Nicholls v State of Queensland (Department of Education)
[2021] QIRC 37
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- Nicholls v State of Queensland (Department of Education)[2021] QIRC 37
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Nicholls v State of Queensland (Department of Education)[2021] QIRC 37
Nicholls v State of Queensland (Department of Education)[2021] QIRC 37
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nicholls vState of Queensland (Department of Education) [2021] QIRC 037 |
PARTIES: | Nicholls, Karen (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2020/386 |
PROCEEDING: | Public Service Appeal – Conversion to higher classification level |
DELIVERED ON: | 2 February 2021 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
OUTCOME: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the incumbent of the role was returning – consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’ |
LEGISLATION: | Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), s 149C Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 |
Reasons for Decision
- [1]Ms Karen Nicholls (the Appellant) is permanently employed as a HP3, Speech Language Pathologist, by the State of Queensland (Department of Education) (the Respondent) at 1.0 full time equivalent at Whites Hill State College.
- [2]Since 15 January 2018, the Appellant has been acting in a higher classification role as a HP5, Senior Speech Language Pathologist, Metropolitan Region.
- [3]The Appellant appeals a decision by Ms Lisa Newbold, Director, Employment Review, Human Resources of the Respondent, dated 12 November 2020, to refuse the request made by the Appellant to be permanently appointed to the position at the higher classification level in which she had been acting.
Appeal Principles
- [4]The decision was made pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
- [5]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.
- [6]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.
- [7]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision by Ms Newbold to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances.
Decision to be reviewed
- [8]On 18 October 2020, the Appellant requested that she be permanently appointed to the higher classification level position in accordance with s 149C of the PS Act.
- [9]On 12 November 2020, Ms Newbold informed the Appellant of the decision in response to her request. In doing so, Ms Newbold stated:
Decision Outcome
I have decided to refuse your request to be appointed to a higher classification level under s.149C of the PS Act and the Directive.
In accordance with the PS Act and Directive, while I note that you:
- are acting at a higher classification level role in the Department, in circumstances where you hold an appointment with, or are employed by, the Department; and
- have been acting in the higher classification level for a continuous period of at least one year; and
- are eligible for appointment to the position at the higher classification level role having regard to the merit principle,
genuine operational requirements exist to support the refusal of your request to be appointed to the higher classification level.
…
Reasons for Decision
The temporary nature of your higher classification level role is the result of a temporary vacancy arising from an existing employee being absent from the role for a known period. The existing employee is absent from the role to perform another role, requiring replacement until the date of their expected return.
Section 148 (2)(a) of the PS Act provides that employment of a person on a permanent basis may not be viable or appropriate if the employment is to fill a temporary vacancy arising because a person is absent for a known period of time.
Currently all operating systems including the department’s payroll system, show the expected return date of the incumbent employee as 1 January 2021.
As an existing employee is substantively engaged in the higher classification role, with an expected return date of 1 January 2021, a genuine operational requirement exists to refuse your request for appointment to the higher classification role.
Relevant provisions of the PS Act and the Directive
- [10]Section 149C of the PS Act provides:
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee-
- (a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (3)The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after-
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
- (4)The department’s chief executive must decide the request within the required period.
(4A) In making the decision, the department’s chief executive must have regard to-
- (a)the genuine operational requirements of the department;
and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
- (5)If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-
- (a)reasons for the decision; and
- (b)the total continuous period for which the person has been acting at the higher classification level in the department; and
- (c)how many times the person’s engagement at the higher classification level has been extended; and
- (d)each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
- (6)If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
…
- (8)In this section-
continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).
required period, for making a decision under subsection (4), means-
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply-28 days after the request is made.
- [11]The Directive relevantly provides:
6. Decision making
6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.
6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
- (a)the genuine operational requirements of the department, and
- (b)the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.
6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.
6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.
7. Statement of reasons
7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
- (a)set out the findings on material questions of fact, and
- (b)refer to the evidence or other material on which those findings were based.
7.2 A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3.
Grounds of Appeal
- [12]The Appellant outlined the following grounds of appeal, in summary:
- the decision-maker has based the decision on the substantive employee returning to the role in circumstances where this is unlikely to occur. The Directive makes no reference to the interference of a returning position holder as grounds for rejection of a permanency application. Having been extended seven times throughout the Appellant's time in this specific role, the Respondent should take great care in investigating the circumstances of the substantive position holder and the likelihood of their return to the position. The ‘known period’ stated in the decision-makers reasoning, has changed a significant number of times. The Appellant argues that it is unreasonable to make the decision on these grounds and that it is both viable and appropriate to accept the Appellant's application for a permanent position alongside her colleagues; and
- having acted in the same role as several other employees for a significantly longer period of time, the Appellant was not granted the opportunity to be considered for an equivalent role within the team. Permanency was instead awarded to individuals with significantly less time and experience acting in the senior team. Under the circumstances, the Appellant argues that this is an unreasonable, inequitable and unjustified punishment and discouragement of the Appellant's place within the Respondent.
Submissions
- [13]The Commission issued a Directions Order calling for submissions following receipt of the appeal notice.
Respondent's submissions
- [14]The Respondent filed the following submissions. In summary:
- the Appellant’s continuous period in the higher classification role was two years and ten months, confirming her eligibility to request a review under s 149C of the PS Act;
- the higher duties arrangement has been extended seven times since 15 January 2018;
- the operational reasoning not to appoint the Appellant to the higher classification role was because of a backfilling arrangement where an incumbent employee is due to return to the position on 1 January 2021;
- the incumbent employee has an authorised absence from her substantive role due to performing a temporary higher classification role;
- the Appellant’s higher classification engagement only exists because the incumbent employee is performing a higher classification role, Principal Speech Language Advisor, Autism Hub and Reading Centre;
- at the time of the decision on 12 November 2020, the incumbent employee was due to return to her permanent role of Senior Speech Language Pathologist, Metropolitan Region, on 1 January 2021;
- as at the time of the submissions, the incumbent employee is now due to return on 1 July 2021. The Appellant has subsequently been extended to 1 July 2021, continuing the backfill arrangement;
- the Appellant’s higher classification engagement complies with the principles contained within the Directive, specifically clause 4.2(b):
when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
- the decision-making aligns with the Code of Conduct for the Queensland Public Service, which requires deliberate management of resources in an effective, efficient and economical manner;[5]
- in Holcombe v State of Queensland (Department of Housing and Public Works) (Holcombe),[6] Commissioner McLennan supports:
- (a)a review under s 149C of the PS Act is to be conducted with respect to the position occupied; and
- (b)confirms that only one person may occupy the position number at any one time;
- additionally, Commissioner McLennan in Holcombe considered reasoning that supports a decision to be fair and reasonable because the incumbent of the position is imminently returning and that presented a genuine operational reason not to appoint an employee to the seconded position;
- further, the published decision of Morison v State of Queensland (Department of Child Safety, Youth and Women) (Morison),[7] by Deputy President Merrell, validates the inclusion in decision-making, the consideration for an incumbent’s return to their position to promote the effective, efficient and appropriate management of public resources; and
- the Respondent contends that the decision on 12 November 2020 is fair and reasonable, and it is not viable or appropriate to convert the Appellant to the higher classification role.
Consideration
- [15]To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.
- [16]The decision determined that the Appellant's higher duties engagement was to continue according to the terms of the existing temporary placement.
- [17]The PS Act requires that in making a decision, the decision-maker must have regard to the following under s 149C(4A):
- (a)the genuine operational requirements of the department; and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
Genuine operational requirements of the Department
- [18]I accept the Appellant's submission that neither the PS Act nor the Directive include a requirement that the role be substantively vacant as a prerequisite for appointment to the higher classification level position. However, s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive provides that the decision-maker must have regard to the 'genuine operational requirements of the department'.
- [19]In respect of the Directive, clause 4.2 outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including:
when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles.
- [20]As outlined by Deputy President Merrell in Morison, the phrase '…genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, construed in context, would at least include consideration of the following:
… whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[8]
- [21]In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant should be appointed to the higher classification level position when the incumbent was likely to return to that position. I accept the Respondent's submission that it does not have a genuine operational requirement for the Appellant to continue in this role once the substantive employee returns to work in their substantive position.
- [22]I accept that the Appellant has performed meritoriously in the role for significant amount of time. The Directive, however, does not require the Respondent to overcome the genuine operational requirements in order to facilitate conversion on the basis of merit.
Previous reasons for acting at a higher classification level
- [23]Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level.
- [24]The Respondent was not required to demonstrate compliance with s 149C(4A)(b) as no previous decisions were made under s 149C of the PS Act.
Compliance with requirements of s 149C of the PS Act
- [25]The Respondent is required to comply with s 149C(5) of the PS Act, which provides as follows:
- (5)If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- (a)reasons for the decision; and
- (b)continuous period for which the person has been acting at the higher classification level in the department; and
- (c)how many times the person’s engagement at the higher classification level has been extended; and
- (d)each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
- [26]The Respondent provided a notice including the reasons for the decision, confirmation that the Appellant has acted in a higher classification role for two years and ten months following seven extensions since her commencement on 15 January 2018. As mentioned above, no previous decisions could have been made under this section of the PS Act and as such, s 149C(5)(d) was not included.
- [27]Clause 7 of the Directive requires that the notice provided pursuant to s 149C(5) must be in accordance with s 27B of the Acts Interpretation Act 1954 (Qld). Whilst the findings outlined by the decision-maker may be considered brief, they provide a sufficiently clear explanation as to the reason for the decision.
- [28]I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act.
- [29]The Appellant made submissions with respect to being denied the opportunity to be considered for an equivalent role within the team, with permanency instead awarded to individuals with significantly less time and experience acting in the senior team. The relevant provisions of the PS Act or the Directive do not provide for considerations of comparative merit in determining whether an employee is to be converted to the higher classification role.
- [30]In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the Respondent was fair and reasonable.
Order
- [31]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
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] Code of Conduct for the Queensland Public Service clause 2.1
[6] [2020] QIRC 195.
[7] [2020] QIRC 203.
[8] Ibid [40].