Schimke v State of Queensland (Queensland Fire and Emergency Services)
[2020] QIRC 205
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- Schimke v State of Queensland (Queensland Fire and Emergency Services)[2020] QIRC 205
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Schimke v State of Queensland (Queensland Fire and Emergency Services)[2020] QIRC 205
Schimke v State of Queensland (Queensland Fire and Emergency Services)[2020] QIRC 205
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Schimke v State of Queensland (Queensland Fire and Emergency Services) [2020] QIRC 205 |
PARTIES: | Schimke, Sophie (Appellant) v State of Queensland (Queensland Fire and Emergency Services) (Respondent) |
CASE NO: | PSA/2020/312 |
PROCEEDING: | Public Service Appeal - Conversion Decision |
DELIVERED ON: | 27 November 2020 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
OUTCOME: | The decision appealed against is confirmed |
LEGISLATION: | Public Service Act 2008, s 148, s 149, s 194 Industrial Relations Act 2016, s 562, Directive 09/20 Fixed term temporary employment |
Reasons for Decision
Appeal Details
- [1]Ms Schimke is employed by the State of Queensland (Queensland Fire and Emergency Services) ("QFES").
- [2]In a decision dated 2 November 2020 regarding the outcome of a review of Ms Schimke's fixed term temporary employment status, the Assistant Commissioner Neil Gallant ("the decision maker") said:
…the decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically my reasons are:-
- There is no continuing need for you to perform your current role because substantive incumbent is returning to the role on a full-time basis;
- There is no continuing need for you to perform a role that is substantially the same.
- All roles are considered; and
- Any facts relied upon either to conclude the roles are not substantially the same, that the roles do not need to be filled on a continuing basis.
- [3]Ms Schimke submits the following in her grounds of appeal:
Based on my appeal is the fact that I have been employed with the Queensland Fire and Emergency services for three years and have been in my current role for 12 months as of 24 November 2020. I have now been declined to be converted to permanent twice over this period. I have met merit on both occasions, but have been told there are no vacancies available at the time of my review periods. I do not believe this aligns with the previous or current directive.
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 —
- (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.
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. …
…
- 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.
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 Department
- [8]Following a Directions Order issued on 13 November 2020, QFES provided submissions in response to Ms Schimke's appeal notice and also relies on the decision letter which was attached to the appeal notice.
- [9]Essentially, the QFES submissions set out that the person who Ms Schimke is backfilling is an absent secondee (referred to as JL) and that her position is that of fixed term temporary employment until 30 November 2020. Under these circumstances, Ms Schimke is employed appropriately as per s 148(2)(a) of the PS Act in that she is employed "to fill a temporary vacancy arising because a person is absent for a known period (e.g. leave or secondment)".
- [10]QFES acknowledges that Ms Schimke's temporary engagement has been extended on previous occasions to backfill JL and other officers. Further, QFES says that should any alternative emerging vacancies, leave reliefs or backfills suited to Ms Schimke be identified, she may be offered further extensions. However, at the time of writing the submissions, Ms Schimke's contracted end date was matched to the expected return date of the absent substantive.
- [11]QFES attached the fixed term temporary conversion checklist form used to review Ms Schimke's employment. The form states the checklist is designed to assist agencies to meet their obligations to review the status of a fixed term temporary employee under the PS Act and the Directive.
- [12]I have reviewed the completed form and observe that there is no dispute that Ms Schimke is eligible for review. Additionally, Ms Schimke is eligible for appointment to the role having regard to the merit principle.
- [13]The delegate has determined that the role will be continuing. However, with regard to the continuing need for someone to undertake the role or a role substantially the same, the delegate has noted that JL is the person who will undertake the role upon JL's return. Part 3.2.4 of the form asks, "Does the reason for the fixed term temporary employment no longer exist (for example, has a substantive occupant returned to the role)?". The delegate has ticked the yes box and added a notation, 'as of 30.11.2020 JL returning'.
Was the decision not to convert Ms Schimke's employment from temporary to permanent fair and reasonable?
- [14]Ms Schimke did not provide any further submissions in support of her appeal. I am unaware at the time of considering this appeal whether Ms Schimke as secured further employment with QFES.
- [15]The information before the delegate when making the decision subject of this appeal was that the role Ms Schimke is currently employed in will come to an end on 30 November 2020 when JL returns to the role. This is a situation envisaged by s 148(2)(a) of the PS Act.
- [16]When JL returns and recommences fulfilling the duties of the role, the need for Ms Schimke to fulfil the duties of the role will cease. There is no continuing need for Ms Schimke to be employed in the role and therefore the decision not to convert her employment from temporary to permanent was fair and reasonable.
- [17]The decision letter briefly sets out the relevant matters considered when making the decision and makes it clear that the reason Ms Schimke is not being permanently employed is the impending return of the substantive incumbent. Specifically the letter says:
Considerations when making the decision
I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed term temporary employment directive 9/20 and your employment history, including any previous conversion review decisions….
- [18]While the paragraph quoted above at [17] makes reference to employment history and previous conversion decisions, the decision letter does not comply with the requirements set out in s 149B(6) of the PS Act as referenced in cl 8.4 of the Directive. It is necessary for the Chief Executive to include in the decision letter the total period for which the person has been continuously employed in the department and how many times that person's employment as a fixed term temporary employee has been extended.
- [19]Ms Schimke included information about her employment background and previous reviews in her appeal notice and QFES provided background to Ms Schimke's employment in its submissions. I have taken all of this information into account in considering the appeal. The reasons for the decision are clear. I do not find that the omission from the decision letter of specifics regarding Ms Schimke's period of continuous employment and number of times her employment has been extended has materially impacted on the decision. The inclusion of this information in the letter would not have changed the outcome of either the review or this appeal.
- [20]The decision appealed against is upheld.