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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Steinberg vState of Queensland (Department of Education)  QIRC 201
State of Queensland (Department of Education)
Public Service Appeal
4 June 2021
On the papers
INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where jurisdictional objections exists – where decision dealt with as a fair treatment decision – where grievance process has not been fully utilised
Directive 11/20: Individual Employee Grievances
Industrial Relations Act 2016 (Qld), s 27, s 28, s 562A
Industrial Relations (Tribunal) Rules 2011(Qld)
Public Service Act 2008 (Qld), s 194
Reasons for Decision
- Ms Heather Steinberg appeals a decision of the State of Queensland (Department of Education) ("the Department") that determined, following a request from Ms Steinberg for a flexible working arrangement seeking a permanent change to her position, that Ms Steinberg's request could not be supported.
- The Department objects to the appeal on jurisdictional grounds. Relevantly, the Department submits that:
- Ms Steinberg's appeal, that was made pursuant to s 194(1)(f) of the Public Service Act 2008 (Qld) ("PS Act") as an appeal of a decision made under another Act which allows an appeal, being the Industrial Relations Act 2016 (Qld) ("IR Act"), is not the appropriate ground of appeal. The Department submits that the appropriate ground of appeal is s 194(1)(eb) of the PS Act as the Department considers that Ms Steinberg believes the decision is a fair treatment decision;
- The Commission may only decide to hear fair treatment decisions under s 194(eb) of the PS Act if the Commission is satisfied that the employee has used Directive 11/20: Individual Employee Grievances ("the grievance"). The Department submits that Ms Steinberg did not use the grievance directive or department procedures available to her before lodging the appeal;
- The Commission does not have jurisdiction to determine Ms Steinberg's allegations of adverse action, misrepresentation and/or discrimination in determining the appeal;
- The Commission does not have the jurisdiction to deal with the matter as a "dispute" as submitted by Ms Steinberg as Ms Steinberg has not filed an application for a dispute.
- I have determined, for the reasons that follow, not to hear Ms Steinberg's appeal.
Relevant legislative provisions.
- Section 194 of the PS Act identifies the type of decision against which an appeal can be made:
194 Decision against which appeals may be made
- (1)A person can not appeal against any of the following decisions—
- (eb)a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)
- (f)a decision about anything else against which another Act allows a person to appeal.
- Section 562A(1) of the IR Act identifies the types of appeals the Commission may decide not to hear, including relevantly:
562A Commission may decide not to hear particular public service appeals
- (1)The commission may decide it will only hear an appeal against a decision mentioned in the Public Service Act 2008, section 194(1)(a), (d) or (eb) if the commission is satisfied—
- (a)the appellant has used the procedures required to be used by the employee in relation to the decision under a directive under that Act, including the individual employee grievances directive; and
- (b)for a fair treatment decision under the Public Service Act 2008, section 194(1)(eb)—it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).
- Section 27 of the IR Act provides that an employee may request flexible working arrangements as follows:
27 Request for flexible working arrangements
- (1)An employee may ask the employee’s employer for a change in the way the employee works, including—
- (a)the employee’s ordinary hours of work; and
- (b)the place where the employee works; and
- (c)a change to the way the employee works, for example, the use of different equipment as a result of a disability, illness or injury.
- (2)The request must—
- (a)be in writing; and
- (b)state the change in the way the employee works insufficient detail to allow the employer to make a decision about the request; and
- (c)state the reasons for the change.
- Section 28 of the IR Act provides that the decision be in the following terms:
28 Decision about request for flexible working arrangements
- (1)The employer may decide to—
- (a)grant the request; or
- (b)grant the request in part or subject to conditions; or
- (c)refuse the request.
- (2)The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.
- (3)The employer must give the employee written notice about its decision within 21 days after receiving the request.
- (4)If the employer decides to grant the request in part or subject to conditions or to refuse the request, the written notice about the decision must state—
- (a)the written reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal; and
- (b)that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6.
Relevant background to the jurisdictional objections
- Since 23 January 2020, Ms Steinberg has been employed by the Department as a teacher at Pimlico State High School.
- On 5 April 2021, Ms Steinberg submitted a flexible working arrangement seeking a permanent change to her position to aid in the prevention of what she describes as further damage to her vocal cords, of either:
- telecommuting from home in her current teaching role; or
- deployment to a different role suitable for telecommuting.
- On 16 April 2021, an email was addressed to Ms Steinberg from Ms Colette Wasson, Director, Human Resources Business Partnering, and included the following relevant terms:
I advise the Flexible Work Arrangements Procedure does not apply to a change required for medical reasons to accommodate an illness or injury. I have attached the Flexible Work Procedure for [sic] your information and awareness. The procedure clearly states:
"This procedure does not apply to:
- a change required for medical reasons to accommodate an illness or injury. These requests are managed in accordance with the department's Reasonable adjustments procedure"
As a result of this, I advise your application for Flexible Work is not approved.
- On 21 April 2021, Ms Steinberg filed an appeal notice.
- On 23 April 2021, I issued Directions for the parties to file and serve written submissions addressing the appeal.
- On 17 May 2021, I directed Ms Steinberg to provide additional written submissions that addressed the jurisdictional objections raised in the Department's submissions filed 14 May 2021.
- The Department objects to the notice of appeal on several grounds.
- The Department submits that the appeal has purportedly been made pursuant to s 194(1)(f) of the PS Act as an appeal of a decision made under another act which allows an appeal, namely the IR Act. However, the Department submits that the more appropriate ground of appeal is s 194(1)(eb) of the PS Act because Ms Steinberg believes the decision to be unfair and unreasonable (a fair treatment decision).
- Ms Steinberg made her request for flexible working arrangements pursuant to s 27 of the IR Act. Section 28(6) of the IR Act provides that the Commission has jurisdiction to hear and decide a dispute about a request pursuant to Ch. 6 of the IR Act. It does not permit an appeal to the Commission. Accordingly, I do not consider s 194(1)(f) of the PS Act as the appropriate provision to commence the appeal pursuant to. I will accept the appeal, however, as an appeal of a fair treatment decision.
- Section 562(A)(1) of the IR Act provides that the Commission may decide that it will only hear an appeal under s 194(1)(eb) of the PS Act if the Commission is satisfied that the employee has used the PSC Directive 11/20: Individual Employee Grievances ("grievance directive") and, further, that it would not be unreasonable for Ms Steinberg to comply with the grievance directive.
- Relevantly, after filing the notice of appeal on 25 April 2021, Ms Steinberg subsequently complained about the decision in accordance with the grievance directive and consequently that complaint is being reviewed in accordance with the grievance directive which allows a period of 28 days for a stage one review. That process has not yet resolved.
- Ms Steinberg submits that the Commission has jurisdiction to determine the matter as the actions of the Department amount to adverse actions including breaching s 289 by misrepresenting the workplace rights of Ms Steinberg. Further, Ms Steinberg submits that under s 282(1)(d) of the IR Act, by discriminating between Ms Steinberg and other employees, the Commission has a duty under s 454 of the Act to prevent any further discrimination from occurring in the workplace.
- Ms Steinberg's submissions do not specifically address that the Department's submissions complaint process pursuant to the grievance directive has been commenced and that process should be allowed to complete.
- Having regard to s 562A of the IR Act, I am not satisfied that Ms Steinberg has used the procedures required to be used in relation to the decision under the employee grievance directive and further, I consider it would not be unreasonable to require Ms Steinberg to comply with the procedures contained in the employee grievance directive in the circumstances of this matter. Informing my decision is the fact that Ms Steinberg has infact lodged a complaint in accordance with the grievance directive, however those procedures have not been exhausted. For that reason, I have determined that the Commission will not hear the appeal.
Allegation of adverse action, misrepresentation and/or discrimination
- Ms Steinberg lists a number of allegations contained in her notice of appeal and submissions which include allegations of adverse action, misrepresentation and discrimination.
- Ms Steinberg submits that the Commission has jurisdiction to hear complaints in relation to this matter. Whilst generally that is accepted, there is a requirement that such matters be bought to the Commission in accordance with the requirements of the IR Act and Industrial Relations (Tribunal) Rules 2011(Qld).
- Relevantly, Ms Steinberg has attempted to include allegations of this nature within the context of a public service appeal in circumstances where such allegations have not been properly put in accordance with the requirements of the IR Act, which, in turn does not provide a proper or fair opportunity for the Department to respond to such allegations. Relevantly, I further conclude that the Commission does not have jurisdiction to hear such allegations in the context of a public service appeal.
Application of ss 28(6) and 309 of the IR Act
- As noted above, s 28(6) of the IR Act provides that the Commission has jurisdiction to hear and decide a dispute over a flexible working arrangement request under Ch. 6 of the IR Act.
- Ms Steinberg alternatively contends that the Commission should deal with her public service appeal as if it was a dispute. As noted above, the Commission currently only has before it, a public service appeal filed in accordance with the provisions of the PS Act which permits the review of decisions pursuant to ss 195 and 196 of the PS Act. If Ms Steinberg now wishes to pursue her dispute with the Department as an industrial dispute, she will be required to file a notice of dispute in accordance with the relevant provisions of the IR Act and the Industrial Relations (Tribunal) Rules 2011(Qld).
- For the forgoing reasons, I decline to hear the appeal pursuant to s 562A of the IR Act.
- I make the following order:
- Pursuant to s 562A(1)(a) and (b) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal.
 See also Ch. 11 Pt. 6 Div. 4 of the Industrial Relations Act 2016 (Qld).
- Published Case Name:
Steinberg v State of Queensland (Department of Education)
- Shortened Case Name:
Steinberg v State of Queensland (Department of Education)
 QIRC 201
04 Jun 2021