Hansen v State of Queensland (Department of Education)
[2021] QIRC 72
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- Unreported Judgment
- Hansen v State of Queensland (Department of Education)[2021] QIRC 72
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Hansen v State of Queensland (Department of Education)[2021] QIRC 72
Hansen v State of Queensland (Department of Education)[2021] QIRC 72
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hansen v State of Queensland (Department of Education) [2021] QIRC 072 |
PARTIES: | Hansen, Tamara (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2020/429 |
PROCEEDING: | Public Service Appeal – Temporary Employment |
DELIVERED ON: | 1 March 2021 |
HEARING DATE: | 1 March 2021 |
MEMBER: HEARD AT: | Industrial Commissioner Dwyer Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – Public Service Appeal – application for permanent appointment at higher classification – eligibility to apply – consideration for appointment limited to position at time of application – appellant in new position after application – former position ceased to exist – not eligible to apply for permanent appointment to current position – genuine operational requirements prevent permanent appointment to higher classification – decision fair and reasonable |
LEGISLATION: | Directive 13/20 Appointing a public service employee to a higher classification level cls 1.2(b), 4.1, 5.3(b), 5.4, 6.2(a), 11 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) s 149C |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 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 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
APPEARANCES: | Ms T Hansen, the appellant in person. Ms P Silvestri for the respondent. |
Reasons for Decision
The following reasons are taken from the transcript of the decision delivered ex tempore on 1 March 2021. The reasons have been subjected to minor editing.
Background
- [1]Ms Tamara Hansen has been employed with the Department of Education ('the Department') for approximately 32 years. Her substantive position is at an A04 level as an 'experienced senior teacher – general'.
- [2]Since February 2018, Ms Hansen has been acting at a H01 classification level. She had some previous acting positions also at that level although they do not feature centrally in the consideration of this matter. In total, Ms Hansen has acted at that level for approximately six years.
- [3]Until 4 December 2020, the role which Ms Hansen was acting in was with a unit described as 'Early Childhood Education and Care' (ECEC). Since early December 2020 and until 30 June 2021, Ms Hansen has been contracted to work at a H01 classification level with a unit described as 'Education Services'.
- [4]Relevantly, since commencing her current position in December 2020, Ms Hansen has a different line of report in her new role and has moved desks (albeit in the same building). Also, relevantly, the position number associated with the ECEC role is now defunct at the conclusion of that role in early December 2020.
- [5]On 3 November 2020, Ms Hansen applied, pursuant to section 149C of the Public Service Act 2008 (Qld) ('the PS Act') and also pursuant to Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive') for permanent appointment at the H01 classification level.
- [6]On 14 December 2020, Ms Hansen received a decision in respect of her application. The decision by Ms Lisa Newbold, Director, Employment Review Human Resources, dated 14 December 2020, relevantly confirms a number of facts. Firstly, the classification level of the substantive role is A04. The decision also confirms that there are no merit issues and that Ms Hansen had a total continuous period at higher level of two years, nine months and two weeks.
- [7]Notwithstanding that Ms Hansen met many of the key criteria for conversion, the ultimate outcome in respect of the decision was to refuse the application for permanent employment at the higher classification level.
- [8]The reasons for the decision relevantly read as follows:
The temporary nature of your higher classification level role arose from the requirement to perform work for a particular project or purpose that has a known end date.
Your role as H01 Head of Department (curriculum) is known locally as Principal Advisor, South East Region, and it's part of the Early Phase PPO Project. As a condition of the temporary engagement, employees who hold this role in regards to the project are engaged for no more than three years so that they may maintain their teaching currency.
As the temporary nature of your higher classification level role is to assist in the delivery of the Early Phase PPO, and the funding associated with project is allocated annually, the need for your higher classification is not guaranteed past your current engagement, and therefore, a genuine operational requirement exists to refuse your request for appointment to the higher classification level role.
What decisions can the Industrial Commissioner make?
- [9]On 17 December 2020, Ms Hansen filed an appeal in relation to this decision. The jurisdiction of the Queensland Industrial Relations Commission to deal with these appeals is set out in Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). In particular, section 562B(2) of the IR Act provides that I must decide the appeal by reviewing the decision appealed against. Section 562B(3) of the IR Act provides that the purpose of the appeal is to decide whether the decision was fair and reasonable.
- [10]There is wealth of jurisprudence around the term review. The term review is not defined in the IR Act or the PS Act. It takes its meaning, therefore, from the context in which it appears.[1] It is well settled that a review in this context is not a re-hearing of e.g. the application for conversion made by Ms Hansen.[2]
- [11]This appeal hearing is a review of the decision and the process associated with the making of the decision. The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Ms Hansen to the higher classification was fair and reasonable.[3]
- [12]With respect to the orders that I may make in relation to such an appeal, section 562C of the IR Act empowers me to do one of the following:
- confirm the decision;
- set aside the decision and substitute another decision; or
- set aside the decision and send the matter back to the decision-maker for further consideration with any appropriate directions.
Submissions of the parties
- [13]In accordance with directions dated 18 December 2020 the parties in this matter have filed written submissions.[4] The written submissions filed by the parties included a number of attached documents. I also note that the Appeal Notice filed on 17 December 2020 had attached a number of documents and submissions. For the record, I have had regard to all documents filed in this matter, and whilst I may not mention them specifically in the course of these reasons, the parties should be assured that I had regard to all of them.
- [14]In summary, the appellant’s submissions concern inaccuracies that she alleges arise in respect of the information provided to the decision-maker. The Department relies on genuine operational requirements as its justification for the decision.
Submissions of Ms Hansen
- [15]In broad terms, the grounds of appeal identified by Ms Hansen in her material are that there was some error or inaccuracy in the information relied on by the decision maker, in particular, with respect to the source of the funding and the nature of the role that she was performing. Secondly, Ms Hansen disputes the finding that the role she is performing is temporary given that a contract has been awarded to her at or about the time of application for permanent employment, and the contract extended her through until June of 2021. Thirdly, Ms Hansen seeks to contradict what she considered to be an interpretation by the decision-maker than the number of extensions to her contract in some way altered the role she performed.
Submissions of the Department
- [16]The Department’s submissions are two-fold. In summary, the Department rely, firstly, on a submission that Ms Hansen, in fact, was not eligible to apply for permanent appointment. The second ground upon which they rely is that there were genuine operational requirements within the meaning of the PS Act and the Directive to exclude or to preclude the conversion to permanent employment.
- [17]I note in particular that the first of these grounds i.e. the eligibility of Ms Hansen to apply, was not a matter that was raised by the decision-maker. This raises a question for me as to whether those submissions and that ground ought to be entertained in the context of this appeal. I will deal with that first.
Consideration
Eligibility
- [18]Firstly, on the question of the eligibility, the Department asserts that the role performed by Ms Hansen from February 2018 ceased to exist on or about 4 December 2020. The relevance of this proposition, if I accept it, is that section 149C of the PS Act expressly limits the eligibility to apply for permanent employment by using the language 'the position'.
- [19]In this regard, I refer to section 149C(1) and (2) of the PS Act. Further, the Directive, whilst in parts using slightly wider language in places, ultimately sets an eligibility condition of a person being in 'the same role'.[5] Further, the Directive contains multiple references to either 'the role' or 'the same role',[6] or it refers to 'the position',[7] such that I consider that these references limit the consideration with respect to eligibility for application for permanent appointment to a consideration of the role being performed by the applicant.
- [20]The questions for me then are:
- Has Ms Hansen been in the position or the role for one year; and if that is not the case,
- Should I deal with the submissions by the Department on the question of eligibility?
- [21]In answer to the first question, I consider that the role or position filled by Ms Hansen since February 2018 ended on or about 4 December 2020. I consider on the facts that the role that she is currently performing is a different and distinct position in a different unit. While position numbers are not determinative, I consider it relevant that a position number created for the ECEC role ceased when that role ended. Further, I consider that the move to a different unit with a new line of report indicates that the role that she was performing is a different role. In those circumstances, I consider that Ms Hansen would, on her current status, be ineligible to apply to be permanently appointed to the higher classification.
- [22]I note however that the role or position that she was in at the time of her application in November 2020 would not have given rise to issues with eligibility. I will deal with that particular problem later in this decision.
- [23]The second question that I needed to consider was whether I should deal with the submissions of the Department with respect to the question of eligibility in this appeal. It is clear on a review of the material that Ms Newbold did not consider whether the question of the role being performed by Ms Hansen was a barrier in terms of her eligibility to apply. The decision clearly treats both roles performed by Ms Hansen as one and the same, and nothing makes that clearer than Ms Newbold’s reference to the length of continuous service that is set out in the decision as two years, nine months and two weeks. Ms Newbold was clearly mistaken in that regard.
- [24]Section 562B(4) of the IR Act limits what evidence may be considered on certain types of appeals, namely promotions and disciplinary matters. This appeal is neither one of those types of appeals, however, even if it is, section 562B(4)(b) of the IR Act provides a discretion to consider evidence more widely if I consider it appropriate. In these circumstances, I consider it appropriate to consider evidence beyond that available to the decision maker.
- [25]Given the practicalities of this matter and the fact that Ms Hansen has been on notice in the form of the submissions of the respondent about this eligibility issue, I consider it appropriate to have regard to evidence about Ms Hansen’s role changing in December 2020.
- [26]In the circumstances, I consider that Ms Hansen in her current role is not eligible to apply for permanent appointment. However, that wasn’t the role she was performing when she made the application for permanent appointment.
- [27]However, much it might be said that the terms 'role' and 'position' can be distinguished, an application pursuant to s 149C is restricted to a consideration of an appointment at a higher classification level to 'a position'.[8] The appeal ultimately has to be in relation to a decision not to appoint Ms Hansen permanently to the position she was performing at the time she made her application. Problematically for Ms Hansen, that position ended on or about 4 December 2020.
- [28]For reasons of convenience, I will deal with the issue that arises from that in my consideration around the question of genuine operational requirements.
Genuine operational requirements
- [29]The PS Act and the Directive both allow the Department to refuse a request for permanent employment if there are genuine operational requirements precluding appointment.[9] Genuine operational requirements have been dealt with by his Honour Deputy President Merrell in the decision of Morison v State of Queensland (Department of Child Safety, Youth and Women).[10]
- [30]In broad terms, his Honour deals with the notion of genuine operational requirements where he says:[11]
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 includes 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. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
The adjective genuine relevantly means being true – 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 on the particular circumstances of the department at a particular time. In considering the context of section 149C(4A)(a) of the PS Act, a chief executive of a department under the PS Act is responsible for, amongst other things:
- managing the department in a way that promotes the effective, efficient and appropriate management of public, and
- planning human resources including ensuring the employment in the department of persons on a fixed term, temporary or casual basis only if there is a reason for the basis of employment under the PS Act.
The phrase genuine operational requirements of the department in section 149C(4)(a) of the PS Act and clause 6.2 of the Directive constructed in context would at least include 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 in the department for the requisite period of time to the position at the higher classification level.
- [31]At the time of the decision, the genuine occupational requirements pointed to by Ms Newbold in her decision was the uncertainty of employment beyond June 2021. While I accept this might be sufficient considering the matter more broadly, it was an error by Ms Newbold having regard to the fact that the position changed on or about 4 December 2020.
- [32]In my view, on all of the facts, the most compelling evidence of genuine operational requirements was the fact that the position being performed by Ms Hansen at the time of her application ended on or about 4 December 2020. That fact of itself, with respect to the genuine operational requirements implications arising from that, makes the decision fair and reasonable.
- [33]Alternatively, if I am wrong in that regard (or indeed in respect of my findings about the eligibility issue), I consider that the uncertainty around the role currently being performed continuing past 30 June 2021 is, of itself, sufficient to satisfy me that a genuine occupational requirement precluding permanent employment exists.
- [34]For completeness, I note the extensive submissions by Ms Hansen regarding matters around the source of funding and the projects she was or was not a part of. While I accept that she may be correct in her submissions and is correct in identifying errors with respect to information before Ms Newbold, and some of the factual basis upon which Ms Newbold based her decision, I ultimately (with all respect to Ms Hansen) consider that those matters are irrelevant.
- [35]While the decision of Ms Newbold has been attended by error in some places, I ultimately consider it was, in all of the circumstances, fair and reasonable.
Disposition of the matter
- [36]Notwithstanding my conclusion I feel compelled to make an observation with respect to the matter generally: Ms Hansen has some 33 years of service with the Department. For approximately the last six years, she has worked at the classification H01 level. She is clearly competent. She clearly has the skills to work at that level and the trust of the Department to do so.
- [37]In my view, notwithstanding that I cannot make an order to this effect in this appeal, it would seem to me that Ms Hansen is deserving of a permanent appointment at that level. Whilst I cannot predict the circumstances of future applications by Ms Hansen, I would consider that a continued refusal by the Department to permanently appoint her at that level will be a position that will become harder and harder for them to defend.
Order
- [38]In the circumstances I make the following Order:
- The decision appealed against is confirmed.
Footnotes
[1] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[2] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[3] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[4] Appellant on 14 December 2020 and the Department on 22 January 2021.
[5] Directive 13/20 Appointing a public service employee to a higher classification level cl 5.3(b).
[6] Ibid cls 1.2(b), 5.4, 11 (definition of ‘continuous employment').
[7] Ibid cl 4.1.
[8] Public Service Act 2008 (Qld) ss 149C(1)(c), 149C(3),149C(7); Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, 17 [54]-[56].
[9] Public Service Act 2008 (Qld) s 149C(4A)(a); Directive 13/20 Appointing a public service employee to a higher classification level cl 6.2(a).
[10] [2020] QIRC 203.
[11] Ibid 12 [37]-[38], 13 [40].