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  4. Somerville v State of Queensland (Queensland Health) - [2022] QIRC 431

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Somerville v State of Queensland (Queensland Health)[2022] QIRC 431

Somerville v State of Queensland (Queensland Health)[2022] QIRC 431

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Somerville v State of Queensland (Queensland Health) [2022] QIRC 431

PARTIES:

Somerville, Debra

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/571

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

9 November 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

  1. (a)
    The appeal is allowed;
  1. (b)
    The decision is set aside;
  1. (c)
    The matter be returned to a new decision maker with a copy of this decision on appeal; and
  1. (d)
    The decision maker is directed to conduct a fresh review in accordance with the terms of the Public Service Act 2008 (Qld) and the Appointing a public service employee to a higher classification level directive (Directive 13/20) by no later than 25 November 2022.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant has been acting in a position in a higher classification level – consideration of "genuine operational requirements" – decision appealed against set aside and matter returned to decision maker with a copy of decision on appeal and directions to conduct a fresh internal review

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B

Appointing a public service employee to a higher classification level directive cl 4.2, cl 6, cl 7, cl 11

Public Service Act 2008 (Qld), s 149C, s 197, s 295

Public Service and Other Legislation Amendment Act 2020 (Qld)

CASES:

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

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

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Introduction

  1. [1]
    Ms Debra Somerville appeals a decision of the State of Queensland (Queensland Health) ("the Department") not to permanently appoint her to a position in which she has been acting at a higher classification level.
  1. [2]
    Ms Somerville is permanently employed in the position of A02 Administration Officer, Referral Centre, Toowoomba Hospital. Ms Somerville has been permanently employed by the Department since 30 November 2015.
  1. [3]
    From 23 January 2020 to 10 April 2022, Ms Somerville had been performing higher classification duties as an A03 Clinical Administrator Reliever. Ms Somerville's higher classifications duties contract has been extended on eighteen (18) occasions.
  1. [4]
    On 19 January 2022, Ms Somerville requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ("the PS Act"), to be appointed to the higher classification A03 position of Administration Officer Oncology. 
  1. [5]
    By letter dated 21 March 2022, the Department advised that Ms Somerville's request had been denied.
  1. [6]
    On 22 March 2022, Ms Somerville requested a fresh review of the decision as she had identified that her original application was incorrect, and that a review should have been conducted against the A03 position of Clinical Administration Reliever.
  1. [7]
    By letter dated 20 April 2022, the Department issued a decision refusing Ms Somerville's request to be permanently appointed to the position ("the decision"). That is the decision which is the subject of the appeal.
  1. [8]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), which provides than 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. [9]
    Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] 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. [10]
    As an IRC Member, 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.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [11]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

The decision

  1. [12]
    On 20 April 2022, the Department issued the decision and provided reasons in the following relevant terms:

…

  • The position of Clinical Administration Reliever (A03), Clinical Administration Team 1, Toowoomba, is not substantively vacant.
  • Your line manager advised that you have current unresolved behavioural issues relating to unauthorised absences and your inappropriate communication style not in keeping with DDH values, which have been discussed with you on four occasions between 18 January 2021 and 7 March 2022.

…

I have determined that you are not eligible for appointment because:

  • You do not satisfy the merit principle as there are ongoing performance concerns that have been put to you and remain unresolved, as outlined above.
  • There are genuine operational reasons to not permanently appoint you to the higher classification position, in that this position (Clinical Administration Reliever) is not substantively vacant. The purpose of your higher duties placement was to backfill various staff on leave, these staff will return to this position following their leave.
  • There is no continuing need for you to perform in the position of Clinical Administration Reliever (A03), Clinical administration Team 1, Toowoomba, beyond 10 April 2022, and you have returned to your substantive position of Administration Officer (A02), Specialist Outpatient Referral Centre, Toowoomba.

Relevant provisions of the PS Act and Directive 13/20

  1. [13]
    In determining this appeal, I have had regard to relevant provisions of the PS Act and the Appointing a public service employee to a higher classification level directive ("Directive 13/20"), including those provisions which I set out below.
  1. [14]
    Section 149C of the PS Act relevantly provides:

149CAppointing 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. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  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).
  1. (4)
    The department's chief executive must decide the request within the required period.

(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
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (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. (6)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  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
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [15]
    The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women)[4], Merrell DP relevantly stated:[5]

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;
  • 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.

(Citations omitted)

  1. [16]
    Direction 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [17]
    Clause 4.2 of the Directive 13/20 sets out examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level, as follows:

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
  1. [18]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
  1. Decision making

6.1When 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. [19]
    Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide a statement of reasons, as follows:
  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.

7.2A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.

  1. [20]
    Clause 11 of Directive 13/20 provides definitions, and relevantly states as follows:
  1. Definitions

…

Substantive vacancy means a recurrently funded position identified on an agency’s establishment

list that does not have an ongoing incumbent appointed.

  1. [21]
    Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Was the decision fair and reasonable?

  1. [22]
    The following matters are not in dispute:
  1. (a)
    that Ms Somerville is eligible to appeal the decision pursuant to s 194(e)(iii) of the PS Act; and
  1. (b)
    that Ms Somerville is eligible to apply for conversion to the position at a higher classification level in accordance with s 149C(1) of the PS Act.
  1. [23]
    The Department contends that the decision to refuse Ms Somerville's conversion request was for two reasons.
  1. [24]
    The first reason related to the application of the merit principle ('the first reason'). The second reasons was purportedly for operational reasons ('the second reason').
  1. [25]
    With respect to the first reason, the Department contends that there are current unresolved performance issues relating to an alleged inappropriate communication style. The Department contends that while earlier performance issues had been discussed with Ms Somerville, further incidents allegedly occurred in the workplace on 24 March 2022 and 8 April 2022. The Department states that these incidents are yet to be put to Ms Somerville as she has been out of the workplace on sick leave and returned, on 26 April 2022, on an alternative suitable duties program.
  1. [26]
    The difficulty for the Department however, is that the Decision did not refer to the unresolved incidents of 24 March 2022 and 8 April 2022. Rather the decision relevantly stated:
  • Your line manager advised that you have current unresolved behavioural issues relating to unauthorised absences and your inappropriate communication style not in keeping with DDH values, which have been discussed with you on four occasions between 18 January 2021 and 7 March 2022.

I have determined that you are not eligible for appointment because:

  • You do not satisfy the merit principle as there are ongoing performance concerns that have been put to you and remain unresolved, as outlined above.

…

  1. [27]
    Whilst it was potentially open for the decision maker to consider the unresolved incidents that occurred during the review period, the decision makes no reference to such matters.
  1. [28]
    If these matters were taken into account as contended by the Department in its submissions, then the decision is deficient insofar as it fails to refer to material facts and fails to refer to the consideration of those facts by the decision maker.
  1. [29]
    Consequently, I consider that the decision is not fair and reasonable. It follows that it is unnecessary for me to consider the second reason relied on by the Department. Although it is noted that the Department's reference to the need for a vacancy is questionable. I have concluded that the decision subject of the appeal be set aside and I will direct a fresh review be conducted.
  1. [30]
    In coming to this conclusion, I have considered the facts of the matter including that Ms Somerville's higher classification contract has been reviewed on eighteen (18) occasions. I have also had regard to the facts that there are alleged incidents which may be relevant to the application of the merit principle which have not been thoroughly considered in the context of Ms Somerville's application. For these reasons, I consider that a fresh review should be conducted.

Conclusion

  1. [31]
    On balance, I consider that it is appropriate to set aside the decision and direct for a fresh review to be conducted in accordance with the terms of the PS Act and Directive 13/20.

Order

  1. [32]
    For the foregoing reasons, I make the following order:
  1. (e)
    The appeal is allowed;
  1. (f)
    The decision is set aside;
  1. (g)
    The matter be returned to a new decision maker with a copy of this decision on appeal; and
  1. (h)
    The decision maker is directed to conduct a fresh review in accordance with the terms of the Public Service Act 2008 (Qld) and Directive 13/20: Appointing a public service employee to a higher classification level (Directive 13/20) by no later than 25 November 2022.

Footnotes

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

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

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

[4][2020] QIRC 203.

[5]Ibid, [37] – [38].

Close

Editorial Notes

  • Published Case Name:

    Somerville v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Somerville v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 431

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    09 Nov 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
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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