Wanda v State of Queensland (Queensland Health)
[2021] QIRC 207
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- Wanda v State of Queensland (Queensland Health)[2021] QIRC 207
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Wanda v State of Queensland (Queensland Health)[2021] QIRC 207
Wanda v State of Queensland (Queensland Health)[2021] QIRC 207
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wanda v State of Queensland (Queensland Health) [2021] QIRC 207 |
PARTIES: | James, Wanda (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/163 |
PROCEEDING: | Public Service Appeal - Higher Duties Conversion Decision |
DELIVERED ON: | 9 June 2021 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: |
|
CATCHWORDS: | INDUSTRIAL LAW – Public Service Appeal – where the appellant requests appointment to higher classification level – where the appellant was not appointed due to genuine operational requirements of the department – whether the decision was fair and reasonable – where the decision does not comply with the legislative requirements – where adequate reasons are not provided. |
LEGISLATION: | Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562C Directive 13/20 Appointing a public service employee to a higher classification level. |
Reasons for Decision
Appeal Details
- [1]Ms James is employed by the State of Queensland (Queensland Health). Ms James is substantively employed in the position of AO7, Acting Principal Workforce Policy Officer in the Workforce Strategy Branch.
- [2]On 13 April 2021, Ms James received a letter informing her that a decision had been made not to appoint her to the higher classification level at this time and that her employment will continue according to the terms of the existing secondment or higher duties arrangement. The reasons given in the letter are:
I have determined that you are not currently eligible for appointment because the position has not become substantively vacant.
As a result of this decision not to convert you to the higher classification level, you will continue in the role of Principal Policy Officer until 30 June 2021 when the substantive incumbent is due to return from secondment.
- [3]Ms James sets out her reasons for appeal in the Appeal notice and an attachment to the notice.
Eligibility
- [4]Ms James believes she satisfies the eligibility criteria and submits she was advised of this in a meeting on 8 April 2021.
- [5]Ms James submits the decision letter is in contravention of s 149C(5) of the PS Act as the only reason given to her was that her position had not become substantively vacant, that the letter did not state how long she had been acting in the higher classification level and how many times her higher duties had been extended.
- [6]Ms James says that the legislation and directive refer to the higher classification level, not the position and that she cannot find any specific information that she is not eligible for appointment because the position is not substantively vacant.
- [7]Ms James says that the ongoing extension of her secondment from 2017 to 2021 validates operational requirements and her professional performance through her secondment.
Relevant sections of the Act and Directive
- [8]In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
- [9]Section 149C of the PS Act relevantly provides
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee-
- (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
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least one year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (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 –
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
…
- (4A)In making the decision, the department's chief executive must have regard to—
- (a)the genuine operational requirements of the department; and
- (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.
- (5)If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- reasons for the decision; and
- the total continuous period for which the person has been acting at the higher classification level in the department; and
- how many times the person's engagement at the higher classification level has been extended; and
- 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.
The Directive
- [10]While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
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:
- (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
- (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
- (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.
…
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 documents an 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:
- (a)the genuine operational requirements of the department, and
- (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.
7. 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:
- (a)set out the findings on material questions of fact, and
- (b)refer to the evidence or other material on which those findings were based.
8. Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
…
What decisions can the Commission make?
- [11]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)For another appeal-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.
Queensland Health submissions
- [12]The Respondent filed written submissions on 11 May 2021 which state the position the Ms James is currently backfilling is occupied by a substantive position holder who is on secondment elsewhere. Replacing that employee with the use of higher duties on a temporary basis by Ms James is a situation provided for at cl 4.2 of the Directive.
- [13]In addition to the above, the Department released a Business Case for Change on 2 March 2021 where the role currently being occupied by the substantive position holder of Ms James' current higher duties role is under consideration to be realigned to another Branch. The Business Case for Change identifies this possibility as likely.
- [14]The Respondent says that as a result of the above, the incumbent position holder is likely to return to the position currently occupied by Ms James. These genuine operational requirements of the Department mean that Ms James should not be appointed permanently to the higher duties role.
- [15]Irrespective of the above, the Respondent submits the substantive position holder is due to return to the role currently occupied by Ms James on 1 July 2021. If the substantive position holder returns, Ms James will also return to her substantive role, therefore the current secondment in the higher duties role is scheduled to end on 30 June 2021. The Respondent is confident Ms James has been apprised of these changes throughout the process.
Ms James submissions in reply
- [16]Ms James filed submissions in reply those above on 20 May 2021 which are in summary:
- The Business Case for Change the Respondent says was released on 2 March 2021 was actually started the year earlier however was suspended due to the impact of COVID-19;
- the Business Case for Change identifies that the Division her Branch is currently located in is being dismantled, the role Ms James is currently undertaking is being retained and the Branch is being moved to a new Division;
- it has not been determined if the substantive position holder will return, in fact they have indicated a possibility of relinquishing their role. There has been no indication of intention or likelihood of returning to the substantive position;
- Ms James denies she has been apprised of the change process and submits the only communication was through a broadcast message from the Director General.
- Ms James says that the Business Case for Change was not identified to her as an operational reason precluding her appointing to the higher duties position and that the role she is undertaking is not going to change; and
- the Business Case for Change is currently suspended due to an 'industrial relations order', therefore Ms James questions this being a reason to influence any decision to not appoint her to the higher classification level.
Consideration of submissions
Eligibility and Merit
- [17]There does not appear to be any dispute between the parties that Ms James is eligible to request appointment to the higher classification position and that she meets the merit requirements.
Statement of Reasons
- [18]At the outset, I note that the decision letter provided to Ms James on 13 April 2021 does not comply with the requirements of ss 149C(5)(b) or (c) of the PS Act. The letter does not include the total continuous period that Ms James had been acting at the higher classification level. Further, the letter did not include how many times Ms James' engagement at the higher classification level had been extended.
- [19]Section 149(5)(a) of the PS Act requires that the reasons for the decision be included in the notice and is supported by cl 7.1 of the Directive.
- [20]The decision provided to Ms James simply says that that the decision maker has determined that Ms James is not currently eligible for appointment because the position has not become substantively vacant and that the substantive incumbent is due to return from secondment on 30 June 2021.
- [21]The decision offers no analysis, however brief, of the genuine operational requirements of the Department. Further to this, given that neither the legislation nor the Directive mandates that the position be vacant in order to appoint to the position at the higher classification level, it would be reasonable for the Department to explain to Ms James how the return of the substantive incumbent will impact on her request to be appointed to the position at the higher classification level.
- [22]The submissions of the Respondent make reference to a Business Case for Change which is not referenced in the decision letter as a genuine operational requirement precluding Ms James' appointment to the position at the higher classification level.
- [23]The Respondent refers to the Directive in submitting that Ms James' higher duties appointment is reflective of the circumstances set out at cl 4.2. There is no reference or explanation of that part of the Directive in the decision letter.
- [24]While I note that the Respondent says that the responsible officer has "genuinely considered the criteria prescribed in Directive 13/20 and correctly applied those considerations…" there is no evidence of this in the decision letter. An employee should not have to file a Public Service Appeal in order to receive an adequate explanation of a decision regarding their employment.
- [25]I am setting aside the decision of 13 April 2021 and ordering that a fresh review of Ms James' request to be appointed to the position at the higher classification level be undertaken in accordance with the relevant legislation and Directive within 14 days. This may not result in a changed outcome for Ms James but may ensure that she receives proper reasons for the decision in a letter that complies with s 149C(5) of the PS Act.