Ramasamy v State of Queensland (Queensland Health)
[2021] QIRC 244
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- Ramasamy v State of Queensland (Queensland Health)[2021] QIRC 244
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Ramasamy v State of Queensland (Queensland Health)[2021] QIRC 244
Ramasamy v State of Queensland (Queensland Health)[2021] QIRC 244
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION | Ramasamy v State of Queensland (Queensland Health) [2021] QIRC 244 |
PARTIES: | Ramasamy, Sudha (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/227 |
PROCEEDING: | Public Service Appeal – fair treatment decision |
DELIVERED ON: | 14 July 2021 |
HEARD AT: MEMBER: | On the papers Pidgeon IC |
ORDERS: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – whether the decision to require the appellant to return to their substantive position was fair and reasonable |
LEGISLATION: | Public Service Act 2008 |
CASES: | Dallmann v State of Queensland (Queensland Health) [2021] QIRC 93 |
Reasons for Decision
- [1]Ms Sudha Ramasamy is employed by the State of Queensland (Queensland Health) (the Respondent) as an Administration Officer. Ms Ramasamy is appealing a decision dated 2 June 2021 to require Ms Ramasamy to return to her substantive position.
- [2]The decision letter states, in part:
I acknowledge the concerns raised regarding Ms Ramasamy's financial situation and that Ms Ramasamy is distressed as a result of the current situation, that is having to return to her part-time role. I wish to confirm that in accordance with HR Policy B42, the PAH has sought to support Ms Ramasamy's secondment and working full-time whenever possible. I do wish to note that Ms Ramasamy was advised at the point in time her employment status was converted into the permanent part-time role, that where possible she would be granted opportunities to increase her hours but it may not always be operationally possible. We are now at that juncture.
I am advised that the initial arrangements to backfill Ms Ramasamy's substantive part-time position prior to commencing full-time with Revenue Services on 10 May 2021 did not eventuate due to a staff member being unable to return to work because of a medical condition. Administration Services, PAH [Princess Alexandra Hospital], have made multiple attempts to source alternative backfill for Ms Ramasamy, however, they have been unable to obtain any suitable candidates. Further, the Relief Pool, PAH, has been unable to provide suitable coverage of Ms Ramasamy's shifts due to being heavily utilised. Despite the operational impact on the service of the Cardiology Ward, the PAH has continued to support Ms Ramasamy's secondment until this time.
As outlined in HR Policy B42, the decision to agree to second a Queensland Health employee or to extend a secondment is at the discretion of the appropriate delegate and can be refused when there are significant operation(al) reasons, including:
- unavailability of replacement staff with skills, knowledge and expertise at an appropriate level;
- detriment to necessary service levels or important initiatives;
- unacceptable impact on workloads of other staff;
- operational disruption caused by serial secondments; and/or
- premature loss of the recruitment and training investment in a recent appointee.
Upon review of the information available to me, I am satisfied that there are significant operational reasons why Ms Ramasamy is required to return to her substantive position. The main priority of the PAH is ensuring that appropriate clinical services are provided to patients of the Cardiology Ward.
….
…continuing with the current arrangements beyond this time is unsustainable and will result in a detriment to the service of the Cardiology Ward, PAH. As such, Ms Ramasamy has been advised that she will be required to return to her substantive position from 28 June 2021. I am of the view that this decision is fair and reasonable and has been made in line with HR Policy B42.
- [3]I issued a stay on the decision pending the outcome of this appeal. It is my understanding that the employer has taken steps to ensure that Ms Ramasamy is working the same hours as her seconded role although through negotiation between the employer and her union, Ms Ramasamy has agreed to work some shifts in her substantive role in order to assist the employer to fill those shifts.
Is the Appellant entitled to appeal?
- [1]Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
- [2]The appeal notice was filed with the Industrial Registry on 17 June 2021 within 21 days of the decision being received on 2 June 2021. I am satisfied that the Appellant may appeal the decision.
Appeal Principles
- [3]Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
- [4]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
- [5]A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision of 2 June 2021 was fair and reasonable.
- [6]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
…
- (b)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.
Grounds of Appeal
- [7]Ms Ramasamy submits the following as the basis for the appeal:
- The decisionmaker failed to provide adequate reasons for the decision or properly particularise the basis on which the decision has been made.
- The decisionmaker has failed to properly consider the merits of the request as required by clause 2 of the Queensland Health Human Resource Policy B42 (QH-POL-224): Secondment (the Policy).
- The decisionmaker has failed to take into consideration a Queensland Health-wide and not a local perspective, including the recognition of the value of staff mobility and professional development required by clause 2 of the Policy.
- The decisionmaker has failed to consider the requirement of clause 2 in the policy that wherever possible, a employee will be released for a secondment to other duties they have won, in open merit selection.
- The decisionmaker has failed to adequately consider and/or has inappropriately weighted the required matters under clause 4 of the Queensland Health Human Resource Policy B42 (QH-POL-224): Secondment and has misapplied this provision.
- The employer (the State of Queensland, Queensland Health) has made a decision in relation to an appointment or secondment based on matters other than merit as required by s 27 of the Public Service Act 2008.
- The employer … has undertaken a process to decide who will undertake a particular role at a particular FTE and classification level within the HHS and is then proposing to allocate those duties and provide those entitlements to someone other than the person selected in that process, on the basis of considerations outside that process.
Respondent Submissions
- [8]The Respondent submits that the decision taken to return Ms Ramasamy to her substantive position was fair and reasonable in the circumstances.
- [9]The Respondent provides some background to Ms Ramasamy's employment including that it converted her to permanent part-time in the position of After-Hours Ward Receptionist on 6 May 2020. Prior to being converted to that position, Ms Ramasamy had applied to be considered for appointment to it through a recruitment process.
- [10]Prior to consenting to have her employment converted to permanent, Ms Ramasamy raised concerns about the position and hours of work of the position and also asked whether there would be opportunities to be seconded out of the position and into other roles with more hours available. Ms Ramasamy was advised that the nature of the position was such that the hours of work were fixed, and that any secondment opportunities would be at the discretion of Ms Ramasamy's line manager and dependent on organisational needs at the time.
- [11]Following acceptance of the offer of conversion to the permanent part-time position and commencement in the role on 1 June 2020, Ms Ramasamy has worked a number of extra shifts in other work units on an ad-hoc basis to cover unplanned leave and to support fluctuations in demand associated with the COVID-19 pandemic and vaccine rollout.
- [12]From March 2021 onwards, Ms Ramasamy continued to work in her substantive position whilst also working a number of extra shifts in the position of AO3 Revenue Officer.
- [13]Since 10 May 2021, Ms Ramasamy has been seconded out at-level to the Revenue Officer position on a full-time basis of 64 hours per fortnight. The approved secondment was due to conclude on 27 June 2021.
- [14]The Respondent says that prior to undertaking the secondment, Ms Ramasamy was notified that it would conclude on 27 June 2021 and that any further requests for secondment or extensions to the secondment would be subject to approval.
- [15]On 20 May 2021, Cardiology Management received a request to extend Ms Ramasamy's secondment until the end of July 2021.
- [16]On 27 May 2021, Ms Ramasamy was notified that it was not viable for her to undertake a further secondment. On 4 June 2021, Mr Adam Lavis, Director Human Resources wrote to Ms Ramasamy's union providing written reasons for the decision that Ms Ramasamy was not approved to undertake the requested further secondment.
- [17]The Respondent does not dispute that Ms Ramasamy is able to appeal the decision but notes that the decision subject of this appeal is the decision not to release Ms Ramasamy from her permanent role to undertake a further secondment in the position of Revenue Officer from 28 June 2021 to the end of July 2021.
- [18]The Respondent disputes that adequate reasons were not provided for the decision and points to Mr Lavis' correspondence of 4 June 2021. Those reasons refer to the relevant Queensland Health Policy relating to secondments and the Respondent says that Ms Ramasamy has not made clear which requirements have not been met or what information or particulars she believes should have been included about the reasons for the decision.
- [19]The Respondent provides detailed submissions under the heading 'Operational Reasons' and says that this is not simply a matter of advising Ms Ramasamy that she cannot be released. Genuine and significant operational reasons exist which make the requested period of secondment unable to be supported.
- [20]The Respondent says that the decision was made in accordance with HR Policy B42 – Secondments and submits that that the policy is clear that approval to undertake internal and external secondments is at the discretion of the line manager. Decisions are to be made taking into account the merits of the request.
- [21]While the general approach taken by the Respondent is that employees will be released and allowed to take secondments wherever possible, there is no express or implied entitlement to undertake secondments every time they may be on offer or of interest to a particular employee.
- [22]The Respondent says that secondments can be refused in limited and specific circumstances, whether significant operational reasons exist which would make a secondment unviable. Examples of these are set out at cl 4 of the Secondment Policy which provides a non-exhaustive list of reasons secondments may be refused under the policy, including the unavailability of replacement staff, detriment to necessary service levels or operational disruption caused by serial secondments.
- [23]It was not operationally viable for Ms Ramasamy to be released for the secondment. The Cardiology unit at PAH has two wards which require administration support after hours and employs two after hours Administration Officers. Ms Ramasamy is one of these officers. The other employee was absent on sick leave from 27 April to 6 June 2021 and will commence a further period of approved leave from 28 June 2021.
- [24]The Respondent explains that unplanned and ad-hoc vacancies in administrative areas with the PAH are filled where possible with employees from a pool of administrative relief staff. With regard to the relief pool, the Respondent says:
- When shifts are filled by the relief pool, duties may be allocated to different employees from one day to the next;
- the pool is variable and agile in nature to allow for flexibility and business continuity;
- it is not intended to provide long term or sustained backfilling of shifts, extended leave or secondments; and
- the reason that using the relief pool on a repeated or long-term basis is that there is little stability provided to the unit due to different employees continually rotating into and out of the vacant shifts.
- [25]The Respondent says that Ms Ramasamy's secondment and the other employee's absence has resulted in the Cardiology ward being exclusively staffed by the relief pool for May and part of June 2021.
- [26]The Cardiology Ward sought cover for the further period of Ms Ramasamy's secondment however, for the period of 27 May 2021 to 2 July 2021, coverage was only available for five out of 27 vacant after-hours shifts on the Cardiology ward. Having 22 shifts vacant has a significant impact on the operation of the Cardiology ward.
- [27]Ms Ramasamy's position is difficult to backfill on a temporary basis via internal recruitment processes as the hours of work are generally undesirable and the position is part time.
- [28]Ms Ramasamy's position is patient facing and as such there is a higher priority on ensuring service continuity in the role.
- [29]It was determined that the detriment to clinical service delivery caused by a further secondment could not be accepted and so the request for further secondment was declined.
- [30]It is entirely sensible and to be expected for a hospital to prioritise continuity of patient facing clinical service delivery over ancillary functions or support services.
- [31]The Respondent is sympathetic to the personal circumstances of Ms Ramasamy in trying to increase her hours or work different hours, however, it was clearly articulated to her in the email of Mr Jenkins of 5 May 2020 that the role she was accepting was her permanent role and only where operationally feasible would release be given for secondment.
- [32]The only role Ms Ramasamy has an unequivocal entitlement to is her permanent substantive position and the only hours she has an unequivocal entitlement to are her permanent substantive hours.
- [33]The Respondent says that this exact predicament was foreshadowed in Mr Jenkins' email of 7 May 2020. That is, a secondment may not be able to be approved in every instance. Ms Ramasamy accepted the position after full and complete disclosure by the Respondent.
- [34]The Respondent has been supportive of Ms Ramasamy in releasing her for secondments or facilitating her to work increased hours wherever possible and will continue to do so in the future, however, in this instance granting Ms Ramasamy's request would directly impact patient care.
- [35]The Respondent has also encouraged Ms Ramasamy at a number of junctures to apply for other permanent positions that are more suited to her personal circumstances.
- [36]The Respondent says that it is entitled to prioritise clinical service delivery and in doing so, refused secondments in circumstances where they unreasonably impact on patient services. The decision that Ms Ramasamy would not be permitted to undertake a temporary secondment in the role of AO3 Revenue Officer was fair and reasonable and should not be disturbed.
Submissions of Ms Ramasamy
- [37]Ms Ramasamy states that discussions which occurred with her prior to accepting her permanent part-time employment are irrelevant to her request for an extension to her secondment. Ms Ramasamy says that each secondment decision is to be made on its merits and it is inappropriate for the Respondent to seek for her to give up any workplace rights by accepting a permanent role.
- [38]Ms Ramasamy says that she accepted a permanent part-time after hours role during the beginning of the pandemic when there was an unemployment crisis. She feels cheated that she was offered this permanent part-time position despite two years of full-time dedication to her work.
- [39]Ms Ramasamy says that she understands that secondment decisions are discretionary. However, Ms Ramasamy says she is aware of an appeal decision that says that 'the exercise of that discretion is not limitless' and that the 'refusal of such a request can only be made on the basis of significant operational reasons' and 'the exercise of the discretion should always be reasonable'.[1]
- [40]Ms Ramasamy sets out the reasons that she believes the decision provided to her included insufficient reasons. Ms Ramasamy is concerned that the decision does not address significant relevant matters where there is disagreement and the Respondent's reasoning process in sufficient detail.
- [41]Ms Ramasamy believes that the Respondent has failed to properly consider the merits of the request as required by cl 2 of the Secondment Policy. Ms Ramasamy says that she raised reasons to support her secondment including: professional development and improved career path, current financial position and need for a full-time job, the change in her personal circumstances meaning she needs to be at home in the evenings to care for her daughter.
- [42]Ms Ramasamy says that there is nothing in the decision to explain how cl 2 of the policy was taken into account by the Respondent and how consideration of cl 2 was weighted against the operational reasons provided to not release her.
- [43]Ms Ramasamy says that the Respondent has failed to consider cl 3 of the policy that wherever possible, an employee will be released for secondment to other duties they have won in an open merit selection. Ms Ramasamy says that 'wherever possible' is significantly higher than operational convenience.
- [44]Ms Ramasamy says that the Respondent has failed to consider cl 4 of the Policy and has misapplied it. She says that the policy provides that an employee can only be refused release on specific grounds. The Respondent has failed to recognise that the policy provides an entitlement to be released unless there are significant operational reasons and has failed to demonstrate those reasons.
- [45]Ms Ramasamy believes that a replacement employee could have been found for her role.
- [46]Ms Ramasamy provides some background about her previous attempts to be relieved for secondment and the process of an expression of interest for her position being advertised.
- [47]Ms Ramasamy also appears to indicate that there are concerns with the merit of the employee appointed to the role now that she has not been released to undertake the position.
- [48]Ms Ramasamy points out that the submissions of the Respondent provide detail about operational reasons that were not contained in the decision.
- [49]Ms Ramasamy says that there is another permanent part-time position in cardiology which has been vacant from 10 January 2021 and that the position has not been filled to date.
- [50]In response to the Respondent's submission that she only has entitlement to her substantive hours, Ms Ramasamy disagrees and says that she won the role on merit and that provides her with entitlements as does the secondment policy.
- [51]Ms Ramasamy wants a full-time job that allows her to be at home in the evenings with her daughter. She says that she understands that this is not what her permanent role provides, however, she says that if she is not able to accept opportunities for full-time work when they are offered to her, she will be forced to resign from her permanent part-time position.
Consideration
- [52]At the outset, I wish to be clear that the decision I am reviewing is the one received by Ms Ramasamy on 4 June 2021. This is the date that is stated on the appeal notice although the decision letter attached to the appeal notice is dated 2 June 2021.
- [53]I also wish to be clear that the decision being appealed is that regarding this specific secondment request and not any future secondment request. Likewise, I am not considering the previous conversion request made my Ms Ramasamy, the appointment to a permanent part-time position of the hours being worked by her or other circumstances surrounding the offer of permanent employment made to her in 2020 and her acceptance of that offer. I am also not asked to consider the decision about who to offer the secondment role to after the Respondent decided that Ms Ramasamy could not be released from her substantive role to undertake the secondment.
- [54]The specific circumstances of this secondment are that Ms Ramasamy applied for a secondment opportunity and was selected for this opportunity through a merit process. The role was at level but was full-time hours and Ms Ramasamy had been seconded to undertake the role since 10 May 2021 with an end date of 27 June 2021.
- [55]When a request was made for Ms Ramasamy to be extended in the secondment until the end of July 2021, a decision was made that it was not viable to extend Ms Ramasamy.
- [56]While the initial decision was not provided in writing, following a request from her union, a decision and written reasons were provided to Ms Ramasamy via Together Union.
- [57]The decision letter outlines the background of Ms Ramasamy's employment, the circumstances surrounding the secondment and an excerpt from the Secondment Policy accompanied by an explanation as to why the decision was made not to extend the secondment on this occasion.
- [58]As is explored in submissions above and explained in the letter of 2 June 2021 (received on 4 June 2021), the reason for Ms Ramasamy's secondment being refused was because of 'significant operational reasons' as provided for in the policy. In this particular case, the issue is that the Respondent has been unable to provide an appropriate backfill for Ms Ramasamy's substantive position and this has impacted on the provision of 'appropriate clinical services…to patients of the Cardiology Ward'.
- [59]Despite Ms Ramasamy's submission that the decision does not communicate to her what efforts were made to find a replacement for her, the letter refers to attempts being made and to the incapacity of the Relief Pool to provide suitable coverage. While it is important that written decisions provide adequate reasons, they need not provide a description of every action that was undertaken by the employer. I find that the decision adequately communicated to Ms Ramasamy that attempts were made to support her secondment and why these attempts were unsuccessful.
- [60]One of Ms Ramasamy's grounds of appeal was regarding the adequacy of the reasons for decision and the provision of proper particulars. Having reviewed the material before me, I find that the decision letter of 2 June 2021 was adequate, addressed matters raised by Ms Ramasamy and gave her enough information to understand why the decision was made.
- [61]Ms Ramasamy states that the decision maker failed to properly consider the merits of the request. The decision letter acknowledges matters raised by Ms Ramasamy such as the desire to work full-time hours due to her financial position. It seems to me that Ms Ramasamy's personal circumstances have been taken into account by the employer but these had to be weighed against the fact that her substantive role is permanent part-time and there were significant operational reasons precluding this secondment from going ahead.
- [62]There is no evidence to suggest that, as put forward by Ms Ramasamy, the decision-maker has failed to take into account the 'value of staff mobility and professional development' as per cl 3 of the Policy. In fact, the letter makes reference to the fact that in accordance with the Policy, previous secondments have been supported. I also note from submissions that Ms Ramasamy has been supported to access additional shifts were possible. Clause 4 of the Policy makes it clear that, despite the Policy clearly being supportive of secondments, there are circumstances which may lead to the release of an employee being refused. As discussed above, I am satisfied that on this occasion, these circumstances outweighed the considerations outlined in paragraph 2 of cl 3. This is a situation clearly envisaged by cl 3 which states: "However, consideration will be given to the length of the secondment and factors outlined in section 4 of this schedule when making the decision".
- [63]Ms Ramasamy submits that the Respondent has 'misapplied the provision' regarding refusal of release of an employee. Ms Ramasamy further submits that the exercise of discretion afforded the decision maker by the Policy was unreasonable. I disagree. As explained in the letter, the Respondent was unable to find adequate backfill for Ms Ramasamy. To enable the further secondment would cause 'detriment to necessary service levels'. The submissions of the Respondent further expand on the reasons given in the letter and there is no information before me that would serve to displace the decision to refuse the release of Ms Ramasamy under the Secondment Policy.
- [64]While Ms Ramasamy believes a replacement employee could have been found for her substantive role, there is no detail provided to support this. I am satisfied that for the reasons given in the decision letter and the submissions of the Respondent, the Respondent was unable to provide appropriate backfill for Ms Ramasamy on this occasion.
- [65]The Secondment Policy provides that where Ms Ramasamy successfully applies for secondments, these should only be refused for significant operational reasons as provided for by the Policy. The Policy does not provide Ms Ramasamy with an entitlement to always be released to undertake secondment.
- [66]For the reasons above, I find that the decision of 2 June 2021 to not release Ms Ramasamy from her substantive role to undertake the secondment was fair and reasonable.
- [67]I make the following orders:
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
- Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, made on 30 June 2021, is revoked.
Footnotes
[1] Dallmann v State of Queensland (Queensland Health) [2021] QIRC 93, [41].