employee, who held the position of Guidance Officer at Atherton State High School. The Department contends that the appointee maintained temporary status with the Department prior to the selection process and only became a Public Service Officer after their appointment. The Department submits that for this reason, the appointee was not a Public Service Officer as required in s 194(1)(c) of the PS Act. [9] The Department further contends that the appointee's classification and renumeration as a Guidance Officer remained identical to the appointee's temporary role. Consequently, the Department submits that that the appointee was not promoted as the appointee remained on the same classification level. The Department contends that as the appointee did not move from a lower to a higher classification, pursuant to s 194(1)(c) of the PS Act, Mr Durrand cannot appeal the promotion decision. [10] Secondly, the Department contends that the decision is a non-appealable decision pursuant to s 195 of the PS Act. The Department contends that pursuant to s 195(1)(k) of the PS Act, the appointment is non-appealable as the appointment was declared a non- appealable appointment in the Gazette. [11] After receipt of the Department's submissions, I issued directions to Mr Durrand requesting that he file and serve written submissions addressing whether he has an arguable case having regard to the matters raised by the Department in its submissions including, but not limited to, whether the decision was an appealable decision and any other general submissions in reply. -- 2 of 6 -- 3 [12] Mr Durrand filed further submissions addressing the Department's submissions including the jurisdictional objections raised by the Department. Relevant Legislative Provisions [13] Section 194 of the PS Act sets out decisions against which appeals may be made. Section 194 relevantly provides: 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"); … [14] Section 195 of the PS Act relevantly provides: 195 Decisions against which appeals can not be made (1) A person can not appeal against any of the following decisions— … (k) a non-appealable appointment. … (5) In this section— "non-appealable appointment" means an appointment— (a) for which the commission chief executive is satisfied merit in selection processes is sufficiently protected by ways other than an appeal under this part; and (b) that the commission chief executive has declared by gazette notice, or a directive for this part, to be an appointment against which an appeal may not be made. … Directive 03/17: Appeals (Directive 03/17) [15] Directive: 03/17 (now repealed) provides information on the appeal rights of public service employees under the PS Act. [16] Clause 8 relevantly provides who may lodge a public service appeal as follows: 8. Who may lodge a public service appeal 8.1 A public service employee who is listed in section 196 of the PSA (Appendix A), or is eligible to appeal by reason of section 55 of the PSA, may lodge a public service appeal. 8.2 An appeal may only be lodged by the following persons: -- 3 of 6 -- 4 … c) for a decision under section 194(1)(c) of the PSA (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 and selection, the aggrieved officer was covered by the invitation to apply. … [17] Clause 10 relevantly identifies the decisions that cannot be appealed as follows: 10. Decisions that cannot be appealed 10.1 Decisions listed in section 195 of the PSA (Appendix C) cannot be appealed. 10.2 Section 195(1)(h) of the PSA states that non-appealable appointments cannot be appealed. A non-appealable appointment is an appointment: a) that is not a promotion; or b) to a role remunerated in excess of the maximum salary applicable to the AO8 classification within the relevant department; or c) to a role which is exempt from advertising in accordance with the directive relating to recruitment and selection; or d) to a role which is entry level as defined by the directive relating to recruitment and selection. … Consideration [18] Mr Durrand makes the following observations in his written submissions: 1. It is important to observe, before dealing with technicalities, that there is no argument presented against my first and dominant claim "I am a more suitable and meritorious candidate than the successful applicant. I have better and more qualifications relevant to the positions and roughly the same direct experience in this role as the successful candidate, but considerably better and more indirect experience in areas such as teaching and advocacy." I also further note that the appointee has no classroom experience, little other education experience and has been reviewed -- 4 of 6 -- 5 in this selection process as having "poor effective counselling" by the second matrix. The appointee was the only person interviewed, as no referee report has been filed with the QIRC 2. In short, this is what corruption looks like. … [19] However, determining whether the Commission has jurisdiction to hear this appeal is not a matter of mere technicality. It is a fundamental inquiry that must be conducted to ensure the Commission has jurisdiction to deal substantively with the appeal. I have determined, for the following reasons, that the Commission does not have jurisdiction to hear the appeal. [20] The Department contends that the decision is not an appealable decision pursuant to s 194 of the PS Act as it is not a decision to promote a public service officer. [21] Mr Durrand contends that the Department's position narrows the scope of the PS Act and is inconsistent with the objects of the PS Act, set out in s 3. Mr Durrand argues that: 5. It makes much more sense to read s194(1)(c) broadly, but within the purpose of The Act to include appointment decisions where the merit of the appointee is able to be appealed especially, rather than except when the appointee has no experience due to it being a decision to promote the appellant, and many if not all of the other unsuccessful applicants who may actually have education experience. To the appellant, and to presumably most of the other applicants, this is a promotion decision which is appealable, save for a narrow reading of The Act which contradicts the Objects of the Act. 6. This reading falls in line with Public Service Commissioner Directive 3/17 (superseded but in place at the time of this decision and/or identical to Appeals Directive 7/20 at 5.2) at 8.2(c)(i) which clarifies s194(1)(c) as meaning a "… decision relates to the gazetted promotion of a public service officer or tenured general employee.. [22] Schedule 4 to the PS Act defines "promote", a public service officer, to mean to employ the officer at a higher classification level, whether or not on different duties, other than temporarily. [23] The information provided to me during the course of this appeal is that the successful appointee was a temporary employee who held the position of Guidance Officer at Atherton State High School. [24] When the successful employee was appointed to the role on a permanent basis his classification and remuneration remained the same. Accordingly, I conclude that the decision was not a promotion within the meaning of the PS Act. Consequently, it is not an appealable decision pursuant to s 194 of the PS Act. [25] Further, I consider the decision is a non-appealable appointment referred to in s 195 of the PS Act. Included in the information provided to me during the course of the appeal, is a copy of the relevant Gazette notice. The appointment which is subject of this appeal appears in the Gazette notice under those appointments declared to be "non-appealable". [26] Mr Durrand states that the listing of this appointment as a non-appealable appointment is not correct. However, Mr Durrand does not provide any further information in his -- 5 of 6 -- 6 submissions to support this contention, nor is there any further information before me to suggest that the inclusion of the appointment as a non-appealable appointment in the Gazette is an error. Accordingly, I conclude that Mr Durrand can not appeal the decision pursuant to s 195(1)(k) of the PS Act. Conclusion [27] For the forgoing reasons, I order: 1. The appeal is dismissed. -- 6 of 6 --