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  4. Pienaar v State of Queensland (Queensland Health) - [2021] QIRC 326

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Pienaar v State of Queensland (Queensland Health)[2021] QIRC 326

Pienaar v State of Queensland (Queensland Health)[2021] QIRC 326

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pienaar v State of Queensland (Queensland Health) [2021] QIRC 326

PARTIES:

Pienaar, Dale

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/143

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

22 September 2021

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

  1. The decision appealed against is set aside;
  1. The matter is returned to the decision maker with a copy of this decision, and the decision maker is directed to undertake a fresh review in accordance with s 149B of the Public Service Act 2008 (Qld) and Directive 09/20 within 21 days of the date of this decision.

CATCHWORDS:

INDUSTRIAL LAW – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – Fixed term temporary employment review – where the appellant was reviewed under s 149B of the Public Service Act 2008 – consideration of the scope of a review under s 149B

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 27B

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 149A and 149B

Directive 09/20 Fixed term temporary employment, cl 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)

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

Reasons for decision

Introduction

  1. [1]
    Mr Dale Pienaar ('the Appellant'), is currently employed by the State of Queensland (Queensland Health) ('the Respondent') in the fixed term temporary position of AO7, Principal Project Manager ('PPM') within the Digital Healthcare Portfolio ('DHP').
  1. [2]
    By Appeal Notice filed on 19 April 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act'), appealed against a decision that his employment remain as fixed term temporary with the Respondent ('the decision').

Appeal principles

  1. [3]
    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.
  1. [4]
    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.
  1. [5]
    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 Mr Colin Anderson, Executive Director People and Culture, Sunshine Coast Hospital and Health Service ('SCHHS') to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').

What decisions can the Industrial Commissioner make?

  1. [6]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [7]
    In the appeal notice, the Appellant contends that the decision maker erred in finding that there is not a continuing need for the Appellant's role or a role which is substantially the same, as:
  1. (a)
    at the time of the Appellant's permanency conversion review, the Appellant's role had already been determined as a 'continuing ongoing need', evidenced by the Appellant's original contract which was extended beyond the review through until December 2022; and
  1. (b)
    the Appellant has been regularly engaged by the Appellant's managers to support and manage current Business and Usual ('BAU') projects and be involved in the planning for likely future works. The Appellant submits that these activities are above and beyond the Appellant's current role and are funded from other project or non-project sources.

Relevant provisions of the PS Act and the Directive

  1. [8]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department’s chief executive must decide whether to-
  1. (a)
    continue the person’s employment according to the terms of the person’s existing employment; or
  1. (b)
    offer to convert the person’s employment basis to employment as a General employee on tenure or a public service officer.
  1. (4)
    The department’s chief executive must make the decision within the required period after-
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department’s chief executive; and
  1. (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.
  1. (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-
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (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
  1. (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.
  1. (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.

…

  1. [9]
    Section 149A(2) of the PS Act provides:
 

(2) The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if-

  1. (a)
    the department’s chief executive considers-
  1. (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
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [10]
    Section 149A(3) of the PS Act provides:
  1. (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.
  1. [11]
    The Directive relevantly provides:
  1. 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.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

…

Submissions

  1. [12]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.  

Respondent's submissions

  1. [13]
    The Respondent filed submissions in response to the Appellant's appeal. In summary, the Respondent submits that:
  1. (a)
    the PPM position is to support a project of the Nambour General Hospital ('the Project'). The Project is scheduled to run until December 2022, which is when the Appellant's temporary contract will also end;
  1. (b)
    although the Project is scheduled to run for a further number of months, it is a discrete project with discrete funding and timeline. The need for anyone to be employed in the PPM position will end when the Project ends;
  1. (c)
    there is no continuing need for the Appellant to be employed in a PPM position within the DHP. The DHP is currently a temporary portfolio which is responsible for a limited number of projects and the current projects within the DHP are funded on a discrete basis;
  1. (d)
    there are currently six approved projects being run by the DHP that are funded, all of which are anticipated to run until either June 2021 or September 2021. The resources required for DHP projects fluctuate depending on the stage of project, approvals and funding. The current temporary PPM positions associated with these projects, including the Appellant's PPM position, are funded on a discrete basis and will cease within the project lifespan when PPM support is no longer required;
  1. (e)
    future project works beyond June 2021 or September 2021 remain unapproved, unfunded and uncertain. A lack of certainty regarding ongoing funding is a relevant consideration, although not the only consideration in determining ongoing need;
  1. (f)
    the nature of PPM positions within DHP means that a very specific set of relevant ICT domain knowledge and experience are required. The knowledge and experience for a certain PPM position will not necessarily match what is required for other DHP projects and is another relevant consideration as to whether there is a continuing need for employment in a role which is substantially the same;
  1. (g)
    from time to time, temporary DHP employees do undertake work on other project activities during periods which are quieter for their project to minimise project expenditure, or to meet business demands. However, the activities listed by the Appellant are ad-hoc and short term, and a dedicated project management resource is not required; and
  1. (h)
    there are genuine operational reasons which mean that it is not viable or appropriate to convert the Appellant's employment to permanent in accordance with s 149A(3) of the PS Act and clause 8.2 of the Directive as there is currently no certainty about the future need for either permanent or temporary ICT project manager positions within SCHHS.

Appellant's submissions

  1. [14]
    The Appellant filed submissions in response to the Respondent's submissions. In summary, the Appellant submits that:
  1. (a)
    the decision incorrectly stipulates the Appellant's place of employment;
  1. (b)
    the decision was made on the basis that it is uncertain whether funding is ongoing and the Appellant's role being classified as temporary. However, neither the PS Act nor the Directive require such certainty;
  1. (c)
    although the Appellant's contract end date is 31 December 2022, the 12 month liability period puts the end of the project at December 2023. If the Appellant's contract is extended again due to the Project not finishing on time, the Appellant will have been a fixed-term temporary for more than four years. It is therefore unfair and unreasonable for the Respondent to not appoint the Appellant as a permanent employee on tenure, given that the point has been reached in which the Appellant's continued engagement on a fixed term temporary basis due to insecure funding sources can no longer be relied upon;
  1. (d)
    the Respondent's position that the additional projects the Appellant have been requested to undertake work on are ad-hoc, short term and during quieter periods is misleading and inaccurate. The Appellant submits that there are at least two major additional projects the Appellant have been engaged in and will continue to be engaged in on an ongoing basis;
  1. (e)
    the SCHHS has erred in the decision that there is not a continuing need for the Appellant to be employed in the PPM position. The SCHHS is aware of the Appellant's specialist skills as evidenced by repeated requests for the Appellant's advice and assistance. Although funding may not be certain, funding is likely to be provided for a number of future SCHHS initiatives and projects due to the audit, maintenance, enhancement and the expansion needs of SCHHS;
  1. (f)
    the decision maker has not taken into account all of the relevant facts and evidence when applying the mandatory criteria of s 149A(2)(a)(i) of the PS Act and clause 8.1 of the Directive, and makes no attempt to examine whether there are any roles which are substantially the same within any other divisions or locations of SCHHS;
  1. (g)
    no analysis has been provided to satisfy that any effort was made by the decision maker to consider other roles that are substantially the same;
  1. (h)
    the decision does not comply with s 27B of the Acts Interpretation Act 1954 (Qld), as no consideration was provided of what substantially the same roles were considered under s 149A(2)(a)(ii) of the PS Act;
  1. (i)
    even if the DHP temporary structure was dissolved, the demand for initiatives and resources would remain in another form and additional full time equivalents will be required to deliver services, maintain existing and deliver new technology and infrastructure, and meet the SCHHS objectives; and
  1. (j)
    genuine operational requirements due to other SCHHS processes relied on by the Respondent was not included as a reason in the decision to preclude converting the Appellant's employment to permanent and therefore, cannot be taken into account as to whether the decision as of 30 March 2021, was fair and reasonable.

Respondent's submissions in reply

  1. [15]
    The Respondent filed submissions in reply to the Appellant's submissions in accordance with the Directions Order. In summary, the Respondent submits that:
  1. (a)
    for clarity, the Appellant's role provides the project management for a specific and specialised ICT component of the Project which is a discrete project with a specific timeline for construction completion;
  1. (b)
    there is no current requirement for the Appellant's role to be retained beyond completion of the Project, which is scheduled for 31 December 2022 as any associated ICT activities are undertaken by the BAU ICT permanent structure;
  1. (c)
    a lack of certainty regarding ongoing funding was a relevant consideration, although not the only consideration in determining the continuing need for the Appellant's role or a role substantially the same;
  1. (d)
    the Appellant's temporary PPM position sits within the temporary DHP structure to support the Project specific to the ICT Infrastructure hardware;
  1. (e)
    there are currently no permanent AO7, PPM positions within the:
  1. (i)
    temporary DHP structure or permanent BAU ICT structure; and
  1. (ii)
    SCHHS, including within the Project with an ICT focus; and
  1. (f)
    the SCHHS explored whether there were any available ongoing roles considered substantially the same during the Appellant's review period, however, none were identified.
  1. [16]
    The Respondent maintains that it would not be viable or appropriate to convert the Appellant's employment until certain SCHHS processes are completed, especially as there is currently no certainty of funding for future ICT projects or the future need of ICT PPM positions within the SCHHS.

Consideration

  1. [17]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. The decision determined that the Appellant's employment remain as fixed term temporary.
  1. [18]
    The Respondent outlined in its decision dated 30 March 2021, that the decision was made not to convert the Appellant's employment for the following reasons:

The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, the reason for this decision is that you are a fixed term temporary employee in a temporary position where the ongoing funding is uncertain. The Digital Healthcare Portfolio is a temporary organisational structure. This portfolio is 100% funded by capital associated with major infrastructure projects. There is no approved Digital Healthcare Portfolio Plan (including funding) beyond December 2022 for the SCUH Stage 3 Project. It is acknowledged that the Digital Health Strategy 2021 to 2024 has been developed and is under consultation, however the plan remains unfunded at this time and therefore the ongoing nature is uncertain.

  1. [19]
    The decision maker considered, pursuant to s 149A(2)(a)(ii) of the PS Act and clause 8.1 of the Directive, whether the employee satisfied the merit principle and made the following determination:

You have demonstrated over this time that you satisfy the merit requirements for the role.

  1. [20]
    The decision maker also stated correctly that a further consideration is whether there is a continuing need for the Appellant to be employed in the role or a role that is substantially the same. However, the decision maker did not address this criterion in the decision, rather, he determined that conversion could not occur because the 'ongoing nature is uncertain' due to unconfirmed funding.
  1. [21]
    The difficulty with this decision is that, although it outlines the relevant criteria, it does not demonstrate that the criteria has been applied. The criterion relating to 'continuing need' does not require an assessment of funding, it simply requires a consideration of whether there is a continuing need for the Appellant to be employed in the current role 'or a role substantially the same'. This criterion requires the decision maker to demonstrate that they have considered whether the there is a need for the Appellant to be employed in the current role, and if there is not, that consideration has been given as to whether there is a need for the Appellant to be employed in a role substantially the same.
  1. [22]
    This decision does not demonstrate consideration of this criterion. The consideration of continuing need for the current role has been conflated with funding considerations, and there is no evidence that any roles 'substantially the same' have been considered at all. As noted in Katae v State of Queensland & Anor,[5] a decision maker who fails to take mandatory considerations into account has not properly applied the law.
  1. [23]
    It appears to be the case that the Respondent regards uncertain funding as a genuine operational reason as to why appointment on tenure is not viable or appropriate, pursuant to s 149A(3) of the PS Act. The Respondent's submissions provide further detail regarding the funding issues relating to the Appellant's current role. Considerations of the genuine operational requirements of the department are a separate consideration that is only applicable if the criteria with respect to s 149A(2) is satisfied. Consideration as to whether there is a continuing need for the Appellant to be employed in the PPM role or a role substantially the same must be demonstrated before the exclusion in s 149A(3) can be considered.
  1. [24]
    Section 149B(6) of the PS Act requires that where a decision is made not to offer to convert a person's employment, the chief executive must give the person a notice stating:
  1. (a)
    the reasons for the decision; and
  2. (b)
    the total period for which the person has been continuously employed in the department; and
  3. (c)
    for a fixed term temporary employee – how many times the person's employment as a fixed term temporary employee has been extended; and
  4. (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. 
  1. [25]
    The Respondent's decision did not comply with the requirements of s 149B(6) in that the reasons for the decision are inadequate and do not demonstrate consideration of the relevant criteria; the total period for which the person has been continuously employed in the department is not stated; no reference is made as to the number of times the Appellant's employment has been extended; and no reference is made to whether decisions have previously been made under ss 149B or 149A during the period of continuous employment.
  1. [26]
    Clause 8.4 of the Directive provides that, in accordance with section 27B of the Acts Interpretation Act 1954 (Qld), the decision must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. This is required to ensure that the employee seeking conversion is able to understand why the decision was made and the evidence relied upon to reach the decision.
  1. [27]
    In consideration of the decision before me, I am not satisfied that the Respondent has complied with the obligations under both the Directive and the PS Act. Consequently, the decision made by the Respondent was not fair and reasonable.

Order

  1. [28]
    I make the following order:
  1. The decision appealed against is set aside;
  1. The matter is returned to the decision maker with a copy of this decision, and the decision maker is directed to undertake a fresh review in accordance with s 149B of the Public Service Act 2008 (Qld) and Directive 09/20 within 21 days of the date of this decision.

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] [2018] QSC 225.

Close

Editorial Notes

  • Published Case Name:

    Pienaar v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Pienaar v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 326

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    22 Sep 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225

Cases Citing

Case NameFull CitationFrequency
Alexander v State of Queensland (Queensland Health) [2022] QIRC 802 citations
James v State of Queensland (Queensland Health) [2022] QIRC 2092 citations
McAllister v State of Queensland (Queensland Health) [2021] QIRC 4352 citations
1

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