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Thennavan v State of Queensland (Department of Education)[2021] QIRC 206

Thennavan v State of Queensland (Department of Education)[2021] QIRC 206

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thennavan v State of Queensland (Department of Education) [2021] QIRC 206

PARTIES: 

Thennavan, Rajarajan

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2020/422

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

09 June 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDER:

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

CATCHWORDS:

LEGISLATION:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where appellant has been acting in a higher classification level – where temporary role has an end date – where position will no longer exist – 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 148, s 149C, s 197, s 201, 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

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]
    Mr Rajarajan Thennavan appeals a decision of the State of Queensland (Department of Education) ("the Department") not to permanently appoint him to a position in which he has been acting at a higher classification level.
  1. [2]
    Mr Thennavan is permanently employed in the position of AO5, Human Resource Consultant, Central Office Region, within the TRACER unit.
  1. [3]
    Since 5 February 2018, Mr Thennavan has been performing higher classification duties of AO7 Principal Project Officer within Teaching Queensland's Future Project ("TQF project"). The Department submits that the purpose of Mr Thennavan performing this position is to perform work for the TQF project, which has a known end date of 30 June 2021.
  1. [4]
    On 12 November 2020, Mr Thennavan 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]
    On 7 December 2020, the Department issued a decision refusing Mr Thennavan's request to be permanently appointed to the position in which he had been acting ("the decision"). That is the decision which is the subject of the appeal.
  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]
    On 7 December 2020, the Department issued a decision refusing Mr Thennavan's request  in the following terms:

The temporary nature of your higher classification level role arose from the requirement to perform work for a particular project that has a known end date. Specifically, the work you have been engaged to perform is contributing to the Teach Queensland's Future Project (TQF Project).

The TQF Project has a defined end date of 30 June 2021 with no further ongoing funding sources committed at this time. The TQF Project is devolving into a business as usual process, with the intent that the TQF Project's workforce planning tools already created will become part of workforce planning consultations at a regional level with school's individual leadership teams.

At the time of this decision, no options have been presented to commit further funding towards the extension of the TQF Project's life into business as usual operation. The life of the TQF Project as it currently stands, with no further funding forthcoming, will be concluded by 30 June 2021.

As the temporary nature of your higher classification level role is to assist in the delivery of the TQF Project which will conclude on 30 June 2021, along with the need for your higher classification role, a genuine operational requirement exits to refuse your request for appointment to the higher classification level role

Relevant provisions of the PS Act and Directive 13/20

  1. [11]
    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. [12]
    Section 148 of the PS Act provides as follows:
  1. 148Employment of fixed term temporary employees
  1. (1)
    A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment if for any of the following purposes—
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

Examples of absences for a known period—

 approved leave (including parental leave), a secondment

  1. (b)
    to perform work for a particular project or purpose that has a known end date;

Examples—

 employment for a set period as part of a training program or placement program

  1. (c)
    to fill a position for which funding is unlikely or unknown;

Examples—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example—

 an unexpected increase in workload for disaster management and recovery

  1. (3)
    Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

Example—

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

  1. (4)
    The employment may be full-time or part-time.
  1. (5)
    A person employed under this section does not, only because of the employment, become a public service officer.
  1. (6)
    The commission chief executive may make a directive about employing fixed term temporary employees under this section.
  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)
    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. [14]
    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]

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.

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. [15]
    Directive 13/20 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. [16]
    Clause 4.2 of Directive 13/20 sets out examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level, as follows:

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:

  1. (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
  1. (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
  1. (c)
    to perform work for a particular project or purpose that has a known end date
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload
  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).

Genuine operational requirements of the Department

  1. [20]
    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. [21]
    It has been held,[6] 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.

  1. [22]
    In his submissions, Mr Thennavan submits that:
  1. (a)
    the TQF project is intentioned to transition to Business as Usual;
  2. (b)
    three team members within the Strategic Workforce Initiatives project were converted to permanent positions in 2020 which contradicts the projects' end date of June 2021;
  1. (c)
    in the week beginning Monday 19 October 2020, a project variation request was submitted for the extension of the project to 30 December 2021; and
  1. (d)
    the Department has not taken into account the merit principle.

 The TQF project is intentioned to transition to Business as Usual

  1. [23]
    Mr Thennavan contends that the transition to the project to a business as usual undertaking has been communicated by leadership in multiple meetings and in team planning days as to the role and functions of the team beyond 2021.
  1. [24]
    Mr Thennavan states that he has been advised that there will be a continuing need for an AO8 Manager, two AO7 Principal Project officer and an AO5 Project Officer in the future. Mr Thennavan submits accordingly, that there will be an ongoing need for the AO7 position.
  1. [25]
    The Department does not agree with Mr Thennavan's characterisation of the position as one that will be ongoing.
  1. [26]
    The Department submits that the higher level classification level position of AO7 Principal Project Officer, which is the subject of this appeal, is a temporary position with the Department created to perform work for a particular project on purpose that has a known end date as contemplated by s 148(2)(b) of the PS Act.  
  1. [27]
    The Department submits that at the conclusion of the project, the position will be abolished.
  1. [28]
    The Department contends that Mr Thennavan has been aware of the finite budget and fixed schedule relating to the project work to be performed for the TQF project. The Department submits that the project timeline remains fixed and is to be finalised on 30 June 2021.
  1. [29]
    Whilst it may be the case that there will be a future AO7 role, that is distinct from the consideration as to whether this position will continue beyond the scope of the project.
  1. [30]
    I consider that Mr Thennavan's situation, being that he has been engaged to perform work as a Principal Project Officer on a project with a fixed end date, is a situation that is considered by both s 148(2)(b) of the PS Act and the example set out in cl 4.2 of the Directive 13/20.
  1. [31]
    Relevantly, the appointment of an employee to a higher classification level position is supported by cl 4.2 of Directive 13/20 in several circumstances, including when that employee has been engaged to perform work for a particular project that has a known end date. That is the relevant circumstance of this matter.
  1. [32]
    I consider that the decision, in so far as it considered the nature of the position, was fair and/or reasonable.

The conversion of three team members

  1. [33]
    Mr Thennavan contends that three temporary team members within the Strategic Workforce Initiatives Project have been appointed to permanent positions within the project which contradicts the project status as concluding in June 2021.
  1. [34]
    I do not consider the conversion of other employees under separate and distinct processes found in the Temporary Employment Directive 08/17 to be relevant to the issue to be determined in relation to Mr Thennavan's request.
  1. [35]
    Relevantly, the issue for the determination of the decision maker in this matter was the request by Mr Thennavan to be permanently appointed to the position at the higher classification level.
  1. [36]
    Accordingly, it is the current role that Mr Thennavan is performing in which is the subject of the request. The Department has not erred by not considering other roles within this or other projects and/or that are of a similar nature because that is not what is required by Directive 13/20.
  1. [37]
    In any event, the Department confirms that no other decisions have been made, or deemed, pursuant to s 149C of the PS Act, within the Workplace Planning Unit.
  1. [38]
    For these reasons, I do not consider the decision to be not fair and/or reasonable on the basis of this ground.

A project variation request was submitted to extend the project to 30 December 2021

  1. [39]
    Mr Thennavan submits that a project variation request has been made seeking to extend the project to 30 December 2021 which is indicative that the role will be continuing. 
  1. [40]
    The Department maintains its position that the TQF project has been funded and resourced according to a scheduled completion of 30 June 2021. However, it does note that there are current considerations for a six-month extension of the TQF project, which is subject to executive approval and will not necessarily result in an extension of Mr Thennavan's higher classification level position.
  1. [41]
    The Department submits that the TQF project has always been scheduled for completion in the fourth year of the five-year TQF strategy. It submits that the remaining year of the TQF strategy will be achieved by the current regional HR teams utilising the workforce planning tools in their business as usual activities. In this regard, in the final stages of the TQF project scheduled for 2021, the role of the team members is to assist the regional HR business partners to integrate and implement the workforce planning tools into the business as usual activities. It further submits that the project scope does not include the transition of the temporary project positions, and/or the employees engaged in those positions to the regional HR teams.
  1. [42]
    Accordingly, it is clear from the above that even if the TQF project is extended for a further six months, although there is no material before me to support that conclusion, that it would not render the decision as not fair or reasonable because:
  1. (a)
    there is no evidence that Mr Thennavan would be required to perform the work for that additional six-month extension; and
  1. (b)
    in any event, the nature of the TQF project is such that at the conclusion of the project (whether it be on 30 June 2021 or 31 December 2021), there will be no ongoing position of Principal Project Officer as the purpose of the project is to integrate and implement the workforce planning tools into the business as usual activities and not sit as a separate project.
  1. [43]
    Accordingly, I do not consider that this ground renders the decision as not fair and/or reasonable.

The Department has not taken into account the merit principle

  1. [44]
    Mr Thennavan submits that the Department has not taken into consideration merit in their decision and there has been no suggestion that any performance issues here have been raised with Mr Thennavan.
  1. [45]
    I do not accept Mr Thennavan's submissions in this regard. The decision maker did take into account the merit principle. Relevantly, the decision stated the following:

In accordance with the PS Act and Directive, while I note that you:

  •  
  • are eligible for appointment to the position at the higher classification level role having regard to the merit principle, …
  1. [46]
    The decision maker clearly considered the merit principle in the context of the decision-making process and determined that Mr Thennavan was eligible for appointment to the position having regard to the merit principle.
  1. [47]
    I do not consider this ground renders the decision as one that was not fair and/or reasonable.
  1. [48]
    I consider that Mr Thennavan's situation, being that he has been engaged to perform work as a Principal Project Officer on a project with a fixed end date, is a situation that is considered by both s 148(2)(b) of the PS Act and the example set out in cl 4.2 of the Directive 13/20.
  1. [49]
    Relevantly, the appointment of an employee to a higher classification level is supported by cl 4.2 of Directive 13/20 in several circumstances, including when that employee has been engaged to perform work for a particular project that has a known end date. That is the relevant circumstance of this matter.
  1. [50]
    I am satisfied on the material before me that the current end date of the TQF project is 30 June 2021. However, as noted above, even if an extension is sought and approved to extend the project end date to 31 December 2021, that does not change the nature of this specific project, being that it has been established for a discrete purpose and that it is intended to end once it has fulfilled its purpose.
  1. [51]
    I consider that the nature of this project is a project with a defined purpose and definitive end date. That is, it is not a project which will be ongoing in nature. Once the project ends there will be no need for Mr Thennavan's higher duties position of Principal Project Officer for the TQF project to continue.  The Department submits that the position will be abolished at the conclusion of the TQF project.
  1. [52]
    Accordingly, when considering the operational requirements of the Department, including managing the Department in a way that promotes the effective, efficient and appropriate management of public resources, I consider that the reasons provided by the decision maker support a conclusion that the refusal to appoint Mr Thennavan to the higher classification level was for a genuine operational requirement of the Department.
  1. [53]
     For the forgoing reasons, I consider the decision to be fair and reasonable.

Order

  1. [54]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

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] Ibid, [37] – [38].

[6] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell, [40].

Close

Editorial Notes

  • Published Case Name:

    Thennavan v State of Queensland (Department of Education)

  • Shortened Case Name:

    Thennavan v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 206

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    09 Jun 2021

Appeal Status

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

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