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  4. Merry v State of Queensland (Queensland Health) - [2021] QIRC 25

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Merry v State of Queensland (Queensland Health)[2021] QIRC 25

Merry v State of Queensland (Queensland Health)[2021] QIRC 25

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Merry v State of Queensland (Queensland Health) [2021] QIRC 025

PARTIES:

Merry, Andrew

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2020/416

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

25 January 2021

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

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

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 27B

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 27, 28, 148, 149A and 149B

Directive 09/20 Fixed term temporary employment, cl 8

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)

Reasons for Decision

Introduction

  1. [1]
    Dr Andrew Merry (the Appellant), is currently employed by the State of Queensland (Queensland Health) (the Respondent) in the position of Senior Medical Officer (SMO) Rheumatology, Sunshine Coast Hospital and Health Service (SCHHS).
  1. [2]
    By appeal notice filed on 14 December 2020, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (the PS Act), appealed against a decision that his employment as a fixed term temporary employee was to continue according to the terms of his existing temporary employment (the Decision).

Appeal principles

  1. [3]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [4]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision‑making process associated therewith.
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the Decision by Dr Khalid Ali, Clinical Director Medical Services Group, to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment (the Directive).

What decisions can the Industrial Commissioner make?

  1. [6]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

 (a)  confirm the decision appealed against; or

 (b)  set the decision aside and substitute another decision; or

 (c)  set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [7]
    In the appeal notice, the Appellant contends that:
  • he was not offered permanency due to there being no full time equivalent (FTE) available within Immunology at the SCHHS however there is a need for extra funding for the Immunology Department as the current FTE is unable to fulfill the current workload;
  • he was not considered for a SMO role in General Medicine or Rheumatology which are roles he has held previously at the SCHHS;
  • since obtaining his fellowship in Immunology/Allergy, he has worked across three disciplines in Immunology/Allergy, Rheumatology and General Medicine at the SCHHS; and
  • on the basis of demonstrated merit, he wishes to be considered for permanent appointment in Immunology/Allergy, Rheumatology, General Medicine or a combination of all three positions. 

Background

  1. [8]
    The Appellant was appointed to the temporary position of SMO on 4 October 2018 as a non-specialist on a fixed term basis with a planned end date of 3 February 2019, which was then extended to 15 March 2020.
  1. [9]
    Between 11 March 2019 and 14 June 2020, the Appellant worked as a temporary specialist Immunologist to backfill long service leave.
  1. [10]
    On 15 June 2020, the Appellant was appointed as a temporary non-specialist SMO General Medicine, with a planned end date of the 31 January 2021.
  1. [11]
    There is no dispute between the parties that:
  • the Appellant was eligible for review pursuant to s 149B of the PS Act in respect of his temporary employment status; and
  • a review was undertaken and a decision to not convert to permanent employment was conveyed to the Appellant on 23 November 2020 by Dr Khalid Ali. 

Relevant provisions of the PS Act and the Directive

The PS Act

  1. [12]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department’s chief executive must decide whether to-
  1. (a)
    continue the person’s employment according to the terms of the person’s existing employment; or
  1. (b)
    offer to convert the person’s employment basis to employment as a General employee on tenure or a public service officer.
  1. (4)
    The department’s chief executive must make the decision within the required period after-
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department’s chief executive; and
  1. (b)
    the department’s chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (6)
    If the department’s chief executive decides not to offer to convert the person’s employment under subsection (3), the chief executive must give the employee a notice stating-
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee-how many times the person’s employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (7)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person’s employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee’s existing employment.

…

  1. [13]
    Section 149A(2) of the PS Act provides:
  1. (2)
    The department’s chief executive may offer to convert the person’s employment under section 149 (3)(b) only if-
  1. (a)
    the department’s chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [14]
    Section 149A(3) of the PS Act provides:
  1. (3)
    If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a General employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

The Directive

  1. [15]
    The Directive relevantly provides:
  1. Decision on review of status

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

•  whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2  Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a General employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954,[5] the decision must:

  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.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

…

Submissions

  1. [16]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. 

Respondent's submissions

  1. [17]
    The Respondent filed submissions opposing the appeal, summarised below:
  • the Appellant was employed on the 4 October 2018 as a non-specialist on a fixed term basis. Consistent with s 148(2)(d) of the PS Act, the Appellant's temporary appointment to the SMO Rheumatology position as a non-specialist was to meet an urgent clinical need where specialists were not immediately available. The Appellant's temporary appointment as non-specialist in Rheumatology ended when other temporary specialist Rheumatology SMOs were appointed;
  • consistent with s 148(2)(a) of the PS Act, between 11 March 2019 and 14 June 2020, the Appellant also worked as a temporary specialist Immunologist to backfill long service leave;
  • on 15 June 2020, the Appellant was appointed as a temporary non-specialist SMO General Medicine, with a planned end date of 31 January 2021. Consistent with s 148(2)(a) of the PS Act, the Appellant's temporary appointment to the non-specialist SMO General Medicine position was to backfill temporary reduction in hours amongst permanent existing specialist SMOs as well as 0.35 FTE permanent vacancy;
  • the Appellant is currently employed in the temporary role of SMO General Medicine as a non-specialist for the reasons provided above;
  • the SCHHS has a full time permanent vacant position for a specialist SMO in Rheumatology, and part time permanent vacant position for a specialist SMO in General Medicine. The SCHHS has no vacant SMO position in Immunology;
  • for clarification, whilst the position SMO Rheumatology is named in the establishment as Immunology/Rheumatology, this represents a decision at SCHHS to combine both specialisms within the same clinical Department, which is a unique arrangement within Queensland. The field Immunology/Allergy and the field Rheumatology are distinct specialisms that require the SMO to have completed separate and distinct advanced training programs. This is evidenced where the SCHHS undertook a recruitment process for a specialist Rheumatologist in 2019. This principle applies to the specialism of General Medicine;
  • on 23 November 2020, Dr Khalid Ali spoke with the Appellant providing notice of the decision for non-conversion. The reason being that the Appellant is not qualified to work as a specialist in Rheumatology or General Medicine, and there is no vacancy for a specialist in Immunology;
  • in the appeal notice, the Appellant identifies a requirement for more staff within Immunology/Allergy and Rheumatology. He also argues that he has the "abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties within the three disciplines of Immunology/Allergy, Rheumatology and General Medicine";
  • SCHHS maintains the following reasons for non-conversion:
  1. (a)
    the Appellant is qualified to work as a specialist in Immunology/Allergy. There are currently no permanent specialist Immunology/Allergy positions available at SCHHS;
  1. (b)
    on occasion, temporary appointments are offered to non-specialists in order to meet urgent clinical need, if a specialist is not available for employment. The Appellant has fulfilled this temporary non-specialist role in Rheumatology, where a specialist was not available. The Appellant continues to fulfil this temporary non-specialist role in General Medicine; and
  1. (c)
    the Appellant is not qualified to work as a specialist in either Rheumatology or General Medicine and does not meet the merit criteria for these positions that is prescribed in s 28 of the PS Act;   
  • the Appellant is registered with Australian Health Practitioner Regulation Agency (AHPRA) as a specialist in Immunology and Allergy;
  • the SCHHS credentialing and scope of clinical practice committee decisions regarding the Appellant's current scope of clinical practise are as follows:
  1. (a)
    Physician (Adult) - General Medicine and Rheumatology; and
  1. (b)
    Specialist Physician (Adult) - Immunology and Allergy;
  • in his current temporary role as non-specialist SMO General Medicine, the Appellant has direct supervision during working hours from specialist SMOs in General Medicine;
  • whilst working as a non-specialist SMO Rheumatology, the Appellant received significant support from specialist SMO rheumatologists employed at Metro North Hospital and Health Service (MNHHS);
  • there are two relevant elements under clause 8.1 of the Directive. The first element concerns whether there is a continuing need for the person to be employed in the role. The SCHHS acknowledges there is a temporary need for the Appellant to be employed in the role non-specialist SMO General Medicine until January 2021;
  • however, whilst there is a continuing need for a specialist SMO General Medicine, there is no continuing need for a non-specialist. If a non-specialist were appointed to a specialist SMO position in General Medicine, SCHHS would be required to provide direct supervision to the non-specialist on a permanent basis. This would place an unsustainable burden on specialist SMOs whose expertise is required for the treatment of patients and the training of junior doctors;
  • likewise, whilst there is a continuing need for a specialist Rheumatology SMO, there is no continuing need for a non-specialist. If a non-specialist were appointed to a specialist SMO position in Rheumatology, with only one FTE established for the service, SCHHS would be unable to continue a vital specialist Rheumatology service on the sunshine coast;
  • the SCHHS maintains there is no vacant position for an Immunologist;
  • the second element under clause 8.1 of the Directive is the merit principle. The Directive requires a chief executive to consider "the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act";
  • section 28 of the PS Act sets out the merit criteria including "the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question";
  • the role description for a specialist SMO Rheumatology requires "[c]urrent registration (or eligible for registration) with the Australian Health Practitioner Regulation Agency (AHPRA) to practise as a specialist in Rheumatology";
  • the role description for a specialist SMO General Medicine requires "[c]urrent registration (or eligible for registration) with the Australian Health Practitioner Regulation Agency (AHPRA) to practise as a specialist in General Medicine";
  • the Appellant has not completed the required training, nor does he possess the specialist qualifications for General Medicine or Rheumatology. Accordingly, SCHHS submits that the Appellant does not meet the merit criteria prescribed in s 28 of the PS Act for either position;
  • the Appellant states "…[w]here an employee is eligible and the criteria are met, the directive requires that a conversion should be offered unless there is a genuine operational reason not to do so. There is a clear need for extra funding for the Immunology department as the current FTE is unable to fulfil it's [sic] current workload…";
  • SCHHS submits that clause 8.2 of the Directive is not relevant to this appeal. The Directive provides that where the criteria set out in clause 8.1 are met, the employer must decide to offer to convert the employment to permanent "unless it is not viable or appropriate having regard to the genuine operational requirements of the agency." The criteria set out in clause 8.1 were not met for the reasons above. Accordingly, the conditions required to enliven clause 8.2 have not been met; and
  • in the alternative, if the Commission considers the SCHHS is required to consider whether there is a genuine operational requirement not to convert the Appellant's previous temporary employment in Immunology to permanent employment, SCHHS further submits that:
  1. (a)
    SCHHS does not have a vacant position in Immunology;
  1. (b)
    if the Appellant were to be converted to permanent, it would equate to the creation of an additional permanent Immunologist position that is not required by the SCHHS;
  1. (c)
    the Directive does not require an employer to create a new position to accommodate a conversion to permanent employment; and
  1. (d)
    the current budgetary position of the SCHHS constitutes a genuine operational reason not to create that additional role. The Financial Accountability Act 2009 (Qld) imposes a duty on the SCHHS to act within its financial allocations.   

Appellant's submissions in reply

  1. [18]
    The Appellant filed submissions in response to the Respondent's submissions, which have been summarised below:
  • it is acknowledged in the Respondent's submission that there are current vacancies for 1.0 FTE SMO Rheumatology and 0.35 FTE SMO General Medicine;
  • the Appellant has been employed by the SCHHS as an SMO over the past two years, including as an SMO Rheumatology for a period of over 17 months, and as an SMO General Medicine for currently in excess of seven months. For the purposes of the continuing need for the role, it is immaterial that the Appellant was employed as a non-specialist where he was nevertheless employed to, and indeed did, fulfil these roles;
  • the Respondent's submission acknowledges that the Appellant filled the SMO Rheumatology role and the SMO General Medicine role (to the extent of the 0.35 FTE permanent vacancy) "to meet an urgent clinical need where specialists were not immediately available" pursuant to s 148(2)(d) of the PS Act. That is, it is acknowledged that the current vacant roles which the Appellant has fulfilled are and always have been designed as specialist roles, which the Appellant nevertheless fulfilled in a non-specialist capacity. This is not unusual for public hospitals in Queensland, particularly in regional areas;
  • any attempt on the part of the SCHHS to distinguish a continuing need for a vacant 'specialist' role as opposed to the non-specialist role filled by the Appellant, or maintain that the presently vacant roles do not reflect a continuing need for someone to be employed in the same, or at least substantially the same role as that fulfilled by the Appellant, is contrived and cannot be sustained;
  • the SCHHS submits that the Appellant is not qualified to fulfil the vacant roles of 'specialist' SMO Rheumatology and/or General Medicine as he holds specialist registration in Immunology/Allergy only, and not Rheumatology and/or General Medicine. The SCHHS seeks to rely on the role descriptions attached to its submission and, in particular, the 'mandatory' requirement to hold professional registration to practise as a specialist in Rheumatology or General Medicine, respectively;
  • contrary to the SCHHS's submission, the role descriptions relied on by the SCHHS as applicable to the current vacant roles refer to the role titles merely as 'Senior Medical Officer (Rheumatology)' and 'Senior Medical Officer (General Medicine)' respectively (and not specifically as 'specialist' roles). These are the exact same role titles of the positions to which the Appellant has been appointed over the past two years, notwithstanding the absence of 'mandatory' specialist registration in Rheumatology and/or General Medicine. Indeed, the Appellant is currently credentialed at SCHHS to perform the roles of Physician (Adult) – General Medicine and Rheumatology;
  • it is disingenuous for the SCHHS to now seek to assert that the Appellant is ineligible for appointment to positions for which he has, in fact, been employed over the past two years or more, in reliance on the expression of those positions as 'specialist' roles. The Appellant has fulfilled (as a non-specialist) roles which were and always have been designed as specialist roles, "where specialists were not immediately available";
  • section 148(2) of the PS Act, pursuant to which the Appellant was appointed in the roles of SMO Rheumatology and SMO General Medicine, simply permits the temporary employment of employees ordinarily entitled to employment as a public service officer. It does not permit the employment of an employee not otherwise qualified for the position. To now effectively imply that the State of Queensland would engage a medical practitioner who was not qualified to perform the work for which they were engaged is disingenuous. Where the original positions were intended as 'specialist' roles and the Appellant was appointed in a non-specialist capacity (not unusual for public hospitals), the SCHHS cannot now reasonably assert that the Appellant is not qualified absent specialist registration which he otherwise did not hold during his appointment in that same position;
  • otherwise, for the purposes of s 27(1)(b) of the PS Act and the consideration of 'merit', "the way in which [Dr Merry] carried out any previous employment or occupational duties" is also relevant. The Appellant has been employed in the currently vacant roles of SMO rheumatologist and SMO General Medicine over the past two years. The longevity of his appointment in these positions plainly evidences the satisfactory manner in which he carried out such previous employment and the SCHHS has provided no supporting material to the contrary. There have been no complaints, concerns, or the like, in that substantial period of time, leading to the reasonable conclusion that the Appellant has carried out his duties competently and appropriately;
  • contrary to the SCHHS's submissions, the Appellant submits that he is not subject to direct (formal or informal) supervision in his role as SMO General Medicine, and instead practises in dependently in that role. The Appellant has independently sought feedback from the director of Medicine for the purposes of personal and professional development, and has received only positive feedback. To the best of the Appellant's knowledge and belief, no concerns have been raised regarding his performance in this role;
  • similarly, the Appellant submits that he did not receive significant support or supervision from specialist SMO Rheumatologists from MNHHS in his capacity as SMO Rheumatology. During the majority of the Appellant's time in this role, there was one other specialist Rheumatologist in the Department who completed one afternoon clinic per fortnight and was rarely in attendance, and certainly not available for supervision or support for the Appellant in the sense where one could ever reasonably contend that supervision was provided. Ultimately, following the resignation of that specialist Rheumatologist, it was necessary to appoint a consultant from MNHHS not to supervise or support the Appellant, but to assist with workload and to manage waiting list backlogs within the SCHHS;
  • importantly, the Appellant's credentialing at the SCHHS specifically provides that there are no special conditions or restrictions on the scope of his clinical practise with respect to General Medicine or Rheumatology. As the Appellant's credentialing is unrestricted, the SCHHS's submission that appointment of the Appellant as a non-specialist would also require the permanent appointment of a specialist to provide direct supervision is erroneous, untrue, and cannot be maintained;
  • it is also unclear the basis on which the SCHHS submit the appointment of the Appellant to a non-specialist position in Rheumatology would result in the SCHHS being unable to continue a vital service. It must be acknowledged that the Appellant did, in fact, satisfactorily fulfil this position for 17 months. Indeed, even in the role of SMO General Medicine, the Appellant created a new Rheumatology clinic to assist in reducing category 3 long wait list times, and that improved the Rheumatology service. Further, by way of an objective factor bearing considerable relevance, the Commonwealth Government Medicare Pharmaceutical Benefits Scheme recognises that either a specialist immunologist or rheumatologist can prescribe the biological agents for all Rheumatology conditions. Therefore, the Appellant's appointment would clearly represent no risk to the provision of a continuing Rheumatology service;
  • as acknowledged by the SCHHS's submission, where there is a continuing need for (at least substantially) the same role and the employee is eligible for appointment, the SCHHS must decide to offer to convert the employment to permanent "unless it is not viable or appropriate having regard to the genuine operational requirements of the agency"; and
  • importantly, the SCHHS has provided no submissions as to any operational requirements which would preclude the conversion of the Appellant's temporary employment to permanent in the 1.0 FTE SMO Rheumatology role and/or 0.35 FTE SMO General Medicine role, or some combination thereof.

Consideration

  1. [19]
    The question in this appeal is whether the decision maker considered the mandatory factors in accordance with clause 8 of the Directive in determining that the Appellant's employment would not be converted to permanent. Clause 8 provides:
  1. Decision on review of status

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

•  whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

…

  1. [20]
    It is not disputed that there is a continuing need for a person to be employed in a role which is substantially the same, that is the role of SMO Rheumatology (1.0 FTE) and SMO General Medicine (0.35 FTE), although the parties are not in agreement as to whether there is a need for a specialist to occupy this role. The SCHHS submits that there is a continuing need for a specialist SMO in Rheumatology and General Medicine, and there is no need for a non-specialist in either roles.
  1. [21]
    The decision maker did not refer to any genuine operational requirements pursuant to s 149A(3) of the PS Act that would prevent the conversion of the Appellant's employment to permanent. The Respondent submits that a consideration of this criteria was unnecessary unless the criteria with respect to merit was satisfied, and made brief submissions as to the genuine operational requirements that would prevent a permanent appointment.
  1. [22]
    The issue in dispute relates to the consideration of merit for the role having regard to the merit principle in s 27 of the PS Act. Section 27 of the PS Act provides the appointment must be made on merit alone (the merit principle), and s 28 provides:

28 MERIT CRITERIA

In applying the merit principle to a person, the following must be taken into account—

  1. (a)
    the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  1. (b)
    if relevant—
  1. (i)
    the way in which the person carried out any previous employment or occupational duties; and
  1. (ii)
    the extent to which the person has potential for development.
  1. [23]
    The Appellant does not dispute the Respondent's submission that the Appellant filled the SMO Rheumatology role and the SMO General Medicine role "to meet an urgent clinical need where specialists were not immediately available" pursuant to s 148(2)(d) of the PS Act. It is acknowledged by the parties that the currently vacant roles which the Appellant has fulfilled are and always have been designed as specialist roles, which the Appellant nevertheless fulfilled in a non-specialist capacity. The question for determination, however, is not whether the Appellant met the merit criteria for the roles when he was appointed in a temporary capacity, rather whether he satisfied the merit criteria for permanent appointment to the roles.
  1. [24]
    Application of the merit principle requires that the "abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities" relevant to the carrying out of the duties in question must be taken into account.
  1. [25]
    The decision maker correctly considered whether or not the Appellant had the relevant qualifications when determining the outcome of the review. The Appellant seeks a permanent appointment in Immunology/Allergy, Rheumatology and General Medicine but does not hold specialist qualifications in Rheumatology or General Medicine. The Appellant does hold specialist qualifications in Immunology/Allergy however there is no position available in this field at the SCHHS.
  1. [26]
    The SCHHS submitted the role descriptions of SMO Rheumatology and General Medicine which contain a 'mandatory' requirement to hold professional registration to practise as a Specialist in Rheumatology and General Medicine. The Appellant's submissions state that the role titles refer only to 'Senior Medical Officer (Rheumatology)' and 'Senior Medical Officer (General Medicine)' and not specifically 'specialist' roles. Whilst this may be the case, it is the responsibility of the SCHHS to determine the appropriate qualifications for the role. The SCHHS has determined that each role should be filled by a specialist in the respective fields and has included professional registration with AHPRA to practise as a specialist as a mandatory requirement.  
  1. [27]
    Even if the Appellant's submissions that he was not subject to direct supervision and did not receive significant support from specialist SMO Rheumatologists is to be accepted, this does not override the requirement that he must hold mandatory qualifications as a specialist in the field for the roles in which he is seeking permanent appointment. Similarly, the fact that the Appellant's credentialing at the SCHHS provides no special conditions or restrictions on the scope of his clinical practise with respect to General Medicine or Rheumatology does not satisfy the requirement that the appointee to the permanent role be a registered specialist.
  1. [28]
    Sub-section 28(b)(i) of the PS Act provides that if relevant, "the way in which the person carried out any previous employment or occupational duties" must be taken into account. There have been no submissions to indicate that the manner in which the Appellant carried out his employment in the roles of SMO Rheumatologist and SMO General Medicine was anything but satisfactory. The length of time in which the Appellant was placed in these roles indicates that the SCHHS were satisfied with the way in which he performed in his duties. Section 28(b) of the PS Act provides that this aspect may be considered 'if relevant'. In circumstances in which aspects of the merit principle contain a potentially subjective component, such as personal qualities, abilities, aptitude and skills, this sub-section may be relevant. However, where mandatory qualifications have been set by the employer, consideration of the way in which the person carried out their previous duties cannot reasonably outweigh this requirement.
  1. [29]
    Similarly, sub-section 28(b)(ii) of the PS Act must also be considered if relevant, in consideration of the merit principle. This sub-section provides that the extent to which the person has potential for development must be considered if relevant. No submissions were made on this point, and a consideration of the Appellant's potential for development would not prevail over the mandatory requirement for specialist qualifications.
  1. [30]
    I accept that the appointment of a non-specialist in temporary roles may not be unusual for public hospitals in regional Queensland, however, it does not follow that the requirement for the merit principle to be applied can be ignored for permanent appointments.
  1. [31]
    For the above reasons, the decision to decline to convert the Appellant's fixed term temporary employment to permanent was fair and reasonable in the circumstances.

Order

  1. [32]
    I make the following order:

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

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] Section 27B of the Acts Interpretation Act 1954 (Qld) provides:

27BContent of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also-

(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.

Close

Editorial Notes

  • Published Case Name:

    Merry v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Merry v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 25

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    25 Jan 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 & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
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

Cases Citing

Case NameFull CitationFrequency
Chan v State of Queensland (Queensland Health) [2021] QIRC 2432 citations
1

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