Luong v State of Queensland (Department of Housing and Public Works)
[2021] QIRC 256
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- Unreported Judgment
- Luong v State of Queensland (Department of Housing and Public Works)[2021] QIRC 256
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Luong v State of Queensland (Department of Housing and Public Works)[2021] QIRC 256
Luong v State of Queensland (Department of Housing and Public Works)[2021] QIRC 256
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Luong v State of Queensland (Department of Housing and Public Works) [2021] QIRC 256 |
PARTIES: | Luong, Chan Bang (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) |
CASE NO: | PSA/2021/69 |
PROCEEDING: | Public Service Appeal – Appointment to position at higher classification |
DELIVERED ON: | 27 July 2021 |
MEMBER: | Industrial Commissioner Dwyer |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – application for permanent employment at higher classification – deemed decision – jurisdiction to deal with conversion decision appeal – appeal filed 28 days out of time – consideration of whether to hear appeal out of time – appellant on leave – appellant attending to ill relative interstate – appellant made timely enquiries on his return from leave – appellant misled as to status of his application for permanent appointment – extension of time for filing appeal granted – Respondent relies on genuine operational requirements – position currently under review – position currently vacant – genuine operational requirements valid basis to refuse permanent appointment. |
LEGISLATION: | Directive 13/20 Appointing a public service employee to a higher classification level cls 6, 7 Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564 Public Service Act 2008 (Qld) s 149C |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) 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 Truffet v Workers’ Compensation Regulator [2020] ICQ 013 |
Reasons for Decision
Background
- [1]Mr Chan Bang Luong is substantively employed in the position of BAO6 Project Manager within Project Delivery, QBuild, Building Policy and Asset Management. He is employed by the Department of Housing and Public Works (now renamed the Department of Energy and Public Works) ('the Department').
- [2]Between 19 November 2018 and 29 January 2021, Mr Luong had been acting in the higher classification level position of BAO8, Program Manager (position number 707166) within Capital Programs, QBuild ('the position'). During this period, the engagement was extended six times.
- [3]On 29 January 2021, the higher duties arrangement in the position concluded and Mr Luong returned to his substantive position on 1 February 2021.
First request for conversion
- [4]On 13 October 2020, Mr Luong requested to be permanently appointed to the position pursuant to the amendments to the Public Service Act 2008 (Qld) ('PS Act').
- [5]On 4 November 2020, Mr Dave Treby, A/Executive Director Capital Programs, QBuild, emailed Mr Luong correspondence from Ms Simone Pirie, Human Resources Consultant. This correspondence advised Mr Luong that the Deputy Director-General has considered his request and determined that his temporary placement in the position would continue according to its existing terms. The reasons for the decision were as follows:[1]
The reason for the Deputy Director-General's decision is that QBuild is currently undertaking a Transformation Program to determine and implement efficiencies throughout the business unit, and while this is underway, a decision has not been made regarding the ongoing requirement for the BAO6, Program Manager role in QBuild, beyond the expiry date of your current engagement.
- [6]The decision advised Mr Luong that if his engagement in the position continued, he could submit another request for permanent employment on 19 November 2020.
Second request for conversion
- [7]On 24 November 2020, Mr Luong made a second request to be permanently appointed to the position. At this time he had been acting in the position for a continuous period of two years.
- [8]The Department did not make a decision regarding Mr Luong's request within the required 28-day period. Consequently, a deemed decision to refuse his request occurred on 22 December 2020 ('the deemed decision').
- [9]Relevantly, the statutory appeal period for this deemed decision would expire on approximately 12 January 2021, though the public holidays over the Christmas period would arguably extend the time limit by a few days.
- [10]In any event, Mr Luong filed an Appeal Notice on 9 February 2021, a period of approximately 4 weeks after the expiration of the statutory limit. In his Appeal Notice, he did not note that he had filed out of time, instead focussed on the issue of genuine operational requirements relied on by the Department.
- [11]Mr Luong addressed his delay in filing the appeal in his reply submissions filed on 24 March 2021.
Timeframe to appeal and extension
Statutory framework
- [12]Section 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act') requires an appeal to be filed within 21 days after the decision appealed against is given.
- [13]Section 564 of the IR Act relevantly provides:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- [14]Section 564(2) of the IR Act vests in me a discretion to grant Mr Luong an extension for the filing of his appeal.
- [15]Mr Luong's Appeal Notice was filed approximately 28 days after the appeal period expired. The Department objects to the appeal being dealt with outside of the statutory time limit for filing. The Department complains that Mr Luong has provided no reason for the delay. Conversely, I note the Department has not made any submission about any prejudice it will suffer if I grant an extension.
Submissions of Mr Luong explaining the delay
- [16]In response to the submissions of the Department, Mr Luong ultimately did provide detailed submissions explaining the delay in filing in his reply submissions dated 24 March 2021.
- [17]In summary, he contended that:
- He took a period of leave over Christmas that included a trip interstate to care for an ill relative;
- On his return to work on or after 6 January 2021 he was inundated with tasks connected with both his acting role and his substantive role;
- He had communicated with HR on four occasions following his return from leave to follow up on the progress of his request for permanent appointment:
- Twice in writing on 18 January 2021 and 29 January 2021; and
- Twice on the phone on 5 and 8 February 2021.
- He was advised on 2 February 2021 in correspondence from Mr Amardeep Singh, A/Senior HR Consultant of the Department that 'your application is still with the delegate for consideration'. He was further advised by Mr Singh on 5 February 2021 that his application was ‘still being finalised’;[2]
- On 8 February 2021, during a telephone conversation with Mr Singh, Mr Luong was advised that the Delegate had ‘chosen not to respond’; and
- Mr Luong filed his appeal the next day on 9 February 2021.
General principles regarding granting an extension
- [18]As established in Brisbane South Regional Health Authority v Taylor,[3] Mr Luong bears the onus of establishing that the justice of the case requires an extension of time. In the case, the High Court also noted that granting an extension of time is a discretion and the purpose of exercising it is to 'ensure a fair trial on the merits of the case'.[4]
- [19]The principles guiding when this discretion should be granted were identified by President Martin in Truffet v Workers’ Compensation Regulator,[5] where His Honour noted:
[9] The relevant principles with respect to an extension of time were considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations), where the following was said:
“On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:
‘This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.’
I note that s 346 of the 1999 Act is reproduced as s 564 in the current Act. In applying those principles, this Court will not grant leave unless it is positively satisfied that it is proper to do so. I will consider the merits of the appeal before finally determining the application for extension. As was said in Chapman v State of Queensland [2003] QCA 172:
‘In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application ... An extension of time will not be granted if the court considers the appeal to be plainly hopeless.’
In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed. Now, as I said, I will consider the merits of the appeal, but I will deal first with the issue of the explanation of the delay and the extent of the delay.”
(Emphasis added)
- [20]I propose to deal firstly with the explanation for the delay.
Explanation for delay
- [21]In this instance the delay is approximately four weeks (being calculated from the end of the period for filing rather than the date of any deemed decision). A delay of four weeks is, of itself, not substantial in the circumstances of this matter.
- [22]The explanation for the delay is multifactorial. It is clear that Mr Luong was likely to have been distracted by personal events involving his ill father over the Christmas period. It was while Mr Luong was interstate that the deemed decision occurred. This was compounded by Mr Luong’s workload immediately upon his return to work in early January 2021.
- [23]Mr Luong was actively communicating with the Department to ascertain the status of his application from 18 January 2021 and was repeatedly (albeit unintentionally) misled by the erroneous responses he received from the HR personnel.
- [24]While Mr Luong’s more urgent inquiries commenced approximately 6 days after the appeal period expired, it is understandable given the personal and work pressures he was under (plus the disruption of the Christmas period generally) that he did not attend to the matter before then.
- [25]Further, while deemed decisions are a legitimate manner in which the Department may deal with such applications, in my view they are far from ideal and give rise to a risk of this precise issue i.e. the prospect that an employee will be confused or misled. This is especially so when the deemed decision occurs three days before Christmas, and at a time when many personnel are absent on leave.
- [26]I am unable to appreciate any real prejudice to the department if I were to allow the appeal to proceed. Further, to whatever extent the department is prejudiced by the delay, they have significantly contributed to it through the inaccurate communications of their HR personnel at a time when Mr Luong was actively seeking information about a decision.
- [27]In all of these circumstances I am satisfied that Mr Luong has offered a plausible explanation for the delay, and that to a large extent the delay was the fault of the Department.
Justice of the matter
- [28]Mr Luong has acted in the higher classification continuously since November 2018. At the time of filing of the final submissions in March 2021, the position in which Mr Luong had been acting all that time had not been abolished or filled.
- [29]Given the extensive service Mr Luong has given in that position he has a very unique vested interest in pursuing permanent appointment. It would be something of a tragedy for Mr Luong to be denied his opportunity to appeal a matter of such personal and professional importance to him for the sake of a relatively small delay in filing his appeal. This is especially so given the explanation for the delay set out above.
- [30]Further, the very real contribution of the Department to the delay is an aggravating factor to the injustice that would be suffered by Mr Luong if his right to be heard on this appeal were extinguished by his non-compliance with the statutory time limit.
- [31]I am satisfied that Mr Luong has demonstrated the justice of the matter supports the granting of an extension of time.
Merits of the matter
- [32]I am not required to wholly resolve the question of the merits for the purpose of considering whether to grant an extension of time. Having regard to the objective facts of the matter, I am satisfied that the fact that the position to which Mr Luong seeks permanent appointment has not been abolished and remains vacant leaves open a prima facie argument that there is an ongoing need for the role to be filled.
- [33]This prima facie argument may ultimately be defeated by evidence of genuine operational requirements however, for the purposes of considering whether to grant an extension of time, I am satisfied that the facts indicate sufficient merit to Mr Luong’s appeal for me to grant the extension.
Conclusion on extension of time
- [34]In all of the circumstances I am prepared to grant Mr Luong an extension of time to file his appeal.
- [35]I now turn to the substantive appeal.
What decisions can the Industrial Commissioner make?
- [36]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
- (a)confirm the decision appealed against; or
- (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
- (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
- [37]
- [38]
- [39]The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Mr Luong to the higher position was fair and reasonable.[11]
- [40]For the reasons set out below, I have determined that the decision was fair and reasonable.
Submissions of the parties
- [41]The parties filed written submissions in accordance with a Directions Order dated 12 February 2021. The parties' submissions primarily concern the out of time jurisdictional objection but also address the question of the genuine operational requirements of the Department.
Submissions of Mr Luong
- [42]Mr Luong contends, for reasons set out in his submissions dated 19 February 2021, that he should be appointed to the higher classification level position due to the Department's genuine operational requirements. In summary, he submits that:
- There are no performance or merit issues regarding his request to be converted;
- He reiterates his submissions in his Appeal Notice regarding the Housing Client, program period and that these present genuine operational requirements of the Department which have not been taken into account;
- He outlines the roles, responsibilities and job function that he undertakes as Project Manager; and
- On 29 January 2021, he was informed his tenure in the position would not be extended and the position had ceased, and there has been 'oversight' that the Housing Works Program can continue without the position. There had been no communication about a new business structure.
Reply submissions of the Department
- [43]The Department filed reply submissions on 15 March 2021. By way of background, it submitted that:
- The purpose of his placement in the position was to complete work to support the delivery and profitability of capital works programs and projects, as part of the Housing Construction Jobs Program ('HCJ Program');
- There are no performance issues which preclude his conversion;
- Since April 2020, QBuild have been undertaking a 'Transformation Program' to reduce paper heavy manual processes and duplication. As part of this, the structure of Capital Programs (which Mr Luong is a part of) is under review, to reduce duplicated functions performed by AO8 roles. It is planned to be finalised by 30 June 2021;
- The first decision to refuse Mr Luong's conversion was based on the reasoning that a decision had not yet been made regarding the ongoing need for the AO8 position beyond its end date of 31 January 2021; and
- In the instance of the second request, due to unforeseen circumstances, the chief executive's delegate made a deemed decision.
- [44]In the alternative to the jurisdictional, in response to Mr Luong's submissions regarding the Department's genuine operational requirements, the Department submits that:
- The conversion decision of the Director does not have a bearing on this decision as each must be considered on its own merit;
- The Transformation Program is still determining the organisational structure of Capital Programs and a decision has not yet been made with regard to the continuing need for the position, which has remained vacant since Mr Luong's engagement ended on 29 January 2021;
- There is uncertainty regarding the continuing need for the position which presents a genuine operational requirement for the Department to refuse Mr Luong's request to be appointed to the position. It would not be appropriate or viable to permanently employ Mr Luong to the position;
- Pursuant to clause 7.2 of the Directive and 149C(4A) of the PS Act, written notice is not required to be prepared to support a deemed decision; and
- The fact that the chief executive has not considered the reasons in the first decision (required under s 149C of the PS Act) should not render the deemed decision unfair and unreasonable. The two requests for conversion were almost identical, five weeks apart and the Transformation Program was still ongoing at both times.
Reply submissions of Mr Luong
- [45]Mr Luong filed reply submissions on 24 March 2021.
- [46]In response to the Department's submissions regarding its genuine operational requirements, in summary, Mr Luong submitted that:
- On 19 January 2021, an email was sent from his Director to the Executive Director with a list of his duties, roles, responsibilities and functions, which shows the need for the position;
- Contrary to the requirements in s 149C(4A)(a), the Department has not had regard to the genuine operational requirements of the Department;
- The Department's submissions acknowledge there is a continual need for QBuild to support the HCJ program;
- Per clause 6.2 of the Directive, the program has a known end date of 2027, which supports his ongoing temporary placement in the position;
- Other employees in smaller programs within QBuild have already had their Director and AO8 Program Manager conversion requests accepted. This comparison is not on "personal merit" but goes to the operational required to support the Capital Works Program within the new Transformation Program; and
- He disagrees there is uncertainty regarding the position as a business and reporting structure has been implemented since December 2020, in support he attaches a matrix organisational structure and pilot structure.
- [47]In response to the Department's submissions regarding not considering reasons for decisions previously made, Mr Luong submitted that:
- Contrary to the Department's submissions, the time between the two requests was actually six weeks;
- In these six weeks the Chief Executive implemented a new business structure resulting in opportunities to review the Capital Works requirements; and
- By not considering the previous decision made, this makes the deemed decision unfair and unreasonable.
Consideration
Genuine operational requirements
- [48]The central issue in contention between the parties is whether the refusal to permanently appoint Mr Luong was fair and reasonable on the basis of the genuine operational reasons cited by the Department.
- [49]In Morison v State of Queensland (Department of Child Safety, Youth and Women) the Deputy President observed:[12]
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.'
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)
- [50]The position that Mr Luong had been acting in has been vacant since 29 January 2021. At the time of submissions being filed in March 2021 the position remained unfilled.
- [51]The central submission for the Department has been that there remains uncertainty as to the continuing need for that position while the future organisational structure of Capital Programs is being resolved. Mr Luong does not contradict this in any meaningful way. He points only to the continued existence of the (empty) position on organisational charts to contradict the department. He argues the continued existence of the position is evidence that there is an operational requirement for the role.
- [52]With all due respect to Mr Luong, his submission demonstrates a fundamental misunderstanding of the use of the term ‘operational requirement’ in the context of the PS Act and the Directive.
- [53]In circumstances where the uncontradicted evidence is that the organisational structure (that includes the position in question) was still unresolved, and the future of the position remains uncertain, it is understandable that no firm commitment could be made by the Department with respect to placing Mr Luong into the position permanently. Such uncertainty falls squarely within the broad array of circumstances that would amount to ‘genuine operational requirements’ within the meaning of the Directive and the PS Act.
- [54]In those circumstances I conclude that the deemed decision to refuse to convert Mr Luong to the position was fair or reasonable.
Order
- [55]I make the following order:
- Leave is granted to file appeal outside 21 day time limit; and
- The decision appealed against is confirmed.
Footnotes
[1] Note – it appears uncontroversial that the reference to BA06 in this correspondence is intended to be a reference to the BA08 position in which Mr Luong was acting.
[2] Submissions of Mr Chan Bang Luong filed 24 March 2021, page 12.
[3] (1996) 186 CLR 541.
[4] Ibid.
[5] [2020] ICQ 013, 3 [9].
[6] Industrial Relations Act 2016 (Qld) s 562B.
[7] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[8] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[9] Ibid.
[10] Industrial Relations Act 2016 (Qld) s 562B(3).
[11] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[12] [2020] QIRC 203, [36]-[44].