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Page v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 138

Page v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 138

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Page v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 138

PARTIES:

Page, Brooke Shana

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO:

PSA/2020/366

PROCEEDING:

Public Service Appeal – Appointment to a Higher Classification

DELIVERED ON:

27 April 2021

HEARING DATE:

Conference – 11 February 2021

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

The decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested to be appointed to a higher classification position in which she had previously acted – where the appellant made her request while acting in a different position – whether the appellant was eligible to apply for appointment to her former position – where the request was declined – whether the decision was fair and reasonable

LEGISLATION AND

INSTRUMENTS:

Directive 08/17 Temporary employment (superseded)

Directive 12/20 Recruitment and selection

Directive 13/20 Appointing a public service employee to a higher classification level cls 5, 11

Industrial Relations Act 2016 (Qld) s 562B(3)

Public Service Act 2008 (Qld) ss 149B(3), 149C

CASES:

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

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

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

Reasons for Decision

  1. [1]
    Ms Brooke Page is employed by the State of Queensland as an AO2 Administration Officer ('the AO2 position') within Queensland Fire and Emergency Services ('the Department'). The position is based in Rockhampton.
  2. [2]
    Between 12 March 2018 and 14 August 2020, Ms Page acted in higher duties as an AO4 Executive Support Officer ('the AO4 position').
  3. [3]
    Pursuant to s 149C(3) of the Public Service Act 2008 (Qld) ('the PS Act'), on 12 November 2020 Ms Page requested that she be permanently appointed to the AO4 position.
  4. [4]
    In a decision letter dated 23 November 2020 and provided to Ms Page on 25 November 2020, Assistant Commissioner Darryl King advised Ms Page that she was not eligible for appointment ('the decision').
  5. [5]
    By appeal notice filed 26 November 2020, Ms Page appeals the decision under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld). Such an appeal is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[1] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[2]
  6. [6]
    In my view, the decision was fair and reasonable.
  7. [7]
    My reasons follow.

Background

  1. [8]
    In or around early July 2020, Ms Page was advised that, under a Public Service Commission directive which was then in draft form but soon to be in effect,[3] she would meet the criteria for direct appointment to the AO4 position in which she was acting.
  2. [9]
    Shortly thereafter she was offered the opportunity to temporarily relieve another employee in the position of AO5 Regional Advisor Safety & Wellbeing ('the AO5 position').
  3. [10]
    Knowing her intent to apply for permanent appointment to the AO4 position, Ms Page sought guidance regarding whether accepting the AO5 position would impact her application. She received the following advice by email from the Senior HR Business Partner of the Public Safety Business Agency, which was also sent to Assistant Commissioner King:[4]

As I advised raised this yesterday on HR conference.

[Names omitted]

Based on the information provided in draft both ladies agree with assessment.

I have advised them of [Ms Page] and the situation and they both agree that all will be fine and the [higher duties] in the [AO5 position] won't affect the appointment.

The original appointment is irrelevant (AO2) in relation to this.

  1. [11]
    Certainly, within its submissions for this appeal, the Department acknowledges:[5]

… Ms Page, when stepping up temporarily to the AO5 Regional Advisor Safety and Wellbeing role for 20/8/2020, was of the view after a conversation had in good faith with the local HR representative, that new conversion directives for Higher Duties were anticipated in coming months and based on what was known about the Temporary Conversion directive in place at that time (08/17), it was not anticipated by either party that swapping roles would compromise Ms Page's opportunity to apply for conversion, however that has since transpired to be the case on the form of the PSC Directive, specifically 13/20, released on 25/09/2020.

  1. [12]
    Having regard to these comments, Ms Page accepted the AO5 position, commencing in August 2020.
  2. [13]
    At or within the same period Ms Page elected to undertake the higher duties AO5 position, another officer within the Department was formally advised she had been successful, through an Expression of Interest ('EOI') process, in securing the temporary AO4 position vacated by Ms Page. The EOI selection process involved the submission of resumes and the preparation of suitability statements. Candidates were assessed and an order of merit was established.
  3. [14]
    Ms Page subsequently requested permanent appointment to the AO4 position she had previously been performing on a higher duties basis, albeit while still acting in the AO5 position. 
  4. [15]
    On 23 November 2020 Assistant Commissioner King determined that she was not eligible for appointment. The decision relevantly provided:

Decision on request

It has been determined that you are not currently eligible for appointment to the AO4 Executive Support Officer role because:

  • you are not currently performing the role.

In addition, it has been determined that you are not currently eligible for appointment to the AO5 Regional Advisor Safety & Wellbeing role because:

  • you have not been employed in the same role for a continuous period of at least one year.
  1. [16]
    Ms Page's contract for the AO5 position expired on 27 November 2020. She was approved to take annual leave at the higher duties position rate from 30 November 2020 until 14 December 2020.
  2. [17]
    Having been unable to convert Ms Page into the AO4 position in reliance of the reasons set out at [15] above, and faced with the invidious situation where the other officer performing the temporary higher duties role had been found to be meritorious during an EOI process, the Department contends that with the intention of resolving the matter fairly, it sought permission to advertise the position.
  3. [18]
    At or around the same time, the officer who had been successful in securing the temporary AO4 position formerly undertaken by Ms Page was extended in the role from 26 November 2020 until 28 February 2021 (albeit on a temporary basis) pending a resolution of the situation.
  4. [19]
    Submissions from the Department indicate that Acting Commissioner King was advised that if permission was granted by the Public Service Commission to advertise the AO4 position, activities could be commenced to fill the role having regard the relevant recruitment and selection directive which encompassed several processes including: full merit advertisement, closed merit advertisement or direct appointment.[6]
  5. [20]
    Following a conference held in this matter on 11 February 2021, the parties requested the matter be put into abeyance pending the outcome of that recruitment process.
  6. [21]
    On 31 March 2021 Ms Page notified this Commission that she had been unsuccessful in being recruited to the AO4 position and requested that the present appeal be re-enlivened.

Grounds of Appeal

  1. [22]
    Ms Page appeals the decision on the following grounds:
  • Ms Page would not have accepted the AO5 position had she been aware that it would affect her eligibility to apply for permanent appointment to the AO4 position; and
  • The decision-maker erred by making a finding regarding a position in respect of which Ms Page had not requested appointment.

The Department's Submissions

  1. [23]
    The Department does not contest that Ms Page accepted the AO5 position on the basis that doing so would not affect her application for permanent appointment to the AO4 position.[7] However, it submits that the advice provided to her was given in good faith and based on the information available to the Department at the time, namely what was known about the former directive regarding temporary employment.[8]
  2. [24]
    Although Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive') departs from the understanding conveyed to Ms Page at the time of her inquiry, the Department submits that it is bound by the Directive as made.[9] As such, it contends it cannot appoint Ms Page to the AO4 position as she was not acting in the role at the time of making her request. It further submits her decision to undertake the AO5 higher duties role precludes her eligibility under the Directive, in so far as it related to securing the AO4 position.[10]

Ms Page's Submissions

  1. [25]
    Ms Page submits that she would not have accepted the AO5 position had she been advised that doing so would jeopardise her application for appointment to the AO4 position.[11] In making that submission she relied on the fact she had explicitly sought advice to that end as evidenced by the email set out at [10] above.
  2. [26]
    Ms Page refuted the Department's submission that positional changes precluded her appointment, submitting she was engaged in the AO4 position for a continuous period in excess of two and a half years.[12]
  3. [27]
    She argues that continuous period was not broken by her engagement in the AO5 position which she contends was an authorised absence for "the performance of alternative higher duties" in circumstances where it was always intended that she would return to the AO4 position.[13]
  4. [28]
    Ms Page cited the fact that the officer engaged to backfill the AO4 position was contracted only for the period Ms Page acted in the AO5 position as evidence of that intention.[14]
  5. [29]
    Finally, Ms Page highlighted that the AO4 position had become substantively vacant in or around the end of July 2020.[15]

Relevant Principles

  1. [30]
    The PS Act relevantly provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (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
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public service employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    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—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department's chief executive must decide the request within the required period.

(4A) In making the decision, the department's chief executive must have regard to—

  1. (a)
    the genuine operational requirements of the department; and
  1. (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.

 ...

  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

  1. [31]
    The Directive relevantly provides:

5. Employee may request to be appointed at the higher classification level

  1. 5.1
    Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.
  1. 5.2
    To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
  1. (a)
    have been seconded to or assuming the duties and responsibilities of the higher classification level
  1. (b)
    for a continuous period of at least one year
  1. (c)
    be eligible for appointment to the higher classification level having regard to the merit principle.
  1. 5.3
    Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:
  1. (a)
    one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
  1. (b)
    each subsequent year where the employee continues their engagement at the higher classification level in the same role.
  1. 5.4
    An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.
  1. 5.5
    The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.

...

11. Definitions

...

Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.

Was the decision fair and reasonable?

  1. [32]
    It is not in dispute that Ms Page met the merit principle for appointment to the AO4 position,[16] or that there were no genuine operational requirements which would have precluded her appointment.[17] Rather, this appeal turns solely on whether Ms Page was eligible to apply for permanent appointment to the AO4 position.
  2. [33]
    I am satisfied that Ms Page had previously acted in the AO4 higher duties role within the same agency for well in excess of the mandatory one-year period.
  3. [34]
    Regrettably, the difficulty in this matter is the timing of Ms Page's application, in conjunction with the role she was undertaking at the time she made her application to be appointed to the higher level AO4 position.
  4. [35]
    Unfortunately for Ms Page, decisions of this Commission have established that the reference to "the position" in s 149C is a reference to a specific position.[18] That is, an employee may only apply for appointment to the position in which the employee "is seconded to, ... or is acting at, a higher classification".[19]
  5. [36]
    Although it is clear from the terms of Ms Page's request that she applied for appointment to the AO4 position specifically, the only position in which she was acting at the time of her request was the AO5 position.
  6. [37]
    Consequently, the only conclusion I am able to reach, given those circumstances, is the Department has not erred in finding that she was not eligible for appointment to the AO4 position, on the basis that Ms Page was not performing the higher duties AO4 role, at the time she made the application.
  7. [38]
    Had Ms Page been returned to the temporary AO4 position and then made her request, a more favourable decision may have followed.
  8. [39]
    In her submissions Ms Page relies on the definition of continuous service – i.e. "a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency" – in support of her position that she was essentially on an authorised absence from the AO4 position at the time she applied to be converted to the higher AO4 classification level.
  9. [40]
    The difficulty I have with this argument is that Ms Page was not undertaking the AO4 position at the time of her application. The definition to which Ms Page is referring is only of assistance in this matter in so far as it assists the parties to determine the period of engagement within the role.
  10. [41]
    To be eligible to request consideration for appointment at the higher classification AO4 level, Ms Page must have, in addition to several other factors, been seconded to or assuming the duties and responsibilities of the higher classification level, that is, the AO4 position, at the time of the request.
  11. [42]
    It is regrettable that Ms Page's employment has been prejudiced through no fault of her own and I sympathise with her position immensely. However, I hasten to add that I do not consider that Ms Page has been deliberately mislead and I accept the Department's submission that the advice provided to her was given in good faith, in anticipation of a Directive that had not yet been released.
  12. [43]
    The Department contends it is bound by the terms of the Directive and cannot operate beyond its constraints. Although I agree with this submission in so far as it relates to this appeal and Ms Page's eligibility to make a request, it is worth observing that neither Ms Page nor the Department are prevented, outside the parameters of this appeal, from exploring other ways in which Ms Page's concerns might be otherwise addressed.
  13. [44]
    Finally, I do not consider it unfair or unreasonable for the Department to have made a finding with respect to the AO5 position. That is so because, although s 149C(3) makes it incumbent on the employee to request appointment,[20] and it is clear to me that although Ms Page's intention was that her request be limited to the AO4 position, the AO5 position was the only position in respect of which she could apply.

Conclusion

  1. [45]
    For the reasons given above, I consider the decision was fair and reasonable.
  2. [46]
    I order accordingly.

Order

The decision appealed against is confirmed.

Footnotes

[1]Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[3]That directive has since been released as Directive 13/20 Appointing a public service employee to a higher classification level.

[4]Attached to Ms Page's primary submissions filed 1 December 2020.

[5]The Department's submissions filed 11 December 2020, [11].

[6]Directive 12/20 Recruitment and selection.

[7]The Department's submissions filed 11 December 2020, [11].

[8]The Department's submissions filed 11 December 2020, [11] citing Directive 08/17 Temporary employment (superseded).

[9]The Department's submissions filed 11 December 2020, [24].

[10]The Department's submissions filed 11 December 2020, [11] citing Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Merrell DP).

[11]Ms Page's primary submissions filed 1 December 2020; Ms Page's reply submissions filed 17 December 2020.

[12]Ms Page's primary submissions filed 1 December 2020, [8].

[13]Ms Page's reply submissions filed 17 December 2020, [3] and [5], citing Attachment B ('Conversion to higher duties classification checklist') to the Department's submissions filed 11 December 2020.

[14]Ms Page's reply submissions filed 17 December 2020 [3].

[15]Ms Page's reply submissions filed 17 December 2020 [9].

[16]The Department's submissions filed 11 December 2020, [9] and [10].

[17]As evidenced by the fact that the position has now been substantively filled.

[18]See e.g. Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 (McLennan IC).

[19]Public Service Act 2008 (Qld) s 149C(1)(a); my emphasis.

[20]Cf. s 149B(3) of the Public Service Act 2008 (Qld) in respect of the conversion of temporary employees after two years continuous employment.

Close

Editorial Notes

  • Published Case Name:

    Page v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Page v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2021] QIRC 138

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    27 Apr 2021

Appeal Status

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