Davies v State of Queensland (Queensland Health) [2021] QIRC 90

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Davies v State of Queensland (Queensland Health) [2021] QIRC 090 Davies, Samuel (Appellant) v State of Queensland (Department of Agriculture and Fisheries) (Respondent) CASE NO: PSA/2020/424 PROCEEDING: Public Service Appeal - Conversion Decision DELIVERED ON: 22 March 2021 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: The decision appealed against is confirmed CATCHWORDS: LEGISLATION: INDUSTRIAL LAW - PUBLIC SERVICE APPEAL - where the appellant was reviewed for conversion to permanent employment - whether there was a continuing need for the Appellant to be employed Public Service Act 2008, s 148, s 149, s 149B. Industrial Relations Act 2016, s 562C Directive 09/20 Fixed term temporary employment Reasons for Decision Appeal Details [1] Since 8 October 2018, Mr Davies has been employed by the State of Queensland (Department of Agriculture and Fisheries) as a Senior Development Extension Officer, Sustainable Grains Practices, PO4 with Crop and Food Science in Bundaberg. -- 1 of 13 -- 2 [2] In a decision dated 23 November 2020 regarding the outcome of a review of Mr Davies' fixed term temporary employment status, Bernadette Ditchfield, Deputy-Director General, Agriculture ("the decision maker") said that at this stage, Mr Davies will continue in his role until 30 June 2022 and gave the following reasons: • Continuing Need The decision not to permanently appoint you is based on continuing business need at this time. Specifically my reasons for continuing your temporary engagement are: a) There is no continuing need for you to perform your current role beyond 30 June 2022. Your position is funded from limited funds from Cabinet Budget Review Committee (CBRC) for the Reef project. The nature of your temporary engagement was to develop, initiate and lead the establishment of the Grain BMP program in the Burnett region to that is only funded to 30 June 2022. Unfortunately, there is no requirement for a permanent PO4 position within Sustainable Farming Systems and no other funding is available to sustain your employment. b) There is also no continuing need for you to perform a role that is substantially the same. A review of positions across the department's establishment at the PO4 level has been undertaken and unfortunately, there are no PO4 positions available that are substantially the same, for which there is a continuing need. • Merit Thank you for your performance in the department over the period from 8 October 2018 to the present. In my consideration of your application I have also noted that your supervisor, Mr Rod Collins, Senior Development Extension Officer, Crop and Food Science, has had discussions with you about performance issues that have been documented in writing in your Performance and Development Agreement (PDA) dated 2 November 2020. The performance matters have been raised with you and been confirmed in writing in your PDA, but to date they are unresolved. I have also considered the following: • Requirements of an industrial instrument that need to be complied with Not applicable. • The reasons for each decision previously made or made deemed to have been made in relation to you, under section 149B of the PS Act Not applicable • Whether it is viable and appropriate to convert you, having regard to the genuine operational requirements of the department I have considered the conditions in clause 8.1 of the Directive and determined that it is not viable or appropriate to convert you to permanent status, having regard to the considerations under s149B(5) of the PS Act and the genuine operational requirements of the agency. Specifically, there is no other funding available to sustain your employment and no other requirement for a permanent PO4 Senior Development Extension Officer position within Sustainable Farming Systems. -- 2 of 13 -- 3 Relevant sections of the Act and Directive [3] 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 09/20 Fixed Term Temporary Employment ("the Directive"). [4] Section 149B of the PS Act relevantly provides 149B Review of status after 2 years continuous employment (1) This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same Department for 2 years or more. (2) However, this section does not apply to a non-industrial instrument employee. (3) The Department's chief executive must decide whether to — (a) Continue the person's employment according to the terms of the person's existing employment; or (b) Offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer. (4) The Department's chief executive must make the decision within the required person after— (a) The end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the Department; and (b) Each 1-year period after the end of the period mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department. (5) In making the decision — (a) Section 149A(2) and (3) applies to the Department's chief executive; and (b) The Department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment. (6) If the Department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating — (a) The reasons for the decision; and (b) The total period for which the person has been continuously employed in the Department; and (c) For a fixed term temporary employee — how many times the person's employment as a fixed term temporary employee or causal employee has been extended; and (d) Each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment. (7) If the Department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment. -- 3 of 13 -- 4 (7A) For working out how long the person has been continuously employed in the Department — (a) All periods of authorised leave are to be included; and (b) The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non- employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration nof the person's continuous employment is being worked out. The Directive [5] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles 4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government’s Employment Security Policy. 4.2 Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B. 4.3 Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee. 4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate. 4.5 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. … … 8. Decision on review of status 8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2): • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act • whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and • the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment. 8.2 Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency. -- 4 of 13 -- 5 8.3 If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment: (a) the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements). (b) where the employee is part-time, an explanation of the days and hours of work offered in the decision; and (c) the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert. 8.4 Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must: (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. 8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days). 8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5. 8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions. What decisions can the Commission make? [6] 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 … (b) 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. Grounds for Appeal/Submissions of the Appellant [7] In further submissions dated 14 January 2021, Mr Davies provides details as to why he believes the decision was not fair and reasonable. Mr Davies also attached to his submissions the 12 page submission he made in support of the review of his fixed term temporary employment. -- 5 of 13 -- 6 Continuing need for someone to be employed in the role or roles that are substantially the same [8] Mr Davies says there is a continuing need for someone to be employed in the role or a role that is substantially the same as: • Sustainable Grains Practices (SGP) has had full-time temporary positions that are substantially the same dating back to 2008 across various iterations of the same or similar program deliverables; • trends in increasing grain crop use in the Mary region indicates the importance of the DAF grains team is increasing correspondingly; and • permanency in this role adds stability to the management of the DAF grains team across the catchment areas. [9] In coming to the finding that "there are no PO4 positions available that are substantially the same, for which there is a continuing need" the decision maker has failed to take into account a relevant consideration, being how transferrable his skills as an agronomist are not just within Crop and Food Science, but within the Department more broadly. Lack of funding not a bar to conversion [10] Mr Davies acknowledges that his role is "presently established on potentially limited funding from the CBRC", but that alone is not a reason to decline conversion. [11] Mr Davies is cognisant of the risk to the SGP project arising from the entirety of its funding being derived from a single source of CBRC funding and he has identified other sources of federal funding or grants which can feasibly sustain further resourcing for grains. [12] Mr Davies refers to the difficulties of employing and retaining staff to work in grains and that future funding will be prioritised to ensure retention of specialist grains staff like himself. He says that since lodging his appeal, at the final meeting of the SGP team on 16 December 2020, it was announced that approval had been granted to fund one point five additional staff to look at similar issues to those he has recently developed an enterprise plan for. Failure to consider relevant material and considerations [13] The decision maker did not refer to the contents of Mr Davies submissions in the decision. Given that the Directive at cl 10.2 provides that an employee or their representative may choose to provide a written submission for consideration during the review process, Mr Davies submits that a failure to consider the submission is a failure to have regard to relevant considerations and that this makes the decision unfair and unreasonable. -- 6 of 13 -- 7 Eligibility having regard to the merit principle [14] Mr Davies submissions regarding his eligibility when taking into consideration the merit principle are as follows: • Despite the 2019-2020 PDA which the decision maker has cited, he has performed his role for more than two years without any adverse findings in respect of his performance or conduct. Therefore, he has demonstrated merit with respect to s 27 of the PS Act, as required by s 149B(5)(a); • the outcome letter he received has not provided any specifics about the 'performance issues' that were documented that remain unresolved; • The PDA Final Review document dated 2 November 2020 includes comments which could be construed negatively. These comments relate to not meeting the expectations around establishing producer advisory groups and Mr Davies' ability to work with his supervisor and other colleagues. Mr Davies refutes these conclusions; • this PDA reflects a period that was characterised by restrictions in his ability to travel and meet stakeholders because of COVID-19. He says that this was why he was not able to meet with and establish producer stakeholder groups by June 30 2020 and this had to be completed in September 2020 when restrictions lifted; • this period of time also involved a serious deterioration of his working relationship with his immediate supervisor. His immediate supervisor was also the author of his PDA; • during the period when his performance relating to interpersonal interactions and collaboration with colleagues and the project leader was called into question by his supervisor, he had escalated his concerns about his supervisor's conduct towards him to Human Resources; • the difficulties between himself, his supervisor and other members of the SGP are being addressed by the appointment of an external third party; and • any inferences regarding merit to be drawn from the 2 November 2020 PDA should be assessed against the full period of his employment with the Department and the SGP role. Submissions of the Respondent Continuing need to perform current role [15] On 8 October 2018, following an open merit selection process, Mr Davies was appointed to the role for the Grains BMP Project until 30 June 2022. Specifically, Mr Davies was to 'develop, initiate and lead the establishment of the Grain Best Management Practice (BMP) program in the Burnett region. -- 7 of 13 -- 8 [16] Since Mr Davies was initially appointed, there has not been any extensions provided to either Mr Davies or the funding for the role. [17] The role is currently required until 30 June 2022. There is currently no continuing need for Mr Davies' role or a role which is substantially the same, beyond the project end date of 30 June 2022. [18] Following discussions between the Department and the relevant industry funding bodies during the period from October 2018 to July 2019, the project was terminated and the Grains BMP Project ceased. This resulted in the development of SGP, using 100 per cent CBRC Reef funding to cover the period until 30 June 2022. This enabled the current position to continue, however activities and processes were adjusted to meet the objectives of the new project. The project is a limited life project, until 30 June 2022. [19] Reef funds have been impacted by COVID19. The Department is currently reviewing available funding for reef projects that are funded by CBRC. The outcome of the review could mean the scaling back of current funds for the role. If the funding for the project is significantly withdrawn, Mr Davies' role will cease. [20] The grains industry have indicated that the production levels recorded in these regions do not warrant investments equivalent to more traditional regions. Other vacancies within the Department [21] The Department carried out a review of its establishment, internal expressions of interest and Smartjobs to identify any roles which were the same or substantially the same, and ongoing. Unfortunately no roles were identified. Merit [22] The Department refers to the Public Service Commission's fixed term temporary conversion checklist which was provided for me as an attachment. [23] Step two of the form applies to merit, specifically this section states: a. 2.2 – Is the employee currently the subject of any unresolved performance concerns? If yes, go to 2.3. b. 2.3 – Have the unresolved performance concerns been raised with the employee in writing? If yes the employee is not eligible for conversion as they are not eligible for appointment having regard for the merit principle. [24] The Department says that the final review comments on page two of the 2019/20 end of cycle PDA of Mr Davies summarises the concerns which are detailed throughout various sections of the PDA, as provided to Mr Davies. The supervisor notes: There are some key areas requiring significant attention despite ongoing conversations. These include producer advisory group establishment, initiating and developing project processes in collaboration with the project leader which assist project staff to deliver milestones. More time needs to be invested in planning and documenting activities to ensure contribution and impact can be objectively measured. -- 8 of 13 -- 9 [25] With reference to the decision letter, the Department says that the decision maker factually outlined to Mr Davies that the supervisor had had discussions with him about performance concerns and that these have been documented in his PDA and remain unresolved. In response to Mr Davies' submissions [26] With regard to Mr Davies' submission that there is a continuing need for his role and that the SGP project has had full time temporary positions dating back to 2008 across various iterations of the same or similar program deliverables, the Department says: • Mr Davies was engaged to deliver a specific project on 8 October 2018 with a defined end date of 30 June 2022; • any previous positions within the wider program were delivered on separate specific project outcomes; • reference to the establishment of previous positions cannot be used to indicate that the current position is required on a continuing basis; • the Grains BMP project was terminated in July 2019; • the new SGP consists of different project deliverables; and • the decision letter states that there is no continuing need for Mr Davies to perform his current role beyond 30 June 2022 and the Department maintains there is no continuing need for Mr Davies' role. [27] With regard to Mr Davies' submission pointing to different federal funding/grants which can feasibly sustain further resourcing for grains, the Department says it disagrees and maintains that there are no confirmed funding arrangements to sustain any ongoing employment. At this stage there is no requirement for the role beyond the current end date of the position. [28] Mr Davies says that approval has been granted for funding for a one year period and the expectation of a further three years funding to support an additional one point five full time equivalent to undertake similar grains project work. The Department says that there is no approved funding, rather, an application has been made for funding to the Future Drought Fund, but no decision has been provided and no contract executed. [29] With regard to Mr Davies' submission that the Department did not consider his transferrable skills when considering other roles, the Department confirms that it did carry out a review of its organisation to identify any suitable alternative roles for Mr Davies based on his capabilities at the PO4 level. [30] The Department says that the Human Resource Consultant, Crop and Food Science looked across the Department's establishment, internal expressions of interest and Smartjobs. Transferability of skills still requires the identification of a role which is the -- 9 of 13 -- 10 same or substantially the same. Unfortunately, none were identified. Mr Davies was informed of this in the letter. [31] The Department says that the decision maker considered all material before them, including Mr Davies' written submissions. [32] With regard to Mr Davies' submissions that the matters identified in his PDA would not invalidate his eligibility under the merit criteria and that the decision maker failed to provide specifics about the 'performance issues' the Department says: • There are clear performance concerns that have been discussed with Mr Davies and documented in his PDA; • the performance concerns remain unresolved and accordingly, merit has not been satisfied; • Mr Davies says that expectations were not met due to the impact of COVID-19, and while the Department accepts that COVID-19 had broad ranging impacts, it is clearly stated in Mr Davies' PDA "whilst COVID-19 travel restrictions existed in the latter half of the year, there was ample time to complete this during the first half of the year"; • beyond that particular performance issue, a range of other performance concerns requiring improvement were discussed with Mr Davies; • this can be observed in the supervisor's comments in the PDA and through various conversations and feedback provided to Mr Davies throughout the year; and • Mr Davies states that his relationship with his immediate supervisor has deteriorated. The Department maintains that the supervisor followed appropriate PDA policies and procedures and provided relevant feedback about Mr Davies' performance. [33] Mr Davies says that the Department ought to have had regard to his overall performance when assessing merit. The Department says that whilst it is empathetic to the timing of the performance issues with respect to eligibility for conversion, it does not remove the requirement for the decision maker to consider the provisions under s 25 of the PS Act. [34] The Department submits that if the Commission does not support the Department's view regarding merit, the Department maintains that there is no continuing need for Mr Davies' role, or a role which is substantially the same, beyond the Project end date of 30 June 2022. Mr Davies' submissions in reply [35] With regard to the Department's submissions regarding funding uncertainty, Mr Davies submits that such considerations will always exist across agencies and that the need to remain flexible and to be able to reallocate human resources to meet changes in priorities is not unique to the Department or the present period of time. -- 10 of 13 -- 11 [36] Mr Davies submits that speculation about what may occur to funding sources in future is not indicative of a present genuine operational reason not to convert his employment to permanent. [37] With regard to the Department submission that the grains industry has indicated that the production levels recorded in the Burnett region do not warrant investments equivalent to more traditional regions, Mr Davies submits that there is appetite and interest amongst growers in the region for further investment. Mr Davies attaches several references to support this submission.1 [38] With regard to the Department's submissions regarding merit, Mr Davies: • Repeats his submissions that the impacts of COVID-19 hampered the establishment of the Producer Advisory Groups; • there was little benefit to carrying out the Producer Advisory Groups in the first half of the year. Mr Davies could not have foreseen travel bans being put in place in the second half of the year; • repeats his submissions that collaboration with his supervisor was inhibited by the fractious interpersonal relations within the SGP team; • the issues in the SGP team are presently the subject of an external review; • concerns Mr Davies raised about the conduct of his supervisor towards him has recently resulted in a changed reporting arrangement while the review takes place; • the feedback provided in the PDA must be called into question by the fact that the Department is concerned enough to bring in external consultants; • there is more to the fractured relationship than Mr Davies' supervisor has stated in his PDA; • the PDA document states that 'more time needs to be invested in planning and documenting activities'. Mr Davies says that no targets or specifics have been suggested in a prior PDA so there can be no suggestion he has not met an established criterion; • the concerns purportedly raised in the PDA document of 2 November are not 'unresolved performance concerns' as contemplated by the Public Service Commission's checklist; • the PDA process is distinct from the other structured processes to manage unacceptable work performance as described in cl 7 of Directive 15/20 positive performance management; 1 Submissions of the Appellant filed 28 January 2021, attachments 1-3. -- 11 of 13 -- 12 • in contrast to the 2 November PDA, Mr Davies submits that he has performed meritoriously in his time with the Department; • Mr Davies provides references from all his current and immediately past PO2 colleagues from the SGP team;2 and • if performance concerns existed that were sufficiently serious to mean he didn't meet the merit criteria for appointment or secondment, the concerns would have been raised in a formal performance management process. [39] Mr Davies submits that previous funded positions in Grains are exactly indicative of what he has previously submitted about the importance of Grains to the wider Department and they will continue to make funding for these kinds of roles a priority. [40] Mr Davies says that while final approvals have not been given, it is clear from the Respondent's submissions that significant sources of funding are available, including both the Future Drought Fund and the Reef Funding. The Department is actively applying for both funding sources that relate to Grains and Mr Davies submits that this is indicative of their support for the continued operation of the SGP team and that every effort will be made to source and prioritise funding for the same. Consideration of submissions [41] The first reason given in the decision letter is that Mr Davies position was a temporary engagement to 'develop, initiate and lead the establishment of the Grain BMP program' and that the role is only funded until 30 June 2022. [42] The Department submissions indicate that while funding applications have been made, at this stage, there is no funding available to sustain Mr Davies' position. [43] I note that s 148(2) of the PS Act describes situations were employment of a person on tenure may not be viable or appropriate. Relevantly, s 148(2)(b) and (c) state: (b) to perform work for a particular project or purpose that has a known end date; … (c) to fill a position for which funding is unlikely or unknown; [44] Mr Davies has made submissions that he believes his work is likely to be continuing and that he believes funding will be provided for his work to continue. [45] While I note those submissions, I would be engaging in speculation if I accepted this proposition. The original appointment of Mr Davies was to introduce a program that has limited funding and a specific end date which has not changed since the position was established. In the absence of any funding being secured or a decision to continue the program, I am of the view that the end date of the project and the lack of funding for the position beyond 30 June 2022 are genuine operational requirements the Department can rely on for not appointing Mr Davies permanently at this stage. 2 Submissions of the Appellant filed 28 January 2021, attachments 5-9. -- 12 of 13 -- 13 [46] I note that Mr Davies has sought to gather statements to support his view that the program will be continuing, however essentially, whether the program – or the work currently undertaken as a part of the program continues, is a decision for the Department to make. [47] The decision letter indicates that there are no other positions within Sustainable Farming Systems for Mr Davies to be appointed to. It is not necessary for the decision maker to explain every step that was undertaken to consider other roles. I am satisfied that the decision informs Mr Davies that consideration was given to other PO4 positions. [48] I note Mr Davies' submission that the PDA is not a formal performance management process and therefore it is not appropriate for it to be relied on in considerations of merit. [49] One of the aims of the PDA process is to identify agreed objectives/activities and undertake a self-assessment and supervisor assessment of progress against these objectives. Another aim is to identify competencies for development. In this regard it is not a formal performance management process and it may be possible for an employee to meet the merit requirement of the PS Act while having areas for further development listed in a PDA. [50] Mr Davies submits that there are some complexities in his workplace and his relationship with his supervisor which may have impacted on his PDA. He also indicates that there is an external review underway to consider the 'fractious' nature of some workplace relationships. [51] A public service appeal requires me to review the decision of the decision maker and consider if it was fair and reasonable in the circumstances. I am unwilling to wade into a review process currently underway regarding Mr Davies' relationship with his supervisor and what, if any, impact that has had on the PDA process or the decision maker's review of the issue of merit. [52] In any case, I have determined that the decision was fair and reasonable on the basis that there is no continuing need for Mr Davies to perform his current role beyond 30 June 2022 and that there is also no continuing need for him to perform a role that is substantially the same. Therefore, I do not need to determine whether Mr Davies in ineligible for conversion on the basis of merit. [53] The decision appealed against is confirmed. -- 13 of 13 --