Christian v State of Queensland (Department of Environment and Science) [2021] QIRC 21

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Christian v State of Queensland (Department of Environment and Science) [2021] QIRC 21 Christian, Laura (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) CASE NO: PSA/2020/413 PROCEEDING: Public Service Appeal - Conversion Decision DELIVERED ON: 20 January 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 - where the substantive incumbent returns to the role on a known date. 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 of 10 -- 2 [1] Ms Christian is employed by the State of Queensland (Department of Environment and Science) ("the Department"). [2] In a decision dated 17 November 2020 regarding the outcome of a review of Ms Christian's fixed term temporary employment status, Deputy Director-General Karen Hussey ("the decision maker") gave the following reasons: • There is no continuing need for you to perform your current role because the substantive will be returning to the role; and • There is no continuing need for you to perform a role that is substantially the same. A Departmental review was conducted of suitable permanent positions at AO6/PO4/AO5/PO2. [3] Ms Christian submits the following in her grounds of appeal: • Delayed initiation of review; • identification of a suitable position; • the notice of decision provided to me did not meet the requirements of s 149B(6) of the Public Services Act 2008; and • conflicting and incomplete advice from HR. 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 09/20 Fixed Term Temporary Employment ("the Directive"). [5] Section 149B of the PS Act relevantly provides 149 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 — -- 2 of 10 -- 3 (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. (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 [6] 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. -- 3 of 10 -- 4 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. 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. -- 4 of 10 -- 5 What decisions can the Commission make? [7] In deciding this appeal, s 562C 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. Submissions of the Appellant Delay in commencement of review [8] Ms Christian's first ground of appeal is that her review was delayed. She says that she was eligible for review as early as 30 April 2020 and that the Department only commenced the review of her employment status on 23 October 2020 when she requested a review be undertaken. [9] Ms Christian says that the delay in conducting a review of her employment appears to have been detrimental to her employment, as suitable positions within the Department were filled within this time. Identification of a suitable position [10] Ms Christian submits that any search for 'suitable' positions should have been undertaken with regard to a variety of roles, not with regard to policy officer roles at AO6/PO4/AO5/PO2. Ms Christian says that while her job title in the two years prior to the review involved being a 'policy officer', the key duties and accountabilities in some of the roles in these two years spanned more than policy work. [11] Ms Christian is of the view that as of 10 December 2020, there were four positions at the AO6/PO4/AO5/PO2 level that were being advertised as permanent across the Department and that none of those positions have mandatory requirements she does not possess. [12] Ms Christian says it is difficult to believe that there is not an ongoing availability of permanent positions across the levels she has demonstrated she can perform at. Further more Ms Christian is aware of people in other divisions in the Department who have recently had their employment status reviewed and the position they were successfully transferred into was not the same job title that they had been acting in; questioning the assessment and application of suitable positions.1 Notice of decision provided [13] Ms Christian submits that the decision letter provided to her did not satisfy the requirements of s 149B(3)(b) and s 149B(3)(c) of the PS Act. 1 Ms Christian's Appeal Notice filed 11 December 2020, attachment 2 para 13. -- 5 of 10 -- 6 Conflicting and incomplete advice from HR [14] Ms Christian says that it is difficult to assess whether due process was followed with regard to her review of employment due to conflicting advice she received prior to her assessment commencing, the improperly made notice of decision and the incomplete advice received after she received the notice of decision. Submissions of the Respondent [15] The Department says that there is no continuing need for Ms Christian to be employed in her current position as the role has a 'substantive holder'. In addition, the Department says it undertook a review of vacant AO6, PO4, AO5 and PO2 positions within the establishment to identify and roles that could be substantially the same. [16] The Department says that Ms Christian meets the merit consideration, that there are no requirements of an industrial instrument that need to be met and that no previous decisions have been made regarding Ms Christian's employment status as she was previously ineligible for review. Initiation of Review [17] The Department says that Ms Christian became eligible for a departmental initiated review of her employment status upon release of the updated directive on 25 September 2020. Due to an extremely high amount of reviews being requested and undertaken, Ms Christian's review was delayed and commenced on 23 October 2020 when she notified the Department. Identification of a role that is substantially the same [18] The Department submits that a search was undertaken for any continuing and vacant roles that were substantially the same and went over and above the requirements of the Directive by undertaking a review of establishment for vacancies at classification levels AO6, PO4, AO5 and PO2 with the ANZCO codes of Policy Analyst, Program Administrator and Project Administrator as these are positions Ms Christian had performed over the course of her engagement with the Department for the previous two years. [19] The Department provided a spreadsheet indicating that a search had been undertaken and included notations regarding each of the positions considered. [20] The Department says that it is only required to consider roles that are substantially the same as the role Ms Christian is currently performing. Notice of decision [21] The Department acknowledges that s149B(6)(b) and (c) of the PS Act were inadvertently not included in the Ms Christian's notice of decision as the process is new, however this does not change the decision that Ms Christian could not be converted to permanent employment. -- 6 of 10 -- 7 [22] The Department provided Ms Christian's employment history demonstrating that her fixed term temporary employment had been extended eleven times in eight different positions over the course of her total engagement with the Department. Conflicting and incomplete advice from HR [23] The Department does not dispute Ms Christian's submission that there was confusion over her eligibility. [24] The Department says that the updated legislation has caused some confusion for human resource professionals and that changes in position from the Public Service Commission in the initial weeks of the release of the Directive have also impacted on agencies' ability to make clear decisions. [25] The Department says that this does not change the ultimate decision that Ms Christian cannot be converted to permanent employment. Conclusion of Department submissions [26] In conclusion, the Department submits: • The review of Ms Christian's employment complied with the requirements for the Act and the Directive; • there is no continuing need for Ms Christian to be employed in the role, or a role which is substantially the same; and • Ms Christian's current engagement is due to end on 29 January 2020, when the substantive occupant returns. Appellant's submissions in reply [27] Ms Christian's submissions in reply outline her contention that she was eligible for review under the now superseded Directive and that she was also eligible at the time the new Directive came into force. Ms Christian repeats her submission that if there were suitable vacant positions available at that time, the Department's decision not to initiate her review at that time may have been unfairly detrimental to her eventual review. [28] Ms Christian rejects the Department's submissions regarding the implementation of the new legislation and directive and says that the human resources department should have been prepared for the implementation of the new process. [29] Ms Christian says that there is a continuing need for her to perform her current role and that she has been extended in her team for the fifth time with the reason provided being to continue work on a program she is leading the development of. -- 7 of 10 -- 8 [30] Ms Christian says that while the incumbent is due to return to work in the role she has been acting in on 1 January 2021, forward planning has shown an ongoing need for additional roles in the team to deliver the work required to meet external commitments. [31] This planning has resulted in a Cabinet Budget Review Committee bid requesting additional positions for her team. [32] Ms Christian says that she is seeking that the original decision be set aside and substituted with a decision that she be converted to permanent. In the absence of this, Ms Christian seeks confirmation as to when she would next be considered eligible for a review under section 149B of the Act. [33] Ms Christian requests that any future review of her employment is undertaken by an independent party to ensure an absence of any real or perceived retribution for undertaking the appeal and also seeks that measures be put in place across the public sector with regard to these provisions. Consideration of submissions Initiation of the review [34] Ms Christian raises concerns about why a review of her employment was not undertaken earlier under the now superseded Directive. While it may be the case that an earlier review of her temporary employment may have led to a different outcome, the decision not to undertake a review earlier in 2020 is not the subject of this appeal. This appeal requires me to consider whether the decision provided to Ms Christian on 17 November 2020 was fair and reasonable. [35] There is no information before me to demonstrate that Ms Christian's review would have resulted in a different outcome had the review been conducted some weeks earlier when the legislation and Directive took effect. [36] I am unable to conclude on the material provided to me that there were other people who were converted to permanent in roles which were the same or substantially the same as those which Ms Christian was engaged in over the two years prior to the review being undertaken. Identification of a role substantially the same [37] There has been no detail provided by Ms Christian to support her submission that people who have had their employment status reviewed have been transferring into positions with job titles different to the ones they had been acting in. In any case, each review must be undertaken based on the individual circumstances of the employee and the position they are undertaking. [38] The evidence before me is that when the Department found that there was no requirement for Ms Christian to continue to be employed in the role, other roles at a range of classification levels were considered. The Department provided evidence of the roles -- 8 of 10 -- 9 which were identified and some notes regarding the consideration of each. The decision letter indicated that this review of AO6/PO4/AO5/PO2 positions was undertaken. [39] While Ms Christian states that she is able to undertake a much broader range of roles than this, I note that the directive refers to 'the role or a role which is substantially the same'. I note the Department's submissions that codes corresponding with roles of Policy Analyst, Program Administrator and Project Administrator were identified. I find that this was reasonable. There was no requirement for the Department to consider every role which Ms Christian may potentially fulfil based on her skill set. Notice of Decision [40] Ms Christian is correct in identifying that the decision letter did not comply with the requirements set out in s 149B(6)(b) and (c) of the PS Act. [41] The decision letter does not state the total period for which Ms Christian has been continuously employed in the Department and how many times Ms Christian's employment as a fixed term temporary employee has been extended. [42] Decision makers are required to comply with the requirements set out at s 149B, however, on this occasion, I accept the Department's submission the decision subject of this appeal was one of the earlier decisions provided pursuant to the new arrangements and that information regarding Ms Christian's length of employment and number of times her employment had been extended was inadvertently not included. [43] I do not find that the inclusion of this information would have served to change the decision, nor does it lead me to consider that the decision was not fair and reasonable. Conflicting and incomplete advice [44] I can understand the frustration Ms Christian must feel at the conflicting advice provided to her since mid-2020 when she began to ask questions about her eligibility for review. [45] It is essential that the relevant people within a Department are able to provide accurate responses to employee requests for information about the operation of various directives. It appears, in this case, that such information was not forthcoming. [46] The Department acknowledges that there was confusion over Ms Christian's eligibility but says that this confusion does not change the ultimate decision that Ms Christian's employment cannot be converted from temporary to permanent. [47] While Ms Christian's experience may have undermined her confidence in the process, there is no material before me to suggest that the decision subject of this appeal and provided to Ms Christian on 17 November 2020 was not fair and reasonable in circumstances where the incumbent is returning to the role. [48] The Department have stated that the reason Ms Christian was not being converted from temporary to permanent is that the substantive owner of her position is due to return to work. Once that person is undertaking Ms Christian's role, there is no longer a need for -- 9 of 10 -- 10 Ms Christian to do that role. Section 148(2)(a) of the PS Act states that filling a temporary vacancy where a person is absent for a known period is a reason why conversion to permanent may not be viable or appropriate. [49] Ms Christian requests that in the event the Commission does not determine to set aside the decision of the Department and substitute it with a decision that she be made permanent, she be given some confirmation of when she will next be considered eligible for a review under section 149B of the Act. I note that the decision letter states that Ms Christian's next eligibility review date is 23 October 2021. Should Ms Christian's temporary employment be further extended, I would encourage her to seek confirmation from the Department that this date is correct. [50] With regard to Ms Christian's request that any future review be undertaken by an independent party, the legislation and the Directive makes it clear the decision regarding conversion is to be made by the Chief Executive. The criteria to be considered are clear, as is the appeal process. [51] The decision not to convert Ms Christian's employment was fair and reasonable. [52] Pursuant to s 562C(1)(a) of the IR Act the Decision appealed against is confirmed. -- 10 of 10 --