Jafri v State of Queensland (Queensland Treasury)
[2021] QIRC 39
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- Jafri v State of Queensland (Queensland Treasury)[2021] QIRC 39
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Jafri v State of Queensland (Queensland Treasury)[2021] QIRC 39
Jafri v State of Queensland (Queensland Treasury)[2021] QIRC 39
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Jafri v State of Queensland (Queensland Treasury) [2021] QIRC 039 |
PARTIES: | Jafri, Salman (Appellant) v State of Queensland (Queensland Treasury) (Respondent) |
CASE NO: | PSA/2020/360 |
PROCEEDING: | Public Service Appeal - Higher Duties Conversion Decision |
DELIVERED ON: | 4 February 2021 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: | The decision appealed against is confirmed. |
CATCHWORDS: | INDUSTRIAL LAW – Public Service Appeal – where the appellant requests appointment to higher classification level – where the appellant was not appointed due to genuine operational requirements of the department – whether the decision was fair and reasonable |
LEGISLATION: | Public Service Act 2008 s 27, s 149C Industrial Relations Act 2016 s 562C Directive 13/20 Appointing a public service employee to a higher classification level. |
CASES: | Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220 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 Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199 |
Reasons for Decision
Appeal Details
- [1]Mr Jafri is employed by the State of Queensland (Queensland Treasury). He is substantively engaged as a Senior Test Officer (AO7).
- [2]On 5 November 2020, the Commissioner of State Revenue wrote to Mr Jafri to inform him that a decision had been made not to appoint him to the higher classification at this time and that he would continue to be engaged according to the terms of his existing higher duties arrangement.
- [3]Mr Jafri has been engaged in the higher classification role for a total of two years and one month and his engagement at the higher classification level has been extended seven times.
- [4]The letter provided to Mr Jafri provides:
Reasons for the decision
You are unable to be appointed to the role of Principal Developer RMS (AO8), Enterprise Systems Division due to genuine operational requirements. Specifically, the role is not substantively vacant because the substantive occupant is currently backfilling in another role. In determining your application, consideration has also been given to vacant roles that are the 'same' as the role you are currently performing, however none are currently available.
Relevant sections of the Act and Directive
- [5]In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
- [6]Section 149C of the PS Act relevantly 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 one year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (2)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).
…
(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.
The Directive
- [7]While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
- (a)when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
- (b)when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
- (c)to perform work for a particular project or purpose that has a known end date
- (d)to perform work necessary to meet an unexpected short-term increase in workload.
…
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 documents an 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.
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.
8. Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
…
What decisions can the Commission make?
- [8]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
…
- (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.
Mr Jafri's reasons for appeal
- [9]Mr Jafri submits that the decision maker erred in coming to the decision as they have not given due consideration to the genuine operational requirements of the Department as required by s 149C(4A) of the PS Act.
- [10]Mr Jafri says
- the decision not to appoint him to the higher classification is made solely on the basis that the role he has been continually acting in is substantively owned;
- neither the PS Act nor the Directive include a role being substantively vacant as a pre-requisite for conversion;
- he accepts that the fact that a role is not substantively vacant or that a backfilling arrangement exists may be a consideration as to why appointment should not be made but it is not a threshold question or blanket reason to decline an appointment;
- the decision maker has not given consideration to when the substantive occupant may be returning to the role or how long their current backfilling arrangement is expected to last;
- the decision maker should have contacted the substantive owner of the role to ascertain their intentions;
- the decision letter incorrectly states that Mr Jafri has been engaged in higher duties reliving for a period of two years and one month. This is incorrect, he has actually been acting at the AO8 higher classification for a period of more than three years since 23 October 2017 (in this current role since 1 October 2018); and
- he has demonstrated merit with respect to s 27 of the PS Act.
Genuine operational requirements
- [11]Mr Jafri says that the factors that make up genuine operational requirements within the context of s 149C(4A)(a) should be implied from the subject matter, scope and purpose of the Act, that is the broad context in which the PS Act and the Directive operate in.
- [12]Mr Jafri submits that the requirement to have regard to genuine operational requirements of the Department is to be interpreted in light of the stated purpose of the Directive at cl 1.2(b): "Supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle".
- [13]Mr Jafri also refers to the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020 which states that a chief executive must have regard to the genuine operational requirements of a department when determining if the conversion review is viable or appropriate.
- [14]Mr Jafri submits that the genuine operational requirements of the Department and work unit do support his appointment to the AO8 role.
- [15]Mr Jafri has been performing duties of the role 'Manager – Enterprise Support' for more than three years under various AO8 position titles as reflected in his service history. The AO8 position that is currently being used for this role is the 'Principal Developer – RMS'. The incumbent position holder for this position has performed the role of 'Manager – Enterprise Support' for less than a year as most of the other times they were either acting as a Director of the division or as a Manager – Evolution Project.
- [16]Based on the existing Senior Officer higher duties placements required to deliver key Treasury wide initiatives over the next two years, Mr Jafri understands the substantive position holder is unlikely to return to the position any time soon.
- [17]In contrast to the incumbent who has largely been absent from the AO8 role over the last two years, Mr Jafri has built strong business knowledge and stakeholder relationships within Treasury that are pivotal to performing this role.
Department submissions
Decision making process
- [18]During the review of Mr Jafri's employment, consideration was given to the role of Principal Developer – RMS (AO8) not being substantively vacant because the substantive occupant is backfilling another role within Treasury and at the time of consideration of the application, was due to return to their substantive role on 1 January 2021. This return date has been extended to 1 March 2021 however, Treasury still considers the incumbent's return to the role as feasible in the near future.
- [19]In considering the role, Treasury has relied upon and followed all of the Directives, associated templates, resources and supplementary Public Service Commission advice.
- [20]Consideration was also given to identifying if there were any vacant roles the 'same' as the role to which Mr Jafri is currently performing with Treasury however none are currently available.
- [21]On the basis of those considerations a decision was made to decline the application on genuine operational grounds. The decision was provided to Mr Jafri on 5 November 2020.
- [22]No previous decisions have been made with regard to any previous application for appointment to a higher classification by Mr Jafri with regard to this role.
Response to the Appeal
- [23]Treasury contends that adequate consideration has been given to Mr Jafri's application, and that this is supported by recent similar decisions of the Commission with regard to genuine operational requirements in the application for appointment to higher duties.[1]
- [24]Treasury is of the understanding that the decision was clear and Mr Jafri was made fully aware of the reasons for the decision.
- [25]Treasury refers to the recent decision of Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women),[2] (Morison) and claims it to be pertinent to this case in that Mr Jafri asks the Commission to consider his circumstances more broadly and on the basis of Morison this is not within the scope of a decision maker's ability in this circumstance, like it would be in the case of a request for conversion from temporary to permanent.
- [26]Treasury acknowledges that Mr Jafri has provided several statements in support of his merit for the role and that he was placed on the merit list of an EOI process for the role in mid-2018 and that there have been no adverse performance actions against him.
- [27]Given the current circumstances, the decision maker is still unable to appoint Mr Jafri on the basis of operational requirements. If the circumstances with regard to Mr Jarfri's current acting arrangements were to change, specifically if the role were to become vacant and Mr Jafri is still eligible to make an application under the Directive, Treasury would be willing to consider a further application for permanent appointment at the higher classification level.
Was the decision not to appoint Mr Jafri to the higher duties positions fair and reasonable?
Genuine Operational requirements
- [28]The phrase 'genuine operational requirement' is defined in neither the PS Act nor the Directive, and has been considered in Morrison where Merrell DP relevantly stated:
[37] The phrase 'genuine operational requirements of the department is not defined in the PS act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context including surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.
…
[38] The adjective 'genuine' relevantly means '…being truly, such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time.[3]
- [29]Treasury have provided submissions indicating that "Treasury still considers the incumbent's return to the role as feasible in the near future".
- [30]The employee who substantively holds the role Mr Jafri is currently performing is currently acting in a higher duties role. This is circumstance envisaged by cl 4.2 of the Directive.
- [31]It is not in dispute that the role Mr Jafri is currently engaged in has a substantive 'owner'.
- [32]It is 'the role' Mr Jafri is engaged in which is the subject of this appeal.
- [33]In circumstances where Treasury believe it is feasible that the 'owner' of the role may return in the near future, there is a genuine operational requirement preventing appointment of Mr Jafri to the role.
- [34]When the substantive owner of the role returns, Mr Jafri will no longer have to undertake the duties of the role. The work currently performed by Mr Jafri will be performed by the other employee. While the existence of a substantive vacancy in the role is not a 'threshold' requirement for conversion to occur, it is a consideration.
- [35]If work which was previously being undertaken by the 'acting' employee starts to be done by the 'substantive' employee on their return, it is clear that there is only a need for one person to be employed in the role.
- [36]The Commission has, on several occasions, considered that the return of the substantive incumbent to the position represents a genuine operational requirement supporting the temporary appointment of an employee at a higher classification level.[4]
- [37]There was no requirement for Treasury to look for other roles at the same classification level that Mr Jafri may be able to be appointed to, though I note that this occurred.
- [38]I have some sympathy for Mr Jafri's submission that the person he is currently replacing is acting in a senior role for which there is no conversion to permanent mechanism via Directive. This effectively means that while that employee remains 'acting' in another role, they continue to hold the substantive role and this stymies the conversion process.
- [39]I note Mr Jafri's comments regarding the substantive position holder and that Mr Jafri has the skills to undertake the role. Skills and relationships within the Department are not a matter for me to consider in this appeal. It is not in dispute between the parties that Mr Jafri meets the merit requirement for the role.
- [40]Based on the material before me, it was fair and reasonable for the delegate to decide not to appoint Mr Jafri to the higher classification level.
- [41]Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.
Footnotes
[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.
[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [29]-[32].
[3] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [37]-[38].
[4] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, 19 [69]; Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199, 15 [58], 16 [62]-[65]; Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220.