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  4. King-Koi v State of Queensland (Department of Education) - [2020] QIRC 209

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King-Koi v State of Queensland (Department of Education)[2020] QIRC 209

King-Koi v State of Queensland (Department of Education)[2020] QIRC 209

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

King-Koi v State of Queensland (Department of Education) [2020] QIRC 209

PARTIES:

King-Koi, Sara

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2020/327

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

7 December 2020

MEMBER:

HEARD AT:

Merrell DP

On the papers

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 25 November 2020 and Appellant's written submissions filed on 30 November 2020

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

LEGISLATION:

Acts Interpretation Act 1954, s 14A and s 27B

Directive 09/20 Fixed term temporary employment, cl 8

Directive 13/20 Appointing a public service employee to a higher classification level, cl 6

Industrial Relations Act 2016, s 88, s 451, s 562B and s 562C

Public Service Act 2008, s 148, s 149A, s 149B, s 149C, s 197 and s 201

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

R v A2 [2019] HCA 35; (2019) ALJR 1106

Reasons for Decision

Introduction

  1. [1]
    Ms Sara King-Koi is currently employed by the State of Queensland in the position of Speech Language Pathologist in the Department of Education. The classification of that position is HP3.  Ms King-Koi is employed as a 0.5 FTE fixed term temporary employee.
  1. [2]
    By appeal notice filed on 19 November 2020, Ms King-Koi, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a decision, taken to have been made pursuant to s 149B(7) of the PS Act by the Chief Executive of the Department, that her employment as a fixed term temporary employee was to continue according to the terms of her existing employment ('the decision').
  1. [3]
    The Public Service and Other Legislation Amendment Act 2020 ('the Amendment Act') commenced operation on 14 September 2020.  The Amendment Act, amongst other amendments, amended the Industrial Relations Act 2016 ('the IR Act') and the PS Act in respect of public service appeals contained in ch 7, pt 1 of the PS Act.  Section 197 of the PS Act now provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [4]
    In my view, the principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions under the IR Act.[1]
  1. [5]
    I must decide the appeal by reviewing the decision appealed against.[2]  Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision‑making process associated therewith.[5]
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[6] Therefore, the issue for my determination is whether the decision appealed against was fair and reasonable.[7] That issue requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').
  1. [7]
    The parties exchanged written submissions in accordance with a Directions Order dated 20 November 2020. Pursuant to s 451(1) of the IR Act, no hearing was conducted.
  1. [8]
    In my view, having regard to the material before me and the submissions made by the parties, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision.
  1. [9]
    My reasons follow.

Background

  1. [10]
    Ms King-Koi commenced temporary employment in the Department as a Speech Language Pathologist on 2 October 2018 with an end date of 21 December 2019. Ms King‑Koi's employment, over that period, was as a 0.4 FTE temporary employee.
  1. [11]
    From 21 January 2019, Ms King-Koi was again temporarily employed as a Speech Language Pathologist with that employment to end on 18 December 2020. The FTE of that temporary employment is 0.5.
  1. [12]
    There is no dispute that:
  • Ms King-Koi, on 2 October 2020, was eligible for review pursuant to s 149B of the PS Act in respect of her temporary employment status; and
  • because no review was conducted within 28 days of 2 October 2020,[8] then pursuant to s 149B(7) of the PS Act, the Chief Executive of the Department was taken to have decided not to convert Ms King-Koi's employment and that she was to continue according to the terms of her existing temporary employment.

The relevant provisions of the PS Act and the Directive

The PS Act

  1. [13]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (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.
  1. (2)
     However, this section does not apply to a non-industrial instrument employee.
  1. (3)
     The department’s chief executive must decide whether to-
  1. (a)
     continue the person’s employment according to the terms of the person’s existing employment; or
  1. (b)
     offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
     The department’s chief executive must make the decision within the required period after-
  1. (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
  1. (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.
  1. (5)
     In making the decision-
  1. (a)
     section 149A(2) and (3) applies to the department’s chief executive; and
  1. (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.
  1. (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-
  1. (a)
     the reasons for the decision; and
  1. (b)
     the total period for which the person has been continuously employed in the department; and
  1. (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
  1. (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.
  1. (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.
  1. [14]
    Section 149A of the PS Act deals with the circumstance where a non-industrial instrument, fixed term temporary employee or a casual employee, who has been continuously employed in the same department for one year or more, asks the chief executive to decide whether to continue the person's employment according to the terms of the person's existing employment or offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.[9]
  1. [15]
    Section 149A(2) of the PS Act provides:

(2) The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if-

  1. (a)
     the department’s chief executive considers-
  1. (i)
     there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
  1. (ii)
     the person is eligible for appointment having regard to the merit principle; and
  1. (b)
     any requirements of an industrial instrument are complied with in relation to the decision.
  1. [16]
    Section 149A(3) of the PS Act provides:
  1. (3)
     If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [17]
    In my view, the construction of sub-ss 149A(2) and (3) of the PS Act, and therefore s 149B(5)(a) of the PS Act, is clear.
  1. [18]
    In the case of R v A2,[10] Kiefel CJ and Keane J, in summarising the principles of statutory construction, stated in part:
  1. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled.  It commences with a consideration of the words of the provision itself, but it does not end there.  A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court.  It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete.  This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  1. Consideration of the context for the provision is undertaken at the first stage of the process of construction.  Context is to be understood in its widest sense.  It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole.  It extends to the mischief which it may be seen that the statute is intended to remedy.  "Mischief" is an old expression.  It may be understood to refer to a state of affairs which to date the law has not addressed.  It is in that sense a defect in the law which is now sought to be remedied.  The mischief may point most clearly to what it is that the statute seeks to achieve.
  1. [19]
    Section 14A of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, an interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.  Schedule 1 to that Act provides that 'purpose', for an Act, includes policy objective.
  1. [20]
    Reading sub-ss 149A(2) and (3) of the PS Act together and in context, the purpose of s 149A(2) is to set out the matters of which the chief executive must be satisfied before he or she is required, pursuant to s 149A(3), to offer to convert the relevant person's employment basis to employment as a general employee on tenure or a public service officer. Therefore, in my view, the transitive verb 'considers' in s 149A(2)(a) relevantly means: 'to regard as or deem to be'.[11] Thus, if a chief executive is of the opinion that there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role, and the employee is eligible for appointment having regard to the merit principle (and where relevant, there is compliance with any requirements of an industrial instrument),[12] the chief executive must decide to make a conversion offer.
  1. [21]
    Again, reading sub-ss 149A(2) and (3) of the PS Act together and in context, the only circumstance where a chief executive officer can decide not to make a conversion offer is where the chief executive forms the opinion that it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [22]
    As I recently stated in Morison v State of Queensland (Department of Child Safety, Youth and Women)[13] in respect of the phrase 'genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in cl 6.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level:

[37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive.  As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38] The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time.  In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

…

[40] The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'

  1. [23]
    In my view, similar considerations apply in the application of s 149A(3) of the PS Act (and, as referred to below, in the application of cl 8.2 of the Directive). The question is whether or not it is viable or appropriate to offer to convert a fixed term temporary employee having regard to, for example, authentic requirements for the effective, efficient and appropriate management of the public resources of the department or the authentic planning of the human resources of the department.

The Directive

  1. [24]
    The Directive relevantly provides:
  1.  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:

  1. (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)
  1. (b)
     where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (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,[14] the decision must:

  1. (a)
     set out the findings on material questions of fact, and
  1. (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).

Ms King-Koi's grounds of appeal and submissions

  1. [25]
    In her appeal notice, Ms King-Koi relevantly contends:
  1. I commenced my initial temporary engagement as a Speech Language Pathologist on 2 October 2018. No decision was made within the required 28 calendar day timeframe which expired on 30 October 2020. The failure to make a decision is not fair and reasonable.
  1. I have performed my role for more than two years now without any adverse finding in respect of performance. Therefore I have demonstrated performance to meet the merit criteria of section 28 of the Act, as required by clause 8.1 of the Directive.
  1. I seek for the deemed decision to be set aside and the following decision to be substituted in accordance with s 208 of the Act: That Sara King-Koi's employment status be converted to permanent in a role similar to the role she has been performing with Department of Education.
  1. I believe that making the substitution as outlined as above is the better course of action as it can be clearly demonstrated that I meet merit and there are no genuine operational reasons to hinder such an outcome.

The Department's submissions

  1. [26]
    After setting out Ms King-Koi's employment history, the Department:
  • accepts that:
  1. -
     Ms King-Koi was eligible for review of her temporary status in accordance with s 149B of the PS Act;
  1. -
     a deemed decision was made pursuant to s 149B(7) of the PS Act;
  1. -
     there is a continuing need for someone to be employed in Ms King‑Koi's role; and
  1. -
     Ms King-Koi is eligible for appointment having regard to the merit principle;
  • contended that it is not viable or appropriate to convert Ms King-Koi from temporary to permanent having regard to the genuine operational requirements of the Department because:
  1. -
     the purpose of Ms King-Koi's '… current temporary engagement is to fill a temporary vacancy because a person is absent for a known period (as contemplated by s 148(2)(a) of the PS Act)' and, in Ms King-Koi's case, the temporary vacancy arose following a period of maternity/parental leave of the substantive employee;
  1. -
     the substantive employee is a Speech Language Pathologist in the Metropolitan Region and is due to return to her role on 11 January 2021, following an extension of her maternity/parental leave;
  1. -
     the entitlement of the substantive employee, to return to the position of Speech Language Pathologist which she held prior to starting maternity/parental leave in accordance with s 88(2)(a) of the Industrial Relations Act 2016,[15] remains the priority;
  1. -
     the Metropolitan Region Speech Language Pathologists '… are funded through the Student with a Disability and Whole of School Support - Student Learning Resource models allocated directly to each region,' and that resourcing - in the form of FTE or staffing allocation - is determined annually which is then used to allocate permanent and temporary Speech Language Pathologists across the region;
  1. -
     the movement of Speech Language Pathologists to different base locations within the Metropolitan Region is annually determined based on service need and that has a corresponding impact on the circuits and the schools' Speech Language Pathologists support;
  1. -
     the Metropolitan Region is presently managing the absence of 16.5 permanent FTE Speech Language Pathologists - due to maternity/parental leave absence - through the use of temporary engagements;
  1. -
     the Metropolitan Region takes a flexible approach to the use of Speech Language Pathologist resources available which allows management to consider the geographic service demand, residence of the temporary/permanent workers, agreed flexible work arrangements for existing employees, and employee leave; and
  1. -
     on considering these variables, management is able to determine the best locations for service coverage across the region to minimise the impact on students from the continual rotation of temporary employees.
  1. [27]
    By way of conclusion, the Department relevantly submitted:
  1. This approach provides the reasoning why the Appellant is currently based at Kenmore South State School, with the substantive employee's current allocated base school of Carole Park State School.
  1. The substantive employee will return to her previous location of Carole Park State School which will require further analysis, and likely reallocation of resources across the base schools in the Metropolitan Region for 2021.
  1. This allocation will be further impacted if the substantive full-time employee opts to return in a temporarily reduced fraction available to her under section 74 of Industrial Relations Act 2016.
  1. With respect to the management of long-term maternity/parental leave, (sic) is the Respondent's assessment that it is not viable or appropriate to add to the permanent establishment numbers for the purposes of maternity/parental leave coverage, particularly given the requirements of the Industrial Relations Act 2016 (referred to at paragraph 14 above).
  1. In preparing these submissions, the Respondent has also considered whether there is a continuing need for someone to be employed in a role which is substantially the same as the Appellant's current role.
  1. Other than the roles referred to at paragraph 23 above, there is no other continuing need for someone to be employed in a role which is substantially the same as the Appellant.

Ms King-Koi's reply submissions

  1. [28]
    Ms King-Koi relevantly submitted that the decision was not fair and reasonable because:
  • any decision that fails to consider a relevant consideration is regarded as not being fair and reasonable;
  • the 'deemed decision' ipso facto has no reasons and has not considered the mandatory criteria in cl 8.1 of the Directive;
  • the Department, in preparing its submissions, had advanced reasoning in support of its decision which was not put to her at any point during or immediately after the review process and that such justification of the decision after the fact is unreasonable; and
  • the proper exercise of statutory power inherently requires that the decision maker's reasons consider the relevant facts and legal criteria, and explain the conclusions drawn which must be adequate such that rights of appeal are not rendered meaningless, and so that a losing party is not left with a justified sense of grievance that the case has not been properly considered which would be an unfair and unreasonable outcome.
  1. [29]
    Ms King-Koi then submits:
  1. Evidently, the Respondent understands such a process is necessary to determine the issue, as that is precisely what they have sought to do after the fact in their submissions in response to this appeal.
  1. I refer in this regard to the Respondent's submissions at paragraphs [12]-[14] where they raise that my employment should remain in a temporary capacity as I am backfilling a substantively owned position.
  1. Similarly, in paragraphs [15]-[240] (sic) the Respondent has submitted that the nature of funding and resource allocation for Speech Language Pathologists doesn't support my conversion to permanency.
  1. While these may have been valid considerations for the decision maker to take into account during the review process, I submit however it is insufficient to raise them now. The reasons must be set out in the decision itself. That is clearly provided for by the Directive 9/20 at clause 8.4 and section 27B of the Acts Interpretation Act 1954.
  1. Submissions on an appeal should not supplant the decision, nor can they be said to constitute the requirement to provide reasons. A person receiving a decision must not have their appeal rights negated merely by reason of inadequate reasons. It was only by lodging this appeal that these reasons were put to me. Even if it were accepted that the submissions were valid considerations to deny my conversion, they are not the delegated decision maker's reasons; they are the retroactive reasons provided by the Department.
  1. Accordingly, I submit that the complete lack of demonstrated consideration of the mandatory criteria and lack of any stated reasons for decision render any inquiry as to the fairness and reasonableness of the decision to be inherently futile and speculative.
  1. [30]
    The decision Ms King-Koi wants is that, because of her good work history, she is permanently appointed to the position of Speech Language Pathologist '… at a FTE equivalent to what I have worked over the previous 12 months.'

Was the decision fair and reasonable?

  1. [31]
    I understand the submissions made by Ms King-Koi that she feels aggrieved and subject of an unfair and unreasonable decision because the Department's submissions, made in this appeal, deal with the issues that should have been dealt with in a decision by the Department if it had conducted the review of her fixed term temporary employment within the required period as set out in s 149B(4)(a) of the PS Act.
  1. [32]
    Such a decision was not made by the Department and therefore, pursuant to s 149B(7) of the PS Act, the Chief Executive was taken to have decided that Ms King‑Koi's employment would not be converted to permanent and that she would continue as a fixed term temporary employee according to the terms of her existing employment.
  1. [33]
    However, the Chief Executive of the Department was taken to have made a decision against which Ms King-Koi could appeal.[16] Ms King-Koi has appealed, and has made submissions in support of her appeal as has the Department. Having regard to the principles of public service appeals referred to earlier in these reasons for decision, I must review the decision and determine if the decision was fair and reasonable.
  1. [34]
    The Department concedes that:
  • there is a continuing need for someone to be employed in Ms King-Koi's role; and
  • Ms King-Koi was eligible for appointment having regard to the merit principle.
  1. [35]
    The Department then submits that it is not viable or appropriate to convert Ms King-Koi's employment from temporary to permanent having regard to the genuine operational requirements of the Department. The genuine operational requirements concern the way the Department manages its Speech Language Pathologists services. The Department submits, having regard to how it manages those services, that there is no need to add to the current establishment of permanent Speech Language Pathologists. 
  1. [36]
    Section 148 of the PS Act sets out the circumstances where the employment of a person on tenure is not or may not be viable or appropriate such that the person may be employed as a fixed term temporary employee. Section 148(2)(a) of the PS Act provides that the employment of a person on tenure may not be viable or appropriate if the employment is to fill a temporary vacancy arising because a person is absent for a known period. One of the given examples of absences for a known period is approved leave including parental leave.
  1. [37]
    The Department refers to the funding arrangements for Speech Language Pathologists in the Metropolitan Region of the Department and the considerations undertaken by that Region in allocating Speech Language Pathologist resources when temporary vacancies arise.  The Department then submits, having regard to the funding arrangements and the approach taken by it about the temporary employment and deployment of temporary employees when permanent employees are on long-term maternity/parental leave, that it is not viable or appropriate to add to the permanent establishment numbers, particularly given the rights of employees who have been on parental leave or on special maternity or sick leave and who return to work. Ms King‑Koi does not dispute these facts.
  1. [38]
    These matters concern the effective, efficient and appropriate management of the public resources of the Department and the planning of human resources. They are authentic or genuine considerations. In my view, they amount to genuine operational requirements of the Department. It was fair and reasonable for the Department, in the circumstances of this case, where Ms King-Koi has been temporarily employed on a fixed term to work in a position held by a permanent Speech Language Pathologist who is on maternity/parental leave, to have regard to those genuine operational requirements.
  1. [39]
    The Department also considered whether there is a continuing need for someone to be employed in a role which is substantially the same as Ms King-Koi's current role. In doing so, it has given a reason as to why there is no continuing need for someone to be employed in a role which is substantially the same as the role Ms King-Koi currently occupies. The reason is that there is no need to add to the current establishment of permanent Speech Language Pathologists. For the same reasons given above in paragraphs [36]-[37], the reason is genuine and therefore fair and reasonable.
  1. [40]
    For the above reasons, the position taken by the Department, on appeal, not to permanently appoint Ms King-Koi as a 0.5 FTE Speech Language Pathologist, is fair and reasonable.

Conclusion

  1. [41]
    The question in this appeal was whether the 'deemed' decision to refuse to permanently appoint Ms King-Koi to the position of 0.5 FTE Speech Language Pathologist was fair and reasonable.
  1. [42]
    For the reasons given, the decision was fair and reasonable.

Order

  1. [43]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison') [2020] QIRC 203, [4]-[5] (Deputy President Merrell).

[2] Industrial Relations Act 2016 s 562B(2).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] In the sense used in the legal categories of appeals - Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[5] Ibid.

[6] Industrial Relations Act 2016 s 562B(3).

[7] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[8] As required by s 149B(4)(a) of the Public Service Act 2008.

[9] Public Service Act 2008 s 149 (1), s 149(2) and s 149(3).

[10] [2019] HCA 35; (2019) ALJR 1106 (citations omitted) (Nettle and Gordon JJ at [148] agreeing).

[11] Macquarie Dictionary (7th ed, 2017) 'consider' (def 2).

[12] Public Service Act 2008 s 149A(2)(b).

[13] Morison (n 1).

[14] Section 27B of the Acts Interpretation Act 1954 provides:

27BContent of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also-

(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.

[15] Section 88 of the IR Act relevantly provides:

88Return to work after parental leave etc.

(1)This section applies to-

(a)an employee who returns to work after parental leave; or

(b)a female employee who returns to work after special maternity leave or sick leave under section 85.

(2)The employee is entitled to be employed in-

(a)the position held by the employee immediately before starting parental leave; or

(b)if the employee worked part-time because of the pregnancy before starting maternity leave-the position held by the employee immediately before starting part-time work; or

(c)if the employee was transferred to a safe job under section 89 before starting maternity leave-the position held by the employee immediately before the transfer.

(3)If the position mentioned in subsection (2) no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position that is, as nearly as possible, comparable in status and remuneration to that of the employee’s former position.

(4)An employer must make a position to which the employee is entitled available to the employee.

[16] Public Service Act 2008 s 194(1)(e)(i) and s 196(e).

Close

Editorial Notes

  • Published Case Name:

    King-Koi v State of Queensland (Department of Education)

  • Shortened Case Name:

    King-Koi v State of Queensland (Department of Education)

  • MNC:

    [2020] QIRC 209

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    07 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) ALJR 1106
2 citations
Jump To
Cite 1 - (2019) ALJR 1106
Cite 2 - (2019) ALJR 1106

Cases Citing

Case NameFull CitationFrequency
Bailey v State of Queensland (Queensland Health) [2021] QIRC 491 citation
Basnayake v TAFE Queensland [2022] QIRC 4442 citations
Benson v State of Queensland (Department of Education) [2021] QIRC 1522 citations
Burgess v State of Queensland (Office of Industrial Relations) [2023] QIRC 772 citations
Doggett v State of Queensland (Department of Energy and Public Works) [2021] QIRC 3542 citations
Employee B v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 1432 citations
Freeman v State of Queensland (Department of Education) [2021] QIRC 3812 citations
Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 1622 citations
Lisle v The Public Trustee of Queensland [2021] QIRC 3531 citation
Mancuso v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 2412 citations
Marshall v State of Queensland (Department of Education) [2021] QIRC 2302 citations
Nuske v State of Queensland (Department of Education) [2023] QIRC 1992 citations
Parker v State of Queensland (Department of Education) [2021] QIRC 672 citations
Parry v State of Queensland (Department of Education) [2024] QIRC 421 citation
Riddiford v State of Queensland (Department of Education) [2021] QIRC 642 citations
1

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