Leatherbarrow v State of Queensland (Queensland Health)
[2021] QIRC 261
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- Unreported Judgment
- Leatherbarrow v State of Queensland (Queensland Health)[2021] QIRC 261
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Leatherbarrow v State of Queensland (Queensland Health)[2021] QIRC 261
Leatherbarrow v State of Queensland (Queensland Health)[2021] QIRC 261
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Leatherbarrow v State of Queensland (Queensland Health) [2021] QIRC 261 |
PARTIES: | Leatherbarrow, Linda (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/125 |
PROCEEDING: | Public Service Appeal – Appointment to position at higher classification |
DELIVERED ON: | 29 July 2021 |
MEMBER: | Industrial Commissioner Dwyer |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – application for permanent employment at higher classification – whether acting between classification levels within same salary range is higher duties arrangement – definition of higher classification level – temporary position with known end date – genuine operational requirements – decision not fair and reasonable |
LEGISLATION: | Directive 13/20 Appointing a public service employee to a higher classification level cls 4, 7, 11 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 133, 134, 149, 149C |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Parker v State of Queensland (Department of Education) [2021] QIRC 67 Sheppard v State of Queensland (Department of Child Safety, Youth and Women) [2021] QIRC 087 |
Reasons for Decision
Background
- [1]Ms Linda Leatherbarrow is substantively employed as a Senior Social Worker (classification level HP4.4) within Queensland Health ('the Department').
- [2]Since 27 June 2016, Ms Leatherbarrow had been non-continuously performing the position of Principle Project Officer, Suicide Prevention within Queensland Health (classification level AO7) ('the position'). Ms Leatherbarrow had, at the time of her appeal, been employed in the position for a continuous period since 5 October 2018.
- [3]Her engagement in the position had been extended 13 times and was scheduled to end on 31 May 2021.
- [4]On 15 February 2021, Ms Leatherbarrow wrote to the Department requesting that she be permanently appointed to the position of Principle Project Officer, Suicide Prevention AO7.
- [5]On 15 March 2021, Ms Leatherbarrow received correspondence from Associate Professor Mr John Allan, Executive Director of Mental Health Alcohol and Other Drugs Branch. She was advised that a review of her request had been conducted and it was concluded that she was ineligible for appointment at a higher classification position.
- [6]The reasons for the decision were set out as follows:
Advice sought from Employment Relations states that appointment across classification streams is possible when an employee who is seeking a transfer has a current pay level which is within the minimum and maximum of the salary range of the classification level of the stream or classification system to which the employee is seeking to be transferred.
Your substantive position at HP 4.4 equates to a salary level of $117,835. The salary range of an AO7 is $113,935 to $122,140; therefore, your substantive position is within the AO7 range, so is considered at level, not higher duties.
- [7]Ms Leatherbarrow filed an Appeal Notice on 6 April 2021. In her appeal, she submitted that:
- Per section 149C(3)(b) of the Public Service Act 2008 (Qld) ('the PS Act'), she has been acting in a position at a higher classification level for a continuous period of at least two years; and
- The decision not to appoint her to the AO7 position was not fair and reasonable as the reasons provided as not consistent with the definition of 'higher classification level' in Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). She meets the eligibility within the definition as the AO7 position has a maximum salary higher than the maximum salary of the HP4 position substantively held.
What decisions can the Industrial Commissioner make?
- [8]In deciding this appeal, section 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 substitute another decision; or
- (c)set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Nature of appeal
- [9]
- [10]
- [11]The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Ms Leatherbarrow to the AO7 position was fair and reasonable.[6]
- [12]For the reasons set out below I have determined that the decision was not fair and reasonable.
Relevant sections of the PS Act and Directive
- [13]The relevant provisions of the PS Act and the Directive for consideration of this appeal are set out below.
- [14]Section 149C of the PS Act relevantly provides:
- 149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee –
- (a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (3)The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after –
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
…
(4A) In making the decision, the department’s chief executive must have regard to –
- (a)the genuine operational requirements of the department; and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
- (5)If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating –
- (a)reasons for the decision; and
- (b)the total continuous period for which the person has been acting at the higher classification level in the department; and
- (c)how many times the person’s engagement at the higher classification level has been extended; and
- (d)each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
…
- [15]Clause 4 of the Directive provides as follows:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
…
(c) to perform work for a particular project or purpose that has a known end date
…
- [16]Clause 7 of the Directive provides as follows:
7. Statement of reasons
7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
- (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.
7.2 A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3.
- [17]Clause 11 of the Directive provides as follows:
…
Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.
…
(Emphasis added)
Submissions of the parties
- [18]The parties filed written submissions in accordance with a Directions Order dated 9 April 2020. The parties' submissions are largely directed at the eligibility of Ms Leatherbarrow to request appointment to the AO7 position and the Department's genuine operational requirements.
Submissions of the Department
- [19]The Department contends, for reasons set out in their submissions dated 29 April 2021, that Ms Leatherbarrow is not eligible for conversion and, in any case, cannot be appointed to the position as it is temporary.
- [20]It cites clause 5 of the Transfers and movements in Queensland Health Guideline ('the Transfers Guideline').[7] Clause 5 of the Transfers Guideline provides as follows:
5. Transfer across classification streams
The Public Service Regulation 2008 provides that PSC Directive 11/13 – Transfer Within and Between Classification Levels and Systems applies to all health service employees.
5.1 Eligibility for transfer across classification streams
Appointment across classification streams is possible when an employee who is seeking a transfer:
- has a current pay level which is within the minimum and maximum of the salary range of the classification level of the stream or classification system to which the employee is seeking to be transferred
…
- [21]The Department submits, in summary, that:
- In accordance with clause 5 of the Transfers Guideline, it is the minimum and maximum salary range of the classification level that should be considered, not the higher maximum salary. Accordingly, Ms Leatherbarrow is not considered to be in a higher duties arrangement as the salary level of her substantive classification HP4 is within the minimum and maximum salary level of the AO7 position; and
- The AO7 position is temporary, created to serve a fixed term purpose not part of the permanent establishment of the employer which will cease on 31 May 2021. Citing the decision of Industrial Commissioner Power in Parker v State of Queensland (Department of Education),[8] she cannot be converted to a permanent role in a temporary position and she will return to her substantive position on the expiration of this temporary transfer.
Reply submissions of Ms Leatherbarrow
- [22]Ms Leatherbarrow contends, for reasons set out in her reply submissions filed 20 May 2021, that the decision is not fair and reasonable. In summary she submits that:
- The Transfers Guideline is not relevant to the decision under consideration because her because the application for conversion was not an 'employee-initiated transfer';
- The Directive is most relevant to her application, and the definition of 'higher classification level' per the Directive should be applied. According to this definition, she is assuming the duties and responsibilities of a position at a higher classification level as the AO7 position has a higher maximum salary than her substantive HP4 position;
- There are no criteria in the Directive which requires the higher classification level position to be a permanent position, rather than a temporary position. In any case, she is not requesting conversion to a permanent position as she is already a permanent employee of the Department;
- The decision of Industrial Commissioner Power regards the genuine operational requirements of the Department. In contrast, the decision regarding her application was not made with reliance on genuine operational requirements, but her eligibility to be appointed; and
- Despite this, the genuine operational requirements of the Department support her appointment. Although there is a scheduled end date, Ms Leatherbarrow expects there to be further extensions, as has previously been the case. The program and individual projects which she works on has received permanent funding beyond her end date, including funding for one permanent Project Officer position. She has received verbal confirmation from her manager that her temporary engagement in the position is required for the 2021/2022 financial year.
Reply submissions of the Department
- [23]The Department contends, for reasons set out in their reply submissions dated 27 May 2021, that the decision is fair and reasonable. In summary it submits:
- If the delegate, at first instance, considered Ms Leatherbarrow to be ineligible for appointment, there was no reason for them to list the genuine operational requirements for refusing her appointment as the application could not proceed;
- At the time of their submissions, Ms Leatherbarrow's temporary position had not been extended beyond 31 May 2021, and no continued funding for temporary positions had been approved;
- While the program has recurrent funding, the two permanent positions allocated to it are both occupied; and
- Even if the position was found to be a higher duties position, it is for a particular project with a known end date, a temporary circumstance supported by clause 4.2 of the Directive.
Consideration
Application of the Transfers Guideline
- [24]While not expressly stated, the Department relies on the Transfers Guideline in the decision. The submissions subsequently filed by the Department confirm this. The Department rely specifically on the provisions of clause 5 of the Transfers Guideline.
- [25]The decision-maker appears to conflate unrelated provisions of the Transfer Guidelines and the Directive. Two errors in the reasoning of the Department are immediately apparent from a cursory glance at the Transfer Guideline.
- [26]The first is that the Transfers Guideline (including clause 5) refers to a superseded Directive, though ultimately, not a great deal turns on this. The second error is far more problematic.
- [27]The Transfers Guideline contains the following introductory clause:
- Introduction
This guideline supports the arrangements for transfer at level within and between classification levels and systems in Queensland Health, in accordance with:
- section 6 of the Recruitment and Selection HR Policy B1
- section 133 to 134 of the Public Service Act 2008 (extended to health service employees and modified through the Public Service Regulation 2008)
- section 78 of the Hospital and Health Boards Act 2011
- Part 3 Employment matters of the Hospital and Health Boards Regulation 2012
- PSC Directive 11/13 - Transfer within and between classification levels and systems (extended to Health Service employees via Public Service Regulation 2008).
This guideline is to be read in conjunction with the above provisions as amended from time to time.
Transfer decisions contribute to operational efficiency and the optimum use of staff. Decisions are to be fair, transparent and balance the needs of Queensland Health and the effect on individual employees.
There are two types of transfers which may be initiated by the employee or management:
- transfers at level within a classification stream
- transfers across classification streams.
An employee may be transferred within Queensland Health or to another government entity in accordance with PSC Directive 11/13 - Transfer within and between classification levels and systems.
Employees can only transfer at level to a role of their current employment status, e.g. a permanent employee can transfer to a permanent role, and on a case-by-case basis a temporary employee can transfer to a temporary role. (Note: Other temporary employment arrangements may also be approved in accordance with the Secondment HR Policy B42).
(emphasis added)
- [28]The Transfers Guideline clearly applies to transfers at level and, specifically in conjunction with the nominated statutory provisions and other instruments nominated in clause 1. There is no reference to s 149C of the PS Act for what I anticipate is a very obvious reason: Ms Leatherbarrow is not seeking a transfer within the meaning of the PS Act or the Transfer Guidelines.
- [29]Section 149C of the PS Act is a stand-alone provision and is quite distinct from ss 133 and 134 of the PS Act (which deal with transfers). Section 149C serves a specific purpose for the benefit of employees who meet its unique criteria.
- [30]A permanent appointment made pursuant to s 149C might include a transfer in the broader meaning of the word, but it is not a ‘transfer’ for the purposes of, or within the meaning of, the PS Act. And it is certainly not of the type of transfer contemplated and covered by the Transfers Guideline.
- [31]In the circumstances, the limitations imposed by the Department said to arise under the Transfers Guideline have no application where an employee has already been appointed to a role in an acting capacity and is seeking permanent appointment pursuant s 149C of the PS Act or the Directive.
Higher classification level
- [32]Through a somewhat unclear argument purporting to invoke HR Policy B1, the Department appear to submit that Ms Leatherbarrow is not (or has not) been acting in a higher classification role. Again, the Department makes the error of looking at (likely) inapplicable policies and instruments and fail to appreciate that applications pursuant to s 149C are very much isolated to the provisions of that section of the PS Act and the Directive.
- [33]On any reading of s 149C and the Directive, Ms Leatherbarrow meets the criteria to make an application pursuant to s 149C. The Directive contains a clear definition of ‘higher classification level’. It simply refers to a classification that has a higher maximum salary than the maximum salary of the classification level held by the employee.
- [34]The submissions of the Department filed on 29 April 2021 confirm that the highest maximum salary for the classification in which Ms Leatherbarrow has been acting (AO7) is $122,140 per annum.[9] The highest maximum salary for her substantive classification (HP4) is $117,835.
- [35]Clearly, Ms Leatherbarrow has been acting at a higher classification for the purposes of s 149C of the PS Act and the Directive.
- [36]The singular reason offered in the decision for refusing Ms Leatherbarrow’s application for permanent appointment was that she did not meet this threshold criteria. This conclusion by the Department was clearly wrong.
- [37]In the circumstances, it follows that I consider that the decision on these grounds was not fair and reasonable.
Additional ground raised by the Department in submissions
- [38]Following the filing of the appeal and the exchange of submissions, the Department have added ‘genuine operational requirements’ to their reasons for refusing the application. Ms Leatherbarrow appears to take issue with the late addition of this reason.[10]
- [39]The Department’s submissions include the following passage:[11]
While there may be more than one genuine operational requirement for not appointing an employee to a higher duties position, if the Delegate in the first instance considered the employee not to be eligible under directive 13/20 to be considered for appointment…there was no reason for the delegate to list further operational requirements….
(Underlining added)
- [40]Ms Leatherbarrow’s application was not refused in the first instance for ‘genuine operational requirements’. It was refused because the delegate (erroneously) concluded that Ms Leatherbarrow did not meet the threshold criteria of acting at a higher classification level.
- [41]There was no reference in the decision to genuine operational requirements and even now, the Department has not identified ‘more than one’ genuine operational requirement or listed ‘further’ operational requirements. Nor was there anything that might even be regarded as an indirect or vague reference to genuine operational requirements. Further, in their submissions they cite only that the role in which Ms Leatherbarrow was acting had a nominated end date.
- [42]Clause 7.1 of the Directive requires the decision maker to provide adequate reasons for the decision. Having regard to the practicalities affecting individuals making these decisions, I have previously taken a generous view of what would constitute adequate reasons. For example, in Sheppard v State of Queensland (Department of Child Safety, Youth and Women) I concluded:[12]
Adequacy of reasons
Ms Sheppard further contends that the reasons contained in the decision are inadequate. Inadequate reasons could, in the right circumstances, render a decision unfair or unreasonable.
On the question of adequacy of reasons, I note the finding of the Deputy President in Morison where he said:
Although her reasons were very brief, read in context, Ms Matebau's decision, in the third paragraph, refers to that reason as being a genuine operational requirement of the Department not to permanently appoint Ms Morison to the position at the higher classification level.
The reasons provided in the decision in this instance simply refer to the positions being substantively owned by other staff members. Ideally some more detail might be provided in terms of any information relevant to when those staff members were returning. But it is clear that Ms Sheppard understood the reason. Moreover, there is little more that needs to be communicated other than that the positions were substantively held by other employees.
While the reasons might fairly be regarded as only barely informative, the lack of information does not give rise to any disadvantage to Ms Sheppard in my view. Even if it did, the only proper remedy for that would be to return the matter to the decision maker to issue the decision again. Given the very clear barriers to Ms Sheppard’s application for appointment to the higher classification that I have identified above, returning the matter would be an exercise in futility.
- [43]There is nothing contained in the decision that could even vaguely hint at ‘genuine operational requirements’ as being a consideration to refuse Ms Leatherbarrow’s application. The notion of a genuine operational requirements was not raised until the Department filed its submissions on 29 April 2021, over a month after the decision was made.
- [44]The failure by the Department to even allude to a consideration of genuine operational requirements in the decision suggests to me that it was an afterthought, prompted by Ms Leatherbarrow’s appeal. There would appear to be no reason why a competent decision maker would hold such a view on such an important issue, and yet fail to communicate it in the decision.
- [45]Regardless of the reason for its omission in the decision, the complete failure to identify genuine operational requirements as a reason is an additional ground upon which I conclude the decision to be unfair and unreasonable.
- [46]As noted above, these appeals are a review of the decision, not a re-hearing of the matter. The extent to which additional evidence or arguments might be considered in such a review is extremely limited.
- [47]While I consider this omission to be significant in undermining fairness to Ms Leatherbarrow, I remain mindful to avoid ‘an exercise in futility’ of the type I alluded to in Sheppard.[13]
- [48]In order to determine the most appropriate disposal of this appeal, I propose to have some regard to the submissions of the parties as to the alleged ‘temporary’ nature of Ms Leatherbarrow’s acting role.
Temporary position and genuine operational requirements
- [49]Each of the parties have made extensive submissions as to the status of the position in which Ms Leatherbarrow was acting. The Department submits that the AO7 role in which Ms Leatherbarrow was acting is temporary and scheduled to cease on 31 May 2021. Ms Leatherbarrow responds in her submission dated 20 May 2021 with a number of propositions.
- [50]Firstly, and correctly in my view, Ms Leatherbarrow notes that the Directive does not limit consideration of permanent appointment to a higher classification only to permanent positions. While this proposition is correct, it does not overcome the prospect of her application being refused on the basis of a genuine operational requirement if e.g. there is evidence that the position will or has been abolished.
- [51]Ms Leatherbarrow contends in her 20 May 2021 submissions that, despite her contract coming to an end, she had (at the time of writing her submissions) received verbal communication that ‘an additional ongoing temporary project officer position is required for the 2021/22 financial year’.
- [52]What neither party addressed in their submissions on this issue was the precise identity of the position in which Ms Leatherwood has been acting e.g. by reference to a position number, and whether that position is being abolished after 31 May 2021.
- [53]The precise identity of the position to which Ms Leatherbarrow seeks permanent appointment is a critical piece of evidence required to determine whether she might be a candidate for permanent appointment because she cannot be appointed generally to an AO7 classification, only to the precise position in which she has been acting.[14] It is also a critical piece of evidence in support of any argument to refuse an application for genuine operational requirements.
Conclusion
- [54]Given the time that has elapsed since the final submissions were filed, it would be likely that certain key factual disputes on the issue of genuine operational requirements have been resolved by the passage of time.
- [55]It may well be that Ms Leatherbarrow has continued acting in the position pursuant to a new contract, or another position performing the same duties. Alternatively, Ms Leatherbarrow may have returned to her substantive position and the position in which she acted may have been abolished.
- [56]Whatever the case might be, given the multiple errors made by the Department in the handling of this matter, I consider that fairness dictates Ms Leatherbarrow’s application for permanent appointment ought to be reconsidered.
- [57]I hasten to add that nothing about my conclusion ought to be construed as a finding that Ms Leatherbarrow ought to be permanently appointed. Indeed, if the AO7 position in which was acting has been abolished, permanent appointment will be impossible. Further, if that position remains of uncertain or limited duration, that may also be a genuine operational requirement precluding permanent appointment.
- [58]While not wishing to give Ms Leatherbarrow unnecessary hope of permanent appointment, I consider that she is at least entitled to have her application competently considered and, if it is again to be refused, then she is entitled to be properly advised of the reasons why.
- [59]I propose to order that a fresh review of Ms Leatherbarrow’s application be undertaken in the current factual setting i.e. in the context of her current status as opposed to her status at the time of her application. I appreciate that it may well be that, having regard to my reasons set out in this decision, the parties might mutually come to a conclusion that further review is not necessary. I will therefore make orders for further review that are subject to mutual agreement to the contrary.
Order
- [60]In the circumstances I make the following Order:
- 1.The decision appealed against is set aside;
- 2.The matter is to be returned to the decision maker with a copy of this decision; and
- 3.Unless otherwise agreed by the parties to this appeal, the decision maker must undertake a fresh consideration of Ms Leatherbarrow’s application for permanent appointment.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B.
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Ibid.
[5] Industrial Relations Act 2016 (Qld) s 562B(3).
[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[7] Queensland Health Human Resources Services, Transfers and movements in Queensland Health Guideline, 2014.
[8] [2021] QIRC 67, 14 [30] – [35].
[9] At paragraph 8.
[10] At paragraph 18 of Ms Leatherbarrow’s submissions filed 20 May 2021.
[11] At paragraph 6 of the Reply submissions filed 27 May 2021.
[12] [2021] QIRC 087, 13-14 [35]-[38].
[13] Ibid.
[14] See Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 at [45]-[57].