Hanschen v State of Queensland (Department of Education)
[2021] QIRC 28
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- Hanschen v State of Queensland (Department of Education)[2021] QIRC 28
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Hanschen v State of Queensland (Department of Education)[2021] QIRC 28
Hanschen v State of Queensland (Department of Education)[2021] QIRC 28
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hanschen v State of Queensland (Department of Education) [2021] QIRC 028 |
PARTIES: | Hanschen, Kathleen (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2020/402 |
PROCEEDING: | Public Service Appeal – Conversion to higher classification level |
DELIVERED ON: | 28 January 2021 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
OUTCOME: | Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld), the appeal is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – whether the appellant was ineligible for review under s 149C of the Public Service Act 2008 – jurisdiction to appeal under s 195 |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562A Public Service Act 2008 (Qld), ss 149C and 195 Directive 13/20 Appointing a public service employee to a higher classification level, cls 3 and 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) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 |
Reasons for Decision
- [1]Ms Kathleen Hanschen (the Appellant) is permanently employed as an AO2, Administrative Officer, by the State of Queensland (Department of Education) (the Respondent) at 0.5 full time equivalent at Rockhampton State High School.
- [2]Since 28 January 2020, the Appellant has been acting in a higher classification role as an AO4, Project Officer.
- [3]The Appellant appeals a decision by Ms Lisa Newbold, Director, Employment Review, Human Resources of the Respondent, dated 20 November 2020, to determine the Appellant was ineligible to request appointment to the higher classification level position in which she had been acting under s 149C of the Public Service Act 2008 (the PS Act) and Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
Appeal Principles
- [4]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.
- [5]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.
- [6]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 Ms Newbold to determine that the Appellant was ineligible to request appointment at the higher classification level was fair and reasonable in all of the circumstances.
Decision to be reviewed
- [7]On 8 October 2020, the Appellant requested that she be permanently appointed to the higher classification level position in accordance with s 149C of the PS Act.
- [8]On 20 November 2020, Ms Newbold informed the Appellant of the decision in response to her request. In doing so, Ms Newbold stated:
In accordance with the PS Act and the Directive, to be eligible to request appointment to the higher classification level, an employee must be:
- seconded to, or acting at, a higher classification level in the department the employee holds an appointment or is employed; and
- seconded to, or acting at, the higher classification level for a continuous period of at least one year; and
- eligible for appointment at the higher classification level having regard to the merit principle.
By way of clarification, casual employees, non-industrial instrument employees and employees who are seconded to, or acting in, a position that is ordinarily held by a non-industrial employee are not eligible to request appointment to the higher classification level.
I have determined that you are not eligible to request appointment to the higher classification level under s 149C of the PS Act and the Directive.
Reasons for my Eligibility Assessment
The PS Act and the Directive requires that an employee be seconded to, or acting at, the higher classification level for a continuous period of at least one year.
The meaning of continuous period for the purposes of the Directive, means a period of unbroken engagement including periods of authorised leave of absence, at the higher classification level in the same role, in the same agency.
At the time of making this decision you have not been acting in the higher classification level role (referred to above) for a continuous period of at least one year. You have been engaged in the role of AO4 Project Officer with State Schools – Performance for 9 months and 2 weeks. Accordingly, you are not eligible to request appointment to the higher classification level under s 149C of the PS Act and the Directive.
…
Relevant provisions of the PS Act and the Directive
- [9]Section 149C of the PS Act 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).
- (4)The department’s chief executive must decide the request within the required period.
(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.
…
- [10]Section 195 of the PS Act provides:
195 Decisions against which appeals can not be made
- (1)A person can not appeal against any of the following decisions –
…
- (j)a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years;
- [11]The Directive relevantly provides:
8. Appeals
8.2 In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.
Grounds of Appeal
- [12]The Appellant included the following grounds of appeal, in summary:
- both periods of service as an AO4 (five months in Human Resources and eight months in State School) required duties that are identical. On this basis, service was undertaken in an AO4 level for 13 months thereby meeting the Directive's requirement of 12 months;
- clause 3.3 of the Directive applies to the following entities (each entity being an 'agency') and their employees: department. Continuous period for the purposes of this Directive, means a period of unbroken engagement including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency; and
- the Appellant has been employed by the Department of Education (the agency) and has demonstrated continuous service in a higher classification (AO4) with no period of broken engagement and therefore has been in the same role in the same agency for the purpose of the Directive.
Submissions
- [13]The Commission issued a Directions Order calling for submissions following receipt of the appeal notice.
Respondent's submissions
- [14]The Respondent filed the following submissions, in summary:
- the Appellant has been acting in a position at the AO4, higher classification level for a period of less than two years;
- the Appellant has been acting in two AO4 higher classification positions for a total period of 16 months at the time of her making the request to be appointed to the higher classification level;
- the Appellant is prevented from making an appeal in accordance with s 194(1)(e)(i) of the PS Act, as the decision is non-appealable pursuant to s 195(1)(j) of the PS Act and clause 8.2 of the Directive;
- section 149C of the PS Act establishes the criteria for an agency to review the status of a public service employee acting in a position at a higher classification level. Section 149C(1)(b) provides that the employee must have been seconded to or acting at the higher classification level for a continuous period of at least one year;
- the Appellant is ineligible for appointment on the basis that her most recent acting role was in the Project Officer, State Schools – Performance position for a period of nine months and two weeks;
- as confirmed by the decision in Holcombe v State of Queensland (Department of Housing and Public Works) (Holcombe),[5] the power to appoint to a higher classification is confined to the position, acknowledging that an employee may be entitled to a review after engaging in a number of positions, but that the review must be conducted against a precise position;
- as per the decision in Holcombe, the Respondent is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review. That is identified not only by the title and classification, but also by the position number;
- the positions the Appellant has performed duty in since July 2019 are separate and distinct by title, work unit, and position number; and
- the Appellant is not eligible for appointment to the position at a higher classification level as she has not been continuously engaged in the position for a period of one year or more as required under s 149C(1)(b) of the PS Act.
Consideration
- [15]To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.
- [16]The decision determined that the Appellant was ineligible to request appointment to the higher classification level on the basis that the Appellant was not engaged at the higher classification level for a period of at least one year. The Respondent submits that this decision is not appealable as an appeal may only be made against decisions of this nature if the employee has been employed for two years at the higher classification level.
- [17]The Appellant submits that her service as an AO4, Information Analyst from 23 July 2019 to 27 January 2020 should be included in determining the period in which she was employed at the higher classification level.
- [18]The Appellant relies on clause 3.3 of the Directive to submit that she has demonstrated continuous service in a higher classification with no period of broken engagement and therefore has been in the same role in the same agency for 13 months.
- [19]The period in which the Appellant was employed as an AO4 Information Analyst and as an AO4 Project Officer was approximately 16 months in total at the time the request was made for permanent appointment at the higher classification level. The Respondent submits that the appeal is beyond jurisdiction as this period is less than the two year period required to enable access to the appeal process under the PS Act and Directive.
- [20]Section 195 of the PS Act provides that appeals can not be made against a decision under s 149C of the PS Act not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher level for less than two years. This timeframe is also contained in clause 8.2 of the Directive. The Appellant has not been employed at the higher classification level for two years and as such cannot appeal the decision in this matter.
- [21]It is not necessary to address the question of whether the Appellant is eligible for appointment at the higher classification level following the determination that there is a jurisdictional bar to hearing the appeal.
- [22]On the basis that the decision is not appealable pursuant to s 195(l)(j) of the PS Act, the appeal will not be heard in accordance with s 562A(3)(b)(iii) of the IR Act.
Order
- [23]I make the following order:
Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld), the appeal is dismissed.
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] [2020] QIRC 195.