Hutchinson v State of Queensland (Queensland Health)
[2020] QIRC 225
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- Unreported Judgment
- Hutchinson v State of Queensland (Queensland Health)[2020] QIRC 225
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Hutchinson v State of Queensland (Queensland Health)[2020] QIRC 225
Hutchinson v State of Queensland (Queensland Health)[2020] QIRC 225
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hutchinson v State of Queensland (Queensland Health) [2020] QIRC 225 |
PARTIES: | Hutchinson, Zoe (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2020/348 |
PROCEEDING: | Public Service Appeal - Higher Duties Conversion Decision |
DELIVERED ON: | 22 December 2020 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: | The decision appealed against is confirmed. |
LEGISLATION: | Public Service Act 2008, s 149C, s 194 Industrial Relations Act 2016, s 562 Directive 13/20 Appointing a public service employee to a higher classification level. |
Reasons for Decision
Appeal Details
- [1]Ms Hutchinson is employed by the State of Queensland (Queensland Health) at the Sunshine Coast Hospital and Health Service ("the Service").
- [2]Ms Hutchinson is substantively employed in two positions with the Service:
- (a)Dietitian HP3, Paediatric Allied Health (0.5 FTE); and
- (b)Dietitian Senior HP4, Allied Health Nutrition and Dietetics (0.5 FTE).
- [3]Ms Hutchison was engaged in a higher duties position of Dietitian Advanced, HP5, Allied Health Nutrition and Dietetics on a part time basis (approximately 0.4 FTE), from 17 April 2017 to 1 November 2020.
- [4]By letter dated 3 November 2020, Executive Director – Allied Health, Gemma Turato informed Ms Hutchison that her higher duties arrangement would not be extended beyond 1 November 2020 and that she would not be appointed to the higher classification level. The letter provided the following reasons for the decision:
There are genuine operational reasons being the Nutrition and Dietetics team structure is being reviewed. The structure currently is not reflective of state-wide recommendations for Health Practitioner (HP) levels.
The SCHHS Nutrition and Dietetics team currently has more HP5 and HP4 positions and fewer HP3 positions than recommended by the Allied Health Professionals Office Queensland.
This position was identified in August 2020 for consideration of reclassification to address the structural issues as highlighted above. Meeting minutes from 21 September 2020 confirm the HP5 position is to be reviewed and consideration given to classify a new position at the HP3 level to address the structural issues.
Relevant sections of the Act and Directive
- [5]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 13/20 Appointing a public service employee to a higher classification level ("the Directive").
- [6]Section 149C of the PS Act relevantly provides
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee-
- (a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least one year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (2)The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after -
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
…
(4A) In making the decision, the department's chief executive must have regard to –
- (a)the genuine operational requirements of the department; and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
The Directive
- [7]While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
- (a)when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
- (b)when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
- (c)to perform work for a particular project or purpose that has a known end date
- (d)to perform work necessary to meet an unexpected short-term increase in workload.
…
- Decision making
6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documents an remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.
6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
- (a)the genuine operational requirements of the department, and
- (b)the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.
- Statement of reasons
7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
- (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.
- Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
…
What decisions can the Commission make?
- [8]In deciding this appeal, s 562C(1) 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.
Ms Hutchinson's reasons for appeal
- [9]Ms Hutchinson says that she is appealing the decision on two bases:
Appeal basis 1
Section 149C(4A) states that in making the decision…must have regard to...(a) the genuine operational requirements of the department. The genuine operational reasons of the department refers to the 'state wide recommendations for HP levels'. When requesting a copy of this document the Appellant was provided with two publications…
…
Both documents have a publication date of 2018. They therefore cannot be relied upon as the basis for a genuine operational reason not to renew a contract in November of 2020. This holds further weight given the decision refers to the number of times this higher classification has been extended. The position has been extended 14 times in 27 months, nearly all of which are during the time the publication has been in existence. There is no material change experienced by the Department as at November 2020.
Appeal basis 2
Section 149C(4A) states that in making the decision…must have regard to…(b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level. In making the decision no regard has been had to the reasons for each previous renewal of each extension in the position at the HP5 level during the continuous employment of the applicant. Had the reasons for each decision previously made during that period been considered these were required to be referred to in the decision and it is submitted that on the basis of the reasons for the previous decision that the Appellant has a reasonable expectation of further renewal given the role had been reviewed without consultation or discussion on 14 previous occasions.
Department submissions
Genuine operational requirements not to appoint Ms Hutchinson to the higher classification role
- [10]The Service sets out the reasons it determined that genuine operational requirements did not support the permanent appointment of Ms Hutchinson to the Dietitian Advanced position:
- (a)Dietitian Advanced (position 32043647) was substantively vacant at the time discussions regarding reviewing the workforce occurred between the Acting Executive Director, Allied Health, Mr Richard Spence-Thomas and Acting Director Nutrition and Dietetics, Ms Catherine McFarlane due to the incumbent resigning on 16 August 2020.
- (b)In accordance with the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No.3) 2019 (the Agreement), clause 91, Organisational Change and Restructuring (attachment 1), this position of Dietitian Advanced was identified for review of 3 and 21 September 2020 (attachment 2), prior to Ms Hutchinson's request for consideration of conversion on 8 October 2020. The organisational structure of Nutrition and Dietetics was identified for review on 27 February 2020 (attachment 3), 18 March 2020 (attachment 4) and 30 April 2020 (attachment 5).
- (c)Progression to a formal organisational change process, including consultation with Unions, had not yet occurred as initial discussions were with regard to consideration of service delivery requirements. The Service intends to undertake its organisational change and consultation requirements in accordance with clause 91 of the Agreement.
- (d)Whilst having regard to Directive 18/20 Supporting employees affected by workplace change, review of the position whilst vacant is in the interest of employees to prevent displacement from a permanent position.
- [11]The Service is committed to reviewing positions as vacancies occur as per the requirement of s 98(1)(b) of the PS Act which states a chief executive is responsible for matters in relation to the chief executive's department including managing the department in a way that promotes the effective, efficient and appropriate management of public resources.
- [12]The Service attached the two documents they provided to Ms Hutchinson assisted with the consideration of position composition and structure. Both documents are current and valid as at November 2020.[1]
- [13]The Service says that Ms Hutchinson was engaged to fill the temporary need arising because the substantive incumbent was on secondment from 17 April 2017 to 1 November 2020. Upon receipt of the resignation notice, 16 August 2020 from the substantive incumbent, the Service maintained Ms Hutchinson in the Advanced Dietitian, HP5 role until 1 November 2020. This was to honour the existing contract.
Reasons for decisions previously made under section 149C of the Public Service Act 2008
- [14]The Service says that as this is Ms Hutchinson's first appeal under s 149C of the PS Act, Ms Turato did not address previous decisions in her outcome letter dated 3 November 2020.
Was the decision not to appoint Ms Hutchinson to the higher duties positions fair and reasonable?
Genuine Operational requirements
- [15]The phrase 'genuine operational requirements' is defined in neither the PS Act nor the Directive and must therefore:
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 including 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 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.[2]
- [16]The material before me demonstrates that the Service was undertaking an ongoing review of the organisational structure of Nutrition and Dietetics from February 2020. Evidence of this is provided by way of Attachments 3, 4 and 5 which represent notes of meetings where this was being discussed.
- [17]Ms Hutchinson's reasons for appeal state that her higher duties appointment had been extended 14 times in 27 months and that there had been no material change in circumstances in November 2020.
- [18]However, the submissions of the Service make it clear that there had been a material change in circumstances prior to November 2020. The material change occurred when the substantive incumbent provided her resignation notice on 16 August 2020.
- [19]It seems that the substantive incumbent's secondment was due to end on 1 November 2020, hence Ms Hutchinson's engagement in the higher duties role ending on that same date. The Service says that following the substantive incumbent's resignation, it maintained Ms Hutchinson in the role until 1 November 2020 to honour the existing contract.
- [20]The explanation provided by the Service that it is planning to undertake an organisation change and consultation process, including consultation with relevant unions, in accordance with cl 91 of the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) is sound. When taken with the explanation that when considering Directive 18/20: Supporting employees affected by workplace change, the Service wished to undertake a review of the position whilst vacant to prevent an employee being displaced from a permanent position, the Service has demonstrated genuine operational reasons not to convert Ms Hutchinson to the higher duties role.
- [21]Ms Hutchinson remains permanently employed by the Service as outlined at paragraph [1].
- [22]Ms Hutchinson's second basis of appeal cannot be sustained as there was no need for the decision maker to consider previous decisions made under s 149C of the PS Act as no such decisions have been made. The decision letter included sufficient explanation of the reason Ms Hutchinson was not being appointed to the higher duties role.
- [23]In the absence of any reply submissions being made by Ms Hutchinson and following my review of all of the material provided to me by way of submissions and Attachments 1 – 7, I have determined that there were genuine operational reasons not to appoint Ms Hutchinson to the higher duties position and that the decision of Ms Turato dated 3 November 2020 was fair and reasonable.
- [24]Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.
Footnotes
[1] Queensland Health Allied Health: The last 10 years – achievements and ongoing challenges report and Optimising the allied health workforce for best care and best value: A 10 Year Strategy 2019-2029.
[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [37]-[38].