Exit Distraction Free Reading Mode
- Unreported Judgment
Singh v State of Queensland (Public Safety Business Agency) QIRC 311
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Singh v State of Queensland (Public Safety Business Agency)  QIRC 311
State of Queensland (Public Safety Business Agency)
Public Service Appeal – Conversion of fixed term temporary employment
9 September 2021
On the papers
INDUSTRIAL LAW – PUBLIC SERVICE – appeal – fixed term temporary contract – application for permanent employment – application not received – deemed decision – review conducted – decision not to convert – genuine operational requirements – appeal filed out of time – consideration of whether to hear appeal out of time – jurisdiction – decision not fair and reasonable – reasons for decision insufficient
Acts Interpretation Act 1954 (Qld) s 27B
Directive 09/20 Fixed Term Temporary Employment cl 8
Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564
Public Service Act 2008 (Qld) s 149A, 149B
Brandy v Human Rights and Equal Opportunity Commission  HCA 10
Benson v State of Queensland (Department of Education)  QIRC 152
Davies v State of Queensland (Queensland Health)  QIRC 090
Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5
Katae v State of Queensland & Anor  QSC 225
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203
Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252
Power v State of Queensland (Department of State Development, Tourism and Innovation)  QIRC 053
Schonfelder v State of Queensland (Department of Housing and Public Works)  QIRC 32
Reasons for Decision
- Since 12 October 2015, Ms Ajanta Singh has been employed as a fixed term temporary employee within the Public Safety Business Agency ('the PSBA').
- Ms Singh has been engaged in the current position of AO5 Project Officer, ICT Projects Officer, Frontline Digital Services since 12 October 2018. This engagement was due to end on 30 June 2021, however in correspondence received from the PSBA on 30 June 2021, Ms Singh's engagement was extended to 24 September 2021.
- On 22 October 2020, Ms Singh requested a review of her fixed term temporary status in accordance with Directive 09/20 Fixed Term Temporary Employment ('the Directive').
- In a decision letter dated 2 March 2021 (received on 3 March 2021), Ms Singh was advised by Mr Paul Casey, Director, HR Services of the PSBA that her employment would continue on a fixed term temporary basis with the PSBA ('the decision letter').
- The decision letter advised Ms Singh that a review of her employment status had been conducted in accordance with the requirements of the Public Service Act 2008 (Qld) ('PS Act') and the Directive.
- The reasons for the decision were set out as follows:
The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, my reasons are
- There is no continuing need for you to perform your currently role because the substantive incumbent is currently on higher duties, and
- There is no continuing need for you to perform a role that is substantially the same.
- Ms Singh filed an Appeal Notice on 30 March 2021, appealing the decision not to permanently appoint her. In summary, she contended that:
- She has been continuously employed as a fixed term temporary employee with the PSBA for over two years;
- She has been engaged in the AO5 position since December 2018 and, at the time of her appeal, had been extended in this position nine times;
- Consistent commitments were made by the PSBA that a review of her fixed term temporary engagement would be undertaken;
- The decision is unfair and unreasonable as it does not outline the steps the PSBA undertook to satisfy itself that there was no continuing need for her to perform a role which is substantially the same as the one she is currently undertaking; and
- There are no performance or merit issues which preclude her permanent appointment.
- Due to a series of administrative errors (some of which are outlined in emails attached to Ms Singh's submissions), the PSBA acknowledged in an email on 3 February 2021 that her request for conversion had "slipped through the cracks". As a result, the PSBA did not make a decision regarding her request within the required 28-day period.
- Although it appears that this would be a deemed refusal, the PSBA contends that either they were not on notice that a request had been made, or that they were still seeking clarification on points of her submission from others in the PSBA since November 2020. I reject both of these submissions.
- The emails attached to Ms Singh's submissions clearly demonstrate that there was an awareness of her request from at least as early as 27 November 2020, where Ms Andric makes a direct reference to the "temp to perm conversion document Ajanta submitted for our consideration". The emails also reveal that Ms Andric tried twice to prompt the HR team to respond on 11 and 18 December 2020 without any apparent response. Finally, in an email from Ms Andric on 3 February 2021 it is acknowledged the request "slipped through the cracks".
- The PSBA were clearly aware of the request from Ms Singh made on 22 October 2020. Through a series of administrative ineptitude, the request fell into an administrative abyss. There is no evidence of any other explanation.
- Section 149B(7) of the PS Act deems a decision to refuse conversion 'if the department's chief executive does not make a decision within the required period'. It is not open to the PSBA, Ms Singh or the Commission to retrospectively agree to instal a written decision in place of a void left where a decision maker fails to make a decision within the prescribed period of 28 days. There is no discretion to override a failure to make a decision, regardless of what administrative failings have occurred.
- In the circumstances, while the decision letter will be informative as to the purported reasons for the refusal, it is not the decision under review for the purposes of this appeal.
- Further, it is noted that Ms Singh has filed her appeal approximately four and a half months after the statutory time limit expired on or about 17 November 2020. In an email from Mr Glenn Carthew dated 1 April 2021, the PSBA indicated their consent to the appeal being dealt with out of time. I consider that concession to be more than appropriate given the poor handling of this matter by the PSBA. In those circumstances, I will exercise my discretion to allow the appeal to proceed.
- The only issue for determination is whether the decision appealed against was fair and reasonable.
Nature of appeal
What decisions can the Industrial Commissioner make?
- In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
- (b)for a promotion decision - 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)for another appeal - 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.
Relevant sections of the PS Act and the Directive
- The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.
- The PS Act relevantly provides:
149A Decision on review of status
- (2)The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if—
- (a)the department's chief executive considers—
- (i)there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
- (ii)the person is eligible for appointment having regard to the merit principle; and
- (b)any requirements of an industrial instrument are complied with in relation to the decision.
- (3)If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
149B Review of status after 2 years continuous employment
- (5)In making the decision—
- (a)section 149A(2) and (3) applies to the department's chief executive; and
- (b)the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
- (6)If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating—
- (a)the reasons for the decision; and
- (b)the total period for which the person has been continuously employed in the department; and
- (c)for a fixed term temporary employee—how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
- (d)each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
(7) If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person’s employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee’s existing employment.
- Clause 8 of the Directive provides as follows:
8. Decision on review of status
8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):
- whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
- the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act
- whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and
- the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.
8.2 Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.
Submissions of the parties
- The parties filed written submissions in accordance with a Directions Order dated 7 April 2021. The parties' submissions primarily concern the genuine operational requirements of the PSBA and the adequacy of reasons in the decision.
Submissions of the PSBA
- The PSBA contends, for reasons set out in their submissions filed on 29 April 2021, that its genuine operational requirements and the lack of Ms Singh's merits preclude her conversion to permanent employment. In summary, it submits that:
- Ms Singh is acting in a role substantively owned by an incumbent who is expected to return to their role 'at the end of the secondment' and as such, the position is unavailable to Ms Singh;
- There are no vacant positions of AO5 or lower substantially the same as Ms Singh's role in the Frontline and Digital Services Directorate within the PSBA;
- In consideration of whether Ms Singh meets the merit criteria outlined in s 28 of the PS Act, the PSBA refers to the Performance and Development Agreement ('PDA') dated 27 July 2020. It is noted in the section under 'Overall Assessment for the reporting period' that her performance 'requires development', with comments provided regarding the areas of focus. Accordingly, the PSBA contends Ms Singh does not meet the merit requirements of the role;
- The PSBA will be decommissioned in June/July 2021 with the positions being transferred to either Queensland Police or Queensland Fire and Emergency Services. The genuine operational circumstances of these portfolios are uncertain due to funding arrangements and service realignment programs. Currently, the PSBA is unaware of the number of positions the portfolios will seek to absorb within Ms Singh's area of Frontline and Digital Services; and
- Distinguishing the decision of Katae v State of Queensland & Anor, the PSBA outlines that it is unknown whether the portfolios will require Ms Singh's role of Project Officer (or a position similar) or whether it will be disestablished.
Submissions of Ms Singh
- Ms Singh contends, for reasons set out in her reply submissions dated 20 May 2021, that she should be converted to permanent employment. In summary, she submits that:
- The written reasons for the decision do not comply with s 149B(6)(a) of the PS Act and s 27B of the Acts Interpretation Act 1954 (Qld). Although the PSBA relies on the position being substantively occupied, the decision failed to outline when the position holder is expected to return from higher duties;
- Similarly to the decision of Commissioner McLennan in Benson v State of Queensland (Department of Education), the incumbent is not returning on a known end date and Ms Singh's engagement has been extended beyond the date in the PSBA's submissions;
- Similarly to the decision of Commissioner Hartigan in Schonfelder v State of Queensland (Department of Housing and Public Works), the substantive has been on higher duties for an extended period of time which Ms Singh estimates to be approximately 10 years and it is unfair and unreasonable for the PSBA to rely on genuine operational requirements where there is no known return date for the substantive;
- The decision has not provided the evidence or material which the PSBA relies on as justification to refuse conversion. Citing Power v State of Queensland (Department of State Development, Tourism and Innovation), the PSBA has not provided any detail in relation to consideration of a continuing need for someone to be employed in a role that is substantially similar. Consequently, the decision is not fair and reasonable;
- In response to merit and the PDA dated 27 July 2020, she contends the PSBA cannot rely on reasons outside of the decision. In any case, citing the decision of Commissioner Pidgeon in Davies v State of Queensland (Queensland Health), she contends that although the PDA indicated some areas which require development, she has been extended 9 times in the position and the PSBA cannot not solely rely on it to conclude the merit criteria is not met in the absence of any formal performance or improvement process; and
- The mandatory criteria in sections 149A(2)(a)(i) and (ii) of the PS Act are met, there is a continuing need for her employment in the role or one substantially similar and there are no genuine operational requirements which preclude her conversion pursuant to a 149A(3) of the PS Act.
- Ms Singh contends that the reasons contained in the decision are inadequate because they do not conform with the requirements of s 149B(6). Inadequate reasons will (in most, but not all circumstances) likely render a decision unfair or unreasonable.
- On the question of adequacy of reasons, I note the finding of the Deputy President in Morison v State of Queensland (Department of Child Safety, Youth and Women) 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.
- There is a tension in s 149B of the PS Act that is difficult to reconcile. On the one hand, s 149B(6) compels a decision maker to inter alia give the employee a notice stating the reasons for the decision if they decide not to offer to convert the person's employment. By contrast, if no decision is made, s 149B(7) provides the decision-maker is taken to have decided not to offer to convert the person's employment. Yet s 149B(7) makes no provision inter alia for providing reasons.
- There is a stark contradiction between these subsections where one establishes a robust safety net to ensure natural justice to an employee whose request is refused, while the following subsection allows the employer, at their sole discretion, to be relieved of these very important protections by simply not making a decision. Nevertheless, I am unable to identify a construction of s 149B(7) that imposes an obligation to provide reasons. Further, the Directive equally appears to reinforce the contradiction.
- In those circumstances, given the matter is a deemed decision pursuant to s 149B(7), Ms Singh's submissions about adequacy of reasons pursuant to s 149B(6) must fail.
- However, in the circumstances of a deemed decision a consideration of the adequacy of the reasons 'for the decision' will inevitably be absorbed into the task of considering whether the decision was fair and reasonable by reference to the submissions (and any other written reasons) offered by the PSBA.
- The reasons provided in the decision letter dated 2 March 2021 simply refer to the position as being substantively owned by another staff member, and that there was no continuing need for Ms Singh to perform the role or a role substantially the same. The only particulars provided are that a substantive incumbent will be returning to the role at the end of their secondment.
- Ms Singh's submissions note that the substantive has been acting in a higher duties position for an extended period and has been absent from the position for approximately 10 years. This does not appear to be contested by PSBA.
- Further, the PSBA in its submissions noted that the incumbent would return to their position 'at the end of the secondment' however, do not provide any date or known timeframe of when they might return.
- Had the reasons set out in the letter of 2 March 2021 been contained in a decision notice issued pursuant to s 149B(6), I would have found them to be woefully inadequate. In circumstances where the incumbent has apparently been acting in higher duties for approximately 10 years, it is unacceptable (without a more explicit explanation) to continue to deny Ms Singh an opportunity to convert when she otherwise meets the relevant criteria.
- The PS Act and the Directive have a clearly intended objective to utilise temporary employment on a short-term basis. Permanent employment is the default objective. The language of the Directive and the PS Act in this regard must be given real meaning.
- Without a more detailed explanation, the continued denial of conversion to an otherwise eligible employee simply because the incumbent is on secondment over an extended period, is not consistent with the intent of the PS Act or the Directive.
- Given this extended period of absence and the lack of an indication of when the incumbent would return to the position, I consider that the reasons are inadequate. The lack of information gives rise to a disadvantage to Ms Singh in that she is unable to properly evaluate the justification proffered by the PSBA without further detail about the incumbent's circumstances and reliable information about the timing of their anticipated return.
- Further, the submissions filed by the PSBA on 29 April 2021 are no more informative.
- I note the letter dated 2 March 2021 makes no mention of what other roles might have been considered. The submissions of the PSBA subsequently set out the consideration of other roles, though only to a barely adequate standard.
- On the question of adequacy of reasons, I consider that the reasons proffered by the PSBA with respect to the incumbent or other similar roles are wholly inadequate. However, there are other reasons now relied on by the PSBA.
- In their submissions of 29 April 2021, the PSBA sought to evoke the question of merit. Curiously, there was no mention of merit as a disqualifying reason in the letter dated 2 March 2021 or at any other time.
- Again, had the letter of 2 March 2021 been the notice of reasons issued pursuant to s 149B(6), I would have declined to consider the late introduction of any merit considerations in a review. I am equally not inclined to consider the PDA dated 27 July 2020 as a legitimate reason to deny conversion to Ms Singh, especially where her application for conversion was dated 22 October 2020.
- Firstly, I agree with the comments of Pidgeon IC in Davies v State of Queensland (Queensland Health). A PDA serves a number of broader purposes and is not, of itself, an indicator that the subject employee lacks merit for the purposes of s 28 of the PS Act.
- Secondly, Ms Singh's PDA was in respect of the period October 2019 to June 2020, though it appears there are references to quarterly reviews within that period, identified as 'Q3' and 'Q4'.
- The PSBA makes no submission about Ms Singh's successful or otherwise compliance with the PDA in the period from July 2020 until the time of filing their submission in April 2021. There is no discussion about subsequent (if any) quarterly reviews since July 2020. I would consider it unlikely that the PSBA did not have up to date information available to it to more fulsomely address any genuinely held merit concerns.
- I do not regard the outdated information in the PDA as a reliable basis to refuse Ms Singh on merit, especially if it were the case that there was more recent data on her performance available.
- The final reason cited by the PSBA is genuine operational requirements. It is submitted that the PSBA is to be decommissioned in June/July 2021 and that all positions are being transitioned into other portfolio agencies.
- I have no information before me to confirm when PSBA was aware that they were to be decommissioned in June/July 2021. Given the nature of such a sizable restructure, I would be surprised if the plans were not well under way by October 2020 and that the information was common knowledge. I would feel confident in assuming that the looming decommissioning was well known to all involved in this matter by at least February 2021. What I find astonishing is that genuine operational requirements (by reason of the decommissioning) were not cited as a reason to refuse Ms Singh's request until the submissions were filed in April 2021.
- Genuine operational requirements serve as a catch all reason for refusal to convert in both the PS Act and the Directive. That is to say: regardless of whether an applicant for conversion meets all other mandatory criteria, a genuine operational requirement such as e.g. a major organisational restructure creating doubts about a role or budget uncertainty will be a legitimate reason to refuse an application.
- Had the PSBA replied in writing to Ms Singh on or before 17 November 2020 and explained that the agency was being decommissioned and the placement, duties and budget for the role she was acting in were uncertain, I would have considered that to be an entirely legitimate, fair and reasonable explanation. If the PSBA had taken the time to explain this to Ms Singh in the letter of 2 March 2021, following Ms Singh's request 'falling through the cracks', I likely would also have considered it acceptable.
- However, it seems that the PSBA waited until they filed their submissions in April 2021 to reveal this reason. I will discuss the consequences of this below.
- It seems clear that Ms Singh's request for conversion has been poorly handled from start to finish. I consider it necessary to highlight some of the shortcomings by the PSBA as they have informed my decision with respect to the disposition of this appeal.
- Firstly, I am roundly unimpressed by PSBA's late inclusion of the less than contemporary PDA data in what has all the hallmarks of an administrative 'pile on'. Throughout the plainly inept handling of Ms Singh's request for conversion, not once was her performance raised as a barrier to conversion. Even when a decision letter was issued on 2 March 2021 there was no reference to merit.
- It took the filing of this appeal for the PSBA to finally take Ms Singh's request seriously and give it any proper attention. Of course by that time, the matter was now the subject of a legal process and the PSBA appears to have thought they needed to 'throw everything at it'. If only they had been that enthusiastic about giving Ms Singh a proper explanation back in November 2020, we might have all been spared the trouble of this appeal.
- I have commented previously about the careless disregard that is at times evident in conversion decisions. The lack of attention by some decision makers to obligations in the Directive and the PS Act that I observe from time to time is galling for two reasons.
- Firstly, it demonstrates a complete disregard for the welfare of the applicant. It stands to reason that an individual making a request for conversion will likely hold great hope for a positive outcome. The acquisition of a permanent role will often dramatically enhance their sense of wellbeing and security. Given that there are defined criteria for conversion, applicants will not unexpectedly have heightened expectations once they perceive they meet those criteria.
- All too often I observe such requests treated by decision-makers as little more than an administrative nuisance. The conversion to permanent employment is a significant alteration to the employment relationship and one that I recognise cannot always be granted. Yet often the decisions read as if no thought or energy has been devoted to the process at all. Such an approach runs contrary to the intentions of the PS Act and the Directive. It is also shamefully unfair to the aspirant for conversion.
- Secondly, the inevitable consequence of such dereliction by decision-makers is that the State is put to the added expense of appeals being dealt with by the Commission, often at the expense of time being devoted to other matters.
- In the absence of a compelling explanation, I would anticipate that a decision-maker ought to be able to comply with a request within the prescribed time of 28 days. Further, I would expect that a competent and appropriately diligent decision-maker could comply with the requirements of s 149B(6) to ensure that, whatever the decision, the applicant has been given the benefit of a fulsome explanation.
- Further, while I recognise that the PS Act allows for deemed decisions in s 149B(7), I consider that the absence of a decision will need to be accompanied by a compelling explanation as to why an aspirant for conversion was not afforded the protections intended to be conferred by s 149B(6). The absence of a compelling reason will tend towards unfairness in my view.
- Following her request for conversion in October 2020, Ms Singh has been the victim of a multitude of administrative failings. From the failure to make a decision by 17 November 2020, to her request 'falling through the cracks' for months, to the wholly uninformative letter of 2 March 2021, ending with the submissions in April 2021 introducing multiple new reasons to refuse her request. The whole process has been highly unsatisfactory.
- The decommissioning of the PSBA would ordinarily serve as a genuine operational requirement capable of justifying a refusal of Ms Singh's request. However, in light of the litany of errors the PSBA has been responsible for to date, I am left entirely without faith as to the reliability of their submissions. I would typically accept a submission about a restructure as a genuine operational requirement preventing conversion. On this occasion though, my instinct leads me to consider that I require something more by way of objective supporting evidence as to how the decommissioning creates a barrier to Ms Singh's conversion.
- While I do not conclude that Ms Singh ought to be converted, I consider that the reasons offered by way of the submissions of the PSBA are still inadequate and, it follows, unfair and unreasonable.
- Further, given that all that has occurred in this matter, it seems to me that the fairest outcome would be for Ms Singh's conversion request to be considered afresh taking into account her current circumstances.
- I make the following order:
- I grant an extension of time to hear the appeal pursuant to s 564(2) of the Industrial Relations Act 2016 (Qld);
- Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld):
- the decision is set aside; and
- the matter is returned to the decision maker with a copy of this decision on appeal;
- the decision maker is directed to:
- conduct a fresh review of the appellant's employment status no later than 4.00pm on 23 September 2021 in accordance with s 149B of the Public Service Act 2008 (Qld); and
- upon completion of the fresh review of the appellant's employment status, issue a notice in compliance with s 149B(6) and cl 8.4 of Directive 09/20 Fixed term temporary employment.
 Submissions of Ajanta Singh filed 20 May 2021, pages 12-20.
 Industrial Relations Act 2016 (Qld) s 562B.
 Brandy v Human Rights and Equal Opportunity Commission  HCA 10.
 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
 Industrial Relations Act 2016 (Qld) s 562B(3). See also Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252, 60-61.
  QSC 225.
  QIRC 152.
  QIRC 32, .
  QIRC 053, -.
  QIRC 090, -.
  QIRC 203.
 Compare clauses 8.4 and 8.5 of the Directive.
 Submissions of the PSBA filed 29 April 2021, page 3.
 See clause 4. See also s 25(2)(d) the PS Act.
  QIRC 090, .
 Public Service Act 2008 (Qld) s 149; Directive 09/20 Fixed Term Temporary Employment cl 8.2.
 Power v State of Queensland (Department of State Development, Tourism and Innovation)  QIRC 053, 11 .
- Published Case Name:
Singh v State of Queensland (Public Safety Business Agency)
- Shortened Case Name:
Singh v State of Queensland (Public Safety Business Agency)
 QIRC 311
Member Dwyer IC
09 Sep 2021