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Borean v State of Queensland (Queensland Health)[2021] QIRC 295

Borean v State of Queensland (Queensland Health)[2021] QIRC 295

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Borean v State of Queensland (Queensland Health) [2021] QIRC 295

PARTIES:

Borean, Melissa

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/248

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

30 August 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

That the appeal is dismissed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the Appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the Appellant was not permanently appointed – where the incumbent of the position is returning – consideration of 'the position' – consideration of 'genuine operational requirement' – where decision was fair and reasonable

LEGISLATION AND DIRECTIVES:

Acts Interpretation Act 1954 (Qld) s 14A

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 3, cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11

Industrial Relations Act 2016 (Qld) s 562B, s 564, s 567

Public Service Act 2008 (Qld) s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

CASES:

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Katae v State of Queensland & Anor [2018] QSC 225

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Miss Melissa Borean (the Appellant) is substantively employed as a HP3 Radiation Therapist at Sunshine Coast University Hospital by Queensland Health, State of Queensland (the Department; the Respondent). 
  1. [2]
    Miss Borean has been acting at a higher classification level as a HP4 Radiation Therapist Senior since 22 October 2018.[1]
  1. [3]
    At her request made on 26 May 2021, the Department considered whether to appoint Miss Borean to the higher classification position pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20).
  1. [4]
    On 23 June 2021, the Department advised Miss Borean via written correspondence that her request had been refused and her employment would continue according to the existing higher duties arrangement (the decision).[2]
  1. [5]
    On 8 July 2021, Miss Borean filed an appeal against the decision.

Jurisdiction

 Decision against which an appeal may be made

  1. [6]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against 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 a continuous period of at least 2 years."
  1. [7]
    Section 197 of the PS Act allows for the appeal to be heard and decided by the Industrial Relations Commission. 
  1. [8]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. Miss Borean meets that requirement.
  1. [9]
    It is not a point of dispute between the parties that Miss Borean was eligible to request conversion to the higher classification position. I am satisfied that the conversion decision made by the Department is able to be appealed.

 Timeframe for appeal

  1. [10]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [11]
    The decision was given on 23 June 2021.
  1. [12]
    The Notice of Appeal was filed with the Industrial Registry on 8 July 2021. 
  1. [13]
    I am satisfied that Miss Borean filed the appeal within the required timeframe.

Appeal principles

  1. [14]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [15]
    The appeal is not conducted by way of re–hearing,[3] but rather involves a review of the decision arrived at by the Department and the associated decision–making process.[4] 
  1. [16]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.[5]
  1. [17]
    The issue for my determination is whether the decision not to convert Miss Borean's employment status to the higher classification position was fair and reasonable in the circumstances.[6]

   What decisions can the IRC Member make?

  1. [18]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  1. Confirm the decision appealed against;
  1. 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; or
  1. Set the decision aside and substitute another decision.

Relevant provisions of the PS Act and Directive 13/20

  1. [19]
    The legislative scheme for the review of a decision to convert an employee to a higher classification level is contained in the IR Act, PS Act and in Directive 13/20.
  1. [20]
    Section 149C of the PS Act provides (emphasis added):

149C  Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (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
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non–industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non–industrial instrument employee.
  1. (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—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification   level; and
  1. (b)
    each 1–year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department's chief executive must decide the request within the required period.
  1. (4A)
    In making the decision, the department's chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the department; and
  1. (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.
  1. (5)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (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.
  1. (6)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [21]
    Further, s 194(1)(e)(iii) of the PS Act provides (emphasis added):

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (e)
    a decision (each a conversion decision)—

…

  1. (iii)
    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 a continuous period of at least 2 years;
  1. [22]
    Directive 13/20 relevantly provides:

3. Application

3.4 The requirement to advertise roles in Directive 13/20 relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive.

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:

 (a) 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

 (b) 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

 (c) to perform work for a particular project or purpose that has a known end date

 (d) to perform work necessary to meet an unexpected short–term increase in workload

4.3 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

5. Employee may request to be appointed at the higher classification level

5.1 Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.

5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:

 (a) have been seconded to or assuming the duties and responsibilities of the higher classification level

 (b) for a continuous period of at least one year

 (c) be eligible for appointment to the higher classification level having regard to the merit principle.

5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:

 (a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and

 (b) each subsequent year where the employee continues their engagement at the higher classification level in the same role.

5.4 An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.

5.5 The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.

6. Decision making

6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.

6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

(a) the genuine operational requirements of the department, and

(b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.

6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

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.

8. Appeals

8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.

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.

9. Exemption from advertising

9.1 Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive. 

10. Transitional provisions

10.1 Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer.

11. Definitions

Agency has the meaning provided in clause 3.3 of this directive.

Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.

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.

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.

Non–industrial instrument employee has the meaning given under the Industrial Relations Act 2016.

Public service agency means a department or public service office as provided for in section 49A of the PS Act.

Secondment has the meaning given under section 120(1)(a) of the PS Act.

Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed.

  1. [23]
    Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[7]
  1. [24]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [25]
    The stated purpose of Directive 13/20 is:
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non–industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.

1.2 This directive:

  1. (a)
    highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level
  1. (b)
    supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle
  1. (c)
    sets out procedures for requests and decisions.[8]

Submissions

  1. [26]
    In accordance with the Directions Order issued on 14 July 2021, the parties filed written submissions.
  1. [27]
    The Directions Order indicated the following:
  1. 4.
    Unless any party files an application by 4:00pm on 6 August 2021 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016.
  1. [28]
    On 6 August 2021, both parties provided further written submissions to the Industrial Registry. I grant leave for those further written submissions to be filed and have considered them accordingly.
  1. [29]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.
  1. [30]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

Consideration

  1. [31]
    I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [32]
    This involves a review of the decision–making process utilised and the conversion decision arrived at. 
  1. [33]
    In deciding this Appeal, I note the significance of the legislative provisions identified and explained above.
  1. [34]
    In summary, the status of Directive 13/20 as a statutory instrument provides that the interpretation that will best achieve the purpose and/or policy objective of Directive 13/20 is to be preferred to any other interpretation.
  1. [35]
    In that regard, I recognise that one of the stated purposes of Directive 13/20 is to support "…the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle."[9]

Decision criteria that must be considered

  1. [36]
    The PS Act and Directive 13/20 provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
  • Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle;
  • The genuine operational requirements of the Department; and 
  • 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.

Merit

  1. [37]
    There is no dispute between the parties with respect to Miss Borean's merit. 

What is the position subject of this appeal?

  1. [38]
    Before assessing whether there are any genuine operational requirements of the Department that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled.
  1. [39]
    Section 149C(1)(c) of the PS Act provides that s 149C applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the Department to permanently appoint Miss Borean is confined to the position into which she has been placed at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level.
  1. [40]
    In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.
  1. [41]
    Miss Borean's current higher classification engagement is said to be for the purpose of backfilling an incumbent employee on maternity leave. The question then becomes: what is that employee the incumbent of? They are not merely the incumbent of a generic position, but rather a particular position with a specific position name, classification and number. When they return, they are returning to that precise position.
  1. [42]
    Section 149C of the PS Act, in concert with Directive 13/20, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.
  1. [43]
    By way of contrast, a broader ambit is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same. Following the review, the department's chief executive may "offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number.
  1. [44]
    The language of s 149C is narrower: 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. That does not empower the department's chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.
  1. [45]
    The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad–ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They pointedly did not do so.  
  1. [46]
    Clause 1.2(b) of Directive 13/20 provides that it "supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle". At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of Directive 13/20 as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Clause 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for Directive 13/20. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by Directive 13/20. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within s 149C of the PS Act. That same reasoning applies to a number of similar clauses in Directive 13/20, which use terms such as 'role', 'a position' and the like. It is relevant to note that the word 'role' does not actually appear in s 149C at all.
  1. [47]
    To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review.
  1. [48]
    In conducting the review, the department 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.
  1. [49]
    It follows that the position the subject of the review was the HP4 position occupied by Miss Borean. I accept there may be more than one at–level position in the team, but Miss Borean is only able to be appointed to the position she occupied when requesting the review.
  1. [50]
    In reviewing the decision, that is indeed the position against which Miss Borean was reviewed. That is most apparent in the Department's submission that the incumbent will be returning to the position which they had previously occupied and to which Miss Borean has been seconded, and so there will no longer be a need for her to be seconded. The decision was fair and reasonable in that the review was conducted against the correct position. 
  1. [51]
    That reasoning was followed in Holcombe v State of Queensland (Department of Housing and Public Works).[10]

Genuine operational requirements

  1. [52]
    The Department reasoned that the following genuine operational requirements justify a refusal of Miss Borean's conversion request:
  1. The purpose of Miss Borean's higher duties arrangement is to backfill the substantive occupant who is currently on maternity leave but will return to the position. Miss Borean's previous higher duties arrangements have also arisen "out of a genuine temporary need to backfill substantively occupied positions";[11] and
  1. There are no substantive vacancies in the higher classification role.[12]

Purpose is to backfill a substantive occupant

  1. [53]
    The Department pointed to cl 4.2(a) of Directive 13/20 which posits that a circumstance in which an employee takes a period of leave "and needs to be replaced until the date of their expected return" is one "that would support the temporary engagement of an employee at a higher classification level".
  1. [54]
    Slavish concurrence to cl 4.2 of Directive 13/20 is not tantamount to considering the genuine operational requirements of the Department. However, it is entirely fair and reasonable for the Department to consider that factor in arriving at a conclusion of whether to permanently appoint Miss Borean to the higher classification position.
  1. [55]
    Miss Borean contends that "backfilling maternity leave" is not a sufficient reason to deny her conversion request given that she has "been acting in the HP4 role for more than 2 years, in not just maternity leave cover but also backfill–other leave."[13] I accept that Miss Borean has backfilled four different colleagues at the higher classification level. However, in considering whether to convert Miss Borean, the Department was only required to determine whether she should be permanently appointed to the specific HP4 position she held at the time of the review.[14] That specific position is substantively owned by an employee currently on maternity leave and considering a review of Miss Borean against that position alone, I accept that her temporary engagement is fair and reasonable in the circumstances.
  1. [56]
    I acknowledge that Miss Borean has had her higher duties arrangement extended 14 times with the current arrangement extended until 29 April 2022. Miss Borean submits these factors "seem to indicate an ongoing need for the role"[15] to cover a variety of absences. Miss Borean notes that even if she was converted to permanent, "there still may be some need for temporary backfill to cover other additional absences at HP4 or above level within the department" and that her conversion "would aid the on–going day to day operation of the department and minimise periods of temporary backfill from multiple staff, providing certainty to both employees and the HHS."[16]
  1. [57]
    There is clearly an ongoing need for someone to backfill in the position, however that does not negate the fact that a substantive occupant is returning to that position. The benefits of creating a new position are somewhat beside the point. As set out above, the Department is unable to review Miss Borean against just any role at the HP4 level or indeed one that does not exist and needs to be created. Rather, the Department must review Miss Borean against the precise position she occupied at the time of requesting the review. The repeated contract extensions do not undermine the reality that the incumbent is still set to return to the position on a given date.
  1. [58]
    For the reasons outlined above, I find that it was fair and reasonable for the Department to conclude there is a genuine operational reason to refuse conversion of Miss Borean.

Substantive Vacancy

  1. [59]
    A substantive vacancy is defined in cl 11 of Directive 13/20 as "a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed". The Department contends that Miss Borean's higher classification position is not substantively vacant with the substantive incumbent accessing leave until 29 April 2022. Therefore, if Miss Borean were to be converted, an additional permanent HP4 Radiation Therapist Senior position would need to be created and the Department accurately submitted that creating such a position to accommodate conversion is not a requirement under the PS Act nor Directive 13/20.
  1. [60]
    In response, Miss Borean submitted that Directive 13/20 does not preclude the Department from creating a position. However, as outlined above, Miss Borean can only be converted into the position that she was reviewed against. If the Department chose to create a position for Miss Borean, that is a separate matter to the review process undertaken pursuant to s 149C of the PS Act.
  1. [61]
    While the date for the incumbent's return may change, that does not undermine the reality that the incumbent is still set to return to that position on a given date. That is a legitimate basis for engaging a person on a temporary basis in these circumstances; and it is also a genuine operational reason preventing Miss Borean's permanent appointment. The Department does not require two persons to be employed within the same position.
  1. [62]
    In her reply submissions, Miss Borean submitted that the Department focused solely on a lack of 'substantively funded positions' in their consideration of genuine operational requirements. However, I do not accept Miss Borean's statement to be true in light of the Department's submissions summarised above.
  1. [63]
    Although I appreciate the unpleasantness of uncertainty, Miss Borean has a secure substantive position to return to. In my view, the circumstances present a genuine operational requirement which prevent Miss Borean being permanently appointed to her seconded position. There is nothing within the decision or reasoning which was unfair or unreasonable when regard is had to the precise wording of s 149C of the PS Act. Only one person may occupy the position permanently at any one time in the usual course.

The effect of any previous decisions

  1. [64]
    Directive 13/20 came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020.
  1. [65]
    Section 149C(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
  1. [66]
    An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of Directive 13/20.
  1. [67]
    Given the timing of the legislative instruments coming into effect, the date of the decision, and the time restrictions on requesting reviews, there cannot have been any previous decisions made under that section with respect to Miss Borean. Further, the term 'taken to have been made' relates to s 149C(6), which provides that if the Department does not make a decision within the requisite review period, they are taken to have refused the request.
  1. [68]
    It follows that the decision was fair and reasonable in that respect. 

Conclusion

  1. [69]
    Miss Borean has been acting in a higher duties position. That present engagement is to backfill another employee, the incumbent of that position. She has previously been seconded to the same role, though different positions. Miss Borean has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
  1. [70]
    The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to 'the position' occupied by the employee at the time of seeking the review. It is not an unconstrainted review into similar positions or roles. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C of the PS Act, and the practical limitations which are inherent to s 149C and Directive 13/20.
  1. [71]
    In conducting the review against the appropriate position, and in their submissions in this appeal, the Department reasoned there is an incumbent of the position, that person is to return to the position, and the Department has no need for two persons permanently appointed to the same position. That was said to present a genuine operational reason not to appoint Miss Borean permanently to the seconded position. I have found that decision to be fair and reasonable. As such, I confirm the decision appealed against and dismiss the appeal.
  1. [72]
    I order accordingly.

Order:

  1. That the appeal is dismissed.

Footnotes

[1] Respondent's Submissions, 28 July 2021, 1 [3](a)(i).

[2] Letter from Ms K. Chettleburgh, Chief Operating Officer at Sunshine Coast Hospital and Health Service to Miss M. Borean, 23 June 2021, 1.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[4] Ibid s 562B(2).

[5] Ibid s 567(2).

[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.

[7] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[8] Directive 13/20 Appointing a public service employee to a higher classification level cl 1.

[9] Ibid cl 1.2(a)-(b).

[10] [2020] QIRC 195.

[11] Respondent's Submissions, 28 July 2021, 2 [3](i).

[12] Respondent's Submissions, 28 July 2021, 2 [3](ii).

[13] Appeal Notice, 8 July 2021, 4.

[14] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195.

[15] Appeal Notice, 8 July 2021, 4.

[16] Appellant's Reply Submissions, 4 August 2021, 1 [1].

Close

Editorial Notes

  • Published Case Name:

    Borean v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Borean v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 295

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    30 Aug 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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Stephens v State of Queensland (Queensland Health) [2022] QIRC 4202 citations
Whalley v State of Queensland (Department of Education) [2021] QIRC 3922 citations
1

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