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  4. Thompson v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) - [2021] QIRC 167

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Thompson v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 167

Thompson v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 167

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thompson v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) [2021] QIRC 167

PARTIES: 

Thompson, Sarah

(Appellant)

v

State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)

(Respondent)

CASE NO:

PSA/2020/400

PROCEEDING:

Public Service Appeal – Appointment to position at higher classification

DELIVERED ON:

18 May 2021

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

On the papers

ORDER:

  1. The decision appealed against is confirmed.

CATCHWORDS:

LEGISLATION:

INDUSTRIAL LAW – Public Service Appeal – application for permanent employment at higher classification – higher classification position ceased – genuine operational requirements

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

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld) s 149C

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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

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

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

 Background

  1. [1]
    Ms Sarah Thompson is substantively employed as a Marketing Officer AO5 with the Department of State Development, Infrastructure, Local Government and Planning ('the Department').
  1. [2]
    Since 1 October 2014, Ms Thompson had been acting as an Engagement and Marketing Manager AO8 (position number 721928) within Development Strategy, Economic Development Queensland ('EDQ') in the Department. The Department notes that this position title changed from ‘Project Marketing Manager’ to ‘Engagement and Marketing Manager’ in 2017.
  1. [3]
    Ms Thompson commenced maternity leave on 20 April 2020. She is due to return to work in early June 2021.
  1. [4]
    On 23 October 2020, Ms Thompson wrote to the Department requesting that she be permanently appointed to the higher classification level within the Department in accordance with s 149C of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [5]
    On 16 November 2020, Ms Thompson received correspondence (‘the decision’) from Michael McKee, Deputy Director-General of the Department.
  1. [6]
    The decision advised Ms Thompson that a review of her employment status had been conducted in accordance with the requirements in s 149C of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
  1. [7]
    The decision advised Ms Thompson that she would not be permanently appointed to the AO8 position due to genuine operational requirements of the Department.
  1. [8]
    The reasons for the decision were set out as follows:

 Due to the genuine operational requirements of the department, I have decided not to appoint you to the higher classification level at this time. The higher duties you are performing in the role of Engagement and Marketing Manager (AO8), EDQ Development Strategy, Economic Development Queensland (EDQ) is for a defined period with no ongoing work approved to continue beyond 30 November 2020.

 I am informed by the General Manager, EDQ that:

  • Following COVID-19 and the Queensland Treasurer's Savings and Debt Plan, EDQ has reduced marketing requirements as a result of marketing activities being deferred and a significant sell down in regional estates due to stimulus packages;
  • You were advised in late 2019 that a continuing operational need for this role past 30 November 2020 could not be guaranteed;
  • Following the Engagement and Marketing Team Health Check in 2019 a new structure for the team was communicated with a commitment given to advertise and fill a three-year temporary Engagement and Marketing Manager role. You were encouraged to, and did, apply for role (sic) when it was advertised in January 2020;
  • Since you commenced maternity leave, EDQ have not backfilled the role you are were (sic) undertaking higher duties in; and
  • Your substantive role of Marketing Manager (AO5) has been backfilled during your absences and continues to be required for future business needs.
  1. [9]
    In response to the decision, Ms Thompson filed an Appeal Notice on 7 December 2020.  In her appeal, she contended that:
  • She had been extended in the position on numerous occasions for a continuous period of over 6 years;
  • There are no issues as to the merits of her request to be permanently appointed;
  • The position manages the strategy creation and implementation of marketing initiatives for development projects. In 2017, the role was expanded to include management of community and stakeholder engagement activities in relation to current and potential EDQ sites;
  • EDQ has many long-term and ongoing projects within its portfolio, and these are noted on its corporate website, evidencing an ongoing operational need for the position. Prior to going on maternity leave, Ms Thompson was working on two of these projects which will require ongoing marketing and engagement services;
  • The new three-year AO8 Engagement and Marketing Manager role mentioned in the decision letter was advertised in January 2020. She contends that it was ‘created to deliver a contrived outcome' against her as it is identical to the AO8 position she is currently performing and manages the same suite of long-term projects. She was heavily encouraged to apply for the role, and did so, yet EDQ 'ensured I did not get the role';
  • On 16 October 2020 whilst on maternity leave, Ms Thompson's manager sent her an email requesting a phone conversation to provide an 'update on a few matters'. A HR representative was joined into the call without notice and time for her to arrange for a support person to be present. Neither answered her questions about the effects of the amendments to the PS Act and new Directive on her higher duties position; and
  • The delegate has not considered other parts of the Department in which her varied, diverse and transferable skill set could be utilised.
  1. [10]
    The higher classification level position arrangement undertaken by Ms Thompson had an end date of 30 November 2020. Significantly, it was confirmed via email dated 18 May 2021 that the position did in fact cease on 30 November 2020.
  1. [11]
    Ms Thompson now appeals against the decision not to appoint her to this position permanently.

What decisions can the Industrial Commissioner make?

  1. [12]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
  1. (c)
    set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

 Nature of appeal

  1. [13]
    Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[1] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[2]
  1. [14]
    An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[5]
  1. [15]
    The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Ms Thompson to the higher position was fair and reasonable.[6]
  1. [16]
    For the reasons set out below I have determined that the decision was fair and reasonable.

Relevant sections of the PS Act and Directive

  1. [17]
    The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.
  1. [18]
    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. (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. [19]
    Clause 4 of the Directive provides as follows:

 4.  Principles

4.1  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 officer following a written request to the chief executive.

4.2  Secondment 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:

 …

  (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

  …

  1. [20]
    Clause 6 of the Directive provides as follows:

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:

  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.

(Underlining and emphasis added)

Submissions of the parties

  1. [21]
    The parties filed written submissions in accordance with a Directions Order dated 10 December 2020. The parties' submissions primarily concern the genuine operational requirements of the Department.

Submissions of Ms Thompson

  1. [22]
    Ms Thompson contends, for reasons set out in her submissions dated 24 December 2020, that she should be appointed to the AO8 position. In summary, she submits that:
  • Regarding the performance and development agreement attached to her submissions, she has performed strongly in the position, evinced by positive feedback from her team leader;
  • Regarding the EDQ summary document and Ministerial charter attached to her submissions, they demonstrate that there are ongoing works of scale and EDQ is a priority of the Minister;
  • Noting the Engagement and Marketing team structure, she is responsible for the Oxley and Northshore Hamilton projects, not the regional residential projects referred to in the decision by the delegate;
  • The Team Health Check FAQ document attached to her submissions indicated that, contrary to the decision, it was not a restructuring process, but to better understand the team's behavioural risk and cultural profile;
  • Although the decision states the AO8 position has not been backfilled, the position descriptions of her AO8 role and the three-year AO8 role are identical, and her AO8 position is identified as flexible full-time permanent. Despite working in an identical position, she was not offered an interview for the three-year position after applying;
  • A departmental email sent to the Engagement and Marketing Team states that upon Ms Thompson leaving for maternity leave, another staff member would be joining the Department as a Marketing and Engagement Manager. It identifies the new staff member's duties as taking over Ms Thompson's Oxley and Northshore Hamilton projects; and
  • In February 2020, EDQ provided an information document (attached to her submissions) about a new Senior Officer Level Marketing Lead the Department was going to recruit for. This document states that: EDQ's strategic needs are evolving and the team needs to be resourced, marketing requirements have become increasingly complex, marketing is playing an increasingly important role in delivering EDQ's outcomes.

Submissions of the Department

  1. [23]
    The Department contends, for reasons set out in their submissions dated 15 January 2020, that genuine operational requirements preclude Ms Thompson' permanent appointment at the higher level. In summary, it submits that:
  • Ms Thompson's temporary AO8 position was created to provide project marketing management services for a range of projects and was extended in 2017 to include stakeholder engagement duties;
  • The position is temporary to reflect fluctuating workloads and projects. Extensions were granted to meet project demands and associated workloads;
  • The Department experienced significant changes and realignment due to project priorities and delivery of work due to the pandemic, the governmental Savings and Debt Plan, and Unite and Recover Economic Plan;
  • As she has been absent from the Department, she is unaware of their actions taken in response to these priorities and Plans, and has resulted in a reduced ongoing workload for the team;
  • Some work has been accelerated, some deferred and some new projects have not yet been approved – which reflects the decision not to backfill Ms Thompson's AO8 position due to reduced team workload;
  • The team is adequately resourced with two permanent and one fixed-term temporary (to 2023) Engagement and Marketing Manager AO8 positions;
  • Allocation of work across the teams is constantly reviewed and adjusted to meet operational requirements and staff are not allocated projects which are managed by them from start to finish;
  • The temporary AO8 position created in January 2020 was not new but an existing, permanent established position that became vacant following the resignation of the incumbent. Her application to the position was assessed by a selection panel as not being meritorious to proceed to interview and she rejected offers for feedback;
  • The call with her manager and HR representative was made to advise that the position was to cease at its prescribed end date of 30 November 2020 and to check whether she knew the amendments to the PS Act and Directive applied; and
  • Due to genuine operational requirements, it was not viable or appropriate to appoint Ms Thompson to the higher classification due to the team's reduced workload.

Reply Submissions of Ms Thompson

  1. [24]
    Ms Thompson responded to the Department's contentions in her reply submissions dated 28 December 2020. In summary, she submits that:
  • All four Engagement and Marketing Manager AO8 positions were originally temporary and three were successful in applying to convert their roles to permanent;
  • The decision to not continue her higher duties position was made before the recruitment of the new Senior Officer Level Marketing Lead position and the temporary Engagement and Marketing Manager AO8 position;
  • If team members do not own projects, she questions why project allocations was used as a reason in the decision letter to refuse her permanent engagement;
  • She reiterates the argument that her higher duties position and the temporary Engagement and Marketing Manager AO8 are managing the same projects, and it began the next business day after she left for maternity leave;
  • She did request feedback after being unsuccessful in gaining an interview and states her manager had been advised by HR to not provide her any information;
  • On the phone call, neither her manger nor HR representative raised the PS Act reforms. They were only discussed when she informed them that she had requested a review of her engagement;
  • EDQ is self-funded and does not rely on funding from the Department; and
  • There is a clear need for someone in the position as someone is currently performing it, to use reduced workloads as the primary reason to reject her application is significantly flawed, unfair and demonstrates a calculated outcome.

Consideration

  1. [25]
    The submissions of the parties have been largely on matters of no relevance to the matters I can consider with my limited jurisdiction in such appeals.
  1. [26]
    Neither party has addressed me on the relevant principles established in Holcombe v State of Queensland (Department of Housing and Public Works).[7] In Holcombe the Commission found that:

The PS Act, at s 149C(1)(c), provides that s 149 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 Mrs Holcombe is confined to the position into which he has been seconded 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.

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.…

The PS Act at s 149C, in concert with the Directive, 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.

By way of contrast, a broader ambit of the type proposed by Mrs Holcombe 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 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.

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 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.

(Emphasis added)

  1. [27]
    I agree entirely with the construction of s 149C of the PS Act established by Holcombe. In the circumstances where the AO8 position in which Ms Thompson was acting ceased to exist on 30 November 2020, there is plainly no utility (or ability) in the decision maker appointing Ms Thompson to that position.
  1. [28]
    The singular consideration relevant to my review of the decision is whether it was fair and reasonable to refuse to appoint Ms Thompson to the position.  Given that the position ceased to exist on 30 November 2020, and given that that was the position against which her application was to be considered, there is no other conclusion that could be reached by the decision maker other than to refuse the application. 
  1. [29]
    While the Department has cited genuine operational reasons on other grounds, and while this term is interpreted widely,[8] it is my view that the extinguishment of the position is the most compelling operational reason available.
  1. [30]
    In all of these circumstances, I consider the decision to be fair and reasonable.
  1. [31]
    Notwithstanding my conclusion in this regard, it is prudent to also broadly make comment about the matters raised in the submissions. The submissions of the parties appear to reveal that the employment relationship is affected by mistrust and hostility. These traits are most evident in Ms Thompson’s assertions about contrived outcomes and denials of procedural fairness. It appears to me that there are wider problems in the employment relationship that would benefit from some conciliatory attention from the parties.
  1. [32]
    I am not dismissing the numerous allegations Ms Thompson makes about the handling of these matters by the Department. I would simply note that it was not necessary for me to determine those disputed facts given that none of them, even if proven entirely in Ms Thompson’s favour, would alter the indisputable fact that the position held by Ms Thompson at the time of her application has ceased to exist.
  1. [33]
    It might be that Ms Thompson’s obvious grievance on these matters could be addressed in other ways. That is a matter for her, and not a matter I can or should address in this appeal.

Order

  1. [34]
    In the circumstances I make the following order:
  1. The decision appealed against is confirmed.

Footnotes

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

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[4] Ibid.

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

[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[7] [2020] QIRC 195.

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

Close

Editorial Notes

  • Published Case Name:

    Thompson v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)

  • Shortened Case Name:

    Thompson v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)

  • MNC:

    [2021] QIRC 167

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    18 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 and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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