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Moodley v State of Queensland (Queensland Health)[2022] QIRC 282

Moodley v State of Queensland (Queensland Health)[2022] QIRC 282

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Moodley v State of Queensland (Queensland Health) [2022] QIRC 282

PARTIES:

Moodley, Parushka

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/245

PROCEEDING:

Public Service Appeal – Conversion of fixed term temporary employment

DELIVERED ON:

27 July 2022

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and substituted with another decision that the Appellant's employment is to be converted to permanent.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – fixed term temporary employment review – where the appellant was reviewed under s 149B of the Public Service Act 2008 – consideration of the scope of a review under s 149B – decision not fair and reasonable

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 27B

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

Public Service Act 2008 (Qld), ss 25, 148, 149, 149A and 149B

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Reasons for decision

Introduction

  1. [1]
    Ms Parushka Moodley ('the Appellant'), is currently employed by the State of Queensland (Queensland Health) ('the Respondent') in a fixed term temporary position of HP3, Radiation Therapist, Radiation Oncology, Princess Alexandra Hospital ('PAH'), Metro South Hospital and Health Service ('MSHHS') on a part-time basis.
  1. [2]
    On 11 January 2022, the Appellant requested for conversion from fixed term temporary to permanent.
  1. [3]
    On 24 January 2022, the Appellant was advised by Ms Renee Staats, Manager, Human Resources, MSHHS, by letter dated 21 January 2022 that her employment would remain as fixed term temporary with the Respondent ('the decision').
  1. [4]
    By appeal notice filed on 10 February 2022, the Appellant appealed against the decision pursuant to ch 7 of the Public Service Act 2008 (Qld) ('the PS Act').

Appeal principles

  1. [5]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [8]
    In the appeal notice, the Appellant outlined the following reasons for appeal, that:
  1. (a)
    the decision to not convert the Appellant's employment to permanent is unfair and unreasonable;
  1. (b)
    there existed a continuing need for the Appellant to continue in employment on a permanent basis at the time of the conversion review;
  1. (c)
    the Respondent had failed to consider relevant industrial obligations, in particular, the Health Practitioner and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019; and
  1. (d)
    there are no genuine operational requirements that would prevent the Appellant from being converted to permanent.
  1. [9]
    The Appellant highlights that since the Appellant's commencement on 13 January 2014 to 4 November 2019, the Appellant was engaged on approximately 10 fixed term contracts with no break in continuity.

Relevant provisions of the PS Act and the Directive

  1. [10]
    Section 149B of the PS Act relevantly provides:

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.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (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
  1. (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)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (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
  1. (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
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (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
  1. (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.

  1. [11]
    Section 149A(2) of the PS Act provides:

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-

  1. (a)
    the department's chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [12]
    Section 149A(3) of the PS Act provides:
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a General employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [13]
    The Directive relevantly provides:
  1. Decision on review of status

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)
  1. (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).

Submissions

  1. [14]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [15]
    The Respondent submits that MSHHS considered each factor under cl 8.1 of the Directive before a decision was made with respect to the Appellant's employment status. The Respondent submits, in summary, that:
  1. (a)
    the Respondent acknowledges that the Appellant has merit;
  1. (b)
    the Appellant has been engaged in a number of fixed term temporary engagements primarily to backfill other permanent employees who are on leave or who have temporarily reduced their hours following return from parental leave;
  1. (c)
    it is not viable for MSHHS to permanently appoint the Appellant to a position that is owned by another employee who is entitled to return to it within a reasonable timeframe. In doing so would place MSHHS in the undesirable position of having an excess of HP3, Radiation Therapists within the Radiation Oncology Unit at PAH;
  1. (d)
    although there is an ongoing need for the duties performed by the Appellant to be performed, there is not an ongoing requirement for the Appellant to perform them, as MSHHS already employs a permanent employee to undertake those duties;
  1. (e)
    consideration was given to whether there was, at the time, a continuing need to place the Appellant in a role and the likelihood of the role to be ongoing. However, there is no continuing need for the Appellant beyond her fixed term temporary contract as the Appellant is currently covering the reduced hours of a permanent employee who has the entitlement and intention to return at the conclusion of the Appellant's engagement;
  1. (f)
    opportunities within other work areas and other facilities of MSHHS in a same or similar role were explored, however, there were no ongoing roles of a permanent nature available that were suitable for the Appellant's level of profession, qualifications and experience;
  1. (g)
    the Appellant has been involved in closed merit recruitment processes undertaken in the unit to fill permanent vacancies when they have arisen, however, has not been successful due to not being the most meritorious applicant;
  1. (h)
    the Appellant was afforded the opportunity to apply for and participate in standard recruitment processes within MSHHS outside of her immediate work unit; and
  1. (i)
    it was open to the Appellant to seek a review of her employment status under ss 149 and 149A of the PS Act at a time when she was aware that permanent roles were available within MSHHS.
  1. [16]
    The Respondent refers to s 148(2) of the PS Act and submits that there is a genuine operational reason not to convert the Appellant's employment to permanent as, at the time of review, the Appellant occupied a position that was temporarily vacant because the permanent incumbent had temporarily reduced their substantive hours and intends to return to their substantive hours.

Appellant's submissions

  1. [17]
    The Appellant submits that the decision was unfair because the Appellant is entitled to be converted to permanent having regard to the relevant principles set out in ss 149A(2) and 149A(3) of the PS Act as the Appellant is eligible for appointment on tenure having regard to the merit principle and there are no genuine operational requirements which make it unviable or inappropriate to convert the Appellant's employment to permanent, in that:
  1. (a)
    the existence of a vacant position is neither a mandatory consideration nor a pre-requisite to conversion;
  1. (b)
    the alleged genuine operational requirements advanced by the Respondent are used to subvert its obligations under s 25(2)(d) of the PS Act;
  1. (c)
    the Respondent has not provided any detail in its submissions around what steps were taken to determine whether there is a need for the Appellant to be employed in a role which is substantially the same;
  1. (d)
    the situation described by the Respondent as justification for temporary employment falls squarely within the 'Example' under s 148(3) of the PS Act; and
  1. (e)
    the Respondent seeks refuge behind a charade in circumstances where front-line public health service delivery necessitates continuity and certainty.
  1. [18]
    The Appellant further submits that there is a continuing need for someone to be employed in the Appellant's role, or a role which is substantially the same based on the following:

i.  the appellant has been employed in the role since January 2014 and has been extended on many occasions;

ii. the Directive does not allow for the respondent to use a closed merit process where there are multiple employees eligible for review;

iii. conversion of a fixed term temporary employee to permanent employment is not dependent on the existence of a substantive vacancy;

iv. the lack of an available permanent vacancy is not a genuine operational reason which can prevent conversion to permanent employment;

v. the respondent's insistence that conversion will result in an "excess of HP3 Radiation Therapists" is counter to the position that the respondent "does not maintain fixed establishment numbers";

vi. there is a continuing need for the work of Radiation Therapists at PAH;

vii. conversion is viable and appropriate due to the existence of multiple ongoing temporary engagement available in PAH and MSHHS;

viii. the respondents position relating to the lack of available substantive or budgeted vacancies is resisted, as neither are required under the Directive; and

ix. contrary to all other indicators, the respondent adopts a façade that the appellant's position remains temporary in nature.

[citations omitted]

  1. [19]
    The Appellant submits that there is an ongoing need to continue the Appellant's employment in a role that is substantially the same given factors such as increased workloads, requirements of the Respondent, backfilling requirements and the existence of multiple ongoing temporary engagements available at PAH and MSHHS.
  1. [20]
    The Appellant submits that the decision was unreasonable because:
  1. (a)
    the PS Act does not require the decision maker to consider if there is a vacant position available to facilitate conversion to permanent;
  1. (b)
    the decision maker omitted to include mandatory content in the decision as required under s 149B(6) of the PS Act; and
  1. (c)
    the standard of reasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power and its real objective.
  1. [21]
    The Appellant submits that the decision maker:
  1. (a)
    erred by failing to consider all relevant factors, including the requirement for agencies to proactively manage their workplace planning to reduce reliance on casual and temporary employees, and the existence of an extensive review designed to facilitate conversion of casual and temporary employees to permanent positions, which is subject to appeal to ensure compliance;
  1. (b)
    did not adequately consider whether there is a continuing need for the Appellant to perform a role which is substantially the same. The decision fails to provide what was done to identify potential roles, what roles were considered or any evidence, findings or analysis as to whether there was a continuing need for the Appellant to be employed in a role which is substantially the same;
  1. (c)
    did not provide the material findings of fact and the evidence relied upon in coming to the decision, as required by cl 8.4 of the Directive and s 27B of the Acts Interpretation Act 1954 (Qld); and
  1. (d)
    did not state in the decision what the 'genuine operational requirements' are.

Respondent's submissions in reply

  1. [22]
    In reply to the Appellant's submissions, the Respondent submits, in summary, that:
  1. (a)
    the Respondent does not use closed merit processes to determine conversion where multiple employees are eligible for conversion. Section 8.4.2 of the Queensland Health Human Resources Policy Recruitment and Selection ('Policy B1') provides that a closed merit process for non-base grade positions will be applied where appropriate, particularly in relation to temporary or casual employees with two years or more of continuous service;
  1. (b)
    if a permanent vacancy arises in the Appellant's current work unit, MSHHS may fill the position pursuant to s 8.4.2 of Policy B1, or by conversion in accordance with the Directive, subject to eligibility;
  1. (c)
    the position occupancy details referred to by the Appellant were relevant at a point in time being 6 October 2021. The Respondent submits that previous position occupancy details are not a relevant consideration in this matter as it is not a reflection of the position occupancy within the unit at the time of the decision.
  1. (d)
    at the time of the decision, a search was undertaken and no similar roles of a permanent or ongoing nature were available within any of the facilities under the control of MSHHS. This was communicated to the Appellant in the decision letter of 21 January 2022; and
  1. (e)
    a further search was undertaken at the time of the Respondent's submissions of 8 March 2022 and the reply submissions, and no similar roles of a permanent or ongoing nature were available.

Consideration

  1. [23]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. The decision was outlined in the following terms:

Decision:

  • You are not being converted to permanent employment and will continue as a fixed term employee at this time. Your next eligibility review date is 13 January 2023.
  • The reason for this decision is that it is not viable or appropriate to convert you having regard to genuine operational requirements which prevents your conversion at this time.

Merit

Thank you for your performance in the role over the period 13 January 2014 to 10 January 2022. You have demonstrated over this time that you satisfy the merit requirements for the role.

Continuing need

The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, you have been engaged as a fixed term temporary employee where a temporary vacancy has been created due to the following genuine operational reasons:

  • Backfill of tenured employee's on parental leave and/or secondment;
  • Backfill of tenured employee's returning to work part-time from a period of parental leave.

You are currently backfilling a temporary vacancy created by the substantive occupant who is currently on parental leave and/or secondment for a known period. At the cessation of this period, the substantive occupant will be returning to their position. This type of coverage is contemplated in the directive as to a reason a persons' employment should remain temporary.

Furthermore, there is no continuing need for you to perform a role that is substantially the same as the duties you were previously undertaking as all alternative roles have been considered.

  1. [24]
    The Appellant submits that the decision does not comply with the requirements of s 149B(6) of the PS Act which requires the decision to include the total period for which the Appellant has been continuously employed. I accept that the total period of the Appellant's employment may be inferred from the following statement in the decision:

Thank you for your performance in the role over the period 13 January 2014 to 10 January 2022.

  1. [25]
    It is clear, however, that the decision does not comply with the other requirements of s 149B(6) in that it does not outline the number of times the Appellant's employment as a fixed term or casual employee has been extended. The Appellant submits that her contract was extended on the following dates in the period since 4 November 2019:
  1. (a)
    4 November 2019 to 5 January 2020;
  1. (b)
    6 January 2020 to 28 June 2020;
  1. (c)
    17 February 2020 to 10 May 2020;
  1. (d)
    11 May 2020 to 28 June 2020;
  1. (e)
    29 June 2020 to 3 January 2021;
  1. (f)
    4 January 2021 to 9 January 2022; and
  1. (g)
    10 January 2022 to 29 January 2023.
  1. [26]
    The Respondent has not disputed the information contained in the above paragraph in their response to the Appellant's submissions, and consequently I accept that the Appellant's employment has been extended seven times from 4 November 2019. I also note that the Appellant has been engaged on temporary contracts with the Respondent since January 2014.
  1. [27]
    I am satisfied that adequate reasons were given for the decision. The decision maker confirms that the Appellant's employment was not converted to permanent on the grounds that the Appellant is currently backfilling for an employee who has the right to return to the position following cessation of the known period of absence.

Merit

  1. [28]
    The decision confirms that the decision maker had regard to the merit principle and determined that the Appellant has demonstrated over time that she satisfied the merit requirements for the role consistent with the requirements of s 149A(2)(a)(ii) of the PS Act.

Is there a continuing need for the Appellant to be employed in the role, or a role which is substantially the same?

  1. [29]
    The decision maker determined that there was not a continuing need for the Appellant to be employed in the role, or a role which is substantially the same. The Respondent submits that it is not viable to permanently appoint the Appellant to a position that is owned by another employee who is entitled to return to it within a reasonable timeframe.
  1. [30]
    The Appellant submits that there is a continuing need for the work of Radiation Therapists in the PAH and that conversion is appropriate due to the multiple ongoing temporary engagements available.
  1. [31]
    It is not disputed that the Appellant's temporary contract has been extended more than seven times. The Respondent indicates that the Appellant 'has been engaged in a number of fixed term temporary engagements primarily to backfill other permanent employees who are on leave or who have temporarily reduced their hours following return from parental leave'.
  1. [32]
    It was open to the decision maker to determine that there is not a continuing need for the Appellant to be employed in her current role beyond the current fixed term appointment on the basis that the employee who is permanently employed in the role is entitled to return to their role. In such circumstances, there is no ongoing need for the duties to be performed by the Appellant as they will be performed by the employee who will have returned to the role.
  1. [33]
    Section 148(2) of the PS Act outlines examples of where tenure may not be viable or appropriate as including backfilling a temporary vacancy because a person is absent for a known period. Section 148(3) of the PS Act, however, provides that employment on tenure may be viable or appropriate if a person is required to be employed for the purposes listed in s 148(2) on a frequent or regular basis. At the very least, the Appellant has been employed to backfill temporary vacancies since 2019. This period potentially extends back to 2014 if the reason for her temporary employment between 2014 to 2019 included backfilling vacancies.
  1. [34]
    It is clear that the Appellant has not been engaged on a temporary basis to backfill a single employee over the period of her temporary engagements. Rather, the Appellant has backfilled a number of different employees on a frequent and regular basis over an extended period of time.
  1. [35]
    In consideration of the lengthy history of temporary engagements, I consider that it is more probable than not that there is a continuing need for the Appellant to be employed in a role substantially the same as her current role. It seems to me that it is unlikely that the leave arrangements that have necessitated backfilling for the last two years, and potentially past seven years, will not continue beyond 2023.
  1. [36]
    When deciding whether to offer permanent employment under s 149B of the PS Act, the decision maker must consider the criteria in s 149A(2). Where the criteria in s 149A(2) is satisfied, the decision maker must decide to offer to convert the person's temporary employment to permanent employment unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.
  1. [37]
    In a somewhat circular argument, the decision in this matter that genuine operational requirements exist is based on the view that there is not a continuing need for the Appellant to be employed in the role or a role substantially the same. In circumstances where a decision maker determines that there is not a continuing need for a temporary employee to be employed, it is not necessary to consider genuine operational requirements. The genuine operational requirements of the agency need only be considered if the decision maker is satisfied that there is a continuing need for the employee to be employed and the merit criterion has been satisfied.
  1. [38]
    On the basis that I have not accepted that there is not a continuing need for the Appellant to be employed in a role substantially the same, I am not persuaded that genuine operational requirements exist that would render such conversion unviable or inappropriate.
  1. [39]
    Section 25(2)(d) of the PS Act provides that public service employment is to be directed towards promoting employment on tenure as the default basis of employment for employees in the public service. The evidence in this matter does not support a finding that the principle that employment on tenure is the default basis of employment should be displaced.
  1. [40]
    In summary, the decision maker's determination that the Appellant should not be permanently employed in the position she is currently backfilling is fair and reasonable on the basis that the permanent employee has a right to return to the position when they return from leave. I also accept that the Respondent reviewed other positions and could not identify an existing vacancy into which the Appellant could be permanently employed. However, neither the PS Act nor the Directive provide that an existing vacancy is required to enable conversion to permanency. In circumstances in which the history of the Appellant's engagement indicates that there is a continuing need for the Appellant to be employed in a role substantially the same, and in the absence of genuine operational requirements preventing conversion, the Appellant's employment should have been converted to permanent.

Conclusion

  1. [41]
    The Appellant satisfied the criteria of the Directive and the PS Act and as there are no genuine operational requirements preventing conversion, the decision not to convert the Appellant's employment was not fair and reasonable.

Order

  1. [42]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and substituted with another decision that the Appellant's employment is to be converted to permanent.

Footnotes

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

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

Close

Editorial Notes

  • Published Case Name:

    Moodley v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Moodley v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 282

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    27 Jul 2022

Appeal Status

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

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