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Whalley v State of Queensland (Department of Education)[2021] QIRC 392

Whalley v State of Queensland (Department of Education)[2021] QIRC 392

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Whalley v State of Queensland (Department of Education) [2021] QIRC 392

PARTIES:

Whalley, Melissa

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2021/322

PROCEEDING:

Public Service Appeal – Appeal against decision not to appoint to a position at a higher classification level

DELIVERED ON:

10 November 2021

HEARING DATE:

10 November 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 6 October 2021 and Respondent's written submissions filed on 3 November 2021

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant requested respondent's chief executive to appoint appellant to the position at a higher classification level in which the appellant had been acting – decision made that appellant not be appointed because the position in which the appellant was acting was to backfill position for another employee on leave – whether that decision was fair and reasonable having regard to the 'genuine operational requirements of the department' within the meaning of s 149C(4A)(a) of the Public Service Act 2008 – the decision was fair and reasonable – decision appealed against confirmed

LEGISLATION:

Directive 13/20 Appointing a public service employee to a higher classification level, cl 4.2

Industrial Relations Act 2016, s 562C

Public Service Act 2008, s 149C

CASES:

Barker v State of Queensland (Department of Housing and Public Works) [2020] QIRC 224

Borean v State of Queensland (Queensland Health) [2021] QIRC 295

Hawkins v State of Queensland (Department of Communities, Housing and Digital Economy) [2020] QIRC 226

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

Schonfelder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 32

APPEARANCES:

Ms M. Whalley, the Appellant in person.

Mr S. Bewley of the Department of Education for the Respondent.

Reasons for Decision (ex tempore)

Introduction

  1. [1]
    Ms Melissa Whalley is currently acting in a position at a higher classification level. The position is that of Head of Department (Junior School) ('the position') at the Northern Beaches State High School ('the school'). The school is located in Townsville. Ms Whalley is employed by the State of Queensland through the Department of Education ('the Department'). Ms Whalley's substantive position is that of Teacher at the school. Ms Whalley has been acting in the position since 24 January 2019 and her current period of acting in the position is to end on 10 December 2021.
  1. [2]
    On 19 July 2021, the Department received Ms Whalley's request, made pursuant to s 149C(3) of the Public Service Act 2008 ('the PS Act'), to be appointed to the position ('Ms Whalley's request'). There is no dispute that Ms Whalley was eligible to make the request at that time. No decision was made within 28 days after the date the Department received Ms Whalley's request such that, pursuant to s 149C(6) of the PS Act, the chief executive of the Department was deemed to have refused the request ('the decision').
  1. [3]
    By appeal notice filed on 6 September 2021, Ms Whalley appeals against the decision.
  1. [4]
    There is no dispute that Ms Whalley is entitled to appeal against the decision and there is no dispute that Ms Whalley's appeal is competent.
  1. [5]
    The question for my determination is whether the decision was fair and reasonable.[1]

Ms Whalley's grounds of appeal and submissions

  1. [6]
    In her appeal notice, the only ground given by Ms Whalley for the relief that she seeks, - namely, that she be permanently appointed to the position - is that she was appointed to the position at the beginning of 2019 after completing a full merit process involving an application that met selection criteria and two interviews with an interview panel.
  1. [7]
    In her written submissions filed on 6 October 2021, Ms Whalley expands on that ground by submitting that:
  • she was appointed to the position on a merit basis;
  • the process included the position being advertised State-wide, requiring a written application addressing all selection criteria (which Ms Whalley annexes to her written submissions) and a full interview process which she completed prior to her being temporarily appointed to the position in 2019; and
  • at the end of 2019, her temporary appointment was extended to the end of 2020 and, at the end of 2020, she completed the full merit process for the second time and was successfully appointed (temporarily) to the position for 2021.
  1. [8]
    Ms Whalley also annexes to her submissions the roles and responsibilities of the position.
  1. [9]
    In oral submissions made today, Ms Whalley responded to the written submissions made by the Department filed on 3 November 2021. In this regard, Ms Whalley submitted:
  • the permanent occupant of the position has been absent from the position for many years, commencing from 2018;
  • she understands another employee has been permanently appointed to another position after backfilling the position for another employee and that there should be consistency by the Department in making such decisions;
  • after having read the submissions filed by the Department in the appeal, she now understands that the permanent occupant of the position, in which she has been acting, intends to return to the position in 2023; and
  • she wished to press her appeal.

The Department's submissions

  1. [10]
    In summary, the Department submitted that:
  • the reason Ms Whalley is currently performing duties in the position is to backfill for employee 5171399, the person permanently appointed to the position, who is on a period of leave;
  • clause 4.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive') provides that a circumstance in which an employee takes a period of leave '… and needs to be replaced until the date of their expected return' is one '… that would support the temporary engagement of an employee at a higher classification level';
  • it is entirely fair and reasonable to consider that factor in arriving at a conclusion as to whether or not to permanently appoint an employee at a higher classification position;[2]
  • Ms Whalley has been assuming the duties and responsibilities of the position for a continuous period since 24 January 2019, being some two years and nine months, such that her case is not analogous to cases decided by the Commission where employees have been acting in a position for a long period of time where there was no known end date for the other employee's absence;[3] and
  • the Department has confirmed the intention of employee 5171399 to remain on their preapproved leave for 2022 and to return to the school on a full-time basis in 2023.
  1. [11]
    The Department further submits:
  • Ms Whalley is currently performing duties in the position until 10 December 2021;
  • even if Ms Whalley is extended again in the position, that does not negate the fact that when employee 5171399 returns, there will be no need for Ms Whalley to continue performing duties in the position;
  • as Industrial Commissioner Pidgeon noted in Barker v State of Queensland (Department of Housing and Public Works)[4] and in Hawkins v State of Queensland (Department of Communities, Housing and Digital Economy),[5] 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;
  • as Industrial Commissioner McLennan opined in Holcombe v State of Queensland (Department of Housing and Public Works):[6]

first, a review under s 149C of the PS Act must be conducted against a precise position;

    secondly, the language of s 149C is narrow in that it does not empower the Department's chief executive to review the employee against positions which are substantially the same or to appoint them to another comparable position; and

      thirdly, the power is expressly confined to the position occupied by the employee at that time and there is no contemplation that the meaning of 'position' in s 149C would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State; and

        • section 149C(4A)(a) of the PS Act provides that the Department's chief executive, in making a decision about a relevant request for an employee to be appointed to the position at the higher classification level, must have regard to the '… genuine operational requirements of the department'.
        1. [12]
          The Department ultimately contends that it does not need both Ms Whalley and employee 5171399 in the position of Head of Department (Junior School) at the school on a permanent basis and, thus, there was a genuine operational requirement to refuse Ms Whalley's request.
        1. [13]
          For the above reasons, the Department submits that the decision was fair and reasonable.
        1. [14]
          Mr Bewley, who appeared for the Department, clarified that employee 5171399 commenced leave in January 2018 on parental leave on half pay, temporarily returned to the school in 2020 to an alternative role and since has remained on special leave without pay.

        The decision was fair and reasonable

        1. [15]
          In respect of a request made by an eligible employee, to the employee's chief executive, to be appointed to the position at the higher classification level in which they have been acting, s 149C(4A) of the PS Act relevantly provides:

        (4A)  In making the decision, the department’s chief executive must have regard to-

        1. (a)
          the genuine operational requirements of the department; and
        1. (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.
        1. [16]
          The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act, construed in context, at least includes 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.'[7]
        1. [17]
          In my view, at the present time, the Department's submissions have merit.
        1. [18]
          Despite the fact that Ms Whalley has been acting in the position for a period of two years and nine months - and may well continue to act in the position for all of 2022 (due to the preapproved special leave without pay of employee 5171399) - if it is the case that employee 5171399 will definitely return from leave at the beginning of 2023 to the position on a fulltime basis, then the genuine operational requirements of the Department would be against having both employee 5171399 and Ms Whalley permanently appointed to the same position.
        1. [19]
          However, that may not be the position into the future after 2022.
        1. [20]
          There is no doubt that Ms Whalley is eminently qualified to perform the duties and responsibilities of the position. All things being equal, having regard to the facts that Ms Whalley has, on two occasions, been temporarily appointed to the position on an open merit basis, it seems reasonable to assume that she will continue to act in the position in 2022 due to the further absence of employee 5171399 on special leave without pay. If that is the case, then pursuant to s 149C(3)(b) of the PS Act, Ms Whalley will be able to make further requests to the Department's chief executive to be appointed to the position.
        1. [21]
          It may be, at the time of those requests, the Department cannot confirm that employee 5171399 will return to the position or that, on the facts at those times, it does not have confidence that employee 5171399 will return to the position. As such, at those times, having considered the period of time in which (it is assumed) Ms Whalley will have acted in the position since 24 January 2019, it may be the case that it would not be fair and reasonable not to appoint Ms Whalley to the position.
        1. [22]
          Notwithstanding what I have said above, at the present time, on the facts as presented to me, I cannot form the view that the decision taken to have been made by the chief executive not to appoint Ms Whalley to the position was not fair and reasonable.
        1. [23]
          In my view, for the reasons I have given, the deemed decision not to appoint Ms Whalley to the position was fair and reasonable.

        Conclusion

        1. [24]
          The question in this appeal was whether the deemed decision, that Ms Whalley not be appointed to the position in which she had been acting since 24 January 2019, was fair and reasonable.
        1. [25]
          For the reasons given, that decision was fair and reasonable.

        Order

        1. [26]
          I make the following order:

        Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

        Footnotes

        [1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3] – [7].

        [2] Citing Borean v State of Queensland (Queensland Health) [2021] QIRC 295, [54] (Industrial Commissioner McLennan).

        [3] Citing Schonfelder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 32, [28]‑[29] (Industrial Commissioner Hartigan).

        [4] [2020] QIRC 224.

        [5] [2020] QIRC 226.

        [6] [2020] QIRC 195.

        [7] Morison (n 1) [40].

        Close

        Editorial Notes

        • Published Case Name:

          Whalley v State of Queensland (Department of Education)

        • Shortened Case Name:

          Whalley v State of Queensland (Department of Education)

        • MNC:

          [2021] QIRC 392

        • Court:

          QIRC

        • Judge(s):

          Member Merrell DP

        • Date:

          10 Nov 2021

        Appeal Status

        Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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