Basnayake v TAFE Queensland[2022] QIRC 444

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Ms Thusitha Basnayake is currently employed by TAFE Queensland ('TAFE') as a fixed term temporary employee in the Faculty of English Language and Migrant Education ('the Faculty') as a part-time Tutor and as a part-time Teacher. Ms Basnayake has been employed, on a fixed term temporary basis, as a Tutor since 18 April 2017 and as a Teacher since 8 October 2019.

2. [2]
   By email dated 21 April 2022, Ms Basnayake was advised that a review of her fixed term temporary employment was to be undertaken. Ms Basnayake made a written submission in support of her conversion to permanent employment by email sent on 26 April 2022.

3. [3]
   By letter dated 13 June 2022 from Mr Brent Kinnane, General Manager of TAFE's Brisbane Region, Ms Basnayake was advised that, arising out of the review, the decision was made not to permanently appoint her based on genuine operational requirements ('the decision'). By appeal notice filed on 4 July 2022, Ms Basnayake appealed against the decision.

4. [4]
   By Directions Order dated 5 July 2022, I ordered that Ms Basnayake file and serve written submissions in respect of her appeal by 4.00 pm on 2 August 2022 and that TAFE file and serve its written submissions by 4.00 pm on 30 August 2022.

5. [5]
   Ms Basnayake did not comply with the order I made that she file and serve her written submissions by 4.00 pm on 2 August 2022. There is no evidence of any contact, with anyone, being made by Ms Basnayake at or about that time explaining why she failed to comply with the order that was made.

6. [6]
   By Further Directions Order dated 4 August 2022, I directed that by 4.00 pm on 18 August 2022, Ms Basnayake file and serve written submissions as to why her appeal should not be dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') and that TAFE file submissions in response by 4.00 pm on 1 September 2022. Both parties complied with those orders. Both parties also filed and served further written submissions about the substantive issue on appeal.

7. [7]
   The initial question for my determination is whether or not I should, pursuant to r 45(3)(a) of the Rules, dismiss the appeal. Further, if I do not so dismiss Ms Basnayake's appeal, then the next question is whether I can and should make a decision about the substantive issue in the appeal, namely, whether the decision to continue to employ Ms Basnayake on a fixed term temporary basis was fair and reasonable.

8. [8]
   For the reasons that follow:

• I will not dismiss the appeal pursuant to r 45(3)(a) of the Rules; and

• pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), I will set the decision aside, return the matter to the decision maker with a copy of these reasons for decision on appeal, and direct that the decision maker conduct a fresh review of Ms Basnayake's employment status in accordance with s 149B of the Public Service Act 2008 ('the PS Act') and Directive: 09/20 - Fixed term temporary employment.

Should the appeal be dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011?

The Rules

9. [9]
   Rule 45 provides:

10. [10]
    The discretion conferred by r 45 must be exercised judicially.^[1]

Ms Basnayake's submissions

11. [11]
    In her submissions filed on 16 August 2022, Ms Basnayake failed to comply with the Directions Order I issued on 4 August 2022, in that she made submissions about why the decision was not fair and reasonable and did not address the issue, as ordered, as to why her appeal should not be dismissed pursuant to r 45 of the Rules.

12. [12]
    In response to TAFE's submissions filed on 1 September 2022, Ms Basnayake, by further submissions filed on 5 September 2022, merely stated that she '… misunderstood the previous emails from the Commission issuing directions orders dated 5 July 2022 and further directions orders dated 4 August 2022 and therefore would appreciate some consideration in making a further submission.'

13. [13]
    Ms Basnayake gives no reason as to why she failed to comply with the Directions Order I issued on 5 July 2022.

TAFE's submissions

14. [14]
    TAFE made a number of submissions as to why Ms Basnayake's appeal should be dismissed pursuant to r 45 of the Rules, including that Ms Basnayake has received two Directions Orders from the Commission in relation to her appeal dated 5 July 2022 and 4 August 2022, and failed to comply with both.

15. [15]
    However, TAFE, fairly, also made alternative submissions as to why the decision was fair and reasonable. Similarly, Ms Basnayake has made detailed submissions as to why the decision was not fair and reasonable and both parties have replied to each other's submissions about that issue.

16. [16]
    It seems to me, having regard to those submissions, that TAFE is not materially prejudiced by the failure of Ms Basnayake to comply with the Directions Order dated 5 July 2022.

17. [17]
    While I am not persuaded that Ms Basnayake has given an acceptable explanation for her failure to comply with the Directions Order dated 5 July 2022, given the very detailed submissions made by both parties about whether or not the decision was fair and reasonable, my view is that, in these circumstances, I should not dismiss Ms Basnayake's appeal pursuant to r 45 of the Rules and that I should proceed to hear and determine her appeal.

Was the decision fair and reasonable?

The decision

18. [18]
    In the decision, Mr Kinnane relevantly stated:

Conversion review decision

I have conducted a review of your employment status and have determined that your employment will remain as fixed term temporary at this time. You will continue in the role of Tutor and Teacher until 31 March 2023.

Notwithstanding this decision, I am pleased to offer the extension of your current fixed term temporary engagement in line with the existing AMEP contract, being until 30 June 2023. Further, please be advised that your employment status will again be reviewed when the outcome of the upcoming tender process is known.

Considerations when making the decision

I have considered the requirements of the Procedure and your employment history with TAFE Queensland, including any previous conversion review decisions. In summary, I have taken into consideration:

• whether you are eligible for appointment having regard to the merit principle;
• whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing;
• the relevant genuine operational requirements of TAFE Queensland; and
• Part 2 of the Human Rights Act 2019 (HR Act).

The decision not to permanently appoint you at this time is based on genuine operational requirements which may impact continuing staffing needs in the AMEP program. Specifically, my reasons are:

• TAFE Queensland currently holds the contract for the delivery of the AMEP program, with an end date of 30 June 2023. As advised, your current fixed term temporary engagement will be extended in line with this contract.

• While it is anticipated that the tender process for a new contract will commence later this year, it is unknown whether TAFE Queensland will be successful in securing it. Further, it is expected that the terms of the new contract will differ from the current contract terms, which may affect method of delivery, however, this is yet to be confirmed.

Consequently, conversion to a permanent role is not appropriate or viable at this time due to genuine operational requirements of TAFE Queensland.

19. [19]
    The '… AMEP program', referred to in Mr Kinnane's letter, is a reference to the Adult Migrant English Program.

Ms Basnayake's submissions

20. [20]
    Ms Basnayake submits that the decision was not fair and reasonable for the following reasons:

• the information provided in the decision is '… inconsistent and incongruent with their actions in fact they are outright contradictory to the requirements under legislation and the continued engagement of the Appellant';

• other TAFE employees performing similar duties have been given an opportunity for permanency despite the fact that TAFE was expecting the AMEP contract was coming up for tender in the second half of 2022; and

• the fact that TAFE has, on 10 occasions, extended her fixed term temporary employment, that there are no performance issues concerning her and that TAFE currently holds the contract for delivery of the AMEP '… negates the genuine operational requirements argument'.

21. [21]
    Ms Basnayake then submits:

1. 19.
   TAFE Queensland currently manages 100% of the AMEP program in the state and it could be argued that with the change of federal government and their focus on skills through TAFE and funding arrangements, this is most likely to continue if not increase with predicted further increases in migration.

1. 20.
   The Appellant has complied with all legislative requirements of their employment, there is [sic] no performance issues, she has been extended on multiple occasions, and the Respondent has extended her employment to 31 March 2023.

1. 21.
   Many other employees were offered permanency in December 2021 except for the appellant based on TAE^[2] qualification, although the appellant had been exempted.

1. 22.
   At the reviewing process of conversion of permanency in April 2022 the appellant was still not offered permanency although the appellant had provided evidence to management of completing the full TAE qualification.

1. 23.
   The Appellant believes that not offering permanency to her is not a fair decision.

TAFE's submissions

22. [22]
    TAFE relevantly submitted:

1. 18.
   The decision determined that, whilst there were no concerns regarding eligibility - the merit principle, continuous service, continuing need for someone to perform the role - there were genuine operational requirements of TAFE Queensland to not convert the Appellant's employment status to permanent.

1. 19.
   As required in accordance with section 149A(4) of the PS Act, the reasons were outlined in the Decision, and were provided as:

• TAFE Queensland currently holds the contract for the delivery of the AMEP program, with an end date of 30 June 2023. As advised, your current fixed term temporary engagement will be extended in line with this contract.

• While it is anticipated that the tender process for a new contract will commence later this year, it is unknown whether TAFE Queensland will be successful in securing it. Further, it is expected that the terms of the new contract will differ from the current contract terms, which may affect method of delivery, however, this is yet to be confirmed.

1. 20.
   The Respondent currently holds contracts with the federal Department of Home Affairs for the AMEP delivery, and the federal Department of Education, Skills and Employment for the Skills for Education and Employment (SEE) delivery in Queensland, with both contracts expiring on 30 June 2023.

1. 21.
   It is anticipated that the tender process for the new AMEP and SEE contracts will commence later this year, however it is unknown whether TAFE Queensland will be successful in either of these contracts.

1. 22.
   In addition, should the contracts be successfully renegotiated with TAFE Queensland, it is expected that the terms of the new contracts will differ from the current contract terms, which may affect method of delivery and consequently, may have an impact on continuing staffing needs.

1. 23.
   In order to balance the genuine operational requirements of the AMEP and SEE teams, the Respondent developed a decision-making approach regarding fixed term temporary and casual employees employed under these contracts (Attachment 6).

1. 24.
   As the Appellant's service history categorised her as being Fixed Term Temporary and Casual Employees with 4-7 years' service, further investigations and analysis of the relevant service history was undertaken.

1. 25.
   The General Manager, TQB, considered the relevant information pursuant to the PS Act, and the Procedure, and determined that the Appellant's employment would remain as fixed term temporary, however the engagement would be extended to align with the end of the contract, being 30 June 2023 (Attachment 5).

23. [23]
    The '… decision-making approach regarding fixed term temporary and casual employees' referred to in TAFE's submissions is Attachment 6 to those submissions. It is, in reality, a briefing note, dated June 2022, from certain employees of People and Culture within TAFE to Mr Kinnane.

24. [24]
    This briefing note relevantly states:

Purpose:

• The purpose of this briefing note is to provide the General Manager, TAFE Queensland, Brisbane Region (TQB) with information to support the determination of the casual and fixed term temporary employee review for the following TQB business units:

• Faculty of English Language and Migrant Education (ELME)

…

Key Issues

English Language and Migrant Education (ELME)

4. The Director of Faculty, English Language and Migrant Education (ELME) reviewed two (2) employees who had been identified in the TQER report as eligible for casual and temporary employment review, and supported (1) casual employee to be offered conversion to permanent employment (1 x Tutor, Graduate Studies, ELME).

Table 1.

5. Ms Thusitha Basnayake (6070858) is currently employed as a temporary part time Tutor (0.5 FTE) and Teacher (0.5 FTE) in the AMEP Team, Faculty of English Language and Migrant Education. The temporary contracts are both through to 31 March 2023. Ms Basnayake falls within the category of 4-7 years service and has had a significant break in service prior to returning as a Tutor in 2017. Consequently the business area do not support conversion to permanent in this reviewing period.^[5]

Implications for TAFE Queensland

6. The impact of an increased number of employer deemed decisions being appealed in the QIRC would lead to an increased burden on the Region's resources required to respond.

7. Should TQB decisions be overturned in the QIRC with regards to converting casual and/or temporary employees to permanent, this could potentially lead to an unfavourable impact on the reputation of TAFE Queensland Brisbane Region.

Financial Implications

8. If approved for conversion there will be an increase to permanent FTE employees across TQB region which may result in the region being over the current budget, reallocation may be required.

9. An increase of the financial burden in responding to appeal claims for additional resources required to address matters in QIRC.

10. A potential for financial compensation for decisions that are overturned by the QIRC.

25. [25]
    The briefing note had three attachments, including one entitled: 'Attachment 3 - Thusitha Basnayake Non-Conversion', however, none of the attachments were annexed to TAFE's submissions.

26. [26]
    The briefing note went on to recommend to Mr Kinnane that he approve the Casual Tutor in the Faculty to be converted to '… permanent status' at 0.552 FTE and that there be no conversions of fixed term temporary employees in the Faculty. The briefing note records that it was approved by Mr Kinnane by email on 3 June 2022.

27. [27]
    TAFE also submitted, correctly in my view, that:

• Ms Basnayake contended, in her submissions, that the decision to not convert her employment status to permanent was made on the basis of her not achieving the relevant qualifications; and

• Ms Basnayake's qualifications were not a reason given (in the decision or as referred to in the briefing note) for not offering to convert Ms Basnayake's fixed term temporary employment to permanent.

Ms Basnayake's submissions in reply

28. [28]
    In reply, Ms Basnayake relevantly submitted that, in respect of the briefing note:

• it outlined her current status, namely, that her current employment falls within the category of four to seven years' service, that she had a significant break in service prior to returning as a Tutor in 2017 and then proceeded to make a determination that, consequently, the business area did not support conversion to permanent in the reviewing period;

• the matters referred to in paragraphs 6, 7, 9 and 10 of the briefing note were not indicative or supportive of her not being converted to permanent status due to genuine operational requirements and were more in line with deterring employees from accessing any legislative, industrial or appeal rights; and

• the matter referred to in paragraph 8 of the briefing note only indicated a possibility that conversion may result in TAFE being over budget and that relocations may need to occur, not that her conversion will result in TAFE being over budget which will require her reallocation.

29. [29]
    TAFE also filed submissions in reply which relevantly provided that:

14. The reasons stated within the Decision amount to genuine operational requirements in that the Respondent is effectively, efficiently and appropriately managing public resources whilst balancing delivery and agreed outcomes for the programs. The Respondent is required to balance the unknown outcome of the tender process that is yet to commence with respect to the Adult Migrant Education Program (AMEP) contract and, if the Respondent were to be successful in securing the contract for the AMEP programs, with the difference in the terms which will most likely affect the method of delivery of both programs.

15. The Appellant's engagement falls squarely within the confines of the examples in section 148(2)(c) of the PS Act, in that the Appellant is engaged in a position for which funding is unlikely or unknown as provided in the Decision (Attachment 5 to the Respondent's Submission).

The decision was not fair and reasonable

30. [30]
    In King-Koi v State of Queensland (Department of Education),^[6] I stated in relation to the application of s 149B of the PS Act:

22. [22]
    As I recently stated in Morison v State of Queensland (Department of Child Safety, Youth and Women) in respect of the phrase 'genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in cl 6.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level:

1. [37]
   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.

1. [38]
   The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

• managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and

• planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

…

1. [40]
   The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'

23. [23]
    In my view, similar considerations apply in the application of s 149A(3) of the PS Act (and, as referred to below, in the application of cl 8.2 of the Directive). The question is whether or not it is viable or appropriate to offer to convert a fixed term temporary employee having regard to, for example, authentic requirements for the effective, efficient and appropriate management of the public resources of the department or the authentic planning of the human resources of the department.^[7]

31. [31]
    In my opinion the decision was not fair and reasonable. There are two reasons for this.

32. [32]
    First, while the reason given in the decision, about the uncertainty around whether TAFE would be successful in securing a contract for the further delivery of the AMEP, may amount to a genuine operational requirement of TAFE against the conversion of Ms Basnayake's fixed term temporary employment, I am not confident, based upon the briefing note, that that issue was indeed the reason for not offering to convert Ms Basnayake's fixed term temporary employment to permanent employment.

33. [33]
    In coming to this conclusion, I accept that Mr Kinnane, in the decision, extended Ms Basnayake's fixed term temporary employment until 30 June 2023 in line '… with the existing AMEP contract' and that Ms Basnayake's employment status '… will again be reviewed when the outcome of the upcoming tender process is known.'

34. [34]
    However, it seems to me, reading the briefing note on its face, that the reasons given in that briefing note, against offering to convert Ms Basnayake to permanent employment, were:

• her length of service and the significant break in her service; and

• the concern the Brisbane Region of TAFE had about:

1. –its success, or otherwise, in appeals brought by casual and fixed term temporary employees, regarding their conversion, to this Commission;

1. –the cost and budgetary implications for TAFE about the conversion of such employees; and

1. –the cost to TAFE in dealing with such appeals before this Commission.

35. [35]
    The reasons referred to in paragraph [34] of these reasons are directly at odds with the reasons given in the decision as to why there were genuine operational requirements against offering to permanently employ Ms Basnayake; namely, the uncertainty over whether TAFE would be successful in securing a contract for the further delivery of the AMEP.

36. [36]
    Secondly, I would have thought it to be obvious that if the real reason the Faculty was unable to support the conversion of Ms Basnayake's fixed term temporary employment were those given in the decision, then the briefing note would have made that plain. The briefing note does not.

37. [37]
    In addition, the attachment to that briefing note, that directly concerned Ms Basnayake's fixed term temporary employment, has not been placed before me for consideration. I am unaware of what it says and whether it sheds any further light on the reasons as to why TAFE did not support the conversion of Ms Basnayake's fixed term temporary employment.

38. [38]
    On the material placed before me, I have no confidence that the matters specified in the decision amount to genuine operational requirements of TAFE or that they are the real reasons for the decision. For these reasons, I cannot form the view that the decision was fair and reasonable.

39. [39]
    I do not have the material before me where I could, with any confidence, make a decision about whether this was a case where the application of s 149B of the PS Act reasonably compelled the conversion of Ms Basnayake's fixed term temporary employment to permanent.

40. [40]
    The appropriate course is to set the decision aside and to return the matter to the decision maker, with a copy of these reasons for decision on appeal, and to direct that there be a fresh review and fresh decision regarding Ms Basnayake's fixed term temporary employment.

Conclusion

41. [41]
    For the reasons given, I set aside the decision and I will make the other orders set out below.

Orders

42. [42]
    I make the following orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

1. (a)
   the decision appealed against is set aside;

2. (b)
   the matter is returned to the decision maker with a copy of these reasons for decision on appeal; and

3. (c)
   it is directed that, within 28 days of the date of this order, the decision maker conduct a fresh review of the Appellant's fixed term temporary employment status in accordance with s 149B of the Public Service Act 2008 and in accordance with Directive: 09/20 - Fixed term temporary employment, and decide whether:

1. (i)
   to continue the Appellant's employment according to the terms of the Appellant's existing employment; or

2. (ii)
   to offer to convert the Appellant's employment basis to employment as a general employee on tenure or a public service officer.