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  4. Marshall v State of Queensland (Department of Education) - [2021] QIRC 230

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Marshall v State of Queensland (Department of Education)[2021] QIRC 230

Marshall v State of Queensland (Department of Education)[2021] QIRC 230

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Marshall v State of Queensland (Department of Education) [2021] QIRC 230

PARTIES:

Marshall, Catherine

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2021/47

PROCEEDING:

Public Service Appeal – Appointment to position at higher classification

DELIVERED ON:

1 July 2021

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

On the papers

ORDER:

  1. The decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – Public Service Appeal – application for permanent employment at higher classification – deemed decision – genuine operational requirements – substantive position holder returned to position part-time – temporary employee retained simultaneously in same position

LEGISLATION:

Directive 13/20 Appointing a public service employee to a higher classification level cls 4, 5, 6, 7

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

King-Koi v State of Queensland (Department of Education) [2020] QIRC 209

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

Schimke v State of Queensland (Queensland Fire and Emergency Services) [2020] QIRC 205

Reasons for Decision

Background

  1. [1]
    Since 7 September 2018, Ms Catherine Marshall has been acting in the higher classification level position of Head of Department ('HOD') Teaching and Learning AO4 at Ipswich State High School ('the position'). She is permanently employed by the Department of Education ('the Department').
  1. [2]
    Ms Marshall commenced acting in this position upon the incumbent commencing a period of maternity leave. On 20 September 2019, the incumbent returned to the position at a reduced fraction of 6 days per fortnight. At this time, Ms Marshall was retained to act in the position full-time while the incumbent worked at a part-time capacity.
  1. [3]
    The incumbent is expected to return to her position at a full-time capacity on 11 December 2021.
  2. [4]
    On 24 November 2020, Ms Marshall wrote to the Department requesting that she be permanently appointed to the higher classification level position HOD Teaching and Learning AO4, pursuant to s 149C of the Public Service Act 2008 (Qld) ('PS Act').
  1. [5]
    On 21 December 2020, Ms Marshall wrote to the Department to confirm the progress of her request to be converted to the position pursuant to s 149C of the PS Act and clause 5 of the Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
  1. [6]
    On 14 January 2021, Ms Marshall received correspondence from Ms Kathryn Genge, Human Resources Consultant of the Department. The correspondence advised her that the due date for a decision was 23 December 2020 and that in accordance with s 149C(6) of the PS Act and clause 7.2 of the Directive, a deemed refusal had occurred. It advised Ms Marshall that:

Due to the school vacation period and the Department's requirement to undertake consultation with the relevant school or regional office, the Department did not make a decision on or before 23 December 2020 in response to your application. Accordingly, pursuant to section 149C(6) of the PS Act, the chief executive is taken to have decided to refuse your request and that your employment continues according to the current terms of your existing secondment or higher duties arrangement.

In accordance with clause 7.2 of the Directive, the Department's has been deemed to have made a decision to refuse your request and there is no requirement for a formal written notice to be provided in this instance.

  1. [7]
    Ms Marshall filed an Appeal Notice on 27 January 2021. In her appeal, she contended that:
  • Since the incumbent returned to the position in September 2019, she has still been extended in the position and has continuously done so since 2018;
  • She continues to work in the position full time despite the return of the incumbent;
  • In 2020, the position was given two titles. Ms Marshall holds the title of HOD Teaching and Learning – Curriculum and the incumbent holds the title of HOD Teaching and Learning – Engagement;
  • The continuation of Ms Marshall in the position demonstrates a genuine operational requirement for the position; and
  • There are no performance issues.

What decisions can the Industrial Commissioner make?

  1. [8]
    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. [9]
    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. [10]
    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. [11]
    The issue for determination in the matter before me is whether the decision to refuse to permanently appoint Ms Marshall to the higher classification level position was fair and reasonable.[6]
  1. [12]
    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. [13]
    The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.
  1. [14]
    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.
  1. (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. [15]
    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:

…

  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. [16]
    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.

…

  1. [17]
    Clause 7 of the Directive provides as follows:

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:

  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.

(Emphasis added)

Submissions of the parties

  1. [18]
    The parties filed written submissions in accordance with a Directions Order dated 27 January 2021. The parties' submissions primarily concern the deemed decision and the genuine operational requirements of the Department.

Submissions of Ms Marshall

  1. [19]
    Ms Marshall contends, for reasons set out in her submissions dated 3 February 2021, that she should be appointed to the higher classification level position. Her submissions are largely identical to the submissions in her Appeal Notice, save for providing further information about the two titles of the position.
  1. [20]
    She submits that the title she had, HOD Teaching and Learning – Curriculum, manages the reading and writing portfolio. The title held by the incumbent, HOD Teaching and Learning – Engagement, focusses on supporting beginning and new teachers and development of pedagogy, specifically engagement.

Submissions of the Department

  1. [21]
    The Department contends, for reasons set out in its reply submissions dated 10 February 2021, that it had to rely on the deemed decision, however in response to Ms Marshall's submissions, genuine operational requirements preclude her permanent appointment to the position. In summary, it submits that:
  • Since the amendments to the PS Act and Directive came into effect, there were a significant increase in employee requests. This significant increase combined with the closure of schools for 6 weeks over the Christmas vacation period and the prioritisation of requests by temporary employees whose employment was to cease much sooner, meant that deciding an application within the 28-day timeframe was impracticable;
  • It had to rely on the decision being deemed in this case, per s 149C(6) of the PS Act and clause 6.3 of the Directive. Citing King-Koi v State of Queensland (Department of Education), it submits that deemed decisions have been found to be fair and reasonable;[7]
  • There are no performance or eligibility issues regarding Ms Marshall's request to be appointed to the higher classification level;
  • Ms Marshall was retained while the incumbent worked at a part-time capacity to ensure that the ongoing delivery of functions associated with the full-time HOD Teaching and Learning position was not unduly affected, and to avoid disruption to the temporary staffing and classroom arrangements at Ipswich State High School;
  • When the incumbent returned, the school re-aligned the duties of the HOD Teaching and Learning position to enable the incumbent to undertake certain functions, and enable Ms Marshall to continue at a full-time capacity until the incumbent resumed full-time;
  • The incumbent's part-time return is currently being funded through School Budget Solutions credits which is temporary, and is in addition to Ms Marshall working full-time in the position; and
  • There is no genuine operational need to permanently appoint Ms Marshall to the position as it is substantively owned by the incumbent and the arrangement will end on 11 December 2021. Citing the decision of Schimke v State of Queensland (Queensland Fire and Emergency Services) by Industrial Commissioner Pidgeon,[8] where an incumbent returns to their position, the need to temporarily fill the position will cease.

Reply submissions of Ms Marshall

  1. [22]
    In her reply submissions dated 16 February 2021, Ms Marshall contended that the deemed decision not to convert her employment was not fair and reasonable. In summary, she submits that:
  • Although she appreciates the increased volume of requests by employees, this 'does not form a reasonable response for my conversion not to be given due consideration'. As her request was made on 24 November 2020 and school holidays commenced on 11 December, she contends that there was sufficient time to contact the necessary staff to clarify the nature of her higher duties;
  • As a result of the school's strategic priorities, the position's roles have now expanded to include various duties (which she lists).[9] Accordingly, this creates an operational need for her to act in the position;
  • If there was no need for her to perform the roles, she would have been offered the position at 0.4 FTE rather than full-time, which suggests the position is operationally requiring 1.6 FTE for its duties to be met;
  • The PS Act does not stipulate how the conversion will be funded and the funding of the hours is not pertinent to the consideration of her request for conversion; and
  • The PS Act does not stipulate the nature of conversion or need for a vacant role.

Consideration

Deemed decision

  1. [23]
    The logistical difficulties outlined by the Department that resulted in a deemed refusal pursuant to s 149C(6) of the PS Act are well documented. Further, given the PS Act contemplates deemed decisions, they clearly fall within the scope of decisions that might be subject to appeal.
  1. [24]
    While it has been the case that deemed decisions have previously been the subject of an appeal under the PS Act, and have been determined to be fair and reasonable, the circumstances of each individual deemed decision will ultimately dictate whether the failure to provide reasons contributes to any unfairness or unreasonableness.
  1. [25]
    In the circumstances of this matter, I am satisfied that no unfairness or unreasonableness arises from the failure by the Department to issue formal reasons in refusing Ms Marshall’s application for permanent appointment to the higher classification position.
  1. [26]
    While the nature of these appeals is that of a review of the decision, and while materials not before the decision maker will rarely be legitimately taken into account, the Department has relied on submissions pointing to incontrovertible facts prevailing at the time of the decision which would or could have been relied on to refuse the application had it not been for the logistical problems. Whether such facts gave rise to a fair and reasonable decision however, is another matter.

Genuine operational requirements

  1. [27]
    In their submissions filed 10 February 2021, the Department relied on the fact that the incumbent was due to return to the position full time in December 2021. In so doing, the Department relied on this as a genuine occupational requirement precluding the permanent appointment of Ms Marshall to the position.
  1. [28]
    In Morison v State of Queensland (Department of Child Safety, Youth and Women), the Deputy President observed:[10]

Ms Morison submits that neither the PS Act or Directive include a role being substantively vacant as a prerequisite for appointment to the higher classification level. However, s 149C(4A)(a) of the PS Act and cl 6.2(a) of the Directive provide that the department's chief executive, in making a decision about a relevant request for an employee to be appointed to the position at the higher classification level, must have regard to the 'genuine operational requirements of the department'.

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; and
  • 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.

In respect of the Directive, cl 4.2 provides that 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. That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include:

  • 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; or
  • 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.

The phrase '... genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include 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 '...the position at the higher classification level.'

There can be no dispute that the reason Ms Morison is presently acting in the higher classification level in position number 7021866 is that the incumbent of that position is on special leave. However, the incumbent may return from such leave. That was a relevant matter for Ms Matebau to have considered in deciding the request made by Ms Morison. Put another way, in having regard to genuine operational requirements of the Department, it was relevant for Ms Matebau to consider whether, in terms of managing the Department in a way that promoted the effective, efficient and appropriate management of public resources, Ms  Morison  should be appointed to position number 7021866 when it was possible the incumbent was likely to return to that position.

Ms Morison does contend that requirement was not genuine.

For the reasons given above, in my view, this aspect of Ms Matebau's decision was fair and reasonable.

(Emphasis added)

  1. [29]
    Accommodations have been made to the position in which Ms Marshall has been acting. Temporary funding has been called upon to allow a short-term restructure of the position following the return of the incumbent on a part-time basis (as a prelude to a return to full-time in December 2021). A consequence of this restructure is that duties have been added or extended so that the position in question can accommodate both Ms Marshall and the incumbent.
  1. [30]
    Neither party has identified whether these accommodations are in respect of a position designated by a single position number, or whether the Ms Marshall and the incumbent are simply sharing a single position. These facts might have added a dimension to this appeal, though not one that would necessarily have assisted Ms Marshall in my view.[11]
  1. [31]
    In any event, the temporary nature of the funding and the return of the incumbent to the position is a compelling and genuine operational requirement.
  1. [32]
    In all of these circumstances, I consider the deemed decision to be fair and reasonable.

Order

  1. [33]
    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 209, 13 [41]-[43].

[8] [2020] QIRC 205.

[9] Submissions of Catherine Marshall filed 16 February 2021, page 1.

[10] [2020] QIRC 203, [36]-[44].

[11] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, [45]-[56].

Close

Editorial Notes

  • Published Case Name:

    Marshall v State of Queensland (Department of Education)

  • Shortened Case Name:

    Marshall v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 230

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    01 Jul 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
King-Koi v State of Queensland (Department of Education) [2020] QIRC 209
2 citations
Jump To
Cite 1 - [2020] QIRC 209
Cite 2 - [2020] QIRC 209
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
Schimke v State of Queensland (Queensland Fire and Emergency Services) [2020] QIRC 205
2 citations
Jump To
Cite 1 - [2020] QIRC 205
Cite 2 - [2020] QIRC 205

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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