Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Zullo v State of Queensland (Department of Communities, Housing and Digital Economy) - [2021] QIRC 156

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

Zullo v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 156

Zullo v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 156

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Zullo v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 156

PARTIES:

Zullo, Francesca

(Appellant)

v

State of Queensland (Department of Communities, Housing and Digital Economy)

(Respondent)

CASE NO.:

PSA/2021/77

PROCEEDING:

Public Service Appeal - Appointment to position at a higher classification level

DELIVERED ON:

12 May 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 12 March 2021

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – public service appeal – appellant requested respondent's chief executive to appoint appellant to a position at a higher classification level pursuant to s 149C(3) of the Public Service Act 2008 – appellant not appointed because the permanent occupant of the position, who is relieving in an alternative position, may return to the position – whether decision not to appoint appellant to the position, in those circumstances, was fair and reasonable – decision fair and reasonable – decision appealed against confirmed

LEGISLATION:

Directive 09/20 Fixed term temporary employment

Directive 13/20 Appointing a public service employee to a higher classification level, cl 4 and cl 6

Industrial Relations Act 2016, s 539 and s 562C

Public Service Act 2008, s 149C

CASES:

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

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

Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 15

Reasons for Decision

Introduction

  1. [1]
    Ms Francesca Zullo is employed by the State of Queensland. Ms Zullo has acted in the higher classification level position of Rent Connect Officer within the Bayside Housing Service Centre, Housing and Homelessness Services ('HHS'), classification AO5, position number 32009099 ('the position'). The HSS is a division of the Department of Communities, Housing and Digital Economy.
  1. [2]
    By appeal notice filed on 18 February 2021, Ms Zullo, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a written decision dated 29 January 2021 conveyed by Ms Kara Mudra, Manager, Human Resources of the Department. The decision was one made by the Deputy Director‑General, HHS, to deny the request made by Ms Zullo, on 14 January 2021, to be appointed to the position ('the decision'). The decision involved the application of s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
  1. [3]
    On 22 February 2021, I ordered that Ms Zullo and the Department, by specified dates, file and serve written submissions in relation to Ms Zullo's appeal. The Department has filed and served written submissions. Ms Zullo has not. Four attempts were made by officers of the Industrial Registry to contact Ms Zullo about her failure to file and serve written submissions. Direct contact was not able to be made with Ms Zullo. Ms Zullo has not responded to any emails or messages left on her phone about her failure to file and serve written submissions. In these circumstances, pursuant to s 539(c) of the Industrial Relations Act 2016 ('the IR Act'), I will hear and determine Ms Zullo's appeal on the papers based upon the contentions contained in her appeal notice and upon the Department's written submissions.
  1. [4]
    The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.[1]
  1. [5]
    For the reasons that follow, the decision was fair and reasonable.

Background

  1. [6]
    Ms Zullo is substantively employed in the position of Senior Housing Officer, classification AO4, within the Bayside Housing Service Centre. Since 14 January 2019, Ms Zullo has been continuously acting in the position.
  1. [7]
    On 6 October 2020, Ms Zullo requested that she be permanently appointed to the position pursuant to s 149C of the PS Act. That request was denied on the basis that Ms Zullo's placement in the position was to backfill a substantive employee while that employee was relieving in an alternative position, and that should the substantive employee return to that position, there would be no continuing need for Ms Zullo to be engaged in the role.
  1. [8]
    On 14 January 2021, Ms Zullo made a further request to be permanently appointed to the position pursuant to s 149C of the PS Act.
  1. [9]
    In the decision, Ms Mudra relevantly stated:

The Deputy Director-General HHS, (Deputy Director-General) has given consideration to your request and notes the following:

  • You are substantively employed in the position of AO4, Senior Housing Officer within the Bayside HSC, and that since 14 January 2019 you have been continuously performing the duties of AO5, Rent Connect Officer (32009099) within Bayside HSC, including authorised absences.
  • The purpose of your placement in the position of AO5, Rent Connect Officer (32009099) within the Bayside HSC is to backfill the substantive employee, while the substantive employee is performing higher duties in an alternative position.
  • You have been engaged in the position of AO5, Rent Connect Officer (32009099) within the Bayside HSC, for approximately 24 months.
  • Your engagement in the position of AO5, Rent Connect Officer (32009099) within the Bayside HSC, has been extended eight times.
  • Your current engagement in the position of AO5, Rent Connect Officer (32009099) within the Bayside HSC is due to expire on 26 February 2021.
  • There are no performance concerns regarding your placement in the position of AO5, Rent Connect Officer (32009099) within the Bayside HSC, that have been put to you, documented and remain unresolved.

…

Higher classification conversion decision

After considering your request to be permanently employed in the position of AO5, Rent Connect Officer (32009099) within the Bayside HSC, and the circumstances of your temporary engagement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary engagement. The reasons for the Deputy Director‑General's decision are:

  • The purpose of your current placement in the role of AO5, Rent Connect Officer (32009099) within the Bayside HSC, is to backfill a substantive employee while the substantive employee is relieving in an alternative position.
  • Should the substantive employee return to their position of AO5, Rent Connect Officer (32009099), there will no longer be a continuing need for you to be engaged in that role.

Ms Zullo's contentions

  1. [10]
    In her appeal notice, Ms Zullo relevantly stated:
  1.  I submit that the decision is unfair and unreasonable for the following reasons:
  1. (a)
    A total of 6 staff within our Bayside office have been appointed under the Temporary to Permanent directive
  2. (b)
    One of those staff members were [sic] appointed from a Temporary AO3 to a Permanent AO4 - how can you risk manage under one directive and not another
  3. (c)
    I have demonstrated the skills, knowledge and abilities required to understand the duties of this role, I have been acting within higher duties of this role for extended periods of time, over the last 4 years.
  4. (d)
    I feel there is no consideration to us permanent employees, yet, somehow temporary staff seem to supersede permanent staff by being appointed to permanent positions within the department.
  5. (e)
    The directive states that is [sic] 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.
  6. (f)
    I have reviewed the Higher classicisation [sic] conversion checklist and I appear to meet the criteria required to be appointed to the role.
  1. Please [sic] briefly outline any other matters you consider are relevant which you will expand on in your written submissions
  1. —
    As answered in question number 3
  1. —
    The potential severe financial impact I face if I am returned the [sic] my substantive AO4
  1. —
    The uncertainty of job security
  1. I have performed in a position at a higher classification level for more than two years now without any adverse finding in respect of my performance or conduct. Therefore, I have demonstrated merit with respect to s 27 of the Act.
  1. I seek for the decision to be set aside and a decision to be substituted in accordance with s 562C of the Industrial Relations Act 2016 that I be appointed permanently in the AO5, Rent              Connect Officer position within the Bayside Housing Service Centre.

The Department's submissions

  1. [11]
    The Department submitted that:
  • clause 4.2 of the Directive relevantly provides that a circumstance that would support the temporary engagement of an employee at a higher classification level includes 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;
  • Ms Zullo's current temporary placement in the position is to backfill the substantive employee who is relieving in an alternative position;
  • as a consequence, there will no longer be a continuing need for Ms Zullo to be placed in the position once the substantive employee returns to work in their substantive position; and
  • the Department does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the position and, as such, it is not appropriate or viable for it to offer to permanently employ Ms Zullo in the position.
  1. [12]
    The Department expressly dealt with the other issues raised by Ms Zullo in her appeal notice. The Department submitted:
  1. Further, with respect to the Appellant's submissions regarding employees appointed at the Bayside HSC in accordance with Directive 09/20 Fixed term temporary employment (Directive 09/20), the Department submits that all conversion requests, submitted under both Directive 09/20 and Directive 13/20, are considered on a case-by-case basis, and reiterates that for those submitted under Directive 13/20, by having regard to the requirements of clause 6.2 of the directive and section 149C(4A) of the PSA.
  1. With respect to the Appellant's submission that they have been acting in higher duties in the role of AO5, Rent Connect Officer for extended periods of time, over the last four years, it is noted that:
    1. (a)
      prior to January 2019, the Appellant had performed a period of higher duties in a different AO5 Rent Connect Officer position, position number 723599, within the Bayside HSC.
    2. (b)
      section 149C(3) of the PSA provides that an employee may only ask the department's chief executive to appoint the employee to the position at the higher classification level.
    3. (c)
      clause 4.1 of the directive relevantly provides that an 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 officers [sic] following a written request to the chief executive.
  1. As such, the department submits that a requesting employee can only request and be considered for appointment to the specific position the employee is performing at the time they submit their conversion request. In the case of the Appellant, the department submits the relevant position is the AO5, Rent Connect Officer position, position number 32009099, within the Bayside HSC.
  1. Further, and as confirmed by the QIRC in Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, the department submits that a department chief executive or delegate is not required to consider at level positions within the department when assessing an employee's conversion request. Accordingly, the chief executive's delegate was only required to consider appointing the Appellant to the AO5, Rent Connect Officer position, position number 32009099, within the Bayside HSC, being the specific position the Appellant was performing at the time they submitted their conversion request.
  1. In relation to the requirement for the chief executive to consider the reasons for each decision previously made, or deemed to have been made, under section 149C of the PSA, in relation to the Appellant during their continuous period of employment at the higher classification level, the department submits that on 6 October 2020, the Appellant submitted a written request to be permanently appointed to the position of AO5, Rent Connect Officer, position number 32009099, at the Bayside HSC.
  1. The outcome of that previous review was that the Appellant's engagement was to continue according to the terms of their temporary placement, as the purpose of their engagement at the time of review was to backfill a substantive employee while the substantive employee was relieving in an alternative position. The department submits that the purpose of the Appellant's engagement in the position of AO5, Rent Connect Officer, position number 32009099, at the Bayside HSC, remains the same.

The relevant legislative provisions

  1. [13]
    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)
    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. (3)
    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. [14]
    The Directive relevantly provides:
  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.

The decision was fair and reasonable

  1. [15]
    Section 149C(1) of the PS Act provides that the section applies in relation to a public service employee if, relevantly, the employee:
  • is acting at a higher classification level in the department in which the employee holds an appointment or is employed; and
  • has been acting at the higher classification level for a continuous period of at least one year; and
  • '… is eligible for appointment to the position at the higher classification level having regard to the merit principle.'
  1. [16]
    Section 149C(3) of the PS Act provides that after the end of one year of acting at the higher classification level, 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.'
  1. [17]
    The phrase used in s 149C(1)(c) and in s 149C(3) of the PS Act, namely, '… the position at the higher classification level' is very specific. The purposes of these provisions are, respectively, that:
  • it is the specific position at the higher classification level, in which the employee has been acting, that an assessment of the employee's eligibility for appointment, having regard to the merit principle, must be made; and
  • the request made by an eligible employee is to be appointed, as a general employee on tenure or a public service officer, to the position at the higher classification level in which the employee is acting.
  1. [18]
    If it were otherwise, then Parliament would have used different words or a different phrase to '… the position at the higher classification level' in s 149C(1)(c) and in s 149C(3) of the PS Act.
  1. [19]
    This analysis about s 149C(1)(c) and s 149C(3) of the PS Act is consistent with decisions of other members of the Commission.[2]
  1. [20]
    In making a decision under s 149C(4) of the PS Act, a department's chief executive must have regard to the genuine operational requirements of the department.
  1. [21]
    On the facts in the present case, Ms Zullo has been acting in the position because the person permanently appointed to the position is relieving in an alternative position. The basis upon which the Deputy Director-General made the decision was the fact that the incumbent of the position may return to the position when that person's requirement to relieve in the alternative position ceases. Such a reason is clearly a genuine operational reason of the Department within the meaning of s 149C(4A)(a) of the PS Act.[3]
  1. [22]
    The other reasons given by Ms Zullo in her appeal notice have not persuaded me that the decision was other than fair and reasonable.
  1. [23]
    The fact that temporary employees of the Bayside Housing Service Centre have been permanently appointed under Directive 09/20 Fixed term temporary employment does not and cannot mean that the decision was not fair and reasonable. The circumstances of those other appointments would, no doubt, be completely different to those concerning Ms Zullo.
  1. [24]
    As acknowledged by the Department in its submissions, there is no issue about Ms Zullo's knowledge and ability to be able to perform the duties and responsibilities of the position. However, having regard to s 149C(4A)(a) of the PS Act, that fact alone is not a sufficient reason for the Chief Executive to offer to permanently appoint Ms Zullo to the position.
  1. [25]
    The only position which is relevant to Ms Zullo's present request is the position in which she has been relieving since 14 January 2019. The fact that Ms Zullo may have relieved in other positions prior to that time is not a material consideration.
  1. [26]
    Ms Zullo submitted that she will suffer a potential severe financial impact if she is returned to her substantive position. Assuming that to be true, having regard to the actual reason Ms Zullo has been relieving in the position - to backfill for the substantive employee who has been relieving in an alternative position - Ms Zullo's financial circumstances cannot mean that the decision not to permanently appoint her to the position was not fair and reasonable.
  1. [27]
    Finally, Ms Zullo submitted that the reason she should be appointed to the position was the '… uncertainty of job security'. I am not sure what Ms Zullo meant by that. Ms Zullo's appointment to her substantive position means that she is a permanent employee. Ms Zullo gave no further particulars of this ground, such as, for example, some uncertainty about whether her substantive position would be maintained as a permanent position within the Department. However, even if that was true, having regard to s 149C(4A) of the PS Act, that would not be a material consideration for the Deputy Director‑General in making a decision.
  1. [28]
    This is the second time Ms Zullo's request to be appointed to the position has been denied. The reasons given, on both occasions, was that the substantive employee may return to the position when the substantive employee finishes relieving in the alternative position. Those circumstances have existed since at least 14 January 2019. It may be that upon a further request made by Ms Zullo to be appointed to the position, a different decision may be made if, on a reasonable consideration of all the circumstances, it was unlikely that the substantive employee would ever return to the position.
  1. [29]
    However, at the present time, the Department, by its submissions, indicates that the substantive employee will return to the position when that employee's relieving in the alternative position ceases.

Conclusion

  1. [30]
    For the reasons I have given, the decision was fair and reasonable.

Order

  1. [31]
    I make the following Order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [3]-[7].

[2] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, [48] (Industrial Commissioner McLennan) and Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 15, [27] (Industrial Commissioner Power).

[3] Morison (n 1) [32]-[41].

Close

Editorial Notes

  • Published Case Name:

    Zullo v State of Queensland (Department of Communities, Housing and Digital Economy)

  • Shortened Case Name:

    Zullo v State of Queensland (Department of Communities, Housing and Digital Economy)

  • MNC:

    [2021] QIRC 156

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    12 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
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 15
2 citations
Jump To
Cite 1 - [2021] QIRC 15
Cite 2 - [2021] QIRC 15

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.