Kiely v State of Queensland (Queensland Health)
[2021] QIRC 252
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- Unreported Judgment
- Kiely v State of Queensland (Queensland Health)[2021] QIRC 252
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Kiely v State of Queensland (Queensland Health)[2021] QIRC 252
Kiely v State of Queensland (Queensland Health)[2021] QIRC 252
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kiely v State of Queensland (Queensland Health) [2021] QIRC 252 |
PARTIES: | Kiely, Nathan John (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/46 |
PROCEEDING: | Public Service Appeal – Conversion of Fixed Term Temporary Employment |
DELIVERED ON: | 23 July 2021 |
MEMBER: HEARD AT: | Knight IC On the papers |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application under s 562A of the Public Service Act 2008 (Qld) to dismiss an appeal – where the appellant was employed on a fixed term temporary contract – where employment reviewed pursuant to s 149B of the Public Service Act 2008 (Qld) – decision not to convert – where the appellant brought appeal – where the appellant subsequently ceased employment – whether the Commission should continue to hear the appeal – compelling reasons – appeal dismissed |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 562A, 562C Public Service Act 2008 (Qld) ss 197, 149B |
Reasons for Decision
- [1]Mr Nathan Kiely is a former employee of the State of Queensland. He was employed by Queensland Health within eHealth Queensland ('the Department') in the role of AO3 Technology Officer, in the Northern Digital Partnership Team. Mr Kiely was employed on a temporary fixed term basis.
- [2]In late 2020, Mr Kiely's fixed term employment status was reviewed pursuant to s 149B of the Public Service Act 2008 (Qld) ('the PS Act').
- [3]In a decision letter dated 21 December 2020, Executive Director Michael Berndt informed Mr Kiely he would continue to be engaged according to the terms of his existing engagement.
- [4]Mr Kiely filed an appeal notice on 25 January 2021 under ch 7, pt 1 of the PS Act. Subsequent to doing so, he resigned from his employment.
- [5]For the reasons that follow, I decline to hear the appeal.
Background
- [6]In late January 2021 I issued a Directions Order requiring the parties to file and serve submissions. The Directions Order also indicated that, unless otherwise ordered, the appeal would be determined on the papers. Both parties complied with those directions and filed submissions.
- [7]On 20 May 2021, after receiving the final submissions in this matter, a representative of the Department informed the Commission that Mr Kiely had ended his employment.
- [8]Attempts were subsequently made by my Associate to contact Mr Kiely to inquire as to whether he wished to continue his appeal in circumstances where the outcome being sought is conversion to a permanent role in his former workplace.
- [9]Those attempts included several emails sent to Mr Kiely on 21 May, 24 May and 31 May 2021. He did not respond to the emails. The Industrial Registry also attempted to telephone Mr Kiely on 2 June 2021.
- [10]A mention was consequently listed on 14 June 2021 at which Mr Kiely failed to appear. Mr Kiely was provided with a Notice of Listing ahead of the proceedings, which advised of a requirement to attend the mention. Following that mention I issued a Further Directions Order which required the parties to file submissions directed at the issue of whether the Commission ought to continue to hear the appeal.
- [11]The Further Directions Order was provided to Mr Kiely and the Department by email on the same day. The Industrial Registry made additional attempts to contact Mr Kiely by telephone on 15 and 17 June 2021 to establish whether the Further Directions Order had been received.
- [12]To date the Commission has not received any response to its enquiries, nor has Mr Kiely filed any further submissions with respect to whether this appeal ought to be progressed.
Submissions
- [13]As the Department's submissions are relatively brief, it is convenient to set out the pertinent parts in full:
- As the Appellant is no longer employed in any capacity by the [Department], the principle relief usually available in a public service appeal and sought by [Mr Kiely] is no longer available to him. [Mr Kiely's] decision to remove himself from employment has the effect of limiting the Commission's options, if it were to find that the decision being appealed was not fair or reasonable.
- The [Department] submits that any decision now available to the Commission, with the exception of confirming the decision being appealed, would be rendered futile as:
a. A decision to substitute the decision is unavailable, as [Mr Kiely] is no longer employed by the [Department] and has demonstrated by his resignation letter that he no longer wishes to be bound by any employment arrangement with the [Department] that the Commission may order.
b. A decision to return the matter to the decision maker, with or without directions, would, with great respect to the Commission, be futile as there is no longer an employment relationship to review.
- For the above reasons, the [Department] submits that the Commission should exercise its powers under section 562A(3)(b)(iii) and decide not to hear the appeal.
- Alternatively, the decision being appeal should be confirmed.
- [14]Also provided to the Commission by the Department was a letter of resignation dated 19 May 2021 and signed by Mr Kiely, and a copy of his separation advice. The letter relevantly indicated that Mr Kiely's resignation would take effect from 2 June 2021.
Relevant principles
- [15]
562A Commission may decide not to hear particular public service appeals
...
(3) The commission may decide it will not hear a public service appeal against a decision if—
(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
Should the Commission continue to hear the appeal?
- [16]Having had the benefit of reading the parties' primary submissions on the appeal, I am not satisfied that the proceedings could be classified as frivolous or vexatious, or otherwise misconceived or lacking in substance. That is, I consider there did exist a genuine dispute between the parties giving rise to a right to appeal on Mr Kiely's behalf.
- [17]I must therefore consider whether the appeal should not be heard for another compelling reason.
Another compelling reason
- [18]In my view there are two compelling reasons why this appeal should not be heard.
- [19]Firstly, having regard to the repeated steps taken to contact Mr Kiely over several months and his failure to respond, it appears that he has abandoned the appeal. In this respect I note the Form 89 – Appeal notice which Mr Kiely filed to commence these proceedings required him to give an undertaking in the following form:[2]
I am lodging an appeal under section 197 of the Public Service Act 2008 and undertake to make myself available to progress the appeal.
- [20]In my view, Mr Kiely has failed in his undertaking and his appeal suffers because of his failure to make himself available.
- [21]Secondly, I consider there would be little practical utility in allowing the appeal. In deciding this appeal, s 562C(1) of the IR Act provides that I 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 it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
- [22]Given the circumstances of Mr Kiely's resignation, I am limited in any decision which I may substitute in lieu of the Department's decision. In this respect I note it is beyond the remit of this Commission to order that a person be re-employed in a proceeding of this kind.[3]
- [23]I also consider there would be little utility in requiring the Department to undertake a fresh review where the affected employee has voluntarily resigned his employment; and where that is a basis on which it may refuse to convert him in any event.
- [24]As identified by the Department, the primary relief sought by Mr Kiely, being conversion to permanent employment status, is no longer available to him. He is no longer an employee of the State of Queensland, therefore there is an absence of a current employment relationship of a temporary nature, upon which conversion could be predicated.
- [25]Given the above, I am not persuaded that an order under s 562C allowing the appeal in favour of Mr Kiely is reasonably open to be made.
- [26]I therefore consider there are reasonably compelling reasons to decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the IR Act. I do not consider Mr Kiely will be unduly prejudiced if I do so.
Conclusion
- [27]For the reasons given above, I decline to hear the appeal. It follows that it must be dismissed.
- [28]I order accordingly.
Order
The appeal is dismissed.
Footnotes
[1] My emphasis.
[2] My emphasis.
[3] cf. Industrial Relations Act 2016 (Qld) s 321(2) which empowers the Commission to make an order that an employee who has been unfairly dismissed be reinstated to their former position. No such power exists in respect of public service appeals brought under s 197 of the Public Service Act 2008 (Qld).