Preston-Smith v State of Queensland (Queensland Health)
[2021] QIRC 350
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- Preston-Smith v State of Queensland (Queensland Health)[2021] QIRC 350
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Preston-Smith v State of Queensland (Queensland Health)[2021] QIRC 350
Preston-Smith v State of Queensland (Queensland Health)[2021] QIRC 350
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Preston-Smith v State of Queensland (Queensland Health) [2021] QIRC 350 Preston-Smith, Bianca (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/283 |
PROCEEDING: | Public Service Appeal - Conversion Decision |
DELIVERED ON: | 15 October 2021 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
OUTCOME: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the decision that Ms Preston-Smith be offered conversion to permanent with the hours of work being no less than the greater of: (a) the hours worked by Ms Preston-Smith in the role of pharmacist (HP3) in the week immediately before the chief executive's decision of 2 July 2021; or (b) the average hours per week worked by her in the role of pharmacist (HP3) over the last two years. |
CATCHWORDS: | PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Conversion decision – where Appellant applied to convert to permanent employment – where the Appellant was converted to permanent part-time – where the Appellant offered fewer hours than had been previously working on fixed-term temporary engagement – whether exceptional circumstances justified offer of fewer hours. |
LEGISLATION: | Public Service Act 2008, s 148, s 149, s 149B. Industrial Relations Act 2016, s 562C Directive 09/20 Fixed term temporary employment |
Reasons for Decision
Appeal Details
- [1]Ms Bianca Preston-Smith commenced employment with the State of Queensland (Queensland Health) (the Respondent) at Metro South Hospital and Health Service (MSHHS) on a fixed term temporary basis as pharmacist (level HP3) based at Logan Hospital on 2 January 2019. Ms Preston-Smith has had her contract extended on several occasions and has worked full-time hours each fortnight for the duration of her contracts.
- [2]On 2 June 2021, Ms Preston-Smith made a request to have her fixed term temporary employment converted to permanent.
- [3]There is no question that Ms Preston-Smith meets the merit criteria for conversion.
- [4]On 2 July 2021 MSHHS offered Ms Preston-Smith to be converted to permanent employment. The decision letter stated:
A review of your fixed term temporary employment has been completed and I am pleased to advise, if you agree, you will be converted to permanent employment in the role of Pharmacist, Pharmacy Department, Beaudesert Hospital on a part time basis, 30.4 hours per fortnight
….
The permanent hours of work offered are 30.4 hours per fortnight. These hours are fewer than the average hours you have worked over the past two years. This is due to the remaining hours being substantively occupied by seconded staff who are expected to return to the role.
- [5]On 13 July 2021, the United Workers Union (UWU) submitted a Notice of Internal Review Request in accordance with clause 97 of the Health Practitioner and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 (the Agreement).
- [6]On 29 July 2021, Ms Katrina McGill issued Ms Preston-Smith with a letter advising that the Temporary and Casual Conversion Panel Review (the Review Panel) had decided not to overturn the decision of 2 July 2021. The letter stated:
After reviewing the preliminary decision:
- The panel has been unable to reach consensus to either overturn or confirm the preliminary decision.
- In considering the information available to the panel, the Human Resources Branch has decided that it will not overturn the preliminary decision made by Metro South Hospital and Health Service (MSHHS).
The basis to not overturn the preliminary decision is provided for in clause 97.8 of the Health Practitioner and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 which provides the following:
Where a consensus cannot be reached between the parties or the HR Branch does not overturn to the preliminary decision, it will become the final decision with the effective date being the day the employee receives the notice not to overturn the preliminary decision.
- [7]The letter from Ms McGill means that the decision of 2 July 2021 is confirmed. It is that decision which is subject of this appeal and I accept that the appeal has been lodged in time as effectively, Ms Preston-Smith was informed of the decision on 29 July 2021 and her appeal notice was lodged on 12 August 2021.
Legislative Framework
- [8]In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 (PS Act) and the Fixed term temporary employment: Directive 09/20 (the Directive). The relevant parts are replicated below:
The PS Act
27 The merit principle
- (1)The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).
- (2)The merit principle applies subject to chapter 5, part 2, division 2.
Editor's note—
chapter 5, part 2, division 2 (Reappointment of particular election candidates)
- (3)In this section—
appointment does not include a transfer.
28 Merit criteria
In applying the merit principle to a person, the following must be taken into account—
- (a)The extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question; and
- (b)If relevant—
- (i)the way in which the person carried out any previous employment or occupational duties; and
- (ii)the extent to which the person has potential for development.
149B Review of status after 2 years continuous employment
- (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.
- (2)However, this section does not apply to a non-industrial instrument employee.
- (3)The Department's chief executive must decide whether to —
- (a)Continue the person's employment according to the terms of the person's existing employment; or
- (b)Offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
- (4)The Department's chief executive must make the decision within the required person after—
- (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
- (b)Each 1-year period after the end of the period mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department.
- (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 causal 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.
(7A) For working out how long the person has been continuously employed in the Department —
- (a)All periods of authorised leave are to be included; and
- (b)The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non-employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out.
The Directive
- [9]While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government’s Employment Security Policy.
4.2 Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B.
4.3 Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee.
4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.
4.5 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.
…
7. Review by agency of the status of a fixed term temporary employee after two years or more of continuous service–section 149B (Appendix C)
7.1 Section 149B of the PS Act requires and establishes criteria for an agency’s chief executive to review the status of a fixed term temporary employee’s employment where the employee has been continuously employed for two years or more in the same agency.
7.2 For a review under section 149B, section 149B(7A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
7.3 Under section 149B(3), the chief executive must decide within 28 days whether to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, or continue the person’s employment according to the terms of the person’s existing employment.
7.4 Unless there are exceptional circumstances, when deciding the hours of work to be offered when converting an employee under section 149B(3)(b), the chief executive should offer hours of work no less than the greater of the following amounts:
- (a)the hours worked by the employee in the continuing role or role that is substantially the same, in the week immediately before the chief executive’s decision
- (b)the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years.
7.5 Under section 149B(4)(b), a subsequent review must be conducted after each additional year where an employee remains continuously employed.
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.
8.3 If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:
- (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).
- (b)where the employee is part-time, an explanation of the days and hours of work offered in the decision; and
- (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:
- (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.
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).
8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
What decisions can the Commission make?
- [10]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (b)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.
Reasons for Appeal
- [11]Ms Preston-Smith outlines her reasons for appeal in schedule A to the appeal notice.
- [12]It is submitted that in offering Ms Preston-Smith significantly less hours than those averaged over the last two years, MSHHS has acted contrary to cl 7.4 of the Directive.
- [13]MSHHS has not demonstrated 'exceptional circumstances' when determining to offer Ms Preston-Smith the permanent part-time hours rather than the average hours she had been working.
- [14]MSHHS has not provided any evidence that there are genuine operational requirements that mean it is not viable or appropriate to offer Ms Preston-Smith permanent full-time hours.
- [15]The PS Act does not require the decision maker to consider if there is a vacant position available to facilitate conversion. The PS Act only requires consideration of whether there is a continuing need for someone to be employed in the role or a role that is substantially the same as the person's role and that the person is eligible having regard to the merit principle.
- [16]Members of the UWU have been advised by their local management team that six new rotational pharmacist roles are or will be filled soon. The Union is also aware that the workload of pharmacists has increased significantly because of the roll out of the COVID-19 vaccine.
- [17]Over the last five years, the permanent FTE at Logan Hospital pharmacy has increased and any reasonable person would consider this to be in direct relation to increasing occasions of service.
- [18]MSHHS is currently seeking expressions of interest from pharmacists for future temporary full-time and part-time employment opportunities at Logan Hospital over the coming 12 months. This is a clear demonstration of the continuing need for Ms Preston-Smith to be performing the role or a role which is substantially the same.
- [19]Ms Preston-Smith has been advised that if she accepts the offer of conversion to 30.4 hours per fortnight, further temporary contracts will be provided to ensure she continues to work 76 hours per fortnight. This is a further demonstration that there is a continuing need for Ms Preston-Smith to be converted to a permanent full-time position.
- [20]Ms Preston-Smith says that the fixed term temporary conversion checklist completed by the MSHHS confirms that there is a continuing need for her to be employed in the role and that the role is likely to be ongoing.
- [21]The evidence provided by MSHHS is that Ms Preston-Smith has worked an average of 36.44.712 hours per week since 19 May 2019.
- [22]The Directive requires the decision maker to set out the findings on material questions of fact and for the decision maker to refer to the evidence or material on which those findings were based. No such evidence or material has been provided.
- [23]The decision was unfair because Ms Preston-Smith is entitled to be converted to permanent employment having regard to principles in s 149A(2)-(3) of the PS Act and unreasonable because the decision-maker was bound to convert the employment having regard to the above considerations and ss 149A and 149B of the PS Act.
Respondent submissions
- [24]Ms Preston-Smith is currently engaged on a full-time fixed term basis to backfill a number of permanent employees who have temporarily reduced their working hours as part of flexible work arrangements.[1] Each of the employees has retained the entitlement to return to working full time, at which point the hours Ms Preston-Smith is backfilling will not longer need to be worked by Ms Preston-Smith. Ms Preston-Smith commenced working in the current position after the decision against which she appeals was made.
- [25]In accordance with Queensland Government Employment Security policy, MSHHS is committed to maximising permanent employment and only utilising fixed term temporary employment where it is not viable or appropriate to appoint permanently.
- [26]At the time of the review and the decision against which Ms Preston-Smith appeals, Ms Preston-Smith was employed as a fixed term temporary employee on an aggregate basis, occupying two positions in two facilities:
- Pharmacist, Pharmacy Department, Logan Hospital, MSH at 42.5 hours per fortnight in position number 70068246 (the non-continuing role); and
- Pharmacist, Pharmacy Department, Beaudesert Hospital, MSH at 33.5 hours per fortnight in position number 72018555 (the continuing role).
- [27]On 2 July 2021, Ms Preston-Smith was issued with an outcome letter advising that, if Ms Preston-Smith agreed, her employment would be converted to permanent employment in the role of Pharmacist, Pharmacy Department, Beaudesert Hospital on a part-time basis of 30.4 hours per fortnight.
- [28]MSHHS submits that the relevant point in time for the purpose of the appeal is when the decision is made by the decision maker about whether the employee is to have their employment converted. For this matter, the decision occurred on 2 July 2021.
Temporary nature of Ms Preston-Smith's engagements
- [29]Section 148 of the PS Act provides a non-exhaustive list of circumstances that indicate an appointment should be on a fixed term temporary basis rather than a permanent basis. This specifically includes where an employee is engaged to fill a vacancy arising because a person is absent for a known period.
- [30]Clause 7.4 of the Directive outlines that unless there are exceptional circumstances, when deciding the hours of work to be offered when converting an employee, the Chief Executive should offer hours as stated above at [9].
- [31]MSHHS submits that in completing the review for Ms Preston-Smith, there were exceptional circumstances which at the time prevented Ms Preston-Smith being offered hours in accordance with cl 7.4(i) or (ii) of the Directive.
- [32]Ms Preston-Smith's engagement in the non-continuing role at the Logan Hospital was covering an employee who was temporarily absent from their substantive position due to a secondment. As the substantive position holder was going to return to their role, there was to be no continuing need for Ms Preston-Smith to undertake that role beyond the cessation date of the fixed term engagement.
- [33]Ms Preston-Smith was employed in the continuing role on a fixed term temporary basis at Beaudesert Hospital covering a position that was permanently vacant pending the outcome of ongoing organisational change. The position had been created in response to the implementation of the integrated electronic Medical Record (ieMR) to replace paper based medical record and is subject to review.
- [34]Although the duties undertaken in the continuing role and the non-continuing role were substantially the same, the roles are in different facilities and were available on a fixed term basis for different reasons.
- [35]The organisational change for the Beaudesert Hospital Pharmacy Department is still in its infancy stages, however there is a recognised ongoing need within the Beaudesert Hospital Pharmacy Department for 30.4 hours per fortnight to be worked, so accordingly Ms Preston-Smith was offered conversion to a 0.4 Full Time Equivalent (FTE) position of HP3 Pharmacist, Beaudesert Hospital.
- [36]MSHHS has met its industrial obligations to consider Ms Preston-Smith as eligible for conversion and to offer conversion to her. The hours of work offered to convert to permanency were closely aligned with the hours worked by Ms Preston-Smith in the continuing role.
- [37]With regard to the submissions at [16], MSHHS submits that at the time of the conversion review, and the time of this appeal, no new permanent HP3 pharmacist positions have been created or recruited to any facility with in the control of MSHHS.
- [38]With regard to expressions of interest for full time and part time fixed term temporary positions being advertised, MSHHS wishes to clarify that several permanent pharmacists from across multiple facilities within the control of MSHHS have been seconded on a fixed term temporary basis to the COVID-19 vaccination program. Accordingly the pharmacy department continue to advertise several fixed term temporary Pharmacists to cover the secondments of these employees. These roles are not intended to be ongoing and as substantive employees return to their roles, there is no continuing need for these employees beyond their fixed term temporary contracts.
Submissions of Ms Preston-Smith
- [39]Ms Preston-Smith has undertaken multiple fixed term contracts in the role of fixed term Pharmacist (HP3). These circumstances are exactly what is contemplated in s 148(3) of the PS Act. Her employment history demonstrates that she has been extended in her various temporary roles on a number of occasions and is currently extended until 23 June 2022.
Continuing need
- [40]There is a continuing need for someone to be employed in Ms Preston-Smith's role or a role which is substantially the same. Ms Preston-Smith has been employed in the role since 2 January 2019. Ms Preston-Smith's contract has been extended four times since then. It is unclear if the are extensions of the same position or are new contracts to backfill for different employees.
- [41]In part, Ms Preston-Smith's submissions in reply repeat and rely on submissions made at Schedule 1 of her appeal notice. I will not repeat those submissions here in any detail.
- [42]With regard to the offer of permanency made to Ms Preston-Smith, it was submitted that:
• The Respondent has acted contrary to the formula for converting an employee set out at cl 7.4 of the Directive;
• the Respondent has provided no evidence of 'exceptional circumstances' requiring Ms Preston-Smith to be offered less than the hours she worked either in the week immediately prior to the decision being made or on average per week over the last two years;
• the evidence of the Respondent is that Ms Preston-Smith has worked an average of 36.44.712 hours per week since 19 May 2019; and
• the Directive does not allow for a closed merit process where there are multiple employees eligible for review.
- [43]Conversion of a fixed term temporary or casual employee to permanent employment is not dependent on the existence of a substantive vacancy.
- [44]The fact that Ms Preston-Smith was advised that should she be converted, further temporary contracts will be provided to ensure she works 76 hours per fortnight, indicates that there is a continuing need for her to employed in a permanent full-time position.
- [45]MSHHS was speculating that the substantive position holder was going to return from secondment and that therefore the Logan Hospital role was not continuing.
- [46]It is well established that the lack of an available permanent vacancy is not a genuine operational requirement which can prevent conversion to permanent employment.
- [47]There are no genuine operational requirements which make it unviable or inappropriate to convert the appellant's employment to permanent employment.
Mandatory content – decision letter
- [48]The decision-maker may not have given accurate reasons for the decision not to convert the Ms Preston-Smith's employment to permanent.
- [49]The decision-maker did not state the total period Ms Preston-Smith has been continuously employed.
- [50]The decision-maker did not state how many times employment as a fixed term temporary employee has been extended.
Logan Hospital Pharmacy
- [51]Under s 149A(2)(a)(i) of the PS Act, the Respondent was required to consider whether there is a continuing need to employ an applicant in the same role, not necessarily the same position. That is, it was required to consider whether there was a continuing need to employ the Ms Preston-Smith as a 42.5 hours per fortnight HP3 Pharmacist at Logan Hospital.
- [52]Given the increasing workloads, requirements of the Respondent and existence of multiple ongoing temporary engagements available in Logan Hospital Pharmacy, there is an ongoing need to employ her in a role that is substantially the same.
- [53]The Respondent has not provided any detail within their submissions around what steps were taken to determine whether there is a need for the applicant to be employed in a role which is substantially the same, and not just limited to the temporary roles she is currently undertaking or which she has previously undertaken.
The decision
- [54]The decision maker did not adequately consider whether there is a continuing need for the appellant to perform a role which is substantially the same. The decision letter fails to provide what was done to identify potential roles, what roles were considered, or any evidence, findings or analysis as to whether there was a continuing need for the appellant to be employed in a role which is substantially the same.
- [55]The decision maker did not provide the material findings of fact and the evidence relied upon in coming to the decision. This is required by cl 8.4 of the Directive and s 27B of the Acts Interpretation Act 1954.
- [56]The Appellant is concerned that the Department has only considered roles which were substantively vacant, rather than the mandatory consideration of whether there was a continuing need for someone to be employed in her role or a role that is substantially the same.
- [57]The decision does not state what the 'genuine operational requirements' it refers to are. Given the public service principles in s 25 of the PS Act and the purpose of the Directive include that 'employment on tenure is the default basis of employment in the public service' and that the appellant has met the eligibility criteria for conversion under the Directive, Ms Preston-Smith submits that it is unfair to decline conversion without articulating the genuine operational requirements which are purported to displace the default position.
- [58]The review should have been 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.
Consideration
- [59]There is no dispute that Ms Preston-Smith is eligible for conversion. In fact, as is clear, Ms Preston-Smith was offered conversion to permanent.
The written notification
- [60]Ms Preston-Smith has identified that the decision letter provided to her may not contain some of the mandatory elements required by the Directive. To that end, I note that cl 8.3 of the Directive sets out the elements to be included in the written notification of a decision to convert.
- [61]I have reviewed the written notification provided to Ms Preston-Smith against the requirements of cl 8.3. The notification includes the hours of work being offered and the location of the employment. The letter does not explain the days and hours of work offered but in circumstances where Ms Preston-Smith was fulfilling that role in a fixed term temporary way at the time of conversion, I imagine the days and hours of the role or the way that the roster worked would have been known to her. The letter also made it clear that the conversion could not occur without Ms Preston-Smith's consent.
- [62]Ms Preston-Smith draws my attention to s 149B(6) of the PS Act which sets out the information to be included in a decision not to convert the person's employment. As the written notification provided to Ms Preston-Smith was an offer to convert her employment, it did not need to need to address the matters set out at s 149B(6)(a)-(d).
Determining the hours to be offered
- [63]In conducting the appeal, I need to determine whether the decision to convert Ms Preston-Smith to 0.4 FTE permanent part-time was fair and reasonable in circumstances where Ms Preston-Smith had consistently worked considerably more hours than this over the two year period she had been employed in a number of fixed term temporary arrangements with MSHHS.
- [64]It is established that the formula to be used in determining what permanent hours are to be offered to an employee are as set out at cl 7.4 of the Directive. This formula is to apply unless there are exceptional circumstances.
- [65]The written notification informed Ms Preston-Smith that she was being offered fewer permanent hours of work than the average hours she had worked over the last two years. The reason given by the decision maker is 'the remaining hours being substantively occupied by seconded staff who are expected to return to the role'.
- [66]The decision letter gives no detail about the nature or length of the secondment the substantive employee was undertaking or what their return date would be. In fact, the letter refers to 'seconded staff' and simply says that they are 'expected to return' to their role. This, along with the material provided to me, makes it clear that Ms Preston-Smith was backfilling more than one person.
- [67]It is clear that in applying the criteria set out at cl 7.4 of the Directive, the decision maker considered Ms Preston-Smith's fixed term temporary arrangement at the time of the review which involved her filling two roles. The first was the Logan Hospital role, which the decision maker determined was 'non-continuing' as, in that role, Ms Preston-Smith was backfilling staff on secondment. The second, considered 'continuing' was not substantively occupied and it was determined that Ms Preston-Smith would be required to continue doing that work.
- [68]On the basis of determining that only the second of the roles was 'continuing', the decision maker offered the average hours per week worked by Ms Preston-Smith in the continuing role. This is the 'exceptional circumstance' relied upon by the decision maker. I note that the letter does not use the word 'exceptional circumstance' nor refer to the clause of the Directive relied upon in making the decision.
- [69]It is not at issue that the role the decision maker deemed 'non-continuing' is substantially the same as the 'continuing role'. However, it is argued by the Respondent that as that role has a substantive position-holder who is on secondment, it falls within the category at s 148(2)(a) of the PS Act where employment on tenure may not be viable or appropriate because it is too fill a temporary vacancy arising because a person is absent for a known purpose.
- [70]While s 148(2) identifies circumstances which make employment on tenure not viable or appropriate, s 148(3) states that employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.
- [71]It appears that Ms Preston-Smith was told that if she accepted the permanent part time role, she would continue to be offered contracts that would have the effect of 'topping up' her hours to full time.
- [72]Ms Preston-Smith's employment history as set out at attachment B of her submissions filed in the Industrial Registry on 8 September 2021, show that in the two years prior to her review, she was undertaking work at the Logan Hospital pharmacy from 19 May 2019 until 7 February 2021 when she commenced working at both the Logan Hospital pharmacy and the Beaudesert pharmacy.
- [73]It is a fact that over the two years she has been a fixed term temporary employee, Ms Preston-Smith has been consistently required to work full-time hours. There is a strong history over that two years of multiple employees undertaking secondments or accessing flexible working arrangements that have led to a need for Ms Preston-Smith to be employed to backfill.
- [74]There is no reason to believe that this situation will not continue into the future. While it is not relevant to the circumstances that existed at the time of the decision, I do observe that Ms Preston-Smith is currently employed until the middle of 2022 on a full-time fixed term arrangement. The relevance of this to my decision is that the current circumstances go to show that advice provided to Ms Preston-Smith that there would be an ongoing need for her to works hours above and beyond the permanent part time hours has indeed come to pass.
- [75]Past circumstances indicate a continuing need for Ms Preston-Smith to be employed at MSHHS in a full-time capacity. It was only in the final four months of the two-year period leading up to the review that Ms Preston-Smith was employed across the two roles discussed in this decision. In my view, the Department should have considered Ms Preston-Smith's full employment history in determining the hours she should have been offered.
- [76]I have had regard to the submissions of MSHHS that the current fixed term temporary opportunities being advertised relate to the backfill of Pharmacists involved in the COVID-19 vaccination program. However, Ms Preston-Smith has been employed to provide backfill for employees on leave or secondment since well before the Queensland Health COVID-19 vaccination program commenced.
- [77]Given the history as outlined above, I am unable to agree that the circumstances in this matter could be described as 'exceptional'. The term 'exceptional circumstances' is not defined in the Directive, but given its ordinary meaning, the circumstances need to be unusual or extraordinary.[2]
- [78]Given her employment history and the continuing need for Ms Preston-Smith to backfill employees on leave or secondment, I do not think it was fair and reasonable for the decision maker to consider the circumstances of this matter extraordinary to the extent that they would displace the intent of the Directive which is to convert an employee to hours representative of those they have been regularly working and to only offer conversion to permanent in the 0.4 FTE position.
- [79]I am setting aside that decision and substituting it with a decision that Ms Preston-Smith be offered conversion to permanent with the hours of work being no less than the greater of:
- (a)the hours worked by Ms Preston-Smith in the role of pharmacist (HP3) in the week immediately before the chief executive's decision of 2 July 2021.
- (b)the average hours per week worked by her in the role of pharmacist (HP3) over the last two years.