Edwards v State of Queensland (Department of Education) [2021] QIRC 61

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION : Edwards v State of Queensland (Department of Education) [2021] QIRC 061 PARTIES: Edwards, Amanda (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2021/30 PROCEEDING: Public Service Appeal – Conversion decision DELIVERED ON: 23 February 2021 MEMBER: HEARD AT: Hartigan IC On the papers ORDER: 1. The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld). CATCHWORDS: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant requested to convert from temporary to permanent employment – where an email was sent in error – whether the decision was able to be appealed LEGISLATION: Industrial Relations Act 2016 (Qld), s 149, s 149B, s 195, s 562A Reasons for Decision [1] The appellant, Ms Amanda Edwards, filed an Appeal Notice in the Industrial Registry on 12 January 2021. The Appeal Notice identifies that the decision appealed against is a conversion decision made under s 149B or s 149C of the Public Service Act 2009 (Qld) ("PS Act"). [2] On 8 December 2020, Ms Edwards asked the State of Queensland (Department of Education) ("the Department"), Employment Review Team to check her eligibility for a temporary to permanent conversion. No decision was made by the Department and on 11 January 2021, Ms Edwards was advised by written correspondence that: -- 1 of 4 -- 2 …pursuant to s 149B(7) of the PS Act, the Chief Executive is taken to have decided not to offer to convert your employment and you will continue your employment as a fixed temporary employee according to the terms of your existing employment with the Department (the deemed decision). [3] Ms Edwards was then advised of the appeal rights "as provided for by s 194(1)(e)(i) of the PS Act". [4] The Department now contends that the email correspondence sent to Ms Edwards was sent in error, in that it should not have advised Ms Edwards that her request of 8 December 2020 was being processed in accordance with s 149B of the PS Act and, further, Ms Edwards should not have been advised that as she had not received a decision on or by 5 January 2021, she may wish to lodge an appeal. [5] The Department submits that the Commission does not have jurisdiction to hear the appeal as the deemed decision was actually made pursuant to s 149 of the PS Act and, further, s 195 of the PS Act stipulates that a person cannot appeal against such a decision. Relevant Statutory Provisions [6] Section 149 of the PS Act relevantly states: 149 Fixed term temporary employees and casual employees may ask for review of status after 1 year of continuous employment (1) This section applies 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 1 year or more. (2) However, this section does not apply to a non-industrial instrument employee. (3) The person may ask the department’s chief executive to 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) A person can not make more than 1 request under subsection (3) in a 12-month period. (4A) 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 6 weeks or less in the year occurring immediately before the time when the duration of the person’s continuous employment is being worked out. (5) In this section— fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term. -- 2 of 4 -- 3 [7] 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 period 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 mentioned 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 casual 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. [8] Section 195 of the PS Act identifies the decisions which a person can not appeal relevantly as follows: 195 Decisions against which appeals can not be made (1) A person can not appeal against any of the following decisions— (a) a decision of the Governor in Council; (b) a decision of a Minister; (c) a decision about superannuation benefits or workers’ compensation; -- 3 of 4 -- 4 (d) a decision about probation; (e) a decision to terminate the employment of a public service officer employed on probation; (f) a decision about the classification level of employment, unless the decision is declared under a directive of the commission chief executive to be a decision against which an appeal may be made; (g) a decision to promote, transfer, redeploy or second a person as a chief executive, senior executive or senior officer; (h) a decision of the commission chief executive relating to reviewing a procedural aspect of the handling by a department of a work performance matter at the request of an employee under section 88IA, other than to the extent allowed under section 194(1)(ba); (i) a decision under section 149 not to convert the employment basis of a fixed term temporary employee or casual employee; (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; (k) a non-appealable appointment. … Consideration [9] As noted by the Department in its submissions, the central question is whether the deemed decision made on 5 January 2021 was a conversion decision under s 149B of the PS Act, based on an anniversary date review, or, a conversion decision under s 149 of the PS Act based on Ms Edwards request for an annual review on 8 December 2020. [10] As referred to in s 149B of the PS Act, a review may be conducted at the end of the 2 years after the employee has been continuously employed as a fixed term employee and each one year period after that. [11] Ms Edwards annual anniversary period for the purpose of a s 149B review is 23 May to 20 June. Accordingly, the deemed decision did not relate to a s 149B review and was instead a review requested by Ms Edwards in accordance with s 149 of the PS Act. [12] Accordingly, the Commission does not have jurisdiction to hear the appeal and, pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 the appeal is dismissed on the basis that it is misconceived and lacks substance. [13] Finally, as acknowledged by the Department, the Department's inaccurate statements provided to Ms Edwards in the email of 11 January 2021 understandably contributed to the lodgement of the appeal. It is most unfortunate that such an error was made, and no doubt, contributed to Ms Edwards’ understanding that she was entitled to lodge an appeal. Order [14] I make the following order: 1. The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld). -- 4 of 4 --