Clements v State of Queensland (Queensland Health)
[2023] QIRC 204
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- Unreported Judgment
- Clements v State of Queensland (Queensland Health)[2023] QIRC 204
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Clements v State of Queensland (Queensland Health)[2023] QIRC 204
Clements v State of Queensland (Queensland Health)[2023] QIRC 204
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Clements v State of Queensland (Queensland Health) [2023] QIRC 204 |
PARTIES: | Clements, Kerri Lynn (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/99 |
PROCEEDING: | Public Service Appeal – Appeal against a conversion decision |
DELIVERED ON: | 14 July 2023 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: |
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CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – fixed-term temporary employment review – appeal pursuant to the Public Sector Act 2022 (Qld) s 131(1)(a) – where the appellant is employed on a non-permanent basis as a Business Support Officer – where the appellant requested a review for conversion to permanent employment – where the respondent decided not to convert the appellant to permanent employment – where the appellant is backfilling the substantive incumbent in the role – where the substantive incumbent has returned on a graduated return to work program – whether there is a continuing need for the appellant to perform the role or perform a role which is substantially the same – decision appealed against confirmed |
LEGISLATION AND OTHER INSTRUMENTS: | Acts Interpretation Act 1954 (Qld) s 27B Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 112, 114, 115, 116, 129, 131, 144 Review of non-permanent employment (Directive 02/23) cls 10, 13 |
CASES: | Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360 Kay v State of Queensland (Queensland Health) [2022] QIRC 311 Katae v State of Queensland & Anor [2018] QSC 225 Horne v State of Queensland (Queensland Health) [2022] QIRC 359 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Benson v State of Queensland (Department of Education) [2021] QIRC 152 |
Reasons for Decision
Introduction
- [1]Ms Kerri Lynn Clements (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) in the role of AO3 Business Support in the Clinical Resource Service Nursing Support Service at Sunshine Coast University Hospital (‘SCUH’) within the Sunshine Coast Hospital and Health Service (‘SCHHS’).
- [2]Ms Clements appeals a decision not to approve her application for conversion to permanent employment. This decision was conveyed to Ms Clements in a decision letter from Ms Joanne Shaw, Chief Operating Officer, SCHHS (‘the decision-maker’), dated 1 May 2023.
Background
- [3]For context, Ms Clements commenced employment with the Respondent on 26 October 2015 when she was first engaged as a non-permanent Administration Officer Level 3 (AO3). Ms Clements was then continuously engaged by the Respondent in various temporary administration roles.
- [4]On 27 March 2018, the Respondent wrote to Ms Clements to advise that she was eligible to be considered for a temporary to permanent conversion under the now repealed Public Service Act 2008 (Qld) and the now superseded Directive 08/17 – Temporary Employment Directive. Following the review, a written outcome was provided to Ms Clements on 2 May 2018 which advised that she had not been converted. Ms Clements appealed this decision and her appeal was dismissed in an unreported decision of the Queensland Industrial Relations Commission (‘the Commission’).[1]
- [5]Ms Clements was again eligible to be considered for conversion on 6 November 2018. On 23 November 2018, Ms Clements was provided a written outcome that advised she had not been converted to permanent employment.
- [6]The Appellant remained continuously employed by the Respondent on a non-permanent basis for two years and she was advised on 25 October 2019 that a third review of her employment was commencing. On 15 November 2019, the Respondent offered Ms Clements a permanent, full-time conversion into an AO3 role with the Oral Health Call Centre, SCHHS. Ms Clements accepted the role on the same day and commenced her position on 18 November 2019.
- [7]Ms Clements resigned from her permanent AO3 role on 25 April 2021.
- [8]Ms Clements explains in her Appeal Notice that she did not have previous experience in the role and did not want to remain in the Oral Health Call Centre. Prior to her resignation, Ms Clements sought advice from Human Resources and was informed that although the SCHHS was not required to consider alternative roles based on her ‘dislike’ of the role, she could apply for an employee-initiated transfer. The Appellant says she actively pursued an employee-initiated transfer but was not approved to be permanently released from her substantive role for operational reasons.
Current appeal
- [9]Ms Clements has been continuously employed in her current AO3 Business Support role since 26 April 2021. She is employed by the Respondent on a non-permanent basis, backfilling the substantive incumbent who has been accessing pre-approved long-term leave.
- [10]Between 26 April 2021 and 29 May 2023, Ms Clements’ non-permanent engagement in her current role has fluctuated between full-time and part-time. On 30 May 2023, the permanent incumbent in the role returned to their substantive position working part-time hours on a graduated return-to-work plan. Ms Clements’ current fixed-term temporary engagement will therefore continue on a part-time basis until 18 February 2024.
- [11]On 3 April 2023, the SCHHS notified Ms Clements that a review of her employment status was commencing as she had been continuously employed on a non-permanent basis for two or more years in the AO3 Business Support role.
- [12]Ms Clements subsequently received the decision letter dated 1 May 2023 by email on 2 May 2023. She then filed her appeal with the Commission on 22 May 2023, within 21 days of receiving the decision letter.
The decision letter
- [13]In summary, Ms Shaw advised the Appellant that as she had been engaged on a temporary basis to backfill an existing employee, she would not be converted to permanent employment. Ms Clements was told that she would continue in her current role until 18 February 2024, which is the substantive occupant’s expected return.
- [14]The decision-maker explains that in coming to her decision, she has considered the requirements of the Public Sector Act 2022 (Qld) (‘the PS Act’) and the Review of non-permanent employment (Directive 02/23) alongside Ms Clements’ employment history, including previous conversion review decisions.
- [15]The decision-maker explains that there are two main considerations when determining whether to convert a non-permanent employee to permanent employment. Firstly, whether there is a continuing need for Ms Clements to perform her role or a role that is substantially the same, and secondly, whether Ms Clements is suitable to perform the role.
- [16]On page 2 of the decision letter, the decision-maker thanks Ms Clements for her performance in the AO3 Business Support role and confirms that Ms Clements has demonstrated that she satisfies the requirements of the role.
- [17]The decision-maker goes on to explain that a review of her position has shown that the SCHHS does not have a continuing need for Ms Clements to perform the role as she is backfilling in a role where the substantive occupant is expected to return.
- [18]Further, the decision-maker says that the SCHHS has actively reviewed its ongoing roles and has not found a role that is considered to be substantially the same as Ms Clements’ current AO3 Business Support role.
- [19]Ms Shaw says that this involved consideration of all approved position change requests and a review of all ongoing positions submitted to recruitment via request for hire.
- [20]During the review, the SCHHS identified an available, ongoing role with similarities to Ms Clements’ current position. That role was an AO3 Administration Officer – Elective Surgery. The decision-maker says that assessments of the relevant role descriptions were completed by the hiring manager and it was determined that the role was not considered substantially the same as Ms Clements’ current position. In particular, the decision-maker wrote that the ‘role requirements are not considered substantially the same and the Line Manager advised that [Ms Clements’] skills and experience do not align to the requirements of the role’.
- [21]The decision-maker concludes her letter with information about making further requests for review or lodging an appeal of the decision.
Appeal principles
- [1]Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
- [2]Relevantly to this matter, s 562B(4) of the IR Act states that:
For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission —
- (a)must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
- (b)may allow other evidence to be taken into account if the commission considers it appropriate.
- [3]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
- [4]A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
- [5]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (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.
Legislative framework and other instruments
- [6]In order to determine the appeal, it is necessary to consider the relevant provisions of the PS Act and Directive 02/23 (‘the Directive’).
The PS Act
- [22]Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(a) provides that an appeal may be made against a conversion decision.
- [23]Section 129 of the PS Act relevantly provides:
129 Definitions for part
In this part—
conversion decision means a decision—
- (a)under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis.
- [7]Section 115 of the PS Act relevantly states:
115 Chief executive must review status after 2 years of continuous employment
- (1)If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee’s chief executive must decide whether to—
- (a)continue the employee’s employment according to the terms of the employee’s existing employment; or
- (b)offer to convert the employee’s employment to a permanent basis.
- (2)The employee’s chief executive must make the decision within the required period after—
- (a)the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.
- (3)In making the decision—
- (a)section 114(3) and (4) applies to the employee’s chief executive; and
- (b)the employee’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 114 in relation to the employee during the employee’s period of continuous employment.
- (4)If the employee’s chief executive decides not to offer to convert the employee’s employment to a permanent basis, the chief executive must give the employee a notice stating—
- (a)the reasons for the decision; and
- (b)the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and
- (c)how many times the employee’s employment on a non-permanent basis has been extended; and
- (d)each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee’s period of continuous employment.
- [8]Section 114 of the PS Act relevantly provides:
114 Chief executive must make decision on employee’s request
…
- (3)The employee’s chief executive may decide to offer to convert the employee’s employment to a permanent basis only if—
- (a)the employee’s chief executive considers—
- (i)there is a continuing need for someone to be employed in the employee’s role, or a role that is substantially the same as the employee’s role; and
- (ii)the employee is suitable to perform the role; and
- (b)any requirements of an industrial instrument are complied with in relation to the decision.
- (4)If the matters in subsection (3) are satisfied, the employee’s chief executive must decide to offer to convert the employee’s employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.
- [9]Section 133 of the PS Act explains who may appeal a conversion decision:
133 Who may appeal
The following persons may appeal against the following decisions—
- (a)for a conversion decision—the public sector employee the subject of the decision
The Directive
- [24]While all of the provisions of the Directive have been considered, particular attention is paid to the following clause:
13. Obligations when a decision is made not to offer to convert an employee’s employment to a permanent basis and to continue the employee’s employment according to the terms of the employee’s existing employment
13.1 Any notice provided to the employee must comply with section 27B of the Act Interpretation Act 1954 to:
- a.set out the findings on material questions of fact, and
- b.refer to the evidence or other material on which those findings were based.
13.2 Any notice provided to the employee must include information about any relevant appeal rights available to the employee.
13.3 Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee’s employment to a permanent basis because the person was not suitable to perform the role, any notice provided to the employee must also include information about an employee’s right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.
Ms Clements’ reasons for appeal
- [25]Ms Clements says that she does not believe that the decision not to convert her employment to permanent status was fair and reasonable for the following reasons:
- It is not clear to the Appellant why the decision-maker decided that the AO3 Administration Officer – Elective Surgery role is not substantially the same as her current role;
- The decision letter compares the AO3 Administration Officer – Elective Surgery role to that of Administration Officer Director Support (AO3), however Ms Clements says that this is not her current role title and may indicate that the decision-maker has erroneously considered a different role;
- The decision-maker has failed to set out findings of material questions of fact or refer to evidence or other material upon which those findings were based in accordance with the Acts Interpretation Act 1954 (Qld) s 27B. As a result, Ms Clements says she is at a significant disadvantage when trying to respond to the considerations that were and were not considered in the decision-maker’s process;
- The decision letter does not address the genuine operational requirements of the SCHHS and there are no such operational requirements that would prevent her conversion to permanent employment; and
- Ms Clements has been continuously employed in a non-permanent role for over two years and has not had any adverse findings in respect of her performance or conduct. The Appellant says that she has therefore demonstrated that she is suitable to perform the role in accordance with ss 114(3)(a)(ii) and 115(1) of the PS Act.
- [26]The Appellant seeks that the decision be set aside and substituted with a decision to convert her employment to permanent status, or in the alternative, that the decision be sent back to the decision-maker for a fresh review with any directions deemed appropriate by the Commission.
Respondent’s submissions
- [27]The Respondent sets out a history of Ms Clements’ employment including decisions referred to above where her employment was not converted to permanent and the eventual offer of permanent employment accepted by Ms Clements on 15 November 2019. The Respondent confirms Ms Clements’ submission regarding her decision to resign from the permanent AO3 role.
- [28]The Respondent provides the following information about Ms Clements’ non-permanent employment in the role of AO3 Business Support in the Clinical Resource Service (CRS) Nursing Support Service at SCUH with SCHHS:
- Ms Clements is backfilling the substantive incumbent who has been accessing pre-approved long-term leave;
- Between 26 April 2021 and 29 May 2023, Ms Clements’ non-permanent engagement in this AO3 Business Support role has fluctuated between full-time and part-time;
- On 30 May 2023, the permanent incumbent of the AO3 Business Support role returned to their substantive role working part-time hours on a graduated return to work; and
- Ms Clements will accordingly continue to work in the fixed-term temporary engagement on a part-time basis until 18 February 2024.
Consideration of current role
- [29]The Respondent says that as the AO3 Business Support role is substantively occupied by an incumbent who is in the process of gradually returning to their full-time substantive hours by 18 February 2024, there is no continuing need for Ms Clements to be employed in this role.
- [30]While the Respondent does not dispute Ms Clements’ suitability to perform the role, it says that her non-permanent engagement in the AO3 Business Support role is for a genuine operational need to backfill the role during the substantive incumbent’s extended period of leave.
Consideration of substantially the same role
- [31]The Respondent confirms that per s 115(3)(a) of the PS Act, at the time of the review of Ms Clements’ non-permanent employment, it actively considered vacant non-permanent roles which could be deemed substantially the same as the AO3 Business Support role.
- [32]The Respondent notes that within the review timeframe, an AO3 Elective Surgery vacancy was identified and an assessment of the roles determined that the roles were not substantially the same. The following detailed summary of the roles is set out in Respondent’s submissions:
- In summary, the AO3 Business Support role is the prime point of contact for communication (internally on a daily basis and externally with various departments and agencies) for an agreed clinical equipment loan fleet. It aims to provide efficient resource management services specifically related to a centralised clinical equipment management, maintenance, advisory and loan service for in-house equipment assets. The ability to undertake this role leans to performing general administrative functions.
- In summary, the AO3 Elective Surgery role is the primary point of contract for patients and clinicians in relation to the booking of patients for elective surgery and the management of such waiting lists. Elective Surgery Services coordinate patient bookings for elective surgeries over multiple surgical facilities within the SCHHS. The ability to undertake a role of this nature requires a demonstrated knowledge of medical terminology and the ability to extract, understand and interpret pertinent information such as investigation results, clinical notes and operative reports from patient medical records and hospital information systems.
- [33]The Respondent says that although the roles were not deemed substantially the same, the hiring manager undertook an assessment of Ms Clements’ suitability, and determined that she did not meet the relevant mandatory conditions of the role (per cl 10 of the Directive).
The Respondent says the decision is fair and reasonable
- [34]The Respondent says that the decision not to convert Ms Clements to permanent employment at this time is based on there being no continuing need at the time of the review for Ms Clements to perform the same role or a role which is substantially the same.
- [35]The Respondent says it has demonstrated that it is not viable to convert Ms Clements to permanent employment due to genuine operational reasons and that there is no obligation under the Directive for the SCHHS to create an additional substantive role where there is no continuing need.
- [36]The Respondent says that the letter provided to Ms Clements outlined the findings on material questions of fact, and referenced evidence and other material on which those findings were based.
- [37]With regard to the concern raised by Ms Clements in her appeal notice that the decision letter she received incorrectly referenced her current role as an AO3 Director Support role, the Respondent confirms that the appropriate role of AO3 Business Support Officer was considered by the hiring manager in determining whether the available elective surgery role was substantially the same. By way of evidence, the Respondent attached to its submissions an email to the hiring manager dated Monday 17 April 2023 requesting that a review take place to ‘advise whether the required skills, experience and capability requirements in the vacant role are the same as the current role’.[2] For completeness, I note that email also requested that advertising of the position be placed on hold until the review had been completed.
- [38]The Respondent also confirms that the letter provided Ms Clements with information regarding her right to request an additional review.
- [39]Finally, the Respondent says that the review was undertaken in accordance with the Directive; proper consideration was given to Ms Clements’ human rights when making the decision; and it is committed to the fair treatment of employees by maximising employment security through permanent employment where it is viable or appropriate.
Ms Clements’ submissions
- [40]Ms Clements refers to Catterall v State of Queensland (Queensland Police Service) (‘Catterall’),[3] where I noted that there is no requirement for recurrent funding or a vacant permanent position in order for a conversion to be made. Ms Clements contends that if the Respondent relies on an argument that a vacant permanent position is required to convert an employee from temporary to permanent status, it is ‘incorrectly interpreting the considerations for making a conversion decision’.
- [41]With reference to Kay v State of Queensland (Queensland Health) (‘Kay’),[4] Ms Clements says that the purpose of s 115 of the PS Act is not achieved by failing to convert her employment status to permanent in circumstances where there is an obvious continuing need for the role or a role which is substantially the same. Ms Clements says that the Respondent has potentially contradicted themselves by claiming the role is temporary, but also that the role is continuing and ongoing in nature by virtue of a contract being in place until February 2024.
- [42]Ms Clements says that it is unfair and unreasonable for the Department to conclude that her conversion can be denied on the basis of a lack of currently vacant permanent positions in isolation from the broader circumstances of her employment and the continuing need for the role.
- [43]Ms Clements says the Respondent does not comment on the need for what may be referred to as a ‘permanent reliever’ position as is envisioned in s 81(4) of the PS Act and says that permanent relievers are commonplace in the Department, especially in the administration streams of employment.
- [44]Ms Clements argues that human resource management and planning implications on their own should not absolve the Department of the obligation to maximise permanent employment and establish that permanent employment on tenure is the default basis of employment in the Queensland Public Sector.
- [45]With reference to Katae v State of Queensland & Anor (‘Katae’),[5] Ms Clements says that the Respondent seems to have misinterpreted the term ‘ongoing’ and conflated it with the term ‘permanent’, despite the terms not being interchangeable.
- [46]Ms Clements contends that similar to the matter of Horne v State of Queensland (Queensland Health) (‘Horne’),[6] her history of continuous engagements leads to the reasonable conclusion that there is a continuing need for someone to perform her role or a role that is substantially the same, as there is no requirement to consider whether that need is casual or temporary in nature.
- [47]With reference to Merrell DP’s consideration of the phrase ‘genuine operational requirements’ in Morison v State of Queensland (Department of Child Safety, Youth and Women),[7] Ms Clements submits that there is an authentic need for someone to perform the role or a role that is substantially the same for the foreseeable future, and the Respondent is effectively utilising a fixed-term temporary arrangement to populate a role that could be carried out by a permanent employee. Ms Clements says the Respondent has not presented evidence to counter the genuine operational need of the role or a role which is substantially the same.
- [48]Ms Clements refers to Queensland Health’s Conversion of temporary employees to permanent status HR Policy B52 which acknowledges that:
As a result of being converted to permanent status under this policy, the employee is not appointed to a position permanently, but is appointed as an employee of Queensland Health on a permanent basis…
…Upon conversion to permanent status, the employee is to be appointed at the classification level at which they were employed under their temporary engagement. Furthermore, the employee is to be given permanent status on the remuneration that they were entitled to as a temporary employee.
- [49]Ms Clements says the result of that policy is that she would not be converted to a specific position and that this further implies that there is no genuine operational requirement that prevents the Department from converting her employment status to permanent.
- [50]Ms Clements says that while s 81(3)(a) of the PS Act provides that employment on tenure may not be viable or appropriate to perform work for a particular purpose or project that has an end date, the Department has failed to outline when the role will end, if ever. Ms Clements says that the current contract end date is 24 February 2024, which she contends is a significant time away. Ms Clements says that the ‘lack of a known end date and the relatively distant contract period contributes to her assertion that there is a continuing need for her role’.
- [51]Ms Clements also says that s 81(4) provides that employment on tenure may be viable or appropriate if a person is required to be employed for the purpose mentioned in s 81(3)(a) on a frequent or regular basis. Ms Clements contends that even if the Department believes that the work she performs in her current role is temporary in nature, it has not adequately considered whether the Department requires someone to be employed on a frequent or regular basis for a purpose mentioned in s 81(3)(a).
- [52]Ms Clements refers to Benson v State of Queensland (Department of Education) (‘Benson’),[8] where it was found that Ms Benson had been repeatedly extended in the role and was backfilling another employee in circumstances where the return of the incumbent was uncertain and that this demonstrated a continuing need. Ms Clements says that she has been in her current role or a role substantially the same since 26 April 2021 and has been extended and reengaged numerous times by the Department and that this demonstrates a continuing need for her to be employed in the role.
Consideration
- [53]I note that Ms Clements’ submissions contain extensive reference to her employment history prior to the two year period relevant to this appeal, previous conversion to permanent and the events leading to her deciding to resign from the permanent position and take up a different role in a temporary capacity. I confirm that these are not matters I need to consider in determining whether the decision of 1 May 2023 was fair and reasonable.
- [54]With regard to Ms Clements’ appeal ground that the decision-maker may have erroneously considered a different role when making her decision, I am satisfied that the reference to a different position in the decision was the result of a clerical error. The evidence demonstrates that the request to consider whether Ms Clements’ role was substantially the same as the vacant AO3 Elective Surgery role was made with proper reference to the current role she is engaged in. This error does not make the decision unfair or unreasonable.
Was there a continuing need for Ms Clements to perform her current role, or a role that is substantially the same as her current role?
- [55]Per s 114(3) of the PS Act, there are three pre-conditions to a decision to offer conversion of employment on a permanent basis: continuing need; suitability and requirements of an industrial instrument. There is no dispute between the parties that Ms Clements is suitable to perform the role.[9] There have been no submissions from either party regarding the applicability of a relevant industrial instrument.[10]
- [56]Section 114(4) provides that if the matters in subsection (3) are satisfied, the employee’s chief executive must decide to offer to convert the employee’s employment on a permanent basis
- [57]The key issue in this appeal is whether it was fair and reasonable for the decision-maker to determine that there was not a continuing need for someone to be employed in the employee’s role or a role that is substantially the same as the employee’s role. If s 114(3)(a)(i) is not satisfied, there is no need for the decision-maker to go on to consider whether there are genuine operational requirements making it not viable or appropriate to convert the employee’s status to permanent.
- [58]The factual background of this matter does not appear to be in dispute. Ms Clements’ employment was converted to permanent on 18 November 2019. Ms Clements decided to resign from this role on 25 April 2021. That Ms Clements was previously converted to permanent and made a decision to resign from that position has no bearing on this current appeal, except to note that the period prior to 26 April 2021 is not relevant to any consideration of an ongoing need for Ms Clements to be employed in the role she has been engaged in on a temporary basis since 26 April 2021.
- [59]The Respondent has stated, and it is not contested by Ms Clements, that she has been employed between 26 April 2021 and 29 May 2023 for the purpose of backfilling the substantive incumbent. While Ms Clements submits that there is no certainty about her planned end date or the return of the incumbent, the factual background makes clear that the substantive incumbent has indeed returned to work on a graduated basis and that this has meant that Ms Clements’ temporary engagement has moved from full-time to part-time. This means that Ms Clements’ circumstances can be distinguished from those in Benson. While Ms Clements submits that there is no known end date to her engagement, it appears clear that at the time of the review on 1 May 2023, her engagement had a known end date of 18 February 2024.
- [60]I note Ms Clements’ submission that this known end date of the engagement involves a long timeframe. However, that end date is within a year of the date the decision was made. This is not a long timeframe in circumstances where the substantive employee has returned to work and there is a known plan to continue that employee’s graduated return to work. The return of the employee is not hypothetical. At the time of the review, I find that it was entirely reasonable for the decision-maker to conclude that there was no continuing need for Ms Clements to be employed in the role beyond the known end date. This distinguishes Ms Clements’ situation from that in Kay where the respondent determined that there was a continuing need for the employee to perform the role but that funding for the role was temporary.
- [61]I am satisfied that the Respondent undertook an enquiry as to whether there were any roles substantially the same as the one Ms Clements has been performing. A role was identified, however the reviewer determined that the role was not substantially the same. Notwithstanding that, consideration was given as to Ms Clements’ suitability for the role and she was deemed to not be suitable for appointment to that role.
- [62]I have considered Ms Clements’ suggestion that the Respondent has not considered appointing her as a permanent reliever, as envisaged by the example provided in s 81(4) where there is an ongoing requirement to backfill multiple absences because of approved leave or secondment. The problem I have with this proposition is that this is not a circumstance where on an ongoing basis during the two years of her temporary engagement, Ms Clements has backfilled multiple absences. Ms Clements appears to have been employed for the entirety of this time to backfill one absence, that of the employee who has now returned to work, necessitating an adjustment of the temporary engagement from full-time to part-time hours. I do not think Ms Clements’ reference to Katae and the claim that the Respondent have misinterpreted the term ‘ongoing’ has any useful application to this matter. Further, I do not think that Horne has application here as in that case, the appellant had been continuously employed to fill a range of temporary and casual vacancies and was considered by the respondent to be part of a ‘backfill pool’. Ms Clements has replaced only one person, and that person is returning to their substantive position.
- [63]I am unwilling to form a view that there is a continuing need for Ms Clements to be employed in the role or a role that is substantially similar as doing so requires me to make predictions about the future need for Ms Clements to backfill other absences.
- [64]While s 81 of the PS Act states that the basis of employment is generally on a permanent basis, s 81(3) states that employment on a permanent basis may not be viable or appropriate if the employment is for the purpose of filling a temporary vacancy arising because a person is absent for a known period.[11] I find that the circumstances of Ms Clements’ employment represent that situation and that no material before me in this appeal serve to demonstrate otherwise.
Is it necessary for the decision to address SCHHS’s genuine operational requirements?
- [65]Having decided that there was no continuing need for Ms Clements to undertake the role or a role that was substantially the same, the decision-maker was not required to go on and determine whether there were genuine operational requirements which precluded conversion of Ms Clements’ employment from temporary to permanent. The Respondent does not appear to state in the decision or in its submissions that the decision to not convert Ms Clements to permanent is based on funding or vacant permanent positions but on there being no continuing need. This, amongst other things, distinguishes Ms Clements’ case from that in Catterall, which dealt with an appointment to a position at a higher classification. In that case, the higher duties position was temporary, there was no substantive owner of the position and the respondent in that matter said there was no recurrent funding for the position. In this case, the position Ms Clements is backfilling is funded and the substantive owner of the role has commenced a return to work with a known end date. The resistance to conversion of Ms Clements’ employment is squarely based on continuing need, rather than a lack of recurrent funding.
Has the decision-maker failed to set out the findings of material questions of fact, or refer to the evidence or other material on which those findings were based?
- [66]One of Ms Clements original reasons for appeal as set out in her appeal notice was that it was unclear why the decision-maker determined that the Elective Surgery role is not substantially the same as her current role. I accept that the decision letter did not provide the detailed summary which Ms Clements has now been provided with in the submissions of the Respondent. However, I have reviewed the decision letter and I find that the explanation provided to Ms Clements was that the role requirements were not considered substantially the same. The letter invited Ms Clements to direct any further questions she had about the letter to Ms Katy Forte, who was the assigned contact for the review. I am satisfied that the explanation regarding the elective surgery role was satisfactory and that there was an avenue provided for any further enquiries Ms Clements had about the letter.
- [67]Ms Clements also says that the decision-maker did not set out findings of material questions of fact or refer to evidence or other material upon which those findings were based as required by cl 13 of the Directive. I disagree. The decision addresses the facts surrounding Ms Clements’ employment, specifically that she is backfilling an existing employee until the date of the substantive occupant’s expected return. The decision also provides information about the steps taken during the review period to identify any ongoing roles that are substantially the same and explains what this review entailed. The decision goes on to identify a role that was identified as having similarities to Ms Clements’ temporary role and then to provide an explanation about why it was deemed to not be substantially the same. I find that the decision satisfactorily addresses the requirements of the Directive and s 27B of the Acts Interpretation Act 1954 (Qld).
- [68]I am also satisfied that the decision provided information regarding the process, Ms Clements’ rights to make additional requests for review and her appeal rights.
Conclusion
- [69]For the foregoing reasons, I find that it was fair and reasonable for the decision maker to decide that Ms Clements would continue as a non-permanent employee for the purposes of backfilling an existing employee who was undertaking a graduated return to work with an expected return date of 18 February 2024.
Order
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] Clements v State of Queensland (Queensland Health) PSA/2018/115 (unpublished).
[2] Respondent’s submissions filed 9 June 2023, Attachment D.
[3] [2021] QIRC 360, [28], [46].
[4] [2022] QIRC 311, [38] (‘Kay’).
[5] [2018] QSC 225, [50].
[6] [2022] QIRC 359, [29].
[7] [2020] QIRC 203, [38].
[8] [2021] QIRC 152, [120]-[121] (‘Benson’).
[9] Public Sector Act 2022 (Qld) s 114(3)(a)(ii).
[10] Ibid s 114(3)(b).
[11] Ibid s 81(3)(a)(i).