Nance v State of Queensland (Department of Education)
[2022] QIRC 443
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Nance v State of Queensland (Department of Education)[2022] QIRC 443
- Add to List
Nance v State of Queensland (Department of Education)[2022] QIRC 443
Nance v State of Queensland (Department of Education)[2022] QIRC 443
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nance v State of Queensland (Department of Education) [2022] QIRC 443 | ||
PARTIES: | Nance, Phoebe (Appellant) v State of Queensland (Department of Education) (Respondent) | ||
CASE NO: | PSA/2022/903 | ||
PROCEEDING: | Public Service Appeal – Temporary employment conversion | ||
DELIVERED ON: | 15 November 2022 | ||
MEMBER: | McLennan IC | ||
HEARD AT: | On the papers | ||
ORDERS: | That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
| ||
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – jurisdictional objections – consideration of whether the respondent conducted a review of the appellant's temporary employment status as required under s 149B of the Public Service Act 2008 – consideration of whether review was conducted under s 149 or s 149B of the Public Service Act 2008 – where respondent has not addressed mandatory criteria | ||
LEGISLATION AND OTHER INSTRUMENTS: | Acts Interpretation Act 1954 (Qld) s 14A Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 567 Public Service Act 2008 (Qld) s 27, s 147, s 148, s 149, s 149A, s 149B, s 194, s 195, s 196 Statutory Instruments Act 1992 (Qld) s 7, s 14 Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 9, cl 10 | ||
CASES: | Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Katae v State of Queensland & Anor [2018] QSC 225 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 | ||
Reasons for Decision
Background
- [1]Miss Phoebe Nance (the Appellant) is currently employed as a Teacher with the Department of Education, State of Queensland (the Department; the Respondent) at Brightwater State School.
- [2]The Appellant is employed under a fixed term temporary contract that is due to expire on 9 December 2022.
- [3]The Appellant was originally employed as a casual employee on 24 July 2017 and was engaged under numerous temporary arrangements from 2018.
- [4]Given periods of non-employment prior to 2020, the Department contends the Appellant has been continuously employed as a fixed term temporary employee in the Department since 3 February 2020 in accordance with s 149B(7A)(b) of the Public Service Act 2008 (Qld) (the PS Act). On that basis, in accordance with s 149B(4)(a) of the PS Act, the end of the Appellant's two-year period of continuous employment with the Department was 3 February 2022.
- [5]The Department submits that it was therefore required to make a decision under s 149B of the PS Act within 28 days of 3 February 2022. Notably, the Department did not indicate that a review was actually conducted at that time and the Appellant submits she did not receive a review notice as required under cl 10 of Directive 09/20 Fixed term temporary employment (Directive 09/20).
- [6]On 22 June 2022, the Department issued the Appellant with an email containing an offer of permanency at Brightwater State School pursuant to a Memorandum of Agreement (MoA) process. The Appellant submits the email was sent to her private account, landed in her junk mail folder and consequently she did not read it until August 2022. As the Appellant did not respond to the email within the prescribed four-day timeframe, she was seen to have rejected the offer.
- [7]As advised by the Department, the Appellant sent an email on 12 August 2022 requesting a review of her temporary employment status. The Department did not respond to that request within 28 days and so on 15 September 2022, the Appellant filed an appeal against the deemed decision to not convert her employment status from temporary to permanent (the Deemed Decision).
Jurisdictional objections
- [8]The Respondent contends the Appellant is excluded from appealing the Deemed Decision because it is a decision made under s 149 of the PS Act.
- [9]I acknowledge the Appellant's contentions in this regard and have concluded it is necessary to determine the following questions:
- Was the Department required to conduct a review of the Appellant's employment within 28 days of 3 February 2022 pursuant to s 149B of the PS Act and Directive 09/20?
- Did the Department conduct a review of the Appellant's employment within 28 days of 3 February 2022 pursuant to s 149B of the PS Act and Directive 09/20?
- Was the Deemed Decision subject of this appeal made under s 149 of the PS Act?
- [10]I will deal with each of those questions in turn.
Was the Department required to conduct a review of the Appellant's employment within 28 days of 3 February 2022 pursuant to s 149B of the PS Act and Directive 09/20?
- [11]Section 149B(1) of the PS Act provides for the "Review of status after 2 years continuous employment" and "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 department for 2 years or more."
- [12]Schedule 4 of the PS Act defines "continuously employed":
…in relation to a person employed in a department for a period, means the person is employed in the department—
- (a)continuously as a fixed term temporary employee for the period; or
- (b)as a casual employee on a regular and systematic basis during the period; or
- (c)continuously as an employee mentioned in subparagraphs (i) and (ii) for the period.
- [13]Section 149B(7A) of the PS Act relevantly provides:
(7A) For working out how long the person has been continuously employed in the department—
- (a)all periods of authorised leave are to be included; and
- (b)the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out.
- [14]In light of the Appellant's employment history, the Department contends that when taking into consideration the requirements of s 149B(7A)(b) of the PS Act, the Appellant's continuous employment commenced on 3 February 2020. Therefore, in accordance with s 149B(4)(a) of the PS Act, the Appellant's employment status was eligible for review from 3 February 2022. The Appellant appears to dispute that contention in her submission that she is in her fourth year of continuous service. In any event, I will proceed on the basis that in 2022, the Appellant's temporary employment status was eligible for review on 3 February.
- [15]Section 149B(4)(a) and (9)(b) of the PS Act requires the Department's chief executive to make a conversion decision within 28 days from "the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department". I have already established the Appellant was eligible for review under s 149B of the PS Act - therefore a review of her employment status ought to have occurred within 28 days from 3 February 2022.[1]
Did the Department conduct a review of the Appellant's employment within 28 days of 3 February 2022 pursuant to s 149B of the PS Act and Directive 09/20?
- [16]The Appellant raises serious doubt as to whether the Department conducted a review of her temporary employment status as required under the PS Act. That doubt stems from the Department's apparent failure to comply with cl 10 of Directive 09/20 which requires:
10.1 The agency must notify the employee when the agency starts a review of the status of the fixed term temporary employee's employment under section 149B of the PS Act.
10.2 The notification must be in writing and include:
- (a)the name and contact details of the agency contact for the review
- (b)the date by which the decision must be made
- (c)that the employee or their representative may choose to provide a written submission for consideration during the review process
- (d)that if the chief executive does not make a decision within the required period as defined in section 149B(9), the chief executive is taken to have decided not to convert the fixed term temporary employee, and
- (e)that section 194(1)(e) and 196(e) of the PS Act, provide that a conversion decision under section 149B may be appealed, and the timeframe for appeal.
- [17]The Department does not address this omission in its written submissions - nor does it submit that a review was actually conducted. Instead, the Department states it "was required to make a decision within 28 days after the end of 2 years continuous employment".
- [18]Clause 8.6 of Directive 09/20 stipulates:
Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
- [19]The Department did not provide confirmation that a review was conducted from 3 February 2022 and did not rebut the Appellant's contentions regarding a failure to provide notice under cl 10 of Directive 09/20. That omission is striking in the circumstances of this matter and on that basis, I find the Department did not conduct a review of the Appellant's employment status from 3 February 2022 as required under s 149B of the PS Act and Directive 09/20.
- [20]It is not fair or reasonable for the Department to rely on "a deemed decision" rather than undertaking the review as required.
Was the Deemed Decision subject of this appeal made under s 149 of the PS Act?
- [21]The Department submits the Appellant is excluded from appealing the Deemed Decision because it was based on a conversion request submitted by the Appellant under s 149 of the PS Act.
- [22]The Appellant did not receive a response to her 12 August 2022 request for review of her temporary employment status.
- [23]Section 149 of the PS Act provides:
- (1)This section applies 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 1 year or more.
- (2)However, this section does not apply to a non-industrial instrument employee.
- (3)The person may ask the department's chief executive to decide whether to—
- (a)continue the person's employment according to the terms of the person's existing employment; or
- (b)offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
- (4)A person can not make more than 1 request under subsection (3) in a 12-month period.
(4A) For working out how long the person has been continuously employed in the department—
- (a)all periods of authorised leave are to be included; and
- (b)the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 6 weeks or less in the year occurring immediately before the time when the duration of the person's continuous employment is being worked out.
- (5)In this section—
fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.
- [24]The Department refers to s 195(1)(i) of the PS Act which provides that a person cannot appeal against "a decision under s 149 not to convert the employment basis of a fixed term temporary or casual employee…"
- [25]The Appellant argues she exercised her right under cl 9 of Directive 09/20 to notify the agency that a review was required. Clause 9.1 of Directive 09/20 provides:
A fixed term temporary employee may notify the employee's agency of its requirement to commence the review under section 149B and that the employee would like to be converted to permanent employment.
- [26]The Department disputes this argument on the basis that the next review must be undertaken from 3 February 2023 and cl 9.2 of Directive 09/20 provides:
The notification may be made by the employee or the employee's representative provided it is not more than three months before the review must be undertaken in accordance with section 149B of the PS Act.
- [27]A review under s 149 of the PS Act is triggered by an employee's request in contrast to s 149B which automatically requires a decision after each one-year period following the two-year anniversary of continuous employment within the Department.[2] Although the timing of the request suggests the Deemed Decision may fall under s 149 of the PS Act, the apparent failure of the Department to review the Appellant's temporary employment status pursuant to s 149B earlier in the year raises significant concerns with respect to fairness and reasonableness of the entire process.
- [28]I have already concluded above that the Department did not conduct a review as required from 3 February 2022. On that basis, I find that the Deemed Decision that stemmed from the Appellant's request for review on 12 August 2022 can appropriately be characterised as a review under s 149B of the PS Act due to the Department's failure to conduct a review earlier that year. That is the most fair and reasonable course in these circumstances. On that basis, I find that the Deemed Decision was made under s 149B of the PS Act.
- [29]Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against a decision under s 149B not to convert the basis of employment of an employee. Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". I am satisfied the Deemed Decision is appealable.
- [30]I will now proceed to consider whether that decision was fair and reasonable.
Appeal principles
- [31]Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- [32]
- [33]Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.[5]
- [34]The issue for my determination is whether the decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.[6]
Relevant provisions of the PS Act and Directive 09/20
- [35]Section 148 of the PS Act states:
148 Employment of fixed term temporary employees
- (1)A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
- (2)Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –
- (a)to fill a temporary vacancy arising because a person is absent for a known period;
Examples of absences for a known period –
approved leave (including parental leave), a secondment
- (b)to perform work for a particular project or purpose that has a known end date;
Examples—
employment for a set period as part of a training program or placement program
- (c)to fill a position for which funding is unlikely or unknown;
Examples—
employment relating to performing work for which funding is subject to change or is not expected to be renewed
- (d)to fill a short-term vacancy before a person is appointed on tenure;
- (e)to perform work necessary to meet an unexpected short-term increase in workload.
Example—
an unexpected increase in workload for disaster management and recovery
- (3)Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.
Example—
an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments
…
- [36]Section 149B of the PS Act relevantly provides:
- (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.
…
- (5)In making the decision-
- (a)section 149A(2) and (3) applies to the department's chief executive; and
- (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.
- [37]Section 149A(2)-(3) of the PS Act provides (emphasis added):
- (2)The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-
- (a)the department's chief executive considers-
- (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
- (ii)the person is eligible for appointment having regard to the merit principle; and
- (b)any requirements of an industrial instrument are complied with in relation to the decision.
- (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.
- [38]Directive 09/20 relevantly provides:
8. 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.
- [39]Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[7]
- [40]Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
- [41]The purpose of Directive 09/20 is:
- Purpose
1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.
The legislation indicates where employment on tenure may not be appropriate.
- [42]Further, Directive 09/20 relevantly provides:
4. Principles
4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government's Employment Security Policy.
…
4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.
Submissions
- [43]The parties filed written submissions in accordance with the Directions Order issued.
- [44]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.
- [45]I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.
Consideration
- [46]I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
- [47]Section 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent. The decision maker must consider:
- 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 employee for the role having regard to the merit principle in s 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 ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
- [48]Clause 8.2 of Directive 09/20 states (emphasis added):
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]
- [49]The difficulty in this matter is that because the Department pressed its jurisdictional objection, it did not present submissions with respect to the mandatory criteria.
- [50]As I have not been satisfied that the Department conducted a review under s 149B of the PS Act, I find that the Deemed Decision was unfair and unreasonable. That is supported by the Department omitting to address the mandatory criteria in subsequent submissions.
- [51]Clearly the Department's failure to commence a review of the Appellant' temporary employment status was not fair or reasonable to the Appellant. The inevitable deemed refusal that stemmed from the failure to commence a review can therefore not be fair or reasonable. For those reasons, the appeal must succeed. The issue then becomes determining the appropriate remedy.
- [52]Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
- confirm the decision appealed against;
- set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- set the decision aside and substitute another decision.
- [53]In circumstances where I have found that there was no decision maker and the Department has effectively stopped short of engaging with the totality of the review process, I have determined that the appropriate remedy is to return the matter to the Department with a copy of this decision.[9]
- [54]A fresh review should be conducted, with reasons demonstrating full and thorough consideration of the mandatory criteria and the relevant factual circumstances, in accordance with the PS Act and Directive 09/20.
- [55]I acknowledge the Appellant's most recent fixed term temporary employment contract is due to expire on 9 December 2022. Therefore, the review is to occur and be communicated to the Appellant by 25 November 2022. That review may well result in a different decision being made. In the alternative, it would at least provide the Appellant with the Department's reasoning to inform her consideration of whether to file any further appeal.
- [56]I appreciate that the turnaround time for review is tight - however it is necessary in light of the impending expiry of the Appellant's fixed term temporary contract. In the event that the Department sufficiently extends the Appellant's fixed term temporary contract to afford her the opportunity to appeal the Department's fresh decision, I will afford the Department more time to conduct the review and instead order that the review be conducted within 21 days from the release of this Decision.
Conclusion
- [57]For the reasons detailed above, I find the failure to commence a review of the Appellant's employment status and subsequent deemed refusal decision was not fair or reasonable. On that basis, the appeal must succeed and I have determined this Decision should be given to a decision maker to conduct a review and issue the Appellant with written communication of the outcome and reasoning.
- [58]The decision maker's attention is drawn to the mandatory criteria set out in [37] of this Decision. Specifically, the two separate pathways to conversion to permanent employment that may occur where there is a continuing need for someone to be employed in the role or a role that is substantially the same. Both are required.
- [59]I order accordingly.
Orders:
That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
- The appeal is allowed.
- The matter be given to a decision maker with a copy of this Decision.
- The decision maker conduct a review of the Appellant's employment status in accordance with Directive 09/20 Fixed term temporary employment and the Public Service Act 2008 (Qld), including the provision of adequate reasons regarding each of the mandatory criteria prescribed therein.
- The outcome of the review must be provided to the Appellant by 25 November 2022. If the Appellant's temporary engagement has been sufficiently extended to afford her the opportunity to appeal that decision, I direct that the review be undertaken and communicated within 21 days from the release of this Decision.
Footnotes
[1] Public Service Act 2008 (Qld) s 149B(4)(a), (9)(b).
[2] Public Service Act 2008 (Qld) s 149B(4)(b).
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
[4] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).
[5] Industrial Relations Act 2016 (Qld) s 567(2).
[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.
[7] Katae v State of Queensland & Anor [2018] QSC 225, [26].
[8] This is also mirrored in s 149A(3) of the Public Service Act 2008 (Qld).
[9] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018).