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  4. Trembath v State of Queensland (Department of Education) - [2022] QIRC 219

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Trembath v State of Queensland (Department of Education)[2022] QIRC 219

Trembath v State of Queensland (Department of Education)[2022] QIRC 219

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Trembath v State of Queensland (Department of Education) [2022] QIRC 219

PARTIES: 

Trembath, Nicole

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/383

PROCEEDING:

Public Service Appeal – Appointment to position at higher classification

DELIVERED ON:

  16 June 2022

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. The appeal is dismissed for want of jurisdiction

CATCHWORDS:

PUBLIC SERVICE – APPEAL – application for permanent employment at higher classification – where there was a deemed decision – where appellant's request rejected – where jurisdictional objection exists – where appellant has not been acting in the role for a continuous period of two years at the time the request was made – appeal dismissed for want of jurisdiction

LEGISLATION:

Directive 13/20 Appointing a public service employee to a higher classification level position

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

Public Service Act 2008 (Qld) s 149C

CASES:

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

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Reasons for Decision

Background

  1. [1]
    Ms Nicole Trembath ('Ms Trembath') is substantively employed by the Department of Education ('the Department') as an Experienced Senior Teacher (General) at Holland Park State School.
  1. [2]
    Ms Trembath has been seconded to perform responsibilities of the higher classification level of Guidance Officer since 5 May 2020. Ms Trembath is contracted to remain in the higher classification position until 9 December 2022.
  1. [3]
    On 18 February 2022, the Department received a request from Ms Trembath to be appointed to the higher classification position on a permanent basis.
  1. [4]
    The Respondent replied to Ms Trembath on the same day advising if a decision was not reached on or before 18 March 2022 the request will be deemed to have been refused.[1] No decision was made within the time frame.
  1. [5]
    Ms Trembath filed an Appeal Notice in the Industrial Registry on 18 March 2022.
  1. [6]
    Employment records provided by the parties confirm that at the time of making her application for permanent appointment, Ms Trembath had been continuously employed at the higher classification from 5 May 2020, that is, a period of 21 months.

Nature of appeal

  1. [7]
    Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[2] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[3]
  1. [8]
    An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,[4] but rather, it is a review of the decision and the decision-making process.[5]

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding Public Service Appeals, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
  1. (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.             
  1. [10]
    Further, the Commission may consider not dealing with certain appeals pursuant to s 562A of the IR Act and may also dismiss appeals where there is a demonstrated lack of jurisdiction for the Commission to deal with them.
  1. [11]
    The jurisdiction of the Commission to hear such appeals is established by inter alia  the provisions of the Public Service Act 2008 (Qld) ('the PS Act').

Relevant legislation and the directive

  1. [12]
    The relevant provisions of the Public Service Act 2008 (Qld) ('PS Act') and the Directive 13/20 Appointing a public service employee to a higher classification level position ('Directive') for consideration in this appeal are set out below.
  1. [13]
    Section 149C of the PS Act relevantly provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee –
  1. (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
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (b)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

…

  1. (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 –
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (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 –

  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  2. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  3. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  4. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.

…

  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section
  1. (8)
    In this section –

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  2. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [14]
    Section 194 of the PS Act provides standing for an appeal:
  1. Decisions against which appeals may be made
  1. (1)
    An appeal may be made against the following decisions—

…

  1. (e)
    a decision
  1. (iii)
    under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least than 2 years.

(Emphasis added)

  1. [15]
    Section 195 of the PS Act sets out the decisions against which appeals can not be made and relevantly states:
  1. Decisions against which appeals can not be made
  1. (2)
    A person can not appeal against any of the following decisions—

…

  1. (j)
    a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years;

(Emphasis added)

  1. [16]
    While the Directive has been considered in its entirety, particular attention is paid to the following provisions:

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.

4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:

  1. (a)
    when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
  1. (b)
    when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
  1. (c)
    to perform work for a particular project or purpose that has a known end date
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload.

…

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.

6.2In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

  1. (a)
    the genuine operational requirements of the department, and
  1. (b)
    the reasons for each decision previously made, or 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.

6.3In 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.

6.4Each 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.

  1. Statement of reasons

7.1A 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:

  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.
  1. Appeals

8.1An 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.

…

11.Continuous period for the purposes of this directive, means 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)

Jurisdictional objection 

  1. [17]
    The Department raises an objection to the appeal on the basis that the Commission does not have jurisdiction to hear the appeal by operation of ss 194(1)(e)(iii) and s 195(1)(j) of the PS Act. The Department submits that Ms Trembath has not been acting in a higher classification level for a continuous period of two years.
  1. [18]
    Ms Trembath was seconded to performing responsibilities of a higher classification (Guidance Officer) from 5 May 2020.[6] The Appointment request was made on 18 February 2022, being a period of one year and nine months after commencing in the higher duties position.
  1. [19]
    Whilst the Department considers Ms Trembath was eligible to make the conversion request pursuant to s 149C of the PS Act, the Department submits that Ms Trembath lacks standing and is prevented from appealing the decision under the PS Act.[7]
  1. [20]
    The Department's submissions do not address the question of whether the decision was fair and reasonable because the jurisdictional bar prevents the appeal from being heard by the Commission.
  1. [21]
    Ms Trembath does not provide submissions addressing the jurisdictional objection, however, makes comment that she was acting in the position of Guidance Officer at one school since 'part of term 1 2020' and was then at another school since 'week 3 2020'.
  1. [22]
    In its reply submissions, the Department submits Ms Trembath has mistakenly made submissions in respect of her time within the pool of relief Guidance Officers, rather than time spent actually performing the role of Guidance Officer.
  1. [23]
    The Department clarifies when not performing the role of Guidance Officer, an employee within the pool of relief Guidance Officers will continue to perform their substantive role. As the substantive role of Ms Trembath was an Experienced Senior Teacher (General) and not a guidance officer, the Department submits that Ms Trembath's time in the relief pool will not count towards the required continuous period of two years' service in the higher position that is required to lodge the appeal.

Genuine operational requirements

  1. [24]
    In the reply submissions filed on 19 May 2022, the Department also briefly addressed the genuine operational requirements that exist to support the decision not to appoint Ms Trembath to the position of Guidance Officer on a permanent basis.
  1. [25]
    The Department submits that their human resources plan provides for an allocation of 141 full-time equivalent Guidance Officer roles for the Metropolitan Region. As at 19 May 2022, the Department submits there are 206 full time equivalent Guidance Officers engaged in various forms of employment within the Metropolitan Region Guidance Officer Pool ('MRGO pool').
  1. [26]
    The Department submits that the MRGO pool exceeds the human resources plan allocation, and to appoint Ms Trembath to the higher position on an ongoing basis would require the Department to approve a labour budget in excess of the allocated funding.
  1. [27]
    The Department subsequently submits that Ms Trembath's prospects of success should she become eligible to bring the appeal, are limited.

Consideration

  1. [28]
    The objective (and undisputed) facts of this appeal plainly demonstrate that the Commission does not have jurisdiction to hear it. While Ms Trembath met the criteria to apply for permanent appointment pursuant to s 149C(1), she did not have (at the time of her application) the requisite service entitling her to appeal the decision.
  1. [29]
    Ms Trembath's submission about her service as a guidance officer during term 1 of 2020 entirely ignores the definition of 'continuous period' as it appears at Clause 11 of the Directive.
  1. [30]
    Given the very obvious merit of the jurisdictional objection, I do not intend to consider whether the decision was otherwise fair and reasonable.
  1. [31]
    In all of the above circumstances I consider that, pursuant to s 195(1)(j) of the PS Act, the decision is not appealable.

Order

  1. [32]
    In the circumstances I make the following order:
  1. The appeal is dismissed for want of jurisdiction.

Footnotes

[1] Attachment to notice of appeal filed on 18 March 2022.

[2] Industrial Relations Act 2016 (Qld) s 562B.

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

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

[5] Ibid.

[6] Service History of Nicole Trembath, attached to the Submissions of the Respondent.

[7] Public Service Act 2008 (Qld) ss 194(1)(e)(iii), 195(j).

Close

Editorial Notes

  • Published Case Name:

    Trembath v State of Queensland (Department of Education)

  • Shortened Case Name:

    Trembath v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 219

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    16 Jun 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 and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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