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  4. Da Silva Rocha v State of Queensland (Queensland Health) (No 2) - [2022] QIRC 123

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Da Silva Rocha v State of Queensland (Queensland Health) (No 2)[2022] QIRC 123

Da Silva Rocha v State of Queensland (Queensland Health) (No 2)[2022] QIRC 123

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Da Silva Rocha v State of Queensland (Queensland Health) (No 2) [2022] QIRC 123

PARTIES:

Da Silva Rocha, Juliana

(Appellant)

v

State of Queensland, (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/85

PROCEEDING:

Public Service Appeal – appeal against a conversion decision

DELIVERED ON:

4 April 2022

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the decision that the Appellant be offered conversion to permanent employment with the hours of work being no less than the greater of:

  1. (a)
    the hours worked by the Appellant in the role of Patient Support Assistant in the week immediately before 7 December 2021; or
  1. (b)
    the average hours per week worked by the Appellant in the role of Patient Support Assistant over the period of 7 December 2019 to December 2021.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where appellant was offered conversion from casual to permanent part-time – where appellant had been working on fixed term temporary engagements – where appellant offered fewer hours than the appellant had previously been working on fixed term temporary engagements – where appellant appeals offer of hours – where respondent raises jurisdictional objection on the basis that the appeal has been filed out of time – where respondent's offer did not meet the requirements of the Fixed Term Temporary Employment Directive 09/20 – where appellant was not advised of appeal rights with respect to the offer – where Commission exercises discretion to extend the filing period for the appeal – where respondent claims exceptional circumstances exist to justify offer of fewer hours – where circumstances submitted by the respondent amount to usual and ordinary operational matters rather than matters amounting to exceptional circumstances – where appellant has been denied procedural fairness – where decision not fair and reasonable – decision set aside and substituted with a decision to offer appellant permanent part-time employment with specified hours of work

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 149B and 194

Fixed Term Temporary Employment Directive 09/20, cls 7, 8 and 11

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Da Silva Rocha v State of Queensland (Queensland Health) [2021] QIRC 405

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Preston-Smith v State of Queensland (Queensland Health) [2021] QIRC 350

Reasons for Decision

Introduction

  1. [1]
    Ms Juliana Da Silva Rocha is employed by the State of Queensland (Queensland Health) ('the Department'), at the Sunshine Coast Hospital and Health Service ('SCHHS') in the Operational Support Services ('OSS') Department as a Patient Support Assistant (002).
  1. [2]
    Ms Da Silva Rocha commenced employment with the Department in a casual capacity on 9 September 2019, however soon after, commenced working on fixed term temporary engagements.
  1. [3]
    On or about 31 August 2021, the Department advised Ms Da Silva Rocha that it would conduct a review of her fixed term temporary employment in accordance with the Fixed Term Temporary Employment Directive 09/20 ('Directive 09/20'). On 29 September 2021, a deemed decision was made to not convert Ms Da Silva Rocha's employment from fixed term temporary to permanent.
  1. [4]
    On 20 October 2021, Ms Da Silva Rocha filed an appeal notice in the Industrial Registry in respect of the deemed decision dated 29 September 2021 ('appeal PSA/2021/367'). On or about 2 November 2021, whilst the appeal PSA/2021/367 was on foot, the Department wrote to the Industrial Registry and advised that it had made an offer of permanent part-time employment to Ms Da Silva Rocha and that a meeting between the parties was scheduled to occur on 5 November 2021 to discuss the offer.
  1. [5]
    On 12 November 2021, Ms Da Silva Rocha wrote to the Industrial Registry and advised that both parties agreed with respect to the conversion of her fixed term temporary to permanent part-time employment, however noted that the parties were not in agreement with respect to the number of permanent hours the Department intended to offer to Ms Da Silva Rocha. 
  1. [6]
    Accordingly, on the basis that the subject matter of appeal PSA/2021/367 had been resolved between the parties and that the issue of the number of hours offered to Ms Da Silva Rocha was outside the scope of the appeal PSA/2021/367, the Commission determined that it was not appropriate to determine the deemed decision and declined to hear the appeal pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld).[1] This decision was issued to the parties on 1 December 2021.
  1. [7]
    On 7 December 2021, following receipt of the Commission's decision dated 1 December 2021,[2] the Department emailed Ms Da Silva Rocha and restated an earlier offer of permanent part-time employment at 36 hours per fortnight. Following a further meeting between Ms Da Silva Rocha and the Department on 15 December 2021, the offer of permanent part-time employment at 36 hours per fortnight was placed on further hold until 8 January 2022.
  1. [8]
    On 8 January 2022, Ms Da Silva Rocha advised the Department by email that she was 'happy to become a permanent employee at Qld Health' and requested a copy of the contract for her review prior to signing.
  1. [9]
    On 10 January 2022, the Department, by email correspondence, advised Ms Da Silva Rocha that the Employment Movement Form ('EMF') (the contract) was available to access via MyHR for her approval. Relevantly, the EMF provided that Ms Da Silva Rocha was allocated 36 hours per fortnight.
  1. [10]
    On 20 January 2022, Ms Da Silva Rocha appealed the Department's decision to offer her permanent part-time hours of 36 hours per fortnight pursuant to s 194(1)(e)(ii) of the Public Service Act 2008 (Qld) ('PS Act'). Ms Da Silva Rocha provided the following grounds of appeal:

The human resources department has currently offered me a conversion from temporary to a permanent employee with 36-hour per fortnight. However, this offer does not reflect the average number of hours I have worked over the past few years. Since I started my employment, the average hours worked was 62 hours per fortnight. Therefore, this offer does not follow Public Service Commission Direction 09/20 Section 7.4(a) and (b) and I am appealing this offer.

  1. [11]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [12]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [13]
    I must decide the appeal by reviewing the decision appealed against.  The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
  1. [14]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

Relevant legislation

  1. [15]
    Section 194 of the PS Act sets out the decisions against which appeals may be made and relevantly provides:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (e)
    a decision (each a conversion decision)—
  1. (ii)
    under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B(8A); or

…

  1. [16]
    Section 149B of the PS Act provides for the review of an employee's employment status after two years continuous employment and is in the following terms:

149B Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  2. (2)
    However, this section does not apply to a non-industrial instrument employee.
  3. (3)
    The department’s chief executive must decide whether to—
  1. (a)
    continue the person’s employment according to the terms of the person’s existing employment; or
  2. (b)
    offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department’s chief executive must make the decision within the required period after—
  1. (a)
    end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  2. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision—
  1. (a)
    section 149A(2) and (3) applies to the department’s chief executive; and
  2. (b)
    the department’s chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (6)
    If the department’s chief executive decides not to offer to convert the person’s employment under subsection (3), the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  2. (b)
    the total period for which the person has been continuously employed in the department; and
  3. (c)
    for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee or casual employee has been extended; and
  4. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (7)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person’s employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee’s existing employment.

(7A) For working out how long the person has been continuously employed in the department—

  1. (a)
    all periods of authorised leave are to be included; and
  2. (b)
    the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
  1. (8)
    The commission chief executive must make a directive about making a decision under this section.

(8A)  The directive must provide for—

  1. (a)
    the matters a department’s chief executive must consider in deciding the hours of work to be offered in converting a person’s employment under subsection (3)(b); and
  2. (b)
    the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person’s employment.
  1. [17]
    Directive 09/20 commenced operation on 25 September 2020 and establishes employment on tenure as the default basis of employment in the Queensland public service.
  1. [18]
    Clause 7 of Directive 09/20 provides for the review by agency of the status of a fixed term temporary employee after two or more years of continuous service and relevantly provides as follows:

…

7.4  Unless 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:

  1. (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
  1. (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.
  1. [19]
    Clause 8 of Directive 09/20 provides for the decision on a review of status and is in the following terms:

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

•  whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2  Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements).
  2. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision; and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.6  Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.

8.7  Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.

  1. [20]
    Clause 11 of Directive 09/20 provides for an appeal avenue in respect of an offer for hours of work less than those required to be offered by cl 7.4. Clause 11.3 relevantly states:

11.3 In accordance with section 194(1)(e)(ii), a fixed term temporary employee may appeal an offer made under section 149B(3)(b) for conversion to permanent employment as a general employee on tenure or a public service officer in the circumstances where the hours of work offered are less than the hours required to be offered by clause 7.4.

Consideration

  1. [21]
    Ms Da Silva Rocha appeals the offer of a permanent position of 36 hours per fortnight on the following grounds:
  1. (a)
    the hours of work offered are less than the hours that are required to be offered by cl 7.4 of Directive 09/20;
  1. (b)
    the amount of 36 hours per fortnight is considerably less than the average of 60 hours per fortnight Ms Da Silva Rocha has been working since she commenced her employment; and
  1. (c)
    there is no exceptional reason to justify not offering a permanent contract with the number of hours being determined in accordance with Directive 09/20.
  1. [22]
    The Department resists the appeal on the following grounds, as relevantly summarised:
  1. (a)
    clauses 7.4 (a) and (b) of Directive 09/20 are not applicable in this matter as exceptional circumstances exist;
  1. (b)
    the offer of permanent employment to the Appellant was fair, reasonable, and equitable in the circumstances;
  1. (c)
    there were no additional vacant hours available to offer further increases to the Appellant, or other eligible casual or temporary employees at the time of the decision; and
  1. (d)
    the Commission should consider whether the appeal is in time as the decision was made on 2 November 2021, or in the alternative, 1 December 2021 when the Appellant was notified of the option to lodge a further appeal pertaining to the hours offered, and the Appellant did not appeal the decision until 20 January 2022.
  1. [23]
    On 21 February 2022, the Department wrote to the Industrial Registry and applied for leave to file further written submissions.
  1. [24]
    Directions were issued providing the Department with an opportunity to file further written submissions and Ms Da Silva Rocha was also provided with an opportunity to file any further submissions in response.
  1. [25]
    The Department's further written submissions were filed on 1 March 2022 and, in summary, contended:
  1. (a)
    that the subject of this appeal is whether the elements of cl 7.4 of Directive 09/20 have been met;
  1. (b)
    the consideration of the appeal is limited to the offer made on 2 November 2021 and information beyond that date is not relevant to the appeal;
  1. (c)
    Ms Da Silva Rocha has not accepted the offer made on 5 November 2021 and has confirmed in her submissions that she does not accept the offer;
  1. (d)
    the Department has discharged its obligations under Directive 09/20 by offering permanent employment and as the offer has not been accepted, the review of
    Ms Da Silva Rocha is now closed, and she remains a casual employee of the Department.
  1. [26]
    I find the Department's further written submissions to be contradictory and confused. The Department initially accepts that the subject matter of the appeal is whether cl. 7.4 of Directive 09/20 has been met. It follows that the Department must accept that Ms Da Silva Rocha has an avenue for such an appeal pursuant to cl. 11.3 of Directive 09/20. That is, Ms Da Silva Rocha appeals the terms of the offer insofar as it relates to the number of hours offered.
  1. [27]
    For the Department to submit that the review is 'now closed' with the result that Ms Da Silva Rocha remains a casual employee could be viewed as the Department having little to no proper regard for the fact that Ms Da Silva Rocha has appealed the offer and little to no proper regard for the appeal process or the role of the Queensland Industrial Relations Commission in determining the appeal.
  1. [28]
    Further, the Department’s submissions appear to have had little regard to the history of the matter which included the Department withdrawing the deemed decision and offering Ms Da Silva Rocha conversion to permanent employment whilst her earlier appeal was on foot.
  1. [29]
    It was right and proper for the parties to defer taking any steps with respect to the matter until the Commission released its decision with respect to the earlier appeal on 1 December 2021. Following the release of that decision, the Department reissued the offer to Ms Da Silva Rocha on or about 7 December 2021. After further discussion between the parties, the Department agreed to extend the period for Ms Da Silva Rocha to consider the offer until 8 January 2022. On 8 January 2022 Ms Da Silva Rocha wrote to the Department advising that she accepted the conversion to permanent employment but disputed the number of hours that had been offered. Ms Da Silva Rocha subsequently filed this appeal.
  1. [30]
    Having regard to the history of the matter, including the conduct of the Department, I consider that the Department’s submission that the offer made on 5 November 2021 has lapsed, that the review is closed, and that Ms Da Silva Rocha remains a casual employee could be view as misapprehending the factual matters that have occurred in this matter following 5 November 2021.

Was the appeal filed out of time?

  1. [31]
    The Department submits that the Commission should consider whether the appeal has been commenced within time. Relevantly, the Department's submissions[6] in this regard are as follows:

(d) the Commission [should] consider whether this appeal is within time, considering the decision subject of the appeal was made on 2 November 2021, and the Appellant did not appeal this until 20 January 2022. Should the Commission consider another relevant date, the SCHHS would submit this should be 01 December 2021 when the appellant was notified of the option to lodge a further appeal pertaining to the hours offered.

  1. [32]
    Pursuant to s 564(2) of the IR Act, I have a discretion to allow an appeal to be started within a longer period than the appeal period prescribed in s 564(2) of the IR Act.
  1. [33]
    As part of that process, regard must be had as to when the offer was made.
  1. [34]
    Clause 8.3(a) and (b) of Directive 09/20, provides that if the outcome of a review is a decision to offer to convert a fixed term temporary employee to permanent employment, the written notification must include the terms and conditions of the offer to convert to permanent employment (for example full time or part time, days and hours of work, pay, location of the employment and any other changes to entitlements ) and where the employment is part-time, an explanation of the days and hours of work offered in the decision.
  1. [35]
    As noted above, there has been some ongoing discussions between the parties with respect to the offer of conversion to permanent employment between the Department and Ms Da Silva Rocha. However, it was not immediately apparent from my review of the material filed in support of this appeal by the parties, that the parties had included a written notification of the offer in terms that accorded with cl. 8.3 of Directive 09/20.
  1. [36]
    On 31 March 2022, the Industrial Registry wrote to the parties and, after referring to the requirement for a written notice pursuant to Directive 09/20, advised that the Commission would be assisted by the Respondent providing by email to the Industrial Registry, an electronic copy of the written notification of the offer which was the subject of the appeal.
  1. [37]
    On 31 March 2022, the Industrial Registry received correspondence in response to the request sent on behalf of the Respondent by Ms Diane Jeays, Senior HR Business Partner, Human Resources. That correspondence relevantly stated:

The employee must first approve the Employee Movement Request (EMR) in the myHR system, confirming acceptance of the permeant position and hours offered.

Once the employee has accepted the EMR, the SCHHS can then provide written notification of the outcome of the conversion including confirmation of the details of permanent employment.

In this case, as the employee did not accept the EMR, the SCHS was unable to progress to permanent appointment. hence the employee has remained casual due to their non acceptance of the permanent position and hours offered.

Should you require a copy of the EMR from the myHR system, please advise.

  1. [38]
    The correspondence sent on behalf of the Department misapprehends the requirements of Directive 09/20. The purpose of cl. 8.3 of Directive is to commit to writing the particulars of the offer of employment including the days and hours required and the basis upon which those hours were offered to the employee at the time that the offer is made. Clearly, without such information being provided to the employee, they are not aware of the terms of the offer.
  1. [39]
    Further, factually it does appear that an offer of some sort was provided to
    Ms Da Silva Rocha. This can be inferred from the fact that both parties have proceeded with this appeal on the basis that the Department offered to convert Ms Da Silva Rocha’s employment to permanent and to offer her hours of 36 hours a fortnight.
  1. [40]
    In its written submissions, the Department refers to an 'offer' being made on 2 November 2021. On that day an email was sent to Ms Da Silva Rocha from her supervisor, Mr De Guzman. This email relevantly states as follows:

…

I am happy to advise you that the recommendation to the Delegate for the approval to convert you from casual to permanent part time status has been approved.

This approval has been undertaken in accordance with the Casual and Temporary directives, and has been offered to casual employees who are eligible for conversion, in order of length of service.  The conversions will be offered via an equitable distribution of hours and reflective of the substantive roster line requirements.

I will arrange to meet with you to advise of the details and the process over the coming week.

  1. [41]
    This email is absent information that it required to be included in a written notification of the offer pursuant to cl. 8.3 of Directive 09/20. Relevantly, there is no reference to terms and conditions of the offer to convert, other than a reference to the conversion to permanent part time. Further, there is no reference to the hours offered nor any reference to exceptional circumstances applying to the offer of hours.
  1. [42]
    The further material relied on in support of this appeal includes email correspondence between Ms Da Silva Rocha and her supervisor in November and December 2021 and January 2022, with respect to the offer and the agreement by the Department that Ms Da Silva Rocha could consider her position with respect to the offer until 8 January 2022. Further, there appears to have been a meeting between the parties on or about 5 November 2021, wherein the Department represented by Mr De Guzman and Mr Reynolds had a discussion with Ms Da Silva Rocha about the offer.
  1. [43]
    Ms Da Silva Rocha wrote to the Department on 8 January 2022 stating that she was happy to become a permanent employee, however she indicated that she would like to read the contract before she signs it. Shortly thereafter Ms Da Silva Rocha filed the appeal in this matter.
  1. [44]
    For reasons that I will explore in greater detail further below, I do not consider that the Department provided Ms Da Silva Rocha with a written notification in the terms as required by cl. 8.3 of Directive 09/20. Accordingly, Ms Da Silva Rocha was not properly put on notice with respect to the terms of the offer including the days and hours that were being offered to her and the basis for that offer. Further, Ms Da Silva Rocha was not advised of the reason why she was offered lesser hours than those she had been working and if any exceptional circumstances existed for such an offer. Finally, Ms Da Siva Rocha was not advised of her appeal rights with respect to appealing the offer if she did not agree with it. In such circumstances, it is hardly surprising that Ms Da Silva Rocha did not file an appeal of the offer at an earlier point in time.
  1. [45]
    It is clear from the history of the matter, that Ms Da Silva Rocha has placed the Department on notice from the outset that whilst she was happy to accept conversion to permanent employment, that she disagreed with the offer of 36 hours per fortnight. The Department was aware of Ms Da Silva Rocha’s position and met with her in relation to it. Relevantly, the Department agreed to extend the time for Ms Da Silva Rocha to consider her position until 8 January 2022. In such circumstances, the Department’s submissions that the 'offer' of 2 November 2021 has lapsed due to Ms Da Silva Rocha’s failure to accept it appear, at best, disingenuous.
  1. [46]
    I am satisfied that in the circumstances of this matter including the length of the delay, the explanation for the delay and the fairness between the parties that I exercise my discretion to extend the period for the filing of the appeal.

Whether the decision fair and reasonable

Written notification of the offer in accordance with cl 8.3 of Directive 09/20

  1. [47]
    As referred to above, I am not satisfied that following the review that the Department provided Ms Da Silva Rocha a written notification of the offer that accorded with the requirements of cl. 8.3 of Directive 09/20. Relevantly, the Department failed to advise Ms Da Silva Rocha of the particulars of the terms of the offer or the basis for the offer of 36 hours per fortnight, and what the exceptional circumstances were that supported the offer of 36 hours a fortnight.
  1. [48]
    Relevantly, in the two years prior to the offer being made, Ms Da Silva Rocha had been working significantly greater hours than 36 hours per fortnight. In such circumstances, cl. 7.4 of Directive 09/20 requires the identification of exceptional circumstances if the hours of work offered are less than the hours worked by the employee the week immediately before the offer was made, or alternatively, less than the average hours per week worked by the employee in the role or one that is substantially the same over the last two years. The Department did not nominate in writing at the time it stated the offer to Ms Da Silva Rocha as to what the exceptional circumstances were, if indeed, any existed.
  1. [49]
    Consequently, I consider Ms Da Silva Rocha has been denied procedural fairness by not being properly put on notice of the terms of the offer and whether any exceptional circumstances existed to support the offer of lesser hours. Additionally, I consider it unfair that Ms Da Silva Rocha was not advised of her appeal rights with respect to the offer. For these reasons, I consider the decision to be not fair and reasonable.

Operation of clause 7.4 of Directive 09/20

  1. [50]
    The Department accepts in its submissions[7] before the Commission that Ms Da Silva Rocha, on the formula referred to in cl. 7.4 of Directive 09/20, worked hours greater than those put to her in the offer.
  1. [51]
    Relevantly, the Department calculated Ms Da Silva Rocha’s hours using the formula in cl. 7.4 of Directive 09/20 (but calculated on approximate hours) to be as follows:
  1. (a)
    Clause 7.4(a): 34.5 hours in the week immediately before the decision; or
  1. (b)
    Clause 7.4 (b): 28.59 average hours per week over the last two years (3 November 2019 to 7 November 2021) which works out as an average of 57 hours per fortnight.
  1. [52]
    It follows, that the offer of 36 hours per fortnight by the Department was significantly less than the hours Ms Da Silva Rocha had historically worked. Unless it can be established that exceptional circumstances exist, such an offer does not accord with the purpose of Directive 09/20 which is to ensure that when a fixed term temporary employee is converted to permanent employment, that they continue to be employed to work hours similar to those that they had been working prior to the conversion.
  1. [53]
    As already noted, the Department did not nominate any exceptional circumstances for offering Ms Da Silva Rocha the lesser hours at the time it put the offer to her. In its written submissions[8], the Department summarised the exceptional circumstances that it relied on as follows:
  1. (a)
    Operational roster requirements and available FTE; and
  1. (b)
    Headcount of eligible casual and temporary employees to be considered for conversions simultaneously.
  1. [54]
    Essentially, the Department’s submission, at the time the offer was made to Ms Da Silva Rocha, was that it had determined to convert a further ten eligible casual and temporary employees to fill permanent vacancies. It decided operationally to offer ten eligible casual and temporary employees 36 hours per fortnight to align with the base roster requirements of the Recreational Leave Relief pool. The Department submitted that following the making of these offers the Recreational Leave Relief pool had no permanent vacancies remaining and the establishment in food services was filled, and operational requirements met.
  1. [55]
    The Department does not make any submissions in the explanation provided as to why decisions made in the ordinary course of the Department's requirements to manage its employees and to comply with relevant industrial instruments, including relevant directives amounts to exceptional circumstances in the circumstances of this matter. Whilst the phrase 'exceptional circumstances' is not defined in Directive 09/20, its ordinary meaning requires the circumstances to be unusual or extraordinary.[9]
  1. [56]
    Indeed, the explanation provided by the Department appears to relate to matters that amount to usual and ordinary operational matters rather than those amounting to exceptional circumstances.
  1. [57]
    I am not satisfied that the offer of 36 hours per fortnight made to Ms Da Silva Rocha was made in accordance with cl. 7.4 of Directive 09/20 as the Department has not established that exceptional circumstances existed at the time the offer was made.
  1. [58]
    For these reasons, I consider the offer to be not fair and reasonable.

Conclusion

  1. [59]
    I consider that the offer made was procedurally deficient and did not accord with the requirements of a written notification pursuant to cl. 8.3 of Directive 09/20. Further, I consider that the offer made did not accord with cl. 7.4 of Directive 09/20 and that the Department has not established that exceptional circumstances existed at the time the offer was made.
  1. [60]
    For these reasons, I consider that the decision was not fair and reasonable.
  1. [61]
    I will issue orders setting aside the offer and substituting it with a decision that Ms Da Silva Rocha be offered conversion to permanent employment with the hours of work offered to be calculated in accordance with cl. 7.4 of Directive 09/20.
  1. [62]
    Whilst there is some ambiguity with respect to the date of the offer, mainly arising from the failure of the Department to provide a written notification of the offer, it appears from the material relied on by the parties in this matter that the offer was re-put by the Department on or about 7 December 2021, following the determination of the earlier appeal PSA/2021/367. Accordingly for the purpose of nominating a date for the calculation of the formula in accordance with cl. 7.4 of Directive 09/20, I consider the date of 7 December 2021, which accords with when Ms Da Silva Rocha's supervisor sent her an email restating the offer, to be appropriate.

Orders

  1. [63]
    I make the following orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the decision that the Appellant be offered conversion to permanent employment with the hours of work being no less than the greater of:

  1. (a)
    the hours worked by the Appellant in the role of Patient Support Assistant in the week immediately before 7 December 2021; or
  1. (b)
    the average hours per week worked by the Appellant in the role of Patient Support Assistant over the period of 7 December 2019 to December 2021.

Footnotes

[1] Da Silva Rocha v State of Queensland (Queensland Health) [2021] QIRC 405.

[2]Ibid.

[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[6] Respondent’s written submissions filed on 10 February 2022, [27(d)].

[7] Filed 10 February 2022, at [26].

[8] Filed on 10 February 2022, [26](a) and (b)]

[9] Preston-Smith v State of Queensland (Queensland Health) [2021] QIRC 350, per Pidgeon IC, [77].

Close

Editorial Notes

  • Published Case Name:

    Da Silva Rocha v State of Queensland (Queensland Health) (No 2)

  • Shortened Case Name:

    Da Silva Rocha v State of Queensland (Queensland Health) (No 2)

  • MNC:

    [2022] QIRC 123

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    04 Apr 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Da Silva Rocha v State of Queensland (Queensland Health) [2021] QIRC 405
2 citations
Jump To
Cite 1 - [2021] QIRC 405
Cite 2 - [2021] QIRC 405
Preston-Smith v State of Queensland (Queensland Health) [2021] QIRC 350
2 citations
Jump To
Cite 1 - [2021] QIRC 350
Cite 2 - [2021] QIRC 350

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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