Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
McKenzie v State of Queensland (Queensland Health)  QIRC 065
State of Queensland (Queensland Health)
Public Service Appeal - Conversion of fixed term temporary employment
25 February 2021
On the papers
DATES OF WRITTEN
Respondent's written submissions filed on 14 December 2020 and Appellant's written submissions filed on 11 January 2021
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
INDUSTRIAL LAW – public service appeal – appellant employed as a fixed term temporary employee on a full-time basis – review of appellant's fixed term temporary employment status – decision made to offer to employ appellant as a 0.5 FTE permanent employee – offer accepted by appellant – whether decision to offer to employ appellant as a 0.5 FTE permanent employee was fair and reasonable – consideration of funding arrangements of employer that led to decision to offer to employ appellant as a 0.5 FTE permanent employee – consideration of the particular reasons for the funding of the work performed by the appellant at the time of the review of appellant's fixed term temporary employment status – whether decision maker considered those reasons – whether decision fair and reasonable – decision not fair and reasonable – decision set aside and matter returned to the decision maker with directions
Directive 09/20 Fixed term temporary employment, cl 7 and cl 8
Industrial Relations Act 2016, s 541 and s 562C
Public Service Act 2008, s 149B
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203
Reasons for Decision
- Ms Dayna McKenzie is employed by the State of Queensland in the position of Social Worker, Social Work and Welfare Department, within the Children's Health Queensland Hospital and Health Service. Ms McKenzie is employed through Queensland Health ('the Department') and her position is located at the Queensland Children's Hospital ('the Hospital'). The classification of Ms McKenzie's position is HP3.
- Ms McKenzie was employed as a full-time, fixed term temporary employee. Following a review of Ms McKenzie's temporary employment status, the State of Queensland, through the Department, offered to employ Ms McKenzie as a 0.5 FTE permanent employee from 16 November 2020 ('the decision'). The decision involved the application of s 149B of the Public Service Act 2008 ('the PS Act') and Directive 09/20 Fixed term temporary employment ('the Directive'). Ms McKenzie accepted the offer.
- By appeal notice filed on 20 November 2020, Ms McKenzie, pursuant to ch 7 of the PS Act, appealed against the decision. Ms McKenzie contends that she should have been offered to be employed as a full-time, permanent employee. The Department does not dispute that Ms McKenzie can appeal against the decision to offer to convert her employment status to permanent part-time.
- The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.
- The parties filed submissions in accordance with a Directions Order issued on 23 November 2020. Pursuant to s 541(1) of the Industrial Relations Act 2016 ('the IR Act') the matter was dealt with on the papers.
- Having regard to the material before me and the submissions made by the parties, the decision was not fair and reasonable. My reasons follow.
- On 17 September 2018, Ms McKenzie commenced fixed term temporary employment at the Hospital in the position of Social Worker, Social Work and Welfare Department, working on a full-time basis of 76 hours per fortnight.
- By letter dated 29 October 2020 from Dr Melinda White, Divisional Director, Division of Clinical Support of the Health Service ('the decision maker'), Ms McKenzie was informed that:
- Dr White had completed a review of her (Ms McKenzie's) fixed term temporary employment; and
- the Health Service offered to convert her to permanent employment working 38 hours per fortnight, or 0.5 FTE, with effect from 16 November 2020.
- In her decision, Dr White stated:
I have decided to convert you at 38.0 hours per fortnight. The reason in relation to this is due to the other 38.0 hours per fortnight being funded by RedKite. RedKite is an external, temporary funding source to CHQ. I understand that there will be ongoing opportunity to support temporary coverage in the RedKite funded role while there is need.
- RedKite is an organisation that provides support for children aged 18 years and under who are suffering from cancer. One of the ways it provides that support is by providing funding to employ 1.5 FTE Social Workers, classification HP3, at the Hospital. As I understand the material annexed to the Department's submissions, this funding is provided on a year by year basis.
- In an email from Ms McKenzie to Mr Tim Wood, Director of Social Work of the Health Service, sent on 4 November 2020, Ms McKenzie accepted the offer to convert her to permanent employment working 38 hours per fortnight, or 0.5 FTE, with effect from 16 November 2020.
- However, Ms McKenzie, in the same email, stated that she was seeking clarification of the reasons why she was offered permanent part-time employment. Ms McKenzie stated:
When the temporary staff met with you to discuss the temporary to permanent process and our window of review, it was indicated that Redkite positions would also be included in this process. To demonstrate this inclusion both Redkite position holders at that time [name redacted] and [name redacted] were present at this meeting, including the holder of the 1.0 FTE Redkite position. Furthermore, I was not advised that backfilling 0.5 FTE Redkite position for [name redacted] maternity leave would exclude me from being considered for a full time FTE in my temp‑perm window of review. I do not hold the Redkite position as my substantive position and am only backfilling it for maternity leave, just as any other temporary staff who is backfilling for another staff member who is on agreed leave.
While Redkite fund the position, my understanding is that this position is still under the employment of Queensland Health (QH). I only having (sic) one employee ID number and one pay check.
- In response, Mr Wood, in an email to Ms McKenzie sent on 11 November 2020 stated:
I acknowledge your concerns but need to reiterate that all temporary to permanent reviews are considered on a case by case basis. The decision in this circumstance was carefully considered and assessed against your current position in the department.
I understand your question about historical inclusion of Red Kite roles. Clearly, these positions will remain temporary and cannot be translated into permanent positions at this time. However, I would hope and expect that eligible temporary staff can be included in future reviews for departmental FTE where there is evident need and capacity to support this.
Ms McKenzie's grounds of appeal and submissions
- Ms McKenzie submitted that:
- earlier in 2020, all temporary staff, including herself, met with Mr Wood to discuss the temporary to permanent conversion process and that during that meeting Mr Wood advised that the RedKite positions would also be included in the temporary to permanent process and that to demonstrate that intention the two employees who were funded by RedKite were present at the meeting;
- presently, she (Ms McKenzie) is temporarily backfilling the 0.5 FTE RedKite position while one of the RedKite employees is on maternity leave, and that when she was offered that temporary backfilling position, she was not advised that accepting that position would exclude her from being offered full-time permanent employment following the review of her temporary employment status;
- while she understands that RedKite fund the 0.5 FTE position, her understanding was that the '… position is still under the employment of' the Department; and
- she only has one employee ID number and receives a single pay-cheque.
- Ms McKenzie went on to submit that the way other employees had been treated was not consistent with how the offer of permanent employment was made to her, namely:
- one employee backfilled the same position, that she is presently backfilling, at 1.0 FTE while on secondment from another hospital without a break in her (the employee's) departmental employment;
- another employee also transferred from the Hospital's graduate position to backfill the 1.0 FTE RedKite position and remained '… a CHQ employee';
- in the review of temporary employment process undertaken in 2019, another employee was granted 1.0 FTE despite holding the 0.5 FTE RedKite position and holding another 0.2 FTE position as a departmental temporary position but was still '… granted a 1.0 FTE in her temp-to-perm conversion'; and
- another employee, whose temporary employment status was reviewed at the same time as hers (Ms McKenzie's), was offered 0.6 FTE on the basis that it was consistent with the average hours that that employee had worked over the last two years, yet, her (Ms McKenzie's) average hours over the past two years has been full-time.
- Ms McKenzie then submitted that:
- in 2019, one employee resigned, however, that position was not filled;
- in recent months, certain permanent employees have relinquished some of their hours of work; and
- recently, '… the Department budget' has:
- –employed a new temporary HP3 social worker;
- –offered a graduate social worker position;
- –allowed two social workers to act in positions at a higher classification level of HP4 at 0.5 FTE for each position; and
- –absorbed a HP5 position.
- In conclusion, Ms McKenzie submitted:
Consequently, it appears the budget and HR may have had the ability to approve the filling of a full 1.0 FTE and a 0.6 FTE position.
In summary I have been employed in the same role since commencing employment with QCH as a temporary employee and hold a full-time clinical load in the Oncology team. I have been employed for over two years within the same position and there [sic] meet the requirements of being made permanent at QCH. As such, I am requesting I be considered for a 1.0 FTE position in the temp‑to‑perm review.
The Department's submissions
- The Department relevantly submitted that:
- Ms McKenzie works within two roles, each at 38 hours per fortnight, with one portion of the role externally funded by RedKite;
- RedKite's funding commitment is subject to grant approvals which are reviewed annually, and the contribution is specifically for the purposes of strengthening and enhancing service delivery within the Oncology Social Work Unit, such that the funding is not used to supplement any gaps in service delivery; and
- if RedKite funding was to cease, there would not be a continuing need for the service and subsequently there would not be a continuing need for Ms McKenzie in the position.
- The Department then submitted:
- The Respondent submits that the Applicant was appropriately reviewed under section 7.1 of the Directive and converted in accordance with section 8.2 of the Directive, being that it was identified that there was a continuing need for the applicant at 38 hours per fortnight and therefore the intention of the Directive under section 8.2 was fulfilled as the applicant's employment status has been made permanent. The Respondent further submits that on 4 November 2020, the Applicant accepted the offer to be made permanent at 38 hours per fortnight. …
- The Respondent submits that the 38 hours per fortnight as identified in paragraph 8, was reviewed and applied in accordance with section 7.4 of the Directive as these hours are funded externally by RedKite and considered as per section 7.4 of the Directive was unable to be converted to permanent status due to exceptional circumstance.
- The Respondent submits that if the RedKite funding were to cease there would not be a continuing need or ongoing requirement for the role and subsequently not a continuing need or an ongoing requirement for the Applicant to remain working those hours of work. Further, if the RedKite funding were to cease, CHQ would not source an alternate funding source as this enhanced service provided by RedKite is not a service delivery requirement of the Oncology Social Work Unit. The Respondent held genuine operational reasons for not converting those hours to permanent status and concludes that as per paragraph 14 the decision not to convert the Applicant to 76 hours per fortnight was due to exceptional circumstances in accordance with section 7.4(b) of the Directive.
- Dr White has confirmed that if the RedKite external funding ceases there would not be a service delivery requirement to sustain the enhanced model of care within the Oncology Social Unit.
- The Respondent rejects the Applicant's reference to other CHQ employees and their reviews under the Directive. The Respondent submits that each review is conducted on a case by case basis in accordance with section 7.1 of the Directive and another CHQ employees [sic] review is not a relevant consideration within the decision. CHQ will not provide any commentary regarding another employee's employment status within this submission.
- The Respondent submits that the reasons for the decision are valid, appropriate reasons and in accordance with the provisions of the Directive.
Ms McKenzie's submissions in reply
- Ms McKenzie further submitted that:
- when she commenced work in the Social Work and Welfare Department, she was working 76 hours per fortnight in a role '… wholly funded by the Respondent within the Social Work Department;'
- in June 2020, the Department offered to her to backfill the 0.5 FTE RedKite position to cover a period of maternity leave for the substantive holder of the position;
- she accepted that offer to backfill the 0.5 FTE RedKite position on the basis that taking it would not exclude her from the temporary fixed term to permanent review for the hours worked in her role; and
- while she works within two roles, there is no actual change of duties/work between the two roles, aside from filling some reporting requirements for RedKite.
- Ms McKenzie submitted that a review under cl 7.1 of the Directive should have found a continuing need for her at 76 hours per fortnight and in accordance with cl 8.2 of the Directive, the Department should have converted her employment status to full‑time permanent.
Was the decision fair and reasonable?
- Clause 7 of the Directive relevantly provides:
- Review by agency of the status of a fixed term temporary employee after two years or more of continuous service–section 149B (Appendix C)
- 7.1Section 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.
- 7.2For 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.
- 7.3Under 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.
- 7.4Unless 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.
- The case made for the Department, in respect of its contention that the offer made by Dr White - to permanently employ Ms McKenzie working at 0.5 FTE - was fair and reasonable, is that there were exceptional circumstances, of the kind referred to in cl 7.4 of the Directive, in relation to the funding of Ms McKenzie's role at the time the review of her employment status was undertaken.
- Ms McKenzie, in her submissions, does not dispute the Department's submission that the funding provided by RedKite for her to be able to currently perform 38 hours work per fortnight (or 0.5 FTE) is not to supplement any gaps in the service delivery of the Social Work and Welfare Department, but rather strengthen and enhance service delivery within that unit. As a consequence, while it is no doubt desirable for the Department to have the benefit of that funding for the purposes of strengthening and enhancing its service delivery, it is not funding provided through consolidated revenue for the purpose of service delivery.
- As was confirmed in correspondence from Ms Angela Grant, RedKite's National Manager Service Delivery, to Mr Wood dated 24 November 2020 (which is annexed to the Department's submissions), the funding provided by RedKite for 1.5 FTE social work positions at the Hospital is reviewed by the Board of RedKite on a year by year basis. From this, it is reasonable to infer that the funding provided by RedKite for those positions cannot be guaranteed from one year to the next.
- Because of the way in which 0.5 FTE of the work performed by Ms McKenzie was and is funded, namely by RedKite, it was understandable for Dr White not to offer to employ Ms McKenzie, on a permanent basis, working 1.0 FTE or 76 hours per fortnight when 50% of the funding used to employ Ms McKenzie does not come from consolidated revenue and cannot be guaranteed from year to year.
- In her submissions in reply, Ms McKenzie refers to another employee who had been offered permanent employment based on the average number of hours that that employee had worked over the last two years. Ms McKenzie gives no further information. It may well be that the funding for that employee's temporary employment came entirely from the Department and not from any other external source such that the averaging exercise, referred to in cl 7.4(b) of the Directive, was undertaken on that basis.
- The other employee, to whom Ms McKenzie referred in her submissions in reply, had been offered permanent full‑time employment despite previously performing 38 hours per fortnight as funded by RedKite with another 0.2 FTE funded on a temporary basis by the Department. Without all the facts about that person's employment, it is impossible to form a view as to whether or not there has been unfair or unreasonable treatment accorded to Ms McKenzie, in respect of the offer made to her, by comparison to that other employee's circumstances.
- However, there is another element to Ms McKenzie's appeal, which was not dealt with by the Department in its submissions, which, in my view, points to the decision not being fair and reasonable.
- The Department, in its submissions, had the opportunity to set out the history of Ms McKenzie's employment in the Social Work and Welfare Department. Indeed, attachment one to its submissions sets out the dates of her temporary engagement, in the one position (position number 32023710), since 17 September 2018.
- On this basis, I infer that the Department does not dispute the circumstances set out in Ms McKenzie's submissions that:
- until June 2020, when Ms McKenzie accepted the offer to backfill the 0.5 FTE RedKite position to cover for another employee on maternity leave, she worked, on a temporary basis, 76 hours per fortnight in a role wholly funded by the State; and
- she is only occupying the 0.5 FTE RedKite position on a temporary basis until the incumbent of that position returns from maternity leave.
- In her written submissions in reply, Ms McKenzie submitted:
- The Respondent reports that should the Redkite funding cease, "there would not be a continuing need for the Applicant in this position". The Applicant submits that the Respondent continues to fill a 38.0 hours per fortnight temporary fixed term HP3 position in the Oncology Unit. This position is held by [name deleted], with her contract currently extending to June 2021.
- This indicates that there is a continuing need for the HP3 role and that if the Applicant had not agreed to backfill the Redkite position, she would have continued to work a 76.0 hours per fortnight HP3 position in the Oncology Unit funded by the Respondent.
- That there [sic] is a continuing need for a 76.0 hours per fortnight HP3 position as part of QCH's core service delivery, separate to the Redkite position.
- If Ms McKenzie did not accept the offer to backfill in the RedKite position, then at the time of the review of her fixed term temporary employment status, it may well have been that the offer made to permanently employ her would have been to employ her on a full‑time basis. That is to say, the fact that the offer made by Dr White to permanently employee Ms McKenzie at 0.5 FTE was a particular consequence of Ms McKenzie's earlier acceptance of the offer to backfill in the RedKite position for the other employee who was on maternity leave.
- On the face of the reasons given in the decision, no consideration was given to these particular circumstances of Ms McKenzie. Those circumstances included the reasons why, at the time of Ms McKenzie's review, half of her hours were funded by RedKite when, prior to her accepting the offer to backfill in the RedKite position, she was working, on a fixed term temporary basis, full-time hours funded by the State. Those facts may not render Ms McKenzie's circumstances to be 'exceptional circumstances' within the meaning of cl 7.4 of the Directive, the consequence of which would be that the hours of work that Ms McKenzie should have been offered, when she was offered permanent employment, should have been the greater of the two amounts as determined by cl 7.4 (a) and cl 7.4 (b) of the Directive. Furthermore, it may be that the fact as asserted by Ms McKenzie in her submissions in reply, namely, that there is a continuing need for a 76 hours per fortnight HP3 position as part of the Social Work and Welfare Department's core service delivery, is accurate.
- It is unclear to me, having regard to Dr White's reasons, whether Dr White was aware of that history of Ms McKenzie's employment at the time of the review of her fixed term temporary employment and whether consideration was given to those circumstances. Similarly, it is unclear to me if Dr White knew of the contention, as asserted by Ms McKenzie, that there is a continuing need for a 76 hours per fortnight HP3 position as part of the Social Work and Welfare Department's core service delivery.
- For these reasons, my assessment is that Dr White's decision to offer to permanently employ Ms McKenzie on a part-time basis working 0.5 FTE was not fair and reasonable. In my view, all of the circumstances of Ms McKenzie's work history with the Department should have been considered to determine whether her circumstances were 'exceptional circumstances' within the of cl 7.4 of the Directive. I am unable to conclude if that was the case or whether the decision maker merely made the decision based on the snap shot of Ms McKenzie's employment at the time of her review. Having regard to Mr Wood's email to Ms McKenzie dated 11 November 2020 (referred to in paragraph  of these reasons), I suspect the latter is the case.
- Given that I am unclear as to what information Dr White had at the time she made her decision, the fair course is to set the decision aside, to return the matter to Dr White with a copy of this decision on appeal, and to direct that Dr White reconsider, in respect of her decision to offer to employ Ms McKenzie on a permanent basis, whether that offer should be amended to permanently employ Ms McKenzie on a full-time basis of 76 hours per fortnight in light of the reasons I have given in paragraphs  to  of these reasons for decision.
- In making the order I set out below, I make it clear, to avoid any doubt, that the circumstances of Ms McKenzie's present employment are to continue, namely, that in her position, she is permanently employed by the State of Queensland on 0.5 FTE and is temporarily employed by the State of Queensland, as presently funded by RedKite, on 0.5 FTE.
- The question in this appeal was whether the decision to offer to convert Ms McKenzie from being a full-time, fixed term temporary employee to a 0.5 FTE permanent employee was fair and reasonable.
- For the reasons given, the decision was not fair and reasonable.
- I make the following order:
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
- (a)the decision is set aside;
- (b)the matter is returned to the decision maker with a copy of this decision on appeal; and
- (c)the decision maker is directed to reconsider, in respect of the decision to offer to employ the appellant on a permanent basis, whether that offer should be amended to permanently employ the appellant on a full-time basis of 76 hours per fortnight in light of the reasons given in paragraphs  to  of the reasons for decision on appeal.
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203, -.
- Published Case Name:
McKenzie v State of Queensland (Queensland Health)
- Shortened Case Name:
McKenzie v State of Queensland (Queensland Health)
 QIRC 65
Member Merrell DP
25 Feb 2021