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  4. Nott v State of Queensland (Department of Employment, Small Business and Training) - [2023] QIRC 116

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Nott v State of Queensland (Department of Employment, Small Business and Training)[2023] QIRC 116

Nott v State of Queensland (Department of Employment, Small Business and Training)[2023] QIRC 116

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nott v State of Queensland (Department of Employment, Small Business and Training) [2023] QIRC 116

PARTIES:

Nott, Gina Marie

(Appellant)

v

State of Queensland (Department of Employment, Small Business and Training)

(Respondent)

CASE NO:

PSA/2022/934 

PROCEEDING:

Public Sector Appeal – Appeal against a conversion decision 

DELIVERED ON:

28 April 2023 

MEMBER:

Hartigan DP

HEARD AT:

On the papers 

ORDER:

  1. I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – conversion decision – where appellant has been acting in a position in a higher classification level – where appellant applied to be permanently appointed to the position – where respondent refused request on the basis of genuine operational requirements of the department – where respondent made a fresh decision to appoint appellant to a position in a higher classification level  – whether the appeal should be heard – consideration of relevant factors – decline to hear appeal.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B and s  562A

Public Sector Act 2022 (Qld) s 131

Directive 03/23 Review of acting or secondment at  higher classification level cl 7

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Ms Gina Marie Nott appeals a decision of the State of Queensland (Department of Employment, Small Business and Training) ('the Department') not to permanently appoint her to a position in which she has been acting at a higher classification level. 
  1. [2]
    At the time Ms Nott commenced this appeal, she was acting in the position of Senior Field Officer (A05) within the Engagement Division, North Coast Region, Maroochydore. 
  1. [3]
    Ms Nott is permanently employed by the Department as a Field Officer (A04), within the Engagement Division, North Coast Region, Maroochydore. 
  1. [4]
    On 24 August 2022, Ms Nott requested appointment to a higher classification level pursuant to s 120(1) of the Public Sector Act 2022 (Qld) ('the PS Act').[1]
  1. [5]
    On 21 September 2022, following a review of Ms Nott's request, the Department determined Ms Nott would not be appointed to a higher classification level because the genuine operational requirements of the Department did not support the permanent appointment ('the decision'). 
  1. [6]
    By notice of appeal filed on 11 October 2022, Ms Nott appeals the decision of the Department.
  1. [7]
    On 13 October 2022, the Commission issued directions to the parties in relation to the provision of written submissions in support of their position with respect to the appeal. Both parties filed written submissions. 
  1. [8]
    On 5 January 2023, Ms Nott requested to make further written submissions in relation to whether the decision maker was the authorised delegate to determine her application for appointment to a higher classification level. The Commission granted leave for the parties to make further written submissions in relation to this. 
  1. [9]
    By email correspondence dated 27 January 2023, the Department advised the Industrial Registry that it was intending to appoint Ms Nott to a higher classification level and would confirm their decision within the coming days.   
  1. [10]
    By email correspondence dated 2 February 2023, the Department advised the Industrial Registry that it had reconsidered its position and granted Ms Nott's application for higher duties conversion. 
  1. [11]
    By email correspondence dated 1 February 2023, Ms Nott advised the Industrial Registry that, despite the basis of the appeal being resolved, she would like to proceed with the appeal and provided the following in support of her request:

I acknowledge your differing views on the merits/basis of my appeal but I am interested in the substance of my appeal being assessed by the QIRC and their ultimate decision. Whilst their decision may or may not be favourable, it is more the content of how they arrived at their decision that I am interested in and whether it will provide learnings for DESBT and to other prospective applicants in this process. 

…

  1. [12]
    I listed the matter for mention on 10 February 2023 to hear from the parties in relation to the matters raised in the email correspondence. At the mention, Ms Nott was put on notice that the Commission would ask her to show cause as to why the appeal should proceed in circumstances where Ms Nott had been appointed to the position at a higher classification level. 
  1. [13]
    Following the mention, directions were issued to the parties requiring the provision of written submissions with respect to s 562A of the Industrial Relations Act 2016 (Qld) ('the IR Act'). Both parties complied with the direction. 
  1. [14]
    The appeal is made pursuant to s 134 of the PS Act, which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [15]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. 
  1. [16]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears.[2] An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [17]
    For the reasons contained herein, I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the IR Act.

Whether the appeal should be heard 

  1. [18]
    Section 131 of the PS Act sets out decisions against which appeals may be made. Section 131 relevantly provides:
  1. 131
    Decisions against which appeals may be made
  1. (1)
    An appeal may be made against the following decisions—
  1. (a)
    a conversion decision;
  1. …
  1. [19]
    Directive 13/20: Appointing a public service employee to a higher classification level ('Directive 13/20') came into effect on 25 September 2020.
  1. [20]
    Directive 03/23 Review of acting or secondment at higher classification level ('Directive 03/23') became operative on 1 March 2023 and supersedes Directive 13/20. Directive 03/23 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public sector and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [21]
    Clause 7 of Directive 03/23 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
  1. 7.
    Decision-making
  1. 7.1
    When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.
  1. …
  1. [22]
    Section 562A(3)(b) of the IR Act identifies the types of appeals the Commission may decide not to hear, including relevantly:
  1. 562A
    Commission may decide not to hear particular public service appeals
  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—
  1. …
  1. (b)
    the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
  1. (i)
    is frivolous or vexatious; or
  1. (ii)
    is misconceived or lacks substance; or
  1. (iii)
    should not be heard for another compelling reason.
  1. …
  1. [23]
    The issue for me to determine is whether the Commission should hear the appeal in circumstances where the Department has subsequently appointed Ms Nott to a position at a higher classification level. The Department submits that the basis of the appeal has been resolved and as a result, there is nothing further for the Commission to decide. 

Appellant's submissions

  1. [24]
    Although Ms Nott has been successful in her application for conversion, she contends that she has an arguable case for the appeal to proceed. In particular, Ms Nott submits that the appeal is a 'genuine attempt to obtain an independent review' of the Department's initial decision not to appoint her to a higher classification level and therefore, in addressing s 562A(3)(b)(ii) of the IR Act, the appeal is not misconceived or lacks substance. 
  1. [25]
    In her submissions, Ms Nott submits that the appeal should be heard so that regard is had to the following questions:

…

  1. (a)
    Is it acceptable to allow DESBT decisions in this process to be made by unauthorised delegates?
  1. (b)
    Are any decisions (favourable or unfavourable) made by DESBT under this directive that were made by the unauthorised DESBT delegate legitimate? Should these decisions stand?
  1. (c)
    Is it acceptable for the unauthorised DESBT decision maker in this process to be given inaccurate information to base their decision upon?
  1. (d)
    Is it fair to apply a ‘first in first served’ process?
  1. (e)
    Is it the intent of this directive for longer serving HD employees, undertaking the same role to be passed over by other employees with considerably less HD Service in the same role? Where is the fairness and equity?

…

  1. [26]
    Ms Nott submits that she would like the Commission to decide her appeal and to provide 'recommendations of improvement to address' the above questions 'in order to provide constructive learnings' to the Department and other employees. 

The Department's submissions 

  1. [27]
    The Department submits that the initial decision not to appoint Ms Nott to a higher classification level was based on genuine operational requirements of the Department at the time. However, the Department submits that after undertaking a reassessment of its operational requirements, it made a fresh decision to appoint Ms Nott to a higher classification level.
  1. [28]
    The Department submits that the fact that an appeal may 'provide learnings' for the Department, is not in and of itself, a compelling reason for the appeal to be heard. The Department submits that Ms Nott's request to have the above-mentioned questions addressed goes beyond the jurisdiction of the Commission, as these questions fall outside the subject of the appeal.
  1. [29]
    Further to this, the Department contends that 'hearing a matter purely for arguments sake' is 'not conducive to the prudent use of public resources and undermines the spirit of good faith negotiations and encouragement of parties to work together to resolve disputes effectively'. 

Consideration 

  1. [30]
    Pursuant to s 562C of the IR Act, in deciding a public service appeal, the Commission may, relevantly:
  1. (a)
    confirm the decision appealed against;[4] or 
  1. (b)
    set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.[5]
  1. [31]
    Accordingly, any relief granted by the Commission in this appeal if it were to be heard, would include either confirming or, alternatively, setting aside the decision made on 21 September 2022 to not appoint Ms Nott to the position at a higher classification. The position at the higher classification that Ms Nott requested to be appointed to was Senior Field Officer, A05.
  1. [32]
    By lodging the appeal, it is apparent that Ms Nott argued that the decision was not fair and reasonable and that the decision should be set aside and substituted with a decision appointing Ms Nott to the position at the higher classification level.
  1. [33]
    However, subsequent to Ms Nott filing the appeal, the Department, of its own accord, issued another decision offering Ms Nott the position of Senior Field Officer, A05 ('the A05 role'). The offer of appointment was backdated to commence on 21 September 2022, the date on which the decision subject to the appeal was issued. Ms Nott has accepted the offer. It is apparent from the conduct of the Department that it no longer wishes to rely on the decision issued on 21 September 2022. In any event, that decision is no longer of any practical effect on Ms Nott's employment due to the fresh offer being made by the Department and the acceptance of that offer by Ms Nott that she be appointed to the A05 role with a commencement date backdated to 21 September 2022. 
  1. [34]
    There is limited utility in hearing the appeal because Ms Nott is now in receipt of the ultimate relief she was seeking in commencing the appeal, that is, appointment to the A05 role as and from 21 September 2022. 
  1. [35]
    Ms Nott argues that she spent time preparing submissions for the appeal and that a decision on the appeal 'would provide learnings' for the Department, Ms Nott and future appellants. The role of this Commission is not to provide what would be, in effect, an advisory opinion about substantive matters that are no longer controversial between the parties. I consider that hearing the appeal in the current circumstances would be of limited utility and consequently, would not be an efficient use of public resources. 

Order

  1. [36]
    Accordingly, I make the following order:

I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld). 

Footnotes

[1]The Public Sector Act 2022 (Qld) commenced operation on 1 March 2023. Section 149C of the Public Service Act 2008 (Qld) is in the same terms as s 120 of the Public Sector Act 2022 (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]Industrial Relations Act 2016 (Qld) s 562C(1)(a).

[5]  Ibid s 562C(1)(c).

Close

Editorial Notes

  • Published Case Name:

    Nott v State of Queensland (Department of Employment, Small Business and Training)

  • Shortened Case Name:

    Nott v State of Queensland (Department of Employment, Small Business and Training)

  • MNC:

    [2023] QIRC 116

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    28 Apr 2023

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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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