Savo v State of Queensland (Queensland Health)
[2023] QIRC 168
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- Unreported Judgment
- Savo v State of Queensland (Queensland Health)[2023] QIRC 168
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Savo v State of Queensland (Queensland Health)[2023] QIRC 168
Savo v State of Queensland (Queensland Health)[2023] QIRC 168
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Savo v State of Queensland (Queensland Health) [2023] QIRC 168 |
PARTIES: | Savo, Stanley (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/10 |
PROCEEDING: | Public Sector Appeal – Appeal against a conversion decision |
DELIVERED ON: | 6 June 2023 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a conversion decision – where appellant was acting at a higher classification role for a continuous period of at least 1 year – where appellant applied to be permanently appointed to the higher classification role – where a decision was made not to employ appellant in the position at the higher classification on a permanent basis – whether the decision was fair and reasonable – decision appealed against is confirmed. |
LEGISLATION: | Appointing a public service employee to a higher classification level (Directive 13/20) (superseded) cls 5, 6 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 39, 45, 134, 289, 324 Public Service Act 2008 (Qld) (repealed) ss 25, 27, 28, 29, 149C, 193, 194, 195, 196 Review of acting or secondment at higher classification level (Directive 03/23) |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
Reasons for Decision
Background
- [1]Mr Stanley Savo ('Mr Savo') is employed by the Cairns and Hinterland Hospital and Health Service ('CHHHS') and has been performing the role of AO6 Cultural Capability Advisor in the Aboriginal and Torres Strait Islander Health Unit since 9 January 2015 ('the higher duties role'). Mr Savo began performing the higher duties role on 9 January 2015 and has had a succession of 24 appointments to the acting role.
- [2]On 23 December 2022 Mr Savo applied to be permanently appointed to the higher duties role. On 18 January 2023 a decision was issued by CHHHS declining Mr Savo's application seeking appointment to the higher duties role ('the decision').
- [3]The reasons for the decision reveal that the decision maker relied inter alia on clauses 5.2(c) and 6.1 of (now repealed) Directive 13/20 Appointing a public service employee to a higher classification level ('the repealed Directive').[1] The decision lists a history of documented performance interventions dating back to August 2021 and extending through until September 2022. The decision then relevantly provided:
In considering all of this information, I do not consider that you currently satisfy the merit principle due to the ongoing concerns relating to the conduct and manner of your workplace communications and your failure to satisfactorily complete the PIP program. Unfortunately, I am therefore unable to approve an application for conversion at this time.
Jurisdiction
- [4]On 18 January 2023, Mr Savo filed an appeal notice in the Industrial Registry pursuant to ss 193 – 196 of the Public Service Act 2008 (Qld) ('the repealed Act').
- [5]Relevantly, the repealed Act was repealed by s 289 of the Public Sector Act 2022 (Qld) ('PS Act').
- [6]Section 324 of the PS Act provides:
324 Existing appeals
- (1)This section applies if –
- (a)before the commencement, a person appealed against a decision under the repealed, section 194; and
- (b)immediately before the commencement, the appeal had not been decided.
- (2)From the commencement, the appeal must be heard and decided under chapter 3, part 10.
- [7]Mr Savo's appeal notice was filed in the Industrial Registry on 18 January 2023. As Mr Savo's request for permanent appointment at a higher classification had been fully considered and determined, it is not subject to the operation of the transitional provisions save for the operation of s 324 of the PS Act.
- [8]Relevantly, Ch 3, Pt 10 of the PS Act (at s 134) provides for appeals to be heard and decided by the Commission under ch 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Nature of appeal
- [9]
- [10]The issue for my determination in the matter before me is whether the decision to not permanently appoint Mr Savo to the higher duties role was fair and reasonable.[4]
- [11]Section 562C of the IR Act relevantly provides that in deciding a public sector appeal the Commission may:
562CPublic service appeals – decision on appeal
- (a)confirm the decision appealed against; or
…
- (c)for another appeal—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.
Relevant legislation
- [12]In the course of making the decision, CHHHS had regard to the requirements of s 149C of the repealed Act which was the applicable provision at the time. Section 149C relevantly provided:
149CAppointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee –
- (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
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
(Emphasis added)
- [13]The merit principle is defined at ss 27 – 29 of the repealed Act. Section 28 provides inter alia that a relevant consideration in applying the merit principle includes 'the way in which the person carried out any previous employment or occupational duties'.
- [14]Further, the decision also refers to the repealed Directive. The decision refers to cl 5.1 of the repealed Directive which confirms that to be eligible for appointment at the higher classification the employee must be eligible for appointment having regard to the merit principle.
- [15]The decision also refers to cl 6.1 of the repealed Directive which permits the chief executive to have regard to the impact of any unresolved performance concerns of the employee that would disqualify them from appointment under the merit principle.
Submissions of the parties
- [16]In accordance with directions issued from my chambers on 1 February 2023, the parties filed written submissions.
- [17]Mr Savo filed his written submissions on 15 February 2023.
- [18]By way of email correspondence, CHHHS sent its written submissions on 1 March 2023. CHHHS' submissions were not filed until the Industrial Registry received a hard copy on 7 March 2023.
- [19]At a mention of the matter on 17 April 2023, CHHHS informed the Commission that it no longer sought to rely on their submissions regarding the genuine operational requirements of CHHHS precluding Mr Savo's permanent appointment. Consequently those parts of the submissions of CHHHS have been disregarded.
- [20]Mr Savo was given the opportunity to provide written submissions in reply to the submissions of CHHHS and did so on 9 March 2023.
Summary of Mr Savo's submissions
- [21]Because CHHHS abandoned their submissions regarding genuine operational requirements it is not necessary to summarise the parties' submissions on that point.
- [22]In respect of the merit principle, Mr Savo submits that the decision was unfair and unreasonable as:
- Mr Savo is eligible for appointment to the higher duties role having regard to the merit principle referred to in s 149C(1)(c) of the repealed Act which was in force at the time; and
- the decision is inconsistent with the requirements of the repealed Directive and s 149C of the repealed Act.
- [23]Mr Savo refers to s 25(2) of the repealed Act and particularly notes that employment on tenure is the default basis of employment for employees in the public sector.
- [24]Mr Savo submits that in a previous decision letter dated 3 January 2022 ('previous decision letter'), CHHHS declined his request to be appointed to the higher duties role on account of genuine operational requirements. Mr Savo notes that notwithstanding that two of the 'ongoing concerns' referred to in the decision under review pre-date 3 January 2022, they were not mentioned in the previous decision letter. Mr Savo submits that the omission of these 'ongoing concerns' indicates they were not significant enough to have been relied upon in the decision under review.
- [25]Further, in making the decision, CHHHS relies on a number of 'ongoing concerns' in order to conclude that Mr Savo did not satisfy the merit principle. Mr Savo contends these ongoing concerns pre-date a decision by CHHHS on 31 January 2023 to extend his contract from 6 February 2023 to 30 June 2023.
- [26]Mr Savo submits that CHHHS' decision to extend his contract from 6 February 2023 to 30 June 2023 must have taken into consideration the ongoing concerns in the context of merit. In support of this, Mr Savo cites s 27 of the repealed Act, which states inter alia:
27The merit principle
- (1)The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the ''merit principle'').
- [27]In those circumstances Mr Savo contends that consideration of the ongoing concerns as a basis for the decision was a ''disingenuous attempt'' to justify the refusal of Mr Savo's appointment to the higher duties role.[5] Mr Savo submits CHHHS' decision to extend his contract from 6 February 2023 to 30 June 2023 indicates that he does, in fact, meet the merit principle.
Summary of CHHHS' submissions
- [28]CHHHS opens its submissions by contending that Mr Savo does not currently meet the merit principle and is unsuitable for appointment to the higher duties role.
- [29]CHHHS submits that Mr Savo had been made aware of the performance concerns summarised in the decision. CHHHS further submits that the performance concerns are documented, remain unresolved, and have the effect of rendering Mr Savo ineligible for appointment to the higher duties role having regard to the merit principle.
- [30]CHHHS notes that on 4 January 2023, advice from a Human Resource Business Partner that recommended Mr Savo be subject to a disciplinary process was provided to an appropriate delegate and is still under consideration. It is submitted by CHHHS that this demonstrates Mr Savo's performance concerns remain unresolved.
- [31]CHHHS closes its submissions by contending that the omission of consideration of Mr Savo's merit in the previous decision letter in January 2022 was appropriate in circumstances where the performance concerns documented at that time were not significant and that CHHHS elected not to rely on them but instead, to performance manage Mr Savo throughout 2022.
Reply submissions of Mr Savo
- [32]Mr Savo contends that it is unfair and unreasonable for CHHHS to rely on the performance concerns in circumstances where this advice was provided to the appropriate delegate on 4 January 2023 i.e. after Mr Savo requested appointment to the higher duties role and before Mr Savo's contract was once again extended.
- [33]Mr Savo closes his reply submissions by contending that as at the date his contract was extended on or about 31 January 2023, he was eligible for appointment notwithstanding the ongoing performance issues that existed at that time.
Consideration
Operational requirements
- [34]Notwithstanding that CHHHS no longer relies on submissions with respect to genuine operation requirements, some comment about Mr Savo's continual renewal in an acting capacity needs to be made.
- [35]The extension of Mr Savo's acting role on 23 occasions would ordinarily be cause for concern. There are any number of statutory and policy statements that set the standard of permanent employment as the preferred default for public sector employees.[6] Circumstances such as these where Mr Savo has been acting up in a higher classification for such an extended period are nothing short of extraordinary in the context of such legislative provisions.
- [36]Further, I have no difficulty accepting the submission that the ongoing nature of the role filled by Mr Savo over the many years entirely mitigates any suggestion that there may be genuine operational requirements that would preclude his permanent appointment.
- [37]CHHHS has appropriately abandoned its submissions in respect of the genuine operational requirements but continues to rely on the merit principle.
- [38]There is no capacity in this appeal (or at all) for the Commission to consider or remedy any previous decisions declining Mr Savo permanent appointment at the higher classification level. Mr Savo was, for many years, at liberty to apply for permanent appointment. To the extent that he did and was denied, he has missed his opportunity to appeal those decisions. Further, Mr Savo has to now contend with CHHHS' merit concerns in respect of this appeal.
Merit principle
- [39]CHHHS relies on the merit principle to refuse Mr Savo's application for permanent appointment. The issues giving grise to CHHHS' merit concerns are, in summary, a series of behaviours by Mr Savo warranting documented management interventions between August 2021 and October 2022. Further, at the time of the filing of this appeal, the most recent concern about Mr Savo's conduct had been elevated to a senior delegate to consider commencing a disciplinary process.[7] That consideration is unresolved.
- [40]CHHHS' submissions filed on 7 March 2023 attach documents supporting the genuineness of the performance or conduct concerns. Without descending into the detail of each incident, the common theme of the concerning conduct appears to be Mr Savo's abrasive communication style.
- [41]There are examples of emails sent by Mr Savo that are, on any objective view, deserving of corrective intervention by management. Mr Savo may contend that there is some justification for his conduct but the emails leave no doubt about what language is attributable to him. Any alleged justification by Mr Savo could only be mitigation for his plainly unacceptable conduct. As a consequence of Mr Savo's conduct, management intervention has been a consistent feature of his employment relationship since August 2021 and continues to be so.
- [42]Mr Savo challenges the validity of reliance on the merit principle on two grounds. Firstly, he contends that a previous request for permanent appointment was declined in January 2022 on genuine operational grounds. At that time, Mr Savo was already the subject of interventions from management as a consequence of an inappropriate email, but CHHHS did not rely on the merit principle to decline his application.
- [43]CHHHS have submitted that, at that time, it did not consider the conduct of Mr Savo was serious enough to warrant reliance on the merit principle. I accept this explanation. It is noted as an aside that the email in question was, in my view, a particularly improper email in all of the circumstances. Mr Savo ought to regard himself as fortunate that more stringent disciplinary action was not taken at that time.
- [44]In the circumstances I do not consider that the failure by CHHHS to identify merit issues on the previous occasion renders its subsequent reliance on them unfair or unreasonable. I would add that even if CHHHS had simply elected not to rely on merit issues or had inadvertently not included them in its consideration on that occasion, it could not be precluded from subsequently relying on them during a later review.
- [45]The second ground that Mr Savo relies on is, he says, the inconsistency between the decision to refuse permanent appointment on the merit principle while (almost) simultaneously extending his appointment at the higher classification in an acting capacity for a further 5-month period. This occurred on 31 January 2023 at a time when the full range of performance issues relied on to deny permanent appointment were known to CHHHS.
- [46]One can understand why this argument might hold some attraction given that appointments in both a permanent or an acting capacity require a candidate to satisfy the merit principle. However, the merit criteria set out in the repealed Act and in the PS Act are not an exhaustive or fixed list of considerations.[8] A consideration of merit with respect to a candidate for a specific appointment will be unique on every occasion and will at times require the balancing of various factors. There will be no two scenarios exactly alike.
- [47]In my view, it is not inconsistent for a decision maker to place greater weight on merit concerns to exclude a candidate when considering whether to make a permanent appointment. The risk of adverse consequences for CHHHS in permanently appointing a candidate with known and unresolved merit concerns is much greater than making an appointment for a fixed and short period. In those circumstances, I can appreciate why CHHHS might be prepared to extend Mr Savo temporarily for a further 5 months (while the performance issues are still unresolved) but remain hesitant in making his appointment permanent.
- [48]In those circumstances I do not consider the different approaches taken by CHHHS are inconsistent in a way that is unfair or unreasonable.
Conclusion
- [49]Mr Savo's matter is somewhat unique in that, his length of service acting at the higher classification would appear to be in stark contradiction with the statutory and policy expectations of permanent employment. Were it not for the merit issues I would have no difficulty on the facts before me in making a substituted decision to permanently appoint Mr Savo.
- [50]However, paradoxically, after many years of apparently acceptable service it seems that Mr Savo has engaged in a course of conduct in the last 18 months that has overwhelmingly displaced an otherwise clear entitlement to permanent appointment. Indeed, not only does the conduct legitimately preclude his permanent appointment at the higher classification at this time, but it may be beginning to jeopardise his employment overall.
- [51]It is not clear from the material before me whether this behaviour is a new development for Mr Savo, or whether it has simply been tolerated without intervention until now. But whatever the case, the objective evidence of unacceptable language that is found in Mr Savo's own emails leaves no doubt that there are genuine merit concerns. Mr Savo would do well to reflect earnestly on his conduct and to address the obvious shortcomings in his communication style.
- [52]For all of the above reasons I consider that the decision under review is fair and reasonable.
Order
- The decision appealed against is confirmed.
Footnotes
[1] On 1 March 2023, Directive 13/20 was superseded by Directive 03/23 Review of acting or secondment at higher classification level ('Directive 03/23').
[2] Industrial Relations Act 2016 (Qld) s 562B(2), Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[4] Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[5] The Appellant's submissions at page 4.
[6] See s 25(2) of the repealed Act and s 39(3) of the PS Act.
[7] See CHHHS' submissions filed 7 March 2023, paragraphs 11-13.
[8] See s 28 of the repealed Act and s 45 of the PS Act.