Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Gerhardt v State of Queensland (Queensland Health) - [2021] QIRC 151

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gerhardt v State of Queensland (Queensland Health)[2021] QIRC 151

Gerhardt v State of Queensland (Queensland Health)[2021] QIRC 151

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gerhardt v State of Queensland (Queensland Health) [2021] QIRC 151

PARTIES: 

Gerhardt, Dani

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2020/285

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

6 May 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDER:

  1. The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

LEGISLATION:

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 there was a deemed decision – consideration of "continuous period" – where appellant was acting in different roles – consideration of "genuine operational requirements"

Appointing a public service employee to a higher classification level – Directive 13/20, cl 4.2 cl 6, cl 7

Industrial Relations Act 2016 (Qld), s 562B

Public Service Act 2008 (Qld), s 149C, s 194, s 195, s 197, s 295

Public Service and Other Legislation Amendment Act 2020 (Qld)

CASES:

Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220

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

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

Reasons for Decision

 Introduction

  1. [1]
    Ms Dani Gerhardt appeals a decision not to permanently appoint her to a position in which she has been acting at a higher classification level.
  1. [2]
    Ms Gerhardt is permanently employed in the position of Administration Officer Level 2, AO2, within the elective surgery unit of the Rockhampton Hospital by the Central Queensland Health and Hospital Health Service, Queensland Health ("the Department").
  1. [3]
    Since 22 April 2019, Ms Gerhardt has been acting in a higher duties role as an Administration Officer, Level 3 (AO3), in the role of Administration Officer Medical Education Unit, Medical Services at the Rockhampton Hospital.
  1. [4]
    On 1 October 2020, Ms Gerhardt requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ("the PS Act"), to be permanently converted to the higher classification level position.
  1. [5]
    No decision was made within the time prescribed by the s 149C(6) of the PS Act, so the decision is taken to be a decision refusing Ms Gerhardt's request for conversion ("the deemed decision").
  1. [6]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), which provides than 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.
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] 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. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    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.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[3]
  1. [9]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [10]
    As referred to above, the decision was a deemed decision within the meaning of s 149C(6) of the PS Act. However, on 21 December 2020 the Department purported to issue a decision after purportedly conducting a review of Ms Gerhardt's request in November 2020. The purported review process and decision of 21 December 2020 postdates the date on which the decision was deemed to be a decision pursuant to s 149C of the PS Act, and also postdates the filing of the appeal by Ms Gerhardt.
  1. [11]
    On 23 December 2020, I called the matter on for a mention to query the status of the purported decision of 21 December 2020. During the course of the mention, and, subsequently in writing, the Department confirmed that it viewed the document dated 21 December 2020 as a notice explaining the deemed the decision that had been earlier made rather than a fresh decision.
  1. [12]
    Accordingly, further directions were issued requiring the parties to file and serve written submissions addressing the decision subject of the appeal.

Relevant provisions of the PS Act and Directive 13/20

  1. [13]
    In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20: Appointing A Public Service Employee to a Higher Classification Level ("Directive 13/20"), including those provisions which I set out below.
  1. [14]
    Section 149C of 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 services 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. (5)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (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.
  1. (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.
  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).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [15]
    The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women),[4] Merrell DP relevantly stated:[5]

[37]  The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38]  The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

(Citations omitted)

  1. [16]
    Directive 13/20: Appointing a Public Service Employee to a Higher Classification Level 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.
  1. [17]
    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:
  1.  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:

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

  1. [18]
    Clause 7 of Directive 13/20 provides that a decision-maker who refuses a request must provide a statement of reasons, as follows:
  1.  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:

  1. (a)
    set out the findings on material questions of fact, and
  1. (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.

  1. [19]
    Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Was the decision fair and reasonable?

Jurisdictional objection

  1. [20]
    The Department contends that Ms Gerhardt does not have the right to appeal a decision under s 149C of the PS Act as she has not occupied the role for a continuous period of at least 2 years.
  1. [21]
    The Department relies on s 194(1)(e)(iii) of the PS Act which states that an appeal must be made regarding a decision under s 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.
  1. [22]
    The Department submits that Ms Gerhardt has occupied the role of Administration Officer, Medical Education Unit, since 19 April 2019[6] and therefore had not occupied the role for a period of at least 2 years at the time of the deemed decision (29 October 2020). The Department submits that Ms Gerhardt has only occupied the higher classification level for a period of 18 months.
  1. [23]
    In response, Ms Gerhardt submits that whilst the Department correctly identifies that the term "continuous period" is defined in Directive 13/20 to mean 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, that definition is only relevant to the question of whether an employee is eligible to seek appointment pursuant to s 149C of the PS Act.
  1. [24]
    Ms Gerhardt submits that the definition of "continuous period" as provided for in Directive 13/20 does not apply to the use of the same term in s 194(1)(e)(iii) of the PS Act and as there is no such requirement that a continuous period of 2 years be "in the same role, in the same agency".
  1. [25]
    In support of this position, Ms Gerhardt refers to the decision of Clair v State of Queensland (Department of Housing and Public Works)[7] and relies on the following passages:[8]

The requirement that an employee be engaged at a higher classification level in the same role as provided for in the Directive is only applicable insofar as it relates to s 149C of the Act, and the application of cls 5.2 and 5.3 of the Directive which sets out who is eligible to make a request and when the request may be made.

By contrast, the approach adopted at s 194(e)(iii), which is located in a different chapter of the Act dealing with appeals and reviews, provides that a decision not to appoint an employee to a position at a higher classification level can be appealed if the employee has been seconded to or acting at the higher classification level for a continuous period for at least two years.

Although the appellant has not been acting in the same role for more than two years, there is no question that he has been acting in a higher classification for a continuous period of at least two years.

Unlike s 149C of the Act, s 194 does not contain a definition of continuous service, nor can one be located elsewhere in the chapter or within the Act's dictionary at sch 4.

On the basis the appellant has been acting at the AO6 higher duties classification for more than two years, albeit in different roles, I have concluded, having regard to s194(e)(iii), that the appellant does have a right of appeal in respect of the decision not to permanently appoint him to the AO6 classification.

  1. [26]
    Ms Gerhardt ultimately submits that as she has been acting at AO3 roles for a continuous period of more than 2 years, albeit in different roles, she is eligible to appeal pursuant to s 194(1)(e)(iii) of the PS Act.
  1. [27]
    The difficulty with accepting this submission made by Ms Gerhardt is that there is no information or evidence adduced before me in the course of this appeal (other than her bare assertion) that supports the submission that she has been acting in AO3 roles for a continuous period of more than 2 years. The only information I have before me is that Ms Gerhardt commenced in the AO3 role on 19 April 2019. Neither the material or Ms Gerhardt's submissions refer to any other AO3 role and the particulars of that role, including, for instance, the name of the role and when Ms Gerhardt worked in the role.
  1. [28]
    Ms Gerhardt was on notice that the Department raised the jurisdictional objection with respect to the period in which she had been employed and, although making submissions in general terms that she had been acting in roles for the required period of time, has not provided any information that would satisfy me that she has done so.
  1. [29]
    Ms Gerhardt's submission of 11 January 2021 advised that she commenced acting in higher duties as an AO3 officer on 22 April 2019 and states that she was successful in an open merit recruitment process for this role as the most meritorious candidate. She does not provide any further information as to whether she had previously performed duties at an AO3 classification level. Relevantly, I note the wording used by Ms Gerhardt is that she "commenced acting in higher duties as an AO3 Administration Officer on 22 April 2019". This language is not consistent with Ms Gerhardt having been acting up at an AO3 classification level prior to 22 April 2019.
  1. [30]
    Further in support of this position are the submissions made by the Department, who also refer to Ms Gerhard's submissions and relevantly submit "as Ms Gerhardt has stated, she commenced higher duties as an Administration Officer Level 3 (AO3) on 22 April 2019".
  1. [31]
    Accordingly, on the information before me, I am not satisfied that I have jurisdiction to determine this appeal on the basis that Ms Gerhardt has not acted in a higher classification level for a continuous period of at least 2 years. 
  1. [32]
    However, if I am wrong in this conclusion, I will also address the substance of the appeal.

Genuine operational requirements of the Department

  1. [33]
    As noted above, s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive provides that the decision maker must have regard to the "genuine operational requirements of the Department".
  1. [34]
    It has been held,[9] that when construed in context, the phrase "genuine operational requirements of the Department" would, at least, include consideration of the following:

…

Whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time, to…position at the higher classification level.[10]

  1. [35]
    The Department submits that Ms Gerhardt's temporary appointment to the position at the higher classification level is because the employee who is substantively employed in that position has been absent on long-term sick leave and is planned to return to the position on a return to work plan.
  1. [36]
    Clause 4.2 of Directive 13/20 provides examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level to include when an existing employee takes a period of leave, including long term sick leave, and needs to be replaced until the date of their expected return.
  1. [37]
    The circumstances of this matter, being that the employee who substantively owns the role has been absent on long term sick leave and is intended to return following completion of a return to work plan, accords with the principles of the PS Act and Directive 13/20 to continue the temporary engagement of Ms Gerhardt.

Failure to provide proper reasons

  1. [38]
    Ms Gerhardt further submits that the deemed decision is not fair or reasonable because the decision maker failed to:
  1. make a decision required to be made under the PS Act within the required period;
  1. consider the mandatory criteria in the PS Act for such a decision;
  1. provide a written notice of the decision;
  1. provide written reasons of the decision, including the findings on material questions of fact; and
  1. refer to the evidence or other material on which those findings were based.
  1. [39]
    Ms Gerhardt submits that a deemed decision could not be fair and reasonable as it would undermine and negate the purpose of Directive 13/20 or the right to make a section s 149C request. That is because it is submitted that a decision that fails to consider a relevant consideration is regarded as not being fair and reasonable. Ms Gerhardt further submits that a decision without reasons is also unfair and unreasonable. Finally, Ms Gerhardt submits that a deemed decision has no reasons and has not considered the mandatory criteria is s 149C(4A) of the Act so therefore cannot be fair and reasonable.
  1. [40]
    Clause 7 of Directive 13/20 requires that a chief executive who decides to refuse a request is required to provide a written notice that meets the requirements of s 149C(5) of the PS Act. Such a notice must be provided to the employee and:
  1. set out the findings on material questions of facts; and
  1. refer to the evidence or other material on which those findings were based.
  1. [41]
    However, clause 7.2 of the Directive provides that a written notice is not required to be prepared (after the fact) to support a deemed decision made under clause 6.3. As the decision in this appeal is a deemed decision, there is no requirement that a written notice meeting the matters set out in s 149C(5) of the PS Act be issued.
  1. [42]
    I do not consider that a deemed decision undermines or negates the purpose of the PS Act or Directive 13/20 as submitted by Ms Gerhardt. Such a submission does not accord with the terms of the PS Act and Directive 13/20 which each, respectively, provide for circumstances where a decision is deemed to have been made (see s 149C(6) of the PS Act) and does not require a written notice to be issued setting out the requirements contained in s 149C(5) of the PS Act (see clause 7 of Directive 13/20). 

Conclusion

  1. [43]
    For the reasons set out above, I have concluded that the decision was fair or reasonable.

Order

  1. [44]
    I make the following order:
  1. The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [2020] QIRC 203.

[5] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [37] – [38].

[6] Ms Gerhardt says that the relevant date is 22 April 2019.

[7] [2020] QIRC 220.

[8] Ibid, [16]-[20].

[9] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell.

[10] Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Gerhardt v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 151

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    06 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220
3 citations
Jump To
Cite 1 - [2020] QIRC 220
Cite 2 - [2020] QIRC 220
Cite 3 - [2020] QIRC 220
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Maroochydore Sands Pty Ltd v Minister for State Development, Manufacturing, Infrastructure and Planning [2019] QSC 319
1 citation
Jump To
Cite 1 - [2019] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
5 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Cite 5 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.