James v State of Queensland (Queensland Health)
[2022] QIRC 209
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- Unreported Judgment
- James v State of Queensland (Queensland Health)[2022] QIRC 209
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James v State of Queensland (Queensland Health)[2022] QIRC 209
James v State of Queensland (Queensland Health)[2022] QIRC 209
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | James v State of Queensland (Queensland Health) [2022] QIRC 209 |
PARTIES: | James, Anthony (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/62 |
PROCEEDING: | Public Service Appeal – Appointment to position at higher classification |
DELIVERED ON: | 13 June 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – application for permanent employment at higher classification – no decision made by department's chief executive within 28 days of the request – chief executive taken to have decided not to offer to convert appellant's employment – appeal against decision – whether appellant satisfied the continuous service requirements – whether 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 – decision was fair and reasonable – decision appealed against confirmed |
LEGISLATION: | Directive 13/20 Appointing a public service employee to a higher classification level position Financial Accountability Act 2009 Hospital and Health Boards Act 2011 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 Davies v State of Queensland (Queensland Health) [2022] QIRC 020 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Huismann v State of Queensland [2021] QIRC 176 Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232. Morrison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Pienaar v State of Queensland (Queensland Health) [2021] QIRC 326 Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434 |
Reasons for Decision
Background
- [1]Mr Anthony James ('Mr James') is employed by the State of Queensland ('Queensland Health'), substantively in a permanent full-time role as an Operational Services Officer (OO2) at the Maryborough Hospital with the Wide Bay Hospital and Health Service ('WBHHS').
- [2]In his Appeal Notice Mr James states that he has been acting in a higher duties role of Wardsperson Fire Safety and Security Officer (OO3) at the Hervey Bay Hospital, with the WBHHS since 1 January 2021.
- [3]On 9 December 2021, Mr James (through his union) requested to be permanently appointed to the full time OO3 level position in accordance with Directive 13/20 Appointing a public service employee to a higher classification level position ('the Directive').
- [4]As of 6 January 2022, Mr James had not received a response from Queensland Health within the prescribed 28-day period under the Public Service Act 2008 (Qld) ('the PS Act'). In accordance with s 149C(6) of the PS Act the decision is taken to be a deemed decision to not permanently employ Mr James in the higher duties role.[1]
- [5]Mr James subsequently filed an appeal notice on 20 January 2022, contending that the Department's 'lack of intelligible justification' as to why it refused Mr James's conversion inherently makes the decision unfair and unreasonable, pursuant to the principles in Gilmour v Waddell & Ors ('Gilmour').[2]
- [6]Mr James now seeks a review of the deemed decision.
Nature of appeal
- [7]
- [8]
- [9]The issue for my determination in the matter before me is whether the decision to refuse to convert Mr James' employment to the higher classification position was fair and reasonable.[7]
What decisions can the Industrial Commissioner make?
- [10]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
- (a)confirm the decision appealed against; or
- (b)…
- (c)for another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Relevant provisions
- [11]Section 149C of the PS Act provides:
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee –
- (a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (3)The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after –
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
…
(4A) In making the decision, the department’s chief executive must have regard to –
- (a)the genuine operational requirements of the department; and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
(Emphasis added)
- [12]The Directive provides:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
…
5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
- (a)have been seconded to or assuming the duties and responsibilities of the higher classification level
- (b)for a continuous period of at least one year
- (c)be eligible for appointment to the higher classification level having regard to the merit principle.
5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:
- (a)one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
- (b)each subsequent year where the employee continues their engagement at the higher classification level in the same role
…
6. Decision making
6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.
6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
- (a)the genuine operational requirements of the department, and
- (b)the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.
6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.
6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.
7. Statement of reasons
7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
- (a)set out the findings on material questions of fact, and
- (b)refer to the evidence or other material on which those findings were based.
8. Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
(Emphasis added)
Submissions of the parties
- [13]The parties filed written submissions in accordance with a Directions Order dated 24 January 2022.
Submissions of the Department
- [14]The Department submits that there is a genuine need for the use of higher duties within the operational services unit at the Hervey Bay Hospital to ensure resourcing, including accommodating leave requests, across a 24/7 roster is possible.
- [15]The Department contends that whilst it has converted numerous employees who have made applications for conversion and have met the criteria under the relevant Directives, on this occasion the deemed decision to deny the application occurred because the role which Mr James is engaged in is one which has been identified as being impacted by organisational change which is currently undergoing consultation with staff and relevant unions.
- [16]The Department notes the substantive position held by Mr James is an Operational Services Officer (OO2), and Mr James is currently engaged in higher duties in one of several additional dual role Wardsperson Fire Safety and Security officer ('FSSO') positions (OO3) which was agreed by WBHHS and the Australian Workers' Union to be put in place until the implementation of a new security model for Hervey Bay Hospital. The Department submits the discussions regarding the new security model for the hospital have been occurring for an extended period.
- [17]The Department provided submissions in relation to the consultation, which is occurring, stating that:
- The consultation document proposes to remove and abolish the outdated and inefficient 'hybrid' roster system encompassing 'dual role' Wardsperson FSSOs who act as both wardspersons (normally OO2) and FSSOs (normally OO3).
- The proposal intends to introduce a new continuous shift roster pattern and abolish the current hybrid 'dual role' positions, replacing them with distinct single role FSSO positions and single role porters.
- The documents still under consultation provides a Full-Time Equivalent (FTE) equivalent of 9.52 FTE FSSO (OO3) and 20.23 FTE porters (OO2). The current 'dual role' budgeted FTE is over-established by 2.68 FTE.
- If the current proposal proceeds, there will be a surplus of permanently appointed employees at the OO3 classification.
- It is expected that surplus officers will either elect to move to a OO2 Porter roster line with salary maintenance or remain surplus employees until they can be matched to an equivalent OO3 classification and be provided meaningful duties until matching occurs in accordance with HR Policy B36.
- [18]The Department submits that due to the current organisational change consultation process, it is unknown if there will be changes to the proposal, and the operational requirements and the effect on the Department remain unknown at this time.
- [19]Subsequently, the Department submits it is a genuine operational requirement of the WBHHS to finalise the consultation process and implement proposed changes prior to determining the capacity to appoint Mr James permanently to the higher classification level.
- [20]The Department agrees Mr James satisfies the merit principle in accordance with clause 5.2(c) of the Directive.
- [21]Clause 4.2 of the Directive and sections 148(1) and (2) of the PS Act set out circumstances supporting temporary engagement of an employee at the higher classification level. This includes where an existing employee takes a period of leave, or to meet an unexpected short-term increase in workload. Mr James' history shows he has been engaged to backfill the leave of existing staff, to meet temporary increases in demand and most recently in an additional temporarily established position until a new model for security at Hervey Bay Hospital is agreed.
- [22]The Department, in raising genuine operational requirements, notes there is no definition in the directive or relevant legislation. The Department relies on the case of Morrison v State of Queensland[8] where Merrell DP held:
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 truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the 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 resources; and
- planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.
…
The phrase '... genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed 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 level in the department for the requisite period of time, to '...the position at the higher classification level.'
- [23]The Department also relies on the reasoning of Scowcroft v State of Queensland (Queensland Health)[9] in which a conversion appeal was dismissed where the circumstances were essentially the same as those of Mr James. In that case, the appellant at the time of the conversion review was also engaged within the porter (OO2) role that has been identified as one that will be impacted by the same organisational change that is currently undergoing consultation with staff and the relevant unions.
- [24]The Department submits that Mr James' engagements align with the current actions being undertaken by the agency to determine the appropriate workforce mix for current and future needs, which reflects the principles at clause 4.1 of the Directive.
- [25]The Department, citing Monavvari v State of Queensland,[10] submits that in reviewing the application of the Directive as a whole, taking into account the considerations in accordance with clause 6.2 of the Directive, the decision was fair and reasonable.
- [26]The Department also submits that the Financial Accountability Act 2009, the Hospital and Health Boards Act 2011 and the PS Act all underpin the requirements of chief executives to manage resources in an efficient, effective and economical manner.
- [27]The Department closes its submissions by contending that they have evidenced genuine operational requirements for not converting Mr James' employment, and the decision should be confirmed by the Commission.
Submissions of Mr James
- [28]Mr James submits that the role he is currently filling is a trial position and he has been engaged in the role since June 2020 (in contrast to the 1 January 2021 date specified in the Appeal Notice). Mr James contends it is a mischaracterisation on the part of the Department to suggest that if Mr James was converted to a higher duties position that there would be two people performing the same role as the position has been implemented for the purpose of managing increased demands.
- [29]Mr James submits that whilst the Department may need to initially engage employees on a temporary or casual basis, the question for consideration is whether it is fair and reasonable for those employees to continue to operate on that basis when they meet the requirements for conversion under the Directive.
- [30]In relation to the Department's submissions regarding the organisational restructure, Mr James submits the proposed restructure is taking a long time to implement, and that the longer the Department is permitted to rely on the restructure, more employees who will be placed in a perpetual state of employment limbo. Mr James submits that in consideration of his previously long-term engagement, it is likely that the Department will need to continue to engage him in the future.[11] Mr James also notes his period of engagement satisfies the requisite time period of two years under the Directive.
- [31]Mr James submits that the Commission has recently taken a firmer position with regards to the Department failing to comply with its obligations to provide persons with decisions as to their conversion applications, and thus contends that the Commission should not allow, support or otherwise endorse the Department's failure to provide an intelligible justification as to its reasoning not to convert.[12]
- [32]Mr James does not dispute that the Scowcroft case is analogous to the matter before the commission, however, refers to the comment of Commissioner McLennan in Huismann:[13]
There comes a point where it is no longer fair and reasonable to rely on an organisational restructure and the associated uncertainties not to convert Ms Huismann to permanent employment. That point has now been reached.[14]
- [33]Mr James submits that the Department's decision not to convert Mr James' employment was unfair and unreasonable and should be set aside.
Consideration
Gilmour submission
- [34]In reliance on the decision of Gilmour[15] the basis of the appeal set out in the Appeal Notice appears to be limited to an assertion that in circumstances where the Department has not made a decision in response to Mr James' application for permanent employment 'the lack of intelligible justification as to why it refused' the request 'inherently' makes the decision unfair and unreasonable.
- [35]The submissions of both parties deviate into arguments around other authorities and do not revisit the assertion based on Gilmour in any detail or at all. For the sake of completeness, I intend to deal with it notwithstanding that the arguments of the parties appear to have evolved into something other than the Gilmour submission.
- [36]It would seem that Mr James asserts that the absence of any reasons equates with an absence of intelligible justification in the sense used in Gilmour. This assertion is misconceived. A 'deemed decision' as contemplated by s 149C(6) of the PS Act and Clause 6.3 of the Directive is a prescribed outcome to a request for permanent appointment in circumstances where no decision is made, that is, the absence of a decision equates to a refusal.
- [37]While a deemed decision arising by virtue of s 149C(6) is a 'decision' for the purpose of establishing jurisdiction to hear this appeal it is not a decision of the type contemplated in Gilmour. The Court in Gilmour implicitly contemplates a process of evaluating a decision in such a way that allows a court of review to reach a conclusion that the decision lacks intelligent justification. The absence of reasons entirely allows no such conclusion.
- [38]Mr James' true complaint is that he received no reasons. He essentially asserts the absence of reasons is unreasonable. In taking this approach Mr James reverses the reasoning of Gilmour in his Appeal Notice in that he invites a conclusion of unreasonableness by sheer absence of reasons. By contrast, Gilmour contemplates consideration of reasons that are so unreasonable that they lack intelligent justification. [16]
- [39]Further, Gilmour contemplates a consideration of reasonableness by reference to the subject matter, scope and purpose of the statute conferring the power.[17] The fact that s 149C(6) of the PS Act plainly contemplates a legitimate scenario where a chief executive will not make a decision can hardly give rise to a conclusion that such inaction is inherently unreasonable. Further again, Clause 7.2 of the Directive expressly excuses the chief executive from any obligation to provide written reasons after a deemed decision has occurred.
- [40]In the circumstances I reject the assertion that a deemed decision is inherently unfair or unreasonable.
Continuous service
- [41]Section 149C(1) of the PS Act and Clauses 5.2 and 5.3 of the Directive each establish continuous service as a prerequisite for conversion. The PS Act contemplates an application for permanent appointment to 'the position' which is a reference to a specific position (identified by a designated position number).[18]
- [42]Clause 5.3(b) of the Directive contemplates an application by an employee after one year of assuming duties at the higher classification, and then on subsequent anniversaries where the employee 'continues their engagement' in 'the same role'.
- [43]The Directive defines 'continuous period' for the purpose of the Directive to mean:
“…a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.”
(Emphasis added)
- [44]The submissions of the Department attached a record of the work history of Mr James from his commencement of higher duties.[19] It would appear that Mr James commenced performing higher duties on 29 June 2020 in a position identified as 'Position ID 3202899' ('the position').
- [45]The record further indicates that Mr James was continuously engaged in the position until 14 June 2021. From that date it appears Mr James has performed work for a period of 2 weeks in a position identified as 'Position ID 30484956' ('the other position').
- [46]The length of continuous service in the position was therefore 50 weeks i.e. less than 1 year. It would appear from this that Mr James' continuous employment in the position was two weeks short of the requisite one year stipulated in both the PS Act and the Directive.
- [47]Following the 2-week interruption to his continuous service in the position, Mr James resumed duties in the position from 28 June 2021. On 9 December 2021, after a total of approximately 6 months continuous service in the position, Mr James applied for permanent appointment at the higher classification.
- [48]Neither party has given consideration or made any submission as to whether Mr James was eligible to apply for conversion. Having regard to the employment records attached to the Department's submissions it would seem that he was not. The language of the PS Act limits the consideration of Mr James' application to a precise position.[20] He must hold that position for 12 months before he can apply to be permanently appointed to it and, in this case, he had not. His 12-month anniversary will be 28 June 2022.
Genuine operational requirements
- [49]If I am wrong in these conclusions, I find in the alternative that there were genuine occupational requirements that prevented the permanent appointment of Mr James. There was undisputed evidence that the Security and Porterage services at the Hervey Bay hospital were under review at the time of Mr James' application for permanent appointment. It is further undisputed that this restructure or review would have an unknown impact on the Department's capacity to engage Mr James permanently.
- [50]While I note that Mr James quite legitimately complains that the review process is taking a long time, and while I fully appreciate that a conversion to permanent employment is long overdue to someone with Mr James' credentials and overall merit, I can equally appreciate how the uncertainty surrounding the potential restructure would make it difficult to settle on a decision about appointing Mr James permanently.
- [51]Having regard to the principles espoused by the Deputy President in Morison I am satisfied there was a genuine operational requirement that precluded permanent appointment of Mr James to the position at the time of his application.
Conclusion
- [52]I am not without sympathy for Mr James. He is clearly a meritorious candidate for such appointment. In any other circumstances I would have expected he would have secured permanent appointment. I note that it has been six months since this appeal was filed and that this decision has been attended by regrettable delay. I would anticipate that any review of the Security and Porterage services at the Hervey Bay hospital was either concluded or close to conclusion by now.
- [53]If my reasoning above is correct, I note that Mr James will be eligible to apply for conversion again after 28 June 2022. I note also that the parties are always at liberty to consider permanent appointment at any time. In the circumstances I would wholly expect that any subsequent application for permanent appointment by Mr James in accordance with s 149C of the PS Act that is made in an otherwise equally meritorious context would meet with a favourable response.
- [54]On this occasion I find that the decision under review was fair and reasonable.
Order
- [55]In the circumstances I make the following order:
- 1.The decision appealed against is confirmed.
Footnotes
[1] Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.3; Public Service Act 2008 (Qld) 149C(6).
[2] [2019] QSC 170.
[3] Industrial Relations Act 2016 (Qld) s 562B.
[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[5] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[6] Ibid.
[7] Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[8] Morrison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.
[9] Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434.
[10] Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232.
[11] Huismann v State of Queensland [2021] QIRC 176.
[12] Pienaar v State of Queensland (Queensland Health) [2021] QIRC 326, [27]; Davies v State of Queensland (Queensland Health) [2022] QIRC 020, [35]-[39].
[13] Huismann v State of Queensland [2021] QIRC 176 [72].
[14] Submissions of Mr James filed 22 March 2022 [11].
[15] [2019] QSC 170.
[16] Ibid at [207].
[17] Ibid at [208].
[18] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 at [49]-[56].
[19] See 'WB-01'.
[20] Public Service Act 2008 (Qld) s 149C(1)(c), see also Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 at [49].