Hamilton v State of Queensland (Department of Housing and Public Works)
[2021] QIRC 148
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- Unreported Judgment
- Hamilton v State of Queensland (Department of Housing and Public Works)[2021] QIRC 148
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Hamilton v State of Queensland (Department of Housing and Public Works)[2021] QIRC 148
Hamilton v State of Queensland (Department of Housing and Public Works)[2021] QIRC 148
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hamilton v State of Queensland (Department of Housing and Public Works) [2021] QIRC 148 |
PARTIES: | Hamilton, Marivic (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) |
CASE NO: | PSA/2020/356 |
PROCEEDING: | Public Service Appeal – Conversion Decision |
DELIVERED ON: | 4 May 2021 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where jurisdictional objection exists – where appellant had been acting in a higher role for less than 2 years – where appellant was on approved sick leave – where appellant was on a return to work plan – consideration of "continuous period" – consideration of "genuine operational requirements" |
LEGISLATION: | Appointing a public service employee to a higher classification level – Directive 13/20, cl 6, cl 7, cl 11 Industrial Relations Act 2016 (Qld), s 562B Public Service Act 2008 (Qld), s 149C, s 194, s 195, s 197 |
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) |
Reasons for Decision
Introduction
- [1]Ms Marivic Hamilton appeals a decision of the Deputy Director General of the Department of Housing and Public Works ("the Department") that determined, following a request by Ms Hamilton to be permanently employed in the position of AO3, Service Delivery Officer, Payroll and Establishment Services, Service Delivery, QSS, that Ms Hamilton's engagement is to continue according to the terms of her existing temporary placement.
- [2]The Department objects to the appeal on jurisdictional grounds. Relevantly, the Department submits that Ms Hamilton is, in accordance with s 195(1)(j) of the Public Service Act 2008 (Qld) ("the PS Act"), excluded from appealing the decision of the chief executive's delegate to refuse her request for conversion on the basis that Ms Hamilton has been seconded to or acting at the higher classification level position of AO3, Service Delivery Officer for less than 2 years. As such, the Department submits that s 194(1)(e) of the PS Act does not apply.
- [3]I will address the jurisdictional objection first and then, if necessary, consider the merits of the appeal.
Jurisdictional objection
Relevant legislative provisions
- [4]Section 195 of the PS Act identifies the type of decision against which an appeal can not be made. Relevantly, the Department states the decision is one that falls within s 195(1)(j) as follows:
195 Decision against which appeals can not be made
- (1)A person can not appeal against any of the following decisions—
…
- (j)a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years;
Relevant background to the jurisdictional objection
- [5]The Department provided an overview of Ms Hamilton's employment in its submissions. Ms Hamilton is permanently employed as a public service officer in the role of AO2, Administrative Officer, with QSS, a business unit of the Queensland Government Chief Digital Group, which is a division of the Department.
- [6]Between 13 July 2018 and 1 September 2019, Ms Hamilton performed higher duties within the Department in several AO3 Service Delivery Officer positions with QSS.
- [7]Between 2 September 2019 and 8 March 2020, Ms Hamilton accessed approved sick leave which subsequently became an approved workers' compensation claim. Ms Hamilton's placement in an AO3, Service Delivery position continued during the period of the approved sick leave.
- [8]On 9 March 2020, Ms Hamilton returned to work on a graduated return to work plan in her substantive position of AO2, Administrative Officer, QSS.
- [9]On 13 July 2020, Ms Hamilton commenced performing higher duties in the position of AO3, Service Delivery Officer, QSS (position number 76019431).
Respondent's submissions with respect to the jurisdictional objection
- [10]The Department submits that s 194(1)(e)(iii) of the PS Act provides that a person can appeal a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.
- [11]Clause 11 of the Directive 13/20 – Appointing a public service employee to a higher classification level ("Directive 13/20"), relevantly defines "continuous period" to mean a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level at the same role in the same agency.
- [12]Accordingly, the Department submits that section 194(1)(e)(iii) of the PS Act, when read in conjunction with ss 149C(8) and 149C(7) of the PS Act and clause 11 of Directive 13/20, allows a person to appeal a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for 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 for at least 2 years.
- [13]The Department submits that as Ms Hamilton returned to her substantive position of AO2, Administrative Officer with QSS on 9 March 2020, and performed the duties and responsibilities of that position until commencing higher duties in the position of AO3, Service Delivery Officer (position number 76019431), on 13 July 2020, Ms Hamilton is excluded from appealing the decision as she has only been performing the duties of the AO3 Service Delivery Officer position, (position number 76019431), for 5 months.
Submissions of Ms Hamilton with respect to the jurisdictional objection
- [14]Ms Hamilton submits that the period in which she undertook a graduated return to work to facilitate her return to the higher classification role she was acting in prior to her injury is an "authorised absence" which should be included in the calculation of the continuous period.
- [15]Ms Hamilton submits that the definition of continuous period specifically contemplates periods of approved absence as not breaking the continuous period of engagement for the purpose of Directive 13/20 and s 149C of the PS Act.
- [16]Further, Ms Hamilton refers to a publication by the Public Service Commission with respect to appointment to higher level FAQ's and quotes as follows:
'Number 5: What does 'continuous period' mean? What is an authorised leave or absence?' is relevant to what an authorised absence would include. As extracted below:
Periods of approved leave (including parental leave and leave without pay), or periods of absence, (including the performance of alternative higher duties), where it was always intended that the employee would return to the higher duties role, may be considered an authorised leave or absence and not break the continuous period.
- [17]Ms Hamilton submits that it was the clear expectation of her graduated return to work plan that once she was medically fit she would be returning to the higher duties role that she had been acting in prior to her injury.
- [18]Ms Hamilton submits that the absence from the role during the period in which she undertook suitable duties was authorised and should be included in calculating the continuous period of her higher duties.
- [19]Section 194(1)(e)(iii) of the PS Act requires consideration of whether the decision related to an employee had been acting up or seconded to a higher classification level for a period of at least 2 years.
- [20]The Department appears to accept that Ms Hamilton's absence from the higher classification level was an authorised absence in so far as it related to the period she was not working because of the injury. However, it contends that the period during which Ms Hamilton was on the return to work plan performing suitable duties breaks the continuous period.
- [21]I consider that the period in which Ms Hamilton was undertaking an approved return to work program was a period of authorised absence. I consider the absence, whilst performing suitable duties on a graduated return to work plan, to be no different to the authorised absence from the workplace because of the injury. Accordingly, I do not consider the period Ms Hamilton was absent while performing suitable duties on a return to work plan broke the continuous period. I dismiss the Department's jurisdictional objection.
Merits of the appeal
- [22]By notice of appeal filed on 25 November 2020, Ms Hamilton, pursuant to Ch. 7 of the PS Act, appealed against the decision.
- [23]The grounds of the notice of appeal included the following:
- a)the decision maker erred in determining that Ms Hamilton had not acted for a continuous period of at least one year in a position at that level because she had assumed the duties and responsibilities of the same higher classification level position for a period of unbroken engagement, including periods of authorised leave and absence, at the higher classification level in the same role, in the same agency since September 2017.
- [24]Ms Hamilton contends that the decision is unfair and unreasonable because the decision maker failed to consider or has misapplied the definition of "continuous period" in Directive 13/20 and has not considered the mandatory criteria for the decision which is an error of law.
- [25]The decision is contained in correspondence dated 4 November 2020, which relevantly provides as follows:
…
The Deputy Director-General, Services Delivery and Operations (Deputy Director-General) has given consideration to your request and notes the following:
- You are substantively employed in the role of AO2, Administrative Officer within Payroll and Establishment Services, Service Delivery, QSS, and that since 13 July 2020 you have been performing the role of AO3, Service Delivery Officer, Payroll and Establishment Services, Service Delivery, QSS.
- You have been engaged in the position of AO3, Service Delivery Officer, Payroll and Establishment Services, Service Delivery, QSS for 3 months.
Higher classification conversion decision
After considering your request to be permanently employed in the position of AO3, Service Delivery officer, Payroll and Establishment Services, Service Delivery, QSS and the circumstances of your temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement.
The reason for the Deputy Director-General's decision is that you are not eligible to seek permanent conversion to the higher classification level in accordance with the higher classification conversion directive, as you have not assumed the duties and responsibilities of the same higher classification level position for a continuous period of at least one year.
…
- [26]The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act, is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
- [27]Sections 562B(2) and (3) of the IR Act replicate the now repealed ss 201(1) and (2) of the PS Act. Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
- [28]As an IRC member, I must decide the appeal by reviewing the decision appealed against. The word ''review'' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[1] An appeal under Ch. 7, Pt. 1, of the PS Act is not by way of rehearing[2] but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
The relevant provision of the PS Act and Directive 13/20
- [29]In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20, including those provisions which I set out below.
- [30]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 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
- (2)However, this section does not apply to the following public services employees—
- (a)a casual employee;
- (b)a non-industrial instrument employee;
- (c)an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
- (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—
- (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).
- (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—
- (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.
- (5)If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- (a)reasons for the decision; and
- (b)the total continuous period for which the person has been acting at the higher classification level in the department; and
- (c)how many times the person's engagement at the higher classification level has been extended; and
- (d)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.
- (6)If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
- (7)The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
- (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).
required period, for making a decision under subsection (4), means—
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply—28 days after the request is made.
- [31]Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
- [32]Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
- 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 documented and 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.
6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.
6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.
- [33]Clause 7 of Directive 13/20 provides that a decision-maker who refuses a request must provide a statement of reasons, as follows:
- 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.
7.2 A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.
Consideration
Misapplication of definition of continuous period
- [34]Ms Hamilton contends that the decision maker has erred in failing to consider and apply the definition of continuous period in the circumstances of her matter. Ms Hamilton contends that she performed the duties of Administrative Officer AO3 continuously from 13 July 2018 to 30 October 2019 when she commenced approved sick leave due to a work-related injury. She states that she remained in higher duties while on approved leave receiving workers' compensation until 28 February 2020.
- [35]Ms Hamilton states that on 9 March 2020 she returned to work on a suitable duties plan with restricted hours and duties and performed the AO2 duties until fit to perform the AO3 duties which was subsequently agreed to by all parties to the suitable duties plan.
- [36]Ms Hamilton states that on 13 July 2020 she returned to performing the duties of administrative officer of AO3, which she has continued to perform to this date. Ms Hamilton contends that at all times she has been performing the duties of the higher role, on approved leave or on an approved absence from the role.
- [37]Curiously, the submissions of the Department argue matters that were not included in the reasons for decision. Relevantly, the Department submits that Ms Hamilton's current temporary placement in the AO3, Service Delivery Officer position (position number 76019431), is to backfill the substantive employee who is relieving in an alternative position. The Department submits that the Directive is quite clear that temporary circumstances still exist and therefore there is a place, where appropriate, to temporarily engage or place employees at higher classification level.
- [38]However, by reference to the reasons for the decision referred to above, these matters were not the reasons relied on by the decision maker in making the decision. Relevantly, the decision maker identified in the reasons for the decision that Ms Hamilton had not been employed for a continuous period of one year in the position.
- [39]I do not consider the reasons for the decision put forward by the Department in its submissions to have any correlation to the reasons contained in the decision. Accordingly, I will limit my consideration to the reasons provided by the Department at the time the decision was made.
- [40]The issue for my determination in this matter is whether the decision was fair and reasonable in the circumstances provided for in s 149C, where an employee may ask the Department's chief executive to appoint the employee to the position at the higher classification level, as general employee on tenure or a public service officer after the end of one year of being seconded to or acting at that higher classification level and each one year after the end of the period mentioned in paragraph a).
- [41]The language adopted in s 149C(3) is relevant to my consideration. Section 149C specifically refers to appointment to the "position" at the higher classification level rather than the more general term of "role".
- [42]Whilst is appears on the evidence before me, Ms Hamilton was working in several AO3 Administrative Officer roles, she had not acted in the position relevant to her request for the period provided for in s 149C(3) because she has been working in that position for less than one year.
- [43]On the material before me, Ms Hamilton commenced in the Administrative Officer position (position number 76019431) on 13 July 2020 and had not previously worked in that position, although she may have previously worked in similar roles.
- [44]Accordingly, I consider that the decision to not convert Ms Hamilton to a higher classification level because she had not been performing the duties and responsibilities of the same higher classification level position for a continuous period of at least one year to be fair and reasonable. The appeal is dismissed.
Order
- [45]I make the following order:
- The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld).
Footnotes
[1] Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[2] See discussion of various legal categories of appeal in Goodall v State of Queensland (Unreported, Supreme Court of Queensland, Dalton J, 10 October 2018) 5.
[3] Ibid.