Collins v State of Queensland (Queensland Health) [2021] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Collins v State of Queensland (Queensland Health) [2021] QIRC 017 PARTIES: Collins, Terry (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2021/17 PROCEEDING: Public Service Appeal - Fair Treatment Decision DELIVERED ON: 19 January 2021 MEMBER: HEARD AT: Merrell DP On the papers DATES OF WRITTEN SUBMISSIONS: Appellant's written submissions filed on 12 January 2021 and Respondent's written submissions filed on 15 January 2021 ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed CATCHWORDS: INDUSTRIAL LAW - public service appeal - appellant applied for six weeks long service leave between 4 January 2021 and 12 February 2021 - application for only four weeks leave would be approved - appellant then granted approval to take five weeks long service leave following the appellant lodging a grievance - appeal against decision to grant appellant five weeks long service leave - whether decision, in all the circumstances, was fair and reasonable - consideration of reasons given by employer to only approve five weeks long service leave - decision appealed against confirmed on the basis that the decision was fair and reasonable LEGISLATION: Industrial Relations Act 2016, s 562C -- 1 of 6 -- 2 Minister for Industrial Relations Directive: Long Service Leave, Directive 11/ 18, cl 9.1 Public Service Act 2008, s 194 CASE: Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision Introduction [1] Mr Terry Collins is employed as a Principal Investigator in the Integrity Unit of the Metro North Hospital and Health Service ('the Health Service'). Mr Collins is employed by the State of Queensland through Queensland Health. The classification of Mr Collins' position is AO7. [2] On 19 November 2020, Mr Collins applied for six weeks long service leave to commence on 4 January 2021 and to end on 12 February 2021. That application for long service leave was rejected by the Director of the Integrity Unit and Mr Collins was informed that a period of four weeks leave would be approved. Following a grievance lodged by Mr Collins, Mr Shaun Drummond, the Health Service Chief Executive, by letter dated 16 December 2020, advised Mr Collins that a compromise of five weeks long service leave, commencing 4 January 2021, would be approved if Mr Collins made such an application ('the decision'). Mr Collins is presently on long service leave. It is reasonable to assume, therefore, that Mr Collins subsequently made an application for five weeks long service leave which was approved. [3] By appeal notice filed on 6 January 2021, Mr Collins, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against the decision. Mr Collins contends that Mr Drummond's decision was not fair and reasonable and wants a substituted decision, namely that he can take long service leave for six weeks to end on 12 February 2021. There is no dispute that, pursuant to s 194(1)(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable. [4] Because Mr Collins wishes to avail himself of six weeks of long service leave to end on 12 February 2021, I directed a short timeframe for written submissions. Because of its urgent nature, I indicated that I would determine the appeal on the papers. [5] The question for my determination is whether the decision, and the decision-making process, was fair and reasonable.1 [6] Having regard to the submissions made by the parties, the decision was one that was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, I confirm the decision. [7] My reasons follow. 1 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7]. -- 2 of 6 -- 3 The decision [8] In his decision, Mr Drummond stated that the Director of the Integrity Unit did not unreasonably refuse Mr Collins' initial application for six weeks long service leave from 4 January 2021 to 12 February 2021. [9] In coming to that conclusion, Mr Drummond stated that on the information he had regarding the current caseload of the Integrity Unit and its staffing composition, it was evident that without an employee occupying the AO8 position in the team, it would be unreasonable for Mr Collins and '…the other AO7' (the other Principal Investigator, whose position classification was AO7 and who already had one week of leave scheduled for what would have been the sixth week of Mr Collins' leave), to be unavailable at the same time. [10] Mr Drummond stated that the compromise of five weeks long service leave from 4 January 2021 to 5 February 2021 would, if Mr Collins made such an application, be approved by the Director of the Integrity Unit. Mr Collins' grounds of appeal and submissions [11] Mr Collins' grounds of appeal are that: • the AO8 position has been vacant for over a year; • there are four persons '… who have held an AO7 position within the team' including, recently, an employee whose position classification is AO6 and who had been acting in a position classified AO7 which '… well and truly negates the excuse that is being given to me that I cannot take the additional one week of LSL I am entitled to because two AO7's will be away at the same time for one week.'; and • the Integrity Unit has the capability to attend to any urgent matters for the one week he and the other AO7 are not there due to the vast resources, in terms of other employees, of the Health Service. [12] From his submissions, it appears to be the case that, for reasons not directly related to his appeal, Mr Collins has not been physically working within the Integrity Unit work area and has been reporting, on a day-to-day basis, to a person other than the Director of the Integrity Unit as his line manager. In this regard, the Department submits that the Director of the Integrity Unit is still responsible for approving Mr Collins' leave applications and workload allocation. [13] Mr Collins relevantly submits that: • the advice given to Mr Drummond, upon which he based his decision, was not correct due to the information set out in his grounds of appeal; • offering him five weeks long service leave instead of four weeks was not a compromise as his employer was '… denying me what I am legally entitled to -- 3 of 6 -- 4 without any genuine reason' in that there was and still is no compelling situation in place for the Director to claim operational convenience; • workers are legally entitled to take their long service leave and it should not be unreasonably denied to them; • the type of work performed by the Integrity Unit does not directly impact on the delivery of critical health services to patients and does not directly impact on the safety of other staff; • one further week of long service leave would make no difference to the workloads in the Unit; and • his work is up-to-date. The Department's submissions [14] The Department submits that: • the Integrity Unit comprises eight employees which provides the Health Service with investigation services and liaison with professional bodies such as the Crime and Corruption Commission ('the CCC'), the Queensland Police Service ('the QPS') and the Office of the Health Ombudsman ('the OHO'); • matters that are referred to the Integrity Unit are of a serious nature and may warrant reporting to the CCC, the QPS or the OHO; • such matters: − can include circumstances where persons are eligible for protection under the Public Interest Disclosure Act 2010; − are highly sensitive; and − are matters the Integrity Unit solely manages; • the Health Service requires the ability to respond, without delay, to such situations and to provide expert advice to ensure the safety of patients, staff and government assets; • there is a chronic lack of staffing within the Integrity Unit; • Mr Collins in fact commenced leave on 25 December 2020 (which I assume was leave other than long service leave) with his total period of leave to conclude on 5 February 2021, being a period of six weeks; • while it is true that investigation work, normally performed by an employee whose position classification is AO7, has previously been done by an employee whose -- 4 of 6 -- 5 position classification is AO6, that is a reflection of the pressure the Integrity Unit is under even when both AO7 full-time investigators are present; and • if Mr Collins was absent on a sixth week of long service leave from 8 to 12 February 2021, there would only be one AO7 Assessment/Investigator available and that employee would be working on reduced hours of four hours per day, three days per week. The decision was fair and reasonable [15] The taking of long service leave is subject to departmental convenience.2 However, an application for such leave must not be denied for reasons that are not fair and not reasonable. [16] I have some sympathy for Mr Collins. From the information contained in his grievance to Mr Drummond, it seems to me that because of certain events in 2020 concerning the Integrity Unit and the fact that he had been diagnosed with COVID-19, Mr Collins was desirous to have a substantial break on long service leave in January and February this year. [17] Further, the Health Service, in its own submissions, concedes that there is a chronic lack of staffing within the Integrity Unit. It also seems that the AO8 position in the Unit is presently vacant. These circumstances cannot be blamed on Mr Collins. However, they are facts which the management of the Integrity Unit must take into account in approving leave and are matters which, no doubt, affect all employees of the Unit not just Mr Collins. [18] I accept the submissions made by the Health Service about the role performed by the Integrity Unit. A reasonable inference to draw is that the Principal Investigators employed in the Integrity Unit are employees who possess specialised skills so as to be able to deal with the matters that are referred to that Unit. It is also reasonable to draw the inference that the specialised nature of the role of those employees is reflected in the AO7 classification of the position. Further, while it is true that the Health Service has many employees, other Health Service employees may not, in the absence of training or past experience, be able to perform such a role. [19] In his submissions, Mr Collins pointed to events that occurred in the Integrity Unit in 2019 and 2020 which he seemed to link to his allegation that incorrect information was given to Mr Drummond, upon which Mr Drummond relied, in denying him six weeks long service leave. However, it is common ground that for the sixth week of long service leave Mr Collins wishes to take from 8 to 12 February 2021, if he was absent on long service leave for that week, there would be no full-time AO7 Principal Investigator present in the Integrity Unit. The leave of the other full-time AO7 Principal Investigator for that week had been approved before Mr Collins' application for long service leave. [20] For that reason, it seems to me to be fair and reasonable management action to approve Mr Collins' leave so that at least one full-time AO7 Principal Investigator is present at work in the Integrity Unit for that week from 8 to 12 February 2021. 2 Minister for Industrial Relations Directive: Long Service Leave, cl 9.1. -- 5 of 6 -- 6 Conclusion [21] Pursuant to s 194(1)(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable. [22] For the reasons I have given, Mr Drummond's decision was fair and reasonable. [23] I confirm the decision appealed against. Order [24] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 6 of 6 --