Monavvari v State of Queensland (Queensland Health, eHealth)
[2020] QIRC 232
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- Unreported Judgment
- Monavvari v State of Queensland (Queensland Health, eHealth)[2020] QIRC 232
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Monavvari v State of Queensland (Queensland Health, eHealth)[2020] QIRC 232
Monavvari v State of Queensland (Queensland Health, eHealth)[2020] QIRC 232
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232 |
PARTIES: | Monavvari, Ali (Appellant) v State of Queensland (Queensland Health, eHealth) (Respondent) |
CASE NO: | PSA/2020/343 |
PROCEEDING: | Public Service Appeal – Temporary Employment |
DELIVERED ON: | 23 December 2020 |
MEMBER: | Industrial Commissioner Dwyer |
HEARD AT: | On the papers |
ORDER: |
|
LEGISLATION: | Directive 08/17 Temporary Employment cl. 7.2, cl. 9.6, cl. 9.7 Directive 09/2020 Fixed Term Temporary Employment Directive Industrial Relations Act 2016, s 451, s 562B, s 562C Public Service Act 2008, s 149 Public Service and Other Legislation Amendment Act 2020 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 CSR Ltd v General Medical Assessment Tribunal – Thoracic & Anor [2010] QSC 321 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Katae v State of Qld & Anor [2018] QSC 225 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 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 |
Reasons for Decision
Background
- [1]Mr Ali Monavvari is currently temporarily employed as a Principal Technology Officer (classification level AO5) by the Department of Health, eHealth ('the Department').
- [2]Mr Monavvari commenced in temporary employment with the Department on 3 September 2018 and has worked continuously since that time. His current engagement is scheduled to end on 31 December 2020.
- [3]On 27 August 2020 Mr Monavvari was advised that a review of his temporary status would be undertaken pursuant to s 149 of the Public Service Act 2008 and Directive 08/17 ('the directive').
- [4]Following the review of his employment status, on or about 3 November 2020, Mr Monavvari was advised in correspondence from Mr Dario De Zotti ('the decision maker') that he was not going to be converted to permanent employment ('the decision').
- [5]The reasons for the decision were set out in the decision as follows:
I have completed a review of your temporary employment status and, for the reasons outlined below, I have decided not to convert your employment status to permanent. At this time, you will remain as a temporary employee with the Department of Health.
You are not eligible for conversion to permanent employment because as a temporary employee backfilling a substantively owned position, with the substantive holder returning to their position at the end of their higher duties on 1 January 2021, the temporary circumstances of your appointment has a definitive end date. Therefore, I am unable to convert your temporary employment status at this time.
In reviewing your temporary status, the Office of the Executive Director reviewed the Technology Services Branch establishment and engaged the eHealth Queensland Recruitment team to determine whether there were any suitable vacant Principle Technology Officer positions available. A search of the Queensland Government Smartjobs website was also undertaken to identify any suitable Principle Technology Officer roles available at time (sic). Unfortunately, no vacant positions were identified.
- [6]Mr Monavvari appeals the decision and contends, for reasons set out in his submissions, that the decision is not fair and reasonable.
Preliminary and other transitional issues
- [7]Mr Monavvari's matter appears to fall either side of substantial amendments to the Public Service Act 2008 ('the PS Act').[1] The effect of the amendments has been inter alia that appeals previously conducted pursuant to Chapter 7 of the PS Act are now conducted under Chapter 11 of the Industrial Relations Act 2016 ('the IR Act').[2]
- [8]Further, to support the amendments to the PS Act, a number of new Directives were also issued, including the Fixed Term Temporary Employment Directive (Directive 09/2020).
- [9]In Mr Monavvari's matter it would appear the review of his employment status commenced in late August 2020 pursuant to s 149 of the (pre-amendment) Public Service Act 2008 and the (now defunct) Directive 08/17. The review of Mr Monavvari's employment continued through the relevant period of time when the Public Service and Other Legislation Amendment Act 2020 (Qld) was enacted and when the Fixed Term Temporary Employment Directive commenced.
- [10]While the decision post-dates the commencement of the Public Service and Other Legislation Amendment Act 2020 (Qld) it is clear that the review of Mr Monavvari's employment status occurred under the pre-amendment regime. I am content to proceed on that basis.
- [11]
- [12]In the event I am incorrect about that, I note the principles governing these appeals are materially the same under both the IR Act and the PS Act. In those circumstances it is unlikely my conclusion would be affected if the appeal was determined under the PS Act.
What decisions can the Industrial Commissioner make?
- [13]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 ('the IR Act') provides that the Commission may:
- confirm the decision appealed against; or
- set the decision aside and substitute another decision; or
- set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Nature of appeal
- [14]The provisions of Chapter 11 of the IR Act replicate those of Chapter 7 of the pre-amendment PS Act. In the circumstances the same principles apply.[5]
- [15]
- [16]
- [17]The issue for my determination in the matter before me is whether the decision to refuse to convert Mr Monavvari's temporary status was fair and reasonable.[11]
- [18]The parties exchanged written submissions in accordance with a Directions Order (as amended) issued on 16 December 2020.
- [19]Pursuant to s 451(1) of the IR Act, I have elected to decide the matter without a hearing.
The directive
- [20]Clause 9.6 of the directive establishes the relevant mandatory criteria.
- 9.6When reviewing the status of a temporary employee's employment and deciding whether their employment is to be converted to permanent, the chief executive of an agency must consider the following criteria:
- Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing; (Emphasis added) and
- The merit of the temporary employee for the role by applying the merit criteria in section 28 of the PS Act.
(Emphasis added)
- [21]Clause 9.7 establishes an expectation that an employee should be converted, but with one important qualification.
- 9.7A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent.
(Emphasis added)
- [22]Further in Katae v State of Queensland & Anor[12] ('Katae') Crow J held that factors contained in Cl 7.2 could inform the considerations required by Cl 9.6(a).
- [23]Clause 7.2 relevantly provides:
Circumstances that indicate an appointment should be on a temporary rather than permanent basis include, but are not limited to:
- When an existing employee is taking a period of leave (such as parental leave) and needs to be replaced until the date of their expected return from leave;
- ….
(Emphasis added)
- [24]Whether a decision is fair and reasonable needs to be evaluated not only against the proper application of mandatory criteria in cl 9.6, but in the context of the application of the directive as a whole.
Submissions of the parties
- [25]There does not appear to be any contest that Mr Monavvari meets the minimum service and merit criteria established by cl 9.2 and cl 9.6(b) of the directive. The only remaining issues in contention are:
- the ongoing nature of the role, or a role that is substantially the same in accordance with cl 9.6;
- whether there are genuine operational reasons in accordance with cl 9.7.
- [26]In submissions accompanying Mr Monavvari's Appeal Notice filed 23 November 2020 he cites a number of grounds upon which he asserts that the decision is flawed.
- [27]Firstly, he contends that the decision maker failed to consider all temporary roles he had undertaken in the previous two years. Mr Monavvari's relevant work history is that after commencement he worked in three roles at classification levels AO3, AO4 and his current role at AO5.
- [28]The submission appears to be that, in considering 'a role which is substantially the same' for the purposes of the directive, the decision maker was required to consider roles at all of these levels of classification.
- [29]Secondly, Mr Monavvari contends that the decision maker has not undertaken a proper analysis of whether the role or substantially the same roles are 'ongoing' within the proper meaning ascribed to this term in Katae.
- [30]The third ground relied on would appear to be, on proper consideration, mostly a repetition or amalgamation of the first two grounds, but it does make a clear complaint that the decision maker did not provide 'any findings of fact or evidence' in relation to the process undertaken to consider roles substantially the same and/or why they were not ongoing.
- [31]The Department's submissions largely expand on the decision. The department submits that the factors contained in cl 7.2 are relevant considerations to inform a decision maker as to the ongoing nature of a role. The department, citing again the efforts made to locate employment for Mr Monavvari reiterate the decision makers conclusion that the role, or a role substantially the same is not ongoing.
- [32]Additionally, the department expressly rely on 'genuine operational reasons' citing a lack of funding for an additional employee.
- [33]Mr Monavvari's reply submissions filed on 22 December 2020 are essentially an expanded version of the submission accompanying his Appeal Notice and contain no material additions.
Consideration
Failure to consider previous roles
- [34]Mr Monavvari's submissions suggest that, for the purposes of considering the criteria at cl 9.6(a), the decision maker was obliged to consider not just roles substantially the same as the role he was performing, but also roles he had previously performed. I do not agree.
- [35]The language of the first limb of cl 9.6(a) very clearly contemplates a review of 'the' role i.e. singular. In my view it contemplates consideration being given to the criteria in the context of the role being performed by the employee at the time of the review.
- [36]With respect to the second limb i.e. 'a role that is substantially the same' I do not consider that 'substantially the same' is necessarily synonymous with 'the same classification level' but I would consider that to be, at the very least, a compelling characteristic of sameness. I can readily anticipate the objections likely to emerge if decision makers converted employees who had been working for two or more years at a classification level of e.g. AO5 to e.g. a permanent AO3 role. Notwithstanding this may suit Mr Monavvari, I can imagine it would be controversial for many other employees.
- [37]Ultimately, the test of where a role is 'substantially the same' will turn on the individual facts of each matter and the duties and responsibilities of each role.
- [38]The difficulty for Mr Monavvari in this regard is that, apart from job titles and classification levels, he has provided no details as to the duties and responsibilities of his AO3 and AO4 roles to allow me to evaluate whether those roles were substantially the same as the AO5 role he currently performs.
- [39]In the circumstances, while I firstly do not accept the submission that the decision maker was required or allowed to consider roles at lower classification levels, I cannot even consider the alleged oversight here in the absence of the details necessary to compare whether roles are substantially the same.
Failure to consider whether roles were ongoing
- [40]Mr Monavvari submits the decision maker failed to consider the ongoing nature of 'the roles' (plural). This is presumably a reference, in part, to the multitude of roles Mr Monavvari suggests the decision maker was required to consider in his first ground that deals with the failure to take into account every role he had performed in his two years. To the extent the submission relates to that wider scope of roles, I reject it for the same reasons I gave immediately above.
- [41]Mr Monavvari also cites Katae with respect to this objection and further suggests that the decision maker was obliged to provide 'material findings of fact and evidence'.
- [42]It is correct to say that the term 'ongoing' found in Cl 9.6 does not equate to 'permanent'. It is also correct that e.g. incumbent employees, uncertainty of funding or fixed end dates for projects are not, of themselves, a basis to refuse to convert a temporary employee. However, the clearer understanding of the meaning of the terms of Cl 9.6 that is derived from Katae is not where the application of the directive ends.
- [43]Katae is a commonly cited authority in appeals of this nature but, in my observation, it is also often misapplied by appellants. While Katae compels a decision maker to apply a broad consideration to the 'ongoing' nature of the role (or similar role) performed by the temporary employee, it is not authority for the proposition that a decision maker must give paramount priority to the criteria set out in Cl 9.6 over the remaining provisions of the directive.
- [44]The Department was entitled to have regard to the criteria identified in Cl 7.2 in considering Mr Monavvari's conversion and, while it is not expressly mentioned, it is clear that the grounds relied on are consistent with the criteria set out in Cl 7.2. This is confirmed by the department in their submissions.
- [45]Further, the decision maker was also entitled to have regard to cl 9.7. Even where a role or multiple similar roles are ongoing in the sense there is still a need for them to be performed, if e.g. funding is doubtful, or a restructure is imminent etc, then both cl 7.2 and cl 9.7 allow a decision maker to refuse to convert a temporary employee.
- [46]I am satisfied that the decision maker properly considered the mandatory criteria contained in cl 9.6, and in doing so, had appropriate regard to the factors contained in cl 7.2 when determining whether the role was ongoing. The impending return of the substantive position holder is a compelling basis to conclude that a role is not ongoing.
- [47]I am further satisfied that the broader (but unsuccessful) enquiries made for other roles demonstrates genuine operation reasons that would militate against conversion.
- [48]Mr Monavvari complains however, that the decision is also unfair or unreasonable because it does not contain 'material findings of fact and evidence'. Mr Monavvari seeks to impose an obligation on the decision maker that is difficult to identify. He cites no examples of what 'findings of fact and evidence' might be necessary to better or more convincingly inform him that (a) the substantive employee is returning and (b) a search of other areas did not reveal any suitable alternative roles.
- [49]While its possible that more information could have been provided, I do not regard the decision as inadequate in this regard. The reasons of an administrative decision-maker are meant to inform. However, when being subsequently reviewed, they are not to be scrutinised upon over-zealously by the reviewer, seeking to discern whether an inadequacy may be gleaned from the way in which the reasons are expressed.[13]
- [50]As simple as it appears, in my view the decision adequately informs Mr Monavvari of the reasons for the decision. Further, if Mr Monavvari's submission is actually a challenge to the veracity of the statements in the decision by the decision maker, then the onus was on Mr Monavvari to produce his own 'material facts and evidence' to refute the statements of the decision maker. He did not, and in those circumstances, I am entirely content to accept what is asserted in the decision i.e. the role or one substantially similar is not ongoing.
Failure to consider other roles substantially the same
- [51]As I noted above, it is difficult to discern how this ground can be distinguished from the first two. To the extent it traverses the same subject matter as the other grounds, I repeat and rely on my conclusions above.
- [52]In short, Mr Monavvari's criticism that the department has not undertaken the analysis required by the directive and as required by Katae is rejected. The suggestion that the department has somehow misinterpreted the criteria by requiring a substantive vacancy that is suitable is, itself, indicative of Mr Monavvari's misinterpretation of both the directive and the principles set out in Katae.
- [53]The lack of a substantive vacancy will not, of itself, produce a conclusion that a role is not 'ongoing' within the meaning of cl 9.6(a). But, in the context of a permanent employee returning to the role being performed, and the absence of availability of another role that is substantially the same, genuine operational reason will exist that allow a decision maker to validly decline conversion.
- [54]As above, I am not able to identify what 'findings of fact or evidence' might be missing from the decision and consequently render it unfair or unreasonable. The submissions of Mr Monavvari do not assist. The basis for the decision is relatively simple and adequately explained. No further 'evidence' was necessary or required in my view.
- [55]As I said above, if Mr Monavvari wished to challenge the veracity of the statements made by the decision maker, then he had the onus to produce evidence to contradict them.
Conclusion
- [56]For all of the above reasons I find that the decision was fair and reasonable.
Order
- [57]In the circumstances I make the following Order:
- The decision appealed against is confirmed.
Footnotes
[1] See the Public Service and Other Legislation Amendment Act 2020.
[2] Section 197 of the PS Act.
[3] 3 November 2020.
[4] 23 November 2020.
[5] See Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 at [5].
[6] Section 562B(2).
[7] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 (Mason CJ, Brennan and Toohey JJ).
[8] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[9] Ibid.
[10] Section 562B(3).
[11] 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).
[12] [2018] QSC 225
[13] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; see also CSR Ltd v General Medical Assessment Tribunal – Thoracic & Anor [2010] QSC 321 at [35].