Crookes v State of Queensland (Department of Education)
[2021] QIRC 149
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- Crookes v State of Queensland (Department of Education)[2021] QIRC 149
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Crookes v State of Queensland (Department of Education)[2021] QIRC 149
Crookes v State of Queensland (Department of Education)[2021] QIRC 149
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Crookes v State of Queensland (Department of Education) [2021] QIRC 149 |
PARTIES: | Crookes, Sharyn (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2021/82 |
PROCEEDING: | Public Service Appeal – Appointment to Higher Classification Level |
DELIVERED ON: | 5 May 2021 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDERS: | That the appeal is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the Appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the Appellant was not permanently appointed – where the incumbent of the role is returning – consideration of 'the position' – consideration of the scope of a review under s 149C – consideration of 'genuine operational requirement' |
LEGISLATION AND DIRECTIVES: | Acts Interpretation Act 1954 (Qld) s 14A Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 3, cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11 Industrial Relations Act 2016 (Qld) s 562B, s 564, s 567 Public Service Act 2008 (Qld) s 149C, s 194, s 196, s 197 Statutory Instruments Act 1992 (Qld) s 7, s 14 Barker v State of Queensland [2020] QIRC 224 |
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 Ingram v State of Queensland (Department of Housing and Public Works) [2021] QIRC 011 Katae v State of Queensland & Anor [2018] QSC 225 Nicholls v State of Queensland [2021] QIRC 037 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
Reasons for Decision
Introduction
- [1]Ms Sharyn Crookes (the Appellant) has filed an Appeal against a deemed conversion decision made by the Department of Education (the Respondent).
- [2]Ms Crookes is currently substantively employed in the role of H01 Head of Department for the Respondent (the substantive position).
- [3]However, she has periodically acted at the higher classification level of DP1 Deputy Principal since 18 May 2015, across two positions.
The Decision
- [4]Section 149C(4) of the Public Service Act 2008 (Qld) (PS Act) requires the Respondent's chief executive to decide a conversion request to a higher classification level within the 'required period', defined at sub-s (8) as being:
- (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.
- [5]Pursuant to s 149C(6) of the PS Act, in the event the Respondent's chief executive does not make the decision within the 'required period', the chief executive is deemed to have refused the request.
- [6]On 11 January 2021, Ms Crookes submitted a conversion request to the Respondent.
- [7]Ms Crookes did not receive a written decision within 28 days of her conversion request and therefore deemed the Respondent to have refused the request on 8 February 2021 (the deemed decision).
- [8]The Respondent submits that on 1 February 2021, the decision maker made a written decision to refuse Ms Crookes' request, in compliance with s 149C of the PS Act but "it was evidently not delivered to the Appellant as intended, via the Executive Principal, Redlynch State College, before the close of business on 8 February 2021."
- [9]In its submissions dated 10 March 2021, the Respondent provides relevant information in order to "further justify and uphold the Deemed Decision as fair and reasonable." Considering the Respondent appears to concede the written decision was not communicated to Ms Crookes, I will proceed on the basis the deemed decision not to permanently convert Ms Crookes to the higher classification level is the subject of this Appeal.
Jurisdiction
Decision against which an appeal may be made
- [10]Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against 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]Section 197 of the PS Act allows for the Appeal to be heard and decided by the Industrial Relations Commission.
- [12]Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. Ms Crookes meets that requirement.
- [13]I am satisfied that the conversion decision made by the Respondent is able to be appealed.
Timeframe for appeal
- [14]Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
- [15]The deemed decision was given on 8 February 2021.
- [16]The Notice of Appeal was filed with the Industrial Registry on 24 February 2021.
- [17]I am satisfied that Ms Crookes filed the Appeal within the required timeframe.
Appeal principles
- [18]Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- [19]
- [20]Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.[3]
- [21]The issue for my determination is whether the decision not to convert Ms Crookes' employment status to the higher classification level was fair and reasonable in the circumstances.[4]
What decisions can the IRC Member make?
- [22]Section 562C of the IR Act prescribes that the Commission may determine to either:
- Confirm the decision appealed against;
- Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- Set the decision aside and substitute another decision.
Submissions
- [23]In accordance with the Directions Order issued on 24 February 2021, the parties filed written submissions.
- [24]Despite being given the opportunity, Ms Crookes did not file submissions in reply to the Respondent's submissions.
- [25]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal. The matter was decided on the papers.
Appeal Notice and submissions
- [26]Ms Crookes set out the background to her employment circumstances in the Appeal Notice filed on 24 February 2021. That background was consolidated by information provided in her submissions filed 1 March 2021 and is summarised as follows:
- There were two Deputy Principal positions at Redlynch State College.
- During the periods of 18 May 2015 - 21 July 2015, 24 August 2015 - 11 December 2015 and 11 April 2016 - 9 December 2016, Ms Crookes backfilled for a Deputy Principal who was absent on leave (the DP-S 2 position).
- Ms Crookes then continued to replace either Deputy Principal until the end of 2017.
- In 2018, Ms Crookes returned to her substantive position until 25 November 2018.
- From 26 November 2018, Ms Crookes returned to backfill in one of the Deputy Principal positions while the substantive owner backfilled as Head of Campus (the DP-S 1 position). This engagement continued until the substantive owner of the DP-S 1 position was permanently appointed to the Head of Campus position.
- It was subsequently announced that the DP-S 1 position that Ms Crookes had most recently been backfilling would "go on relocation" and Ms Crookes would not have the opportunity to apply.
- From the beginning of 2021, Ms Crookes has been backfilling in the DP-S 2 position while the substantive owner has "taken leave for a period of 12 months, but still working for the department in another region in Queensland."
- Although Ms Crookes' latest contract at the higher classification level is currently for Semester 1, she has been advised that it may be extended for the remainder of 2021.
- [27]In the Appeal Notice and submissions filed 1 March 2021, Ms Crookes set out why she believes the deemed decision was unfair and unreasonable. Those reasons are summarised as follows:
- Ms Crookes has continuously assumed the duties and responsibilities of the higher classification level since 26 November 2018 and previously between 2015 and 2017.
- Ms Crookes is eligible for conversion having regard to the merit principle, noting her selection for the current acting position was based on the same principle.
- Over the past 7 years, Ms Crookes has continuously engaged in professional development relevant to the Deputy Principal role.
- Ms Crookes was advised that the DP-S 1 position was vacant and that she could apply for it, however it was subsequently changed to a relocation.
- It was recently announced that a Deputy Principal at the Redlynch State College primary campus, in similar circumstances to Ms Crookes, has had her acting duties converted to permanent. That is, despite Ms Crookes having acted for a longer period and having more experience acting as a Deputy Principal.
- The individual temporarily acting in Ms Crookes' substantive position has now been permanently appointed to that position.
- Ms Crookes' has experienced personal stress at the end of each contract because of the associated uncertainty.
Respondent submissions
- [28]The Respondent's submissions, filed 10 March 2021, can be summarised as follows:
- The two Deputy Principal positions "can be considered to comprise the 'same role' - because they are at the same classification level of ST3/DP1, performed under the same role description, but, most importantly, at the exact same school/location with the same managerial reporting line".
- Ms Crookes has performed at the higher classification level role for a continuous period since 26 November 2018. Ms Crookes' service at the higher classification level prior to 26 November 2018 is not relevant to the deemed decision or Appeal.
- The Respondent does not contest Ms Crookes' merit.
- The outcome of the written decision dated 1 February 2021 (that was ultimately not provided to Ms Crookes) is the same as the deemed decision. The written decision provided the following:
The temporary nature of your higher classification level role is the result of a temporary vacancy arising from an existing employee being absent from the role for a known period. The existing employee is absent on a period of approved leave, requiring replacement until the date of their expected return… As an existing employee is substantively engaged in the higher classification role, with an expected return date of 11 December 2021, a genuine operational requirement exists to refuse your request for appointment to the higher classification role.
- When considering the genuine operational requirements of the Respondent in s 149(4A)(a) of the PS Act and cl 6.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20), the Respondent did not have an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department and planning of human resources to appoint Ms Crookes to the DP-S 2 position. Further, it was not viable or appropriate, to permanently appoint Ms Crookes to the DP-S 2 position in the circumstances.
- These are circumstances contemplated in cl 4.2 of Directive 13/20 that support the temporary engagement of an employee.
- The substantive owner's absence from 9 November 2020 and expected return on 11 December 2021, is currently temporary. This is not a case where the substantive owner has been absent for an excessive period such that their absence no longer appears to be temporary.
- With regard to Ingram v State of Queensland (Department of Housing and Public Works) - permanently appointing two persons against the same position is not tenable.[5]
- The status of the DP-S 1 position is irrelevant. With regard to Barker v State of Queensland, it does not matter that the position was previously vacant and another employee transferred to the role.[6] Regardless, the power afforded to the Respondent to permanently appoint Ms Crookes is confined to the position into which she had been seconded at the time of the review - the review must therefore be conducted against the precise position of DP-S 2.[7]
- The Respondent made a clerical error whereby the temporary employee engaged to backfill Ms Crookes' substantive position of Head of Department was incorrectly advised he would be permanently appointed. The Respondent has since corrected this mistake. As such, Ms Crookes remains the substantive owner of the Head of Department position, "which remains available to accommodate her return following the end of her acting duties in the higher classification level position."
- The permanent appointment of the other employee in the primary campus is irrelevant having regard to Nicholls v State of Queensland in which it was noted that the relevant legislative instruments do not provide for consideration of comparative merit in determining whether an employee is to be converted to the higher classification role.[8] Each case must turn on its own specific facts.
- The deemed decision was fair and reasonable.
The Review
- [29]The legislative scheme for the review of a decision to convert an employee to a higher classification level, in the above circumstances, is contained in the IR Act, PS Act and in Directive 13/20.
- [30]Section 149C of the PS Act provides (emphasis added):
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]Further, s 194(1)(e)(iii) of the PS Act provides (emphasis added):
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions—
- (e)a decision (each a conversion decision)—
- (iii)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;
- [32]It is noted that Directive 13/20 came into effect on 25 September 2020.
- [33]Directive 13/20 relevantly provides:
3. Application
3.4The requirement to advertise roles in Directive 13/20 relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive.
4.Principles
4.1An 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.
4.2Secondment 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
4.3 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.
5.Employee may request to be appointed at the higher classification level
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.
5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
(a) have been seconded to or assuming the duties and responsibilities of the higher classification level
(b) for a continuous period of at least one year
(c) be eligible for appointment to the higher classification level having regard to the merit principle.
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:
(a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
(b) each subsequent year where the employee continues their engagement at the higher classification level in the same role.
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.
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.
6. 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.
7. 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.
8. 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.
8.2 In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.
9. Exemption from advertising
9.1 Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive.
10. Transitional provisions
10.1 Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer.
11. Definitions
Agency has the meaning provided in clause 3.3 of this directive.
Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.
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.
Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.
Non-industrial instrument employee has the meaning given under the Industrial Relations Act 2016.
Public service agency means a department or public service office as provided for in section 49A of the PS Act.
Secondment has the meaning given under section 120(1)(a) of the PS Act.
Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed.
- [34]Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[9]
- [35]Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
- [36]The stated purpose of Directive 13/20 is:[10]
- Purpose
1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.
1.2This directive:
(a) highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level
(b) supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle
(c) sets out procedures for requests and decisions.
Findings
- [37]I am required to decide this Appeal by assessing whether or not the deemed decision appealed against was fair and reasonable.
- [38]This involves a review of the decision-making process utilised and the conversion decision arrived at.
Eligibility for review of conversion
- [39]Section 149C(1) and (3) of the PS Act provides that an employee is eligible to request permanent appointment at the higher classification level after the end of one year. This is restated at cl 4.1 of Directive 13/20.
- [40]It is not a point of dispute between the parties that Ms Crookes was eligible to request conversion to the higher classification level.
Purpose
- [41]In deciding this Appeal, I note the significance of the legislative provisions identified and explained above.
- [42]In summary, the status of Directive 13/20 as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of Directive 13/20 is to be preferred to any other interpretation.
- [43]In that regard, I recognise that one of the stated purposes of Directive 13/20 is to support "…the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle."[11]
Decision criteria that must be considered
- [44]The PS Act and Directive 13/20 provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
- Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle;
- The genuine operational requirements of the department; and
- 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.
Merit
- [45]There is no dispute with respect to Ms Crookes' merit.
What is the position subject of this appeal?
- [46]Before assessing whether there are any genuine operational requirements of the department that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled.
- [47]Section 149C(1)(c) of the PS Act provides that s 149C applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the department to permanently appoint Ms Crookes is confined to the position into which she has been placed at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level.
- [48]In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.
- [49]Ms Crookes's higher classification engagement was said to be for the purpose of backfilling an 'incumbent' employee. The question then becomes: what is that employee the incumbent of? They are not merely the incumbent of a generic position, but rather a particular position with a specific position name, classification and number. When they return, they are returning to that precise position.
- [50]The PS Act at s 149C, in concert with Directive 13/20, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.
- [51]By way of contrast, a broader ambit is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same. Following the review, the department's chief executive may "offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number.
- [52]The language of s 149C is narrower: 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. That does not empower the department's chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.
- [53]The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad-ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They pointedly did not do so.
- [54]Directive 13/20, in setting out its purpose at cl 1.2(b), provides that it "supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle". At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of Directive 13/20 as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Clause 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for Directive 13/20. The precise power by which the Respondent may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by Directive 13/20. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within the PS Act at s 149C. That same reasoning applies to a number of similar clauses in Directive 13/20, which use terms such as 'role', 'a position' and the like. It is relevant to note that the word 'role' does not actually appear in s 149C at all.
- [55]To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review.
- [56]In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review.
- [57]It follows that the position the subject of the review was the DP-S 2 position occupied by Ms Crookes. I accept there may be more than one at-level position in the team, but Ms Crookes is only able to be appointed to the position she occupied when requesting the review.
- [58]In reviewing the decision, that is indeed the position against which Ms Crookes was reviewed. That is most apparent in the Respondent's submission that the incumbent will be returning to the position which they had previously occupied and to which Ms Crookes has been seconded, and so there will no longer be a need for her to be seconded. The decision was fair and reasonable in that the review was conducted against the correct position.
- [59]That reasoning was followed in Holcombe v State of Queensland (Department of Housing and Public Works).[12] The words 'the position' must be given effect, and merit is an entirely separate consideration.
Genuine operational requirements of the department
- [60]Clause 4.2 of Directive 13/20 sets out the "Circumstances that would support the temporary engagement of an employee". Slavish concurrence to that clause is not tantamount to considering the genuine operational reasons of the Respondent. However, it is entirely fair and reasonable for the Respondent to consider those factors in arriving at a conclusion of whether to permanently appoint Ms Crookes to the DP-S 2 position.
- [61]While it is true that the date for the incumbent's return may change, that does not undermine the reality that the incumbent is still set to return to that position on a given date and time. That is a legitimate basis for engaging a person on a temporary basis in these circumstances; and it is also a genuine operational reason preventing Ms Crookes' permanent appointment. The Respondent does not require two persons to be employed within the same position.
- [62]The engagement is of the type contemplated within cl 4.2(b) of Directive 13/20, being a circumstance that would support temporary rather than permanent engagement.
- [63]Ms Crookes' submissions about the DP-S 1 position becoming vacant and then being changed to a relocation is somewhat beside the point. As set out above, the Respondent is unable to review Ms Crookes against just any role at DP1 level, but rather against the precise position she occupied at the time of requesting the review.
- [64]It is commendable that over the past seven years, Ms Crookes has engaged in professional development relevant to the Deputy Principal position. However, although Ms Crookes has periodically assumed the higher classification level duties since 2015, she has only continuously been engaged since 26 November 2018. The review is contingent upon continuous engagement and therefore I do not place significant weight on Ms Crookes' service prior to 26 November 2018. The fact that Ms Crookes had been only periodically engaged prior to that time further supports ongoing temporary rather than permanent engagement and the fact there is a substantive owner set to return to the DP-S 2 position presents a genuine operational requirement to refuse permanent conversion in this case.
- [65]With respect to Ms Crookes' submissions regarding the primary campus Deputy Principal being granted permanent conversion in similar circumstances, I accept the Respondent's submissions that each case must turn on its own facts which is inconsistent with consideration of comparative merit.
- [66]The Respondent has submitted that the temporary employee engaged in Ms Crookes' substantive position was mistakenly advised that he had been permanently converted. What is now apparent is that Ms Crookes' substantive position is available for her to eventually return to.
- [67]Although I appreciate the unpleasantness of uncertainty, Ms Crookes has a secure substantive position to return to. In my view, the circumstances do present a genuine operational requirement which prevented Ms Crookes being permanently appointed to her seconded position. There is nothing within that decision or reasoning which was unfair or unreasonable, when regard is had to the precise wording of s 149C. Only one person may occupy the position permanently at any one time in the usual course.
The effect of any previous decisions
- [68]Directive 13/20 came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020.
- [69]Section 149C(4)(b) provides that the Respondent must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
- [70]An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of Directive 13/20.
- [71]Given the timing of the legislative instruments coming into effect, the date of the decision, and the time restrictions on requesting reviews, there cannot have been any previous decisions made under that section with respect to Ms Crookes. Further, the term 'taken to have been made' relates to s 149C(6), which provides that if the Respondent does not make a decision within the requisite review period, they are taken to have refused the request.
- [72]It follows that the decision was fair and reasonable in that respect.
Conclusion
- [73]Ms Crookes has been acting in a higher duties DP1 position. That present engagement is to backfill another employee, the incumbent of that position. She has previously been seconded to the same role, though different positions. Ms Crookes has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
- [74]The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to 'the position' occupied by the employee at the time of seeking the review. It is not an unconstrainted review into similar positions or roles. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C of the PS Act, and the practical limitations which are inherent to s 149C and Directive 13/20.
- [75]In conducting the review against the appropriate position, and in their submissions in this Appeal, the Respondent reasoned there is an incumbent of the position, that person is to return to the position, and the Respondent has no need for two persons permanently appointed to the same position. That was said to present a genuine operational reason not to appoint Ms Crookes permanently to the seconded position. I have found that decision to be fair and reasonable. Only one person may occupy the position permanently at any one time in the usual course. As such, I confirm the decision appealed against and dismiss the Appeal.
- [76]I order accordingly.
Order:
That the appeal is dismissed.
Footnotes
[1] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
[2] Ibid s 562B(2).
[3] Ibid s 567(2).
[4] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.
[5] [2021] QIRC 011, [61]-[63].
[6] [2020] QIRC 224, [39]-[40].
[7] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, [48]-[49].
[8] [2021] QIRC 037, [29].
[9] Katae v State of Queensland & Anor [2018] QSC 225, [26].
[10] Directive 13/20 Appointing a public service employee to a higher classification level, cl 1.
[11] Ibid cl 1.2(a)-(b).
[12] [2020] QIRC 195.