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  4. Cushing v State of Queensland (Department of Education) - [2023] QIRC 252

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Cushing v State of Queensland (Department of Education)[2023] QIRC 252

Cushing v State of Queensland (Department of Education)[2023] QIRC 252

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Cushing v State of Queensland (Department of Education) [2023] QIRC 252

PARTIES:

Cushing, Fleur

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/137

PROCEEDING:

Public Sector Appeal – Appeal against a conversion decision

DELIVERED ON:

1 September 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant requested appointment to the higher classification level in which she has been acting – appellant substantively employed as an Administration Officer (AO2) at Varsity College – appellant has been acting as Business Manager (AO5) at Clover Hill State School – where the respondent refused the appellant’s permanent appointment to the higher classification level citing its genuine operational requirements – where the substantive incumbent is due to return to the role – consideration of the respondent’s genuine operational requirements – whether the decision was fair and reasonable – decision appealed against confirmed

LEGISLATION AND OTHERINSTRUMENTS:

Public Sector Act 2022 (Qld) ss 120, 129, 131, 133

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Directive 03/23 – Review of acting or secondment at higher classification level cls 4, 7

CASES:

Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167

Aldiss v State of Queensland (Department of Education) [2022] QIRC 242

Graves v State of Queensland (Department of Education) [2020] QIRC 230

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038

Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015

Reasons for Decision

 Introduction

  1. [1]
    Ms Fleur Cushing (‘the Appellant’) appeals a decision of the State of Queensland (Department of Education) (‘the Respondent’) to refuse her permanent appointment to a higher classification level.
  1. [2]
    Ms Cushing is substantively employed by the Respondent on a permanent, full-time basis as an Administrative Officer, classification level AO2, at Varsity College. Ms Cushing has been acting at a higher classification level in a Business Manager role, classification level AO5, at Clover Hill State School since 20 January 2020. Her acting arrangement in the higher classification position currently has an end date of 8 December 2023 when the Respondent says the substantive incumbent in the role is due to return following a temporary period of performing duties in another role.
  1. [3]
    Ms Cushing requested a review of her acting or secondment at the higher classification level on 19 June 2023, in accordance with the provisions of the Public Sector Act 2022 (Qld) (‘the PS Act’) and Directive 03/23 – Review of acting or secondment at higher classification level (‘the Directive’). 

The decision letter

  1. [4]
    On 17 July 2023, Mr Jeff Shelden, Director, Recruitment and Employment Review, Engagement and Talent Acquisition, People Branch (‘the decision-maker’) wrote to Ms Cushing to advise her that the Respondent had decided not to employ her at the higher classification level on a permanent basis, citing the genuine operational requirements of the Department. The decision-maker wrote:

In this case I have determined that it is not appropriate to permanently employ you in the higher classification level position as an existing employee is absent from the position to perform another role within the entity and the Department does not use permanent relief pools for this particular position.

The Commission has generally considered that the return of a substantive employee to the position represents a genuine operational requirement to support the temporary employment of an employee at a higher classification level.

The consequence of appointing you to the higher classification position would be that two permanent employees would then occupy the one position of Business Manager, Clover Hill State School upon the substantive employee's return.

In these circumstances, it is reasonable to conclude that the effective, efficient and appropriate management of the department’s resources does not require two employees in this position. The genuine operational requirements of the department therefore support the retention of your employment on a temporary basis only, prior to the return of the substantive incumbent to the position.

  1. [5]
    In coming to this decision, the decision-maker noted that Ms Cushing: is currently acting at a higher classification level position in the Department where she is employed; has acted at the higher classification for at least a year; and is suitable for appointment to the higher classification level position.
  1. [6]
    Mr Shelden wrote that he also had regard to the total continuous period of Ms Cushing’s employment in the higher classification level position being three years, five months and three weeks at the date of decision. Previous decisions made, or taken to have been made, during Ms Cushing’s continuous period of employment at the higher classification level were also taken into account.
  1. [7]
    In consideration of these factors as well as Ms Cushing’s human rights, the decision-maker ultimately refused Ms Cushing’s request for permanent appointment to the higher classification level due to the genuine operational requirements and service delivery needs of the Department. In effect, Ms Cushing’s current higher classification level engagement will continue in accordance with the existing arrangement.
  1. [8]
    Mr Shelden concluded the letter by providing Ms Cushing with information about appealing the decision.

Appeal principles

  1. [9]
    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'.
  1. [10]
    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.
  1. [11]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [12]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. 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

  1. [13]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the PS Act and Directive 03/23.

The PS Act

  1. [14]
    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.
  1. [15]
    Section 129 of the PS Act relevantly provides:

129  Definitions for part

In this part—

conversion decision means a decision—

…

  1. under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years.
  1. [16]
    Section 120 of the PS Act provides for the appointment of a public sector employee to a higher classification level in the following terms:

120  Employee may request employment at a higher classification level after 1 year of    continuous acting or secondment

  1. If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee’s chief executive to employ the employee in the position at the higher classification level on a permanent basis, after—
  1. the end of 1 year of acting at, or being seconded to, the higher classification level; and
  1. the end of each subsequent 1-year period.
  1. The employee’s chief executive must decide the request within the required period.
  1. The employee’s chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role.
  1. In making the decision, the employee’s chief executive must have regard to—
  1. the genuine operational requirements of the public sector entity; and
  1. the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of acting at, or secondment to, the higher classification level.
  1. If the employee’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. the reasons for the decision; and
  1. the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and
  1. how many times the employee’s acting arrangement or secondment has been extended; and
  1. each decision previously made, or taken to have been made, under this section in relation to the employee during the employee’s continuous period of acting at, or secondment to, the higher classification level.
  1. If the employee’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. The commissioner must make a directive about employing an employee at a higher classification level under this section.
  1. In this section—

continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive.

required period, for making a decision under subsection (2), means—

  1. the period stated in an industrial instrument within which the decision must be made; or
  1. if paragraph (a) does not apply—28 days after the request is made.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

  1. [17]
    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—

  1.  for a conversion decision—the public sector employee the subject of the decision

The Directive

  1. [18]
    While all of the provisions of the Directive have been considered, particular attention is paid to the following provisions:

4.  Principles

…

4.2  Chief executives are required to act in a way that is compatible with the main purpose of this Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.

…

7.  Decision-making

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.

Ms Cushing’s reasons for appeal

  1. [19]
    Ms Cushing filed her appeal notice on 19 July 2023, within 21 days of receiving the decision letter.
  2. [20]
    Ms Cushing says that the Principal of Clover Hill State School, Ms Martine Gill, advised her that the substantive incumbent is not currently on approved leave, acting on an approved secondment, or acting in a higher classification role. It is Ms Cushing’s understanding, based on the Principal’s advice, that the substantive incumbent ‘made contact’ on 10 October 2022 advising that they would not be returning to Clover Hill State School and intended to relinquish the permanent AO5 Business Manager position which Ms Cushing has been acting in.
  1. [21]
    Ms Cushing says that the substantive incumbent is performing duties for the Respondent in a short-term relieving capacity in an at-level position. Ms Cushing contends that based on her discussions with the Principal, she understands that ‘approval to undertake this type of employment has not been granted’.
  1. [22]
    Ms Cushing submits that she has been backfilling the role since 20 January 2020, which has amounted to a period of three years and five months. Ms Cushing says she has applied for the status of her employment to be reviewed on three previous occasions.
  1. [23]
    Overall, Ms Cushing says, ‘I believe that this refusal is unfair and unreasonable as the Queensland Education Department has had significant time to process the relinquishing application or have the substantive position holder return to the substantive position’.

Respondent’s submissions

  1. [24]
    The Respondent accepts that Ms Cushing was eligible to make the request for permanent employment in the position at the higher classification level, is suitable to perform the role, was eligible to appeal the decision, and filed her appeal within the appeal period.[1]
  1. [25]
    The Department confirms that the decision-maker had regard to previous decisions made, or taken to have been made under s 120 of the PS Act and the Directive, or s 149C of the now repealed Public Service Act 2008 (Qld) and the repealed Directive 13/20 – Appointing a public service employee to a higher classification level. Specifically, the decision-maker considered:
  • The decision of 12 October 2022 of former delegate, Mr Boyd Clifford, A/Director Employment Review, to refuse Ms Cushing’s previous request for permanent appointment to the higher classification level;[2] and
  • Deemed decisions taken to have been made in accordance with the repealed framework on 4 December 2020, 18 February 2021 and 24 November 2021.
  1. [26]
    The Respondent also acknowledges that the decision letter omitted the number of occasions when Ms Cushing’s acting arrangement or secondment has been extended, which is required by s 120(5)(c) of the PS Act. The Respondent submits that this omission does not render the decision unfair or unreasonable as the Department has complied with the PS Act in all other respects, Ms Cushing has been provided with the reasons for the decision, and Ms Cushing has not been prejudiced by this omission.
  1. [27]
    Ultimately, the Respondent says that it was fair and reasonable to decide against permanently appointing Ms Cushing to the higher classification level as another employee is permanently employed in the role.[3] With the substantive incumbent due to return from a period of temporarily performing duties in another role until 8 December 2023, the Respondent says that the genuine operational requirements of the Department support the decision to reject Ms Cushing’s request.[4]
  1. [28]
    In support of this argument, the Respondent cites Holcombe v State of Queensland (Department of Housing and Public Works),[5] where McLennan IC held that a higher classification appeal is to be conducted with respect to the position occupied and confirmed that only one person may occupy the position at any one time.
  1. [29]
    The Respondent further submits that employing two permanent employees in the same role would not result in proper management of the Department’s resources. Here, the Respondent relies upon Morison v State of Queensland (Department of Child Safety, Youth and Women),[6] where Merrell DP found that an incumbent’s return to their position and the resulting effect upon the effective, efficient and appropriate management of public resources is a valid consideration with respect to genuine operational requirements.
  1. [30]
    For these reasons, the Respondent submits that the Commission should confirm the decision appealed against on the basis that it was fair and reasonable.

Appellant’s submissions

  1. [31]
    Ms Cushing says that the principal issue in this appeal is whether the Respondent has established that the operational requirements of the Department form a reasonable basis to not convert her position at the higher classification level.
  1. [32]
    Ms Cushing puts forward two arguments in support of her appeal. Firstly, the Department’s complacency in having too many Business Managers appointed and in substantive roles should not be an impediment to converting Ms Cushing in circumstances where she is eligible and suitable for the role. Secondly, there is no reasonable basis not to convert Ms Cushing to the higher classification level as the substantive incumbent has no desire to return to the role and has applied to become unattached, thus leaving the permanent role vacant.

The Department’s complacency in having too many Business Managers should not be an impediment to converting Ms Cushing to the higher classification role

  1. [33]
    Ms Cushing says that her appeal is similar to Aldiss v State of Queensland (Department of Education) (‘Aldiss’),[7] where the Department failed to establish that its operational requirements formed a reasonable basis to not convert Ms Cushing’s position at the higher classification. In that case, the Respondent argued that the allocation of 228 full-time equivalent Guidance Officer roles exceeded its target allocation of 141. Hartigan DP said:

The fact that the Department has for some reason, not nominated by the Department in its own submissions, exceeded its own allocation target by almost double, should not, without further explanation, be relied on as an impediment to convert Ms Aldiss’ employment.

  1. [34]
    Similarly, Ms Cushing contends that the Department’s complacency in having too many Business Managers appointed and in substantive roles should not impede her conversion where she is eligible and suitable for the higher classification position.

The substantive incumbent has no desire to return to the role

  1. [35]
    In the alternative, the Ms Cushing contends that the substantive incumbent will not be returning to the role which leaves no reasonable basis not to convert her.
  1. [36]
    Ms Cushing puts forward a chronology of events accompanied by certain assertions in support of this submission.
  1. [37]
    Ms Cushing successfully interviewed for the Business Manager (AO5) role at Clover Hill State School on 21 November 2019 while employed at Varsity College.
  1. [38]
    In a handover email dated 12 December 2019, the substantive incumbent told Ms Cushing about their reasons for taking leave from the role.[8] The incumbent wrote, ‘The main reason I’m taking leave is due to the massive and increasing workload as a BM so to try and do this on top of my current workload just isn’t possible…’.
  1. [39]
    Ms Cushing says that the substantive incumbent verbally stated that they would not be returning to Clover Hill State School on 3 December 2019.
  1. [40]
    Ms Cushing subsequently began her role at Clover Hill State High School on 20 January 2020.
  2. [41]
    The substantive employee met with the Principal on 30 May 2022 and stated in a follow-up email dated 2 June 2022 that they would not be returning to the school full-time.[9] The substantive incumbent said:

… I have decided not to come back to Clover full time and request to take Special Leave without pay until the end of this school year to allow me to search for other positions within the Department. This will allow both Varsity and Clover to plan staffing for the remainder of 2022. Once I have found a position I will then confer with HR again as to the next step…

  1. [42]
    After over two years spent acting in the role, the Principal wrote to Ms Cushing on 2 June 2022 to congratulate her on her permanent appointment to the role.[10] While the annexures to Ms Cushing’s submissions are not properly marked, she appears to be referring to an email from the Principal to Ms Cushing where the Principal has forwarded the substantive incumbent’s email of 2 June 2022 about their decision not to return to Clover Hill State School with the message ‘FYI’.
  1. [43]
    Ms Cushing submits that the substantive employee emailed the Respondent on 10 October 2022 relinquishing their position.[11] In response to two emails from the Principal on 3 October 2022 and 5 October 2022 enquiring as to whether the substantive incumbent would be returning to the Business Manager role or ‘relinquishing for 2023’,[12] the incumbent wrote:

… I will be relinquishing my position at Clover Hill SS. Foxwell Secondary College are investigating the possibility of picking me up from the transfer list.

I wish Fleur well.

  1. [44]
    Ms Cushing submits that the Respondent emailed her on 10 October 2022 informing her that she would be permanently appointed to the higher classification role. Ms Cushing appears to be referring to an email exchange between the substantive incumbent and the Principal regarding the incumbent’s intention to relinquish the Business Manager role which was forwarded to Ms Cushing on 10 October 2022. The forwarded email chain is accompanied by a message where the Principal says, ‘This is really good news for you Fleur. Yay!!!’. Ms Cushing responds, ‘Whooohoooooooo!!!!!!!!!!!!!!!!! Thank you’. The Principal then says, ‘I imagine [the incumbent] will need to sign paperwork?? Once that is all done, we can move straight to you moving into it permanently. Congratulations!!!’.
  1. [45]
    The substantive incumbent submitted an application to unattach from the position on 24 October 2022.[13]
  1. [46]
    Ms Cushing says that following the 10 October 2022 email exchange with the Principal, she enquired several times with the Principal regarding what she understood to be her permanent position. Ms Cushing claims to have been informed that the substantive employee ‘has lodged the form and it is being handled by Region’. Ms Cushing continued in her role under the belief that she had secured the role as a permanent position.
  1. [47]
    On 7 August 2023, Ms Cushing says that the Respondent verbally informed her of the substantive unattached request outcome. Ms Cushing says she was told by the Department that the substantive employee’s request to unattach from Clover Hill State School was not approved as the Region already had other Business Managers unattached.
  1. [48]
    Ms Cushing submits that she was in ‘disbelief’ at this outcome as she had been informed by the Principal that she had successfully obtained the permanent role. Further, Ms Cushing is ‘perplexed’ as to why the substantive incumbent’s request to unattach from the school was accepted only to then be denied.
  1. [49]
    Ms Cushing submits that the key criterion for eligibility to unattach from a position is that ‘An employee must have been absent from their substantive position for more than 12 months due to circumstances including but not limited to a secondment or special leave without pay’. Ms Cushing submits that both she and the substantive employee understood that the substantive employee met this criterion.
  1. [50]
    Ms Cushing says that the decision not to approve the substantive employee’s application to unattach has directly affected her application for permanent appointment to the higher classification role.
  1. [51]
    Ms Cushing believes that the Department would have been aware of her application for conversion when considering the substantive employee’s application to become unattached.
  1. [52]
    Ms Cushing also submits that she has been deprived from opportunities to gain a permanent position above her substantive AO2 position.  Ms Cushing says that she had been informed both verbally and in writing on numerous occasions that she had been successful in obtaining a permanent position at Clover Hill State School and therefore she did not apply for other permanent positions in the region.
  1. [53]
    Ms Cushing submits that the substantive employee has been employed by the Department in several contract roles in various positions during approved and non-approved periods of leave and that the Department of Education has not followed due process to ensure that the substantive employee’s leave entitlements have not been exceeded.
  1. [54]
    Ms Cushing also makes reference to Graves v State of Queensland (Department of Education) (‘Graves’),[14] where Mr Graves acted at the higher classification level of Senior Guidance Officer, South East Region, Department of Education. The Commission upheld a deemed decision not to convert Mr Graves to the higher classification level citing the genuine operational requirements of the Department. Mr Graves was temporarily engaged at the higher classification level to backfill other staff taking leave and meet an unexpected short-term increase in workload caused by this leave. Importantly, the Department submitted that the other staff members were utilising significant leave balances in anticipation of changes to the relevant award which would enable Senior Guidance Officers to take paid school holidays.
  1. [55]
    Ms Cushing says her circumstances can be distinguished from the decision in Graves as her role is permanent and ongoing, she is not ‘filling in’, and there is an operational need for her to fulfil the role.

Respondent’s submissions in reply

Aldiss

  1. [56]
    With regard to Ms Cushing’s reference to Aldiss, the Respondent submits that there are no similarities between the higher classification position subject of this appeal and the position of Guidance Officer HO1/O2 in Aldiss. The Respondent says that Business Manager and Guidance Officer positions have different funding sources and different governance structures informed by different strategic priorities.
  1. [57]
    The Respondent also says that Guidance Officer positions are part of a regional pool of staff who are allocated to schools based on the school’s guidance allocation which may change each year.  The Respondent says that Business Managers are not part of a pool of regional staff and that schools are allocated one business manager position and the classification level is determined according to the size, structure and requirements of the school.  Further, the Respondent says that the region does not operate a ‘pool’ of excess permanent Business Managers.

Graves

  1. [58]
    In response to references made to Graves, the Department says that the purpose of Ms Cushing’s current higher classification level role is to backfill a temporary vacancy arising from another staff member being absent. The Respondent says that Ms Cushing’s current acting arrangement in the Higher Classification Position is due to finish on 8 December 2023. The Respondent says that similar to the issues raised in Graves, approving a labour budget in excess of the allocated funding does not represent proper and efficient management of public resources.

 The higher classification position is occupied by the substantive incumbent

  1. [59]
    The higher classification position remains permanently occupied by the substantive incumbent who is due to return to the position on 9 December 2023, coinciding with the end of Ms Cushing’s temporary appointment to the role.
  1. [60]
    The Respondent says that the email correspondence Ms Cushing received from the Principal on 10 October 2022 (described above at [44]), did not advise nor confirm that the Ms Cushing was permanently appointed into the higher classification position. The Respondent says that correspondence advises Ms Cushing that the discussions and the process is ongoing and subject to the completion and approval of the necessary documentation being finalised.
  1. [61]
    The Respondent says that the relinquishment or unattachment sought by the substantive incumbent in October 2022 was not approved by the regional delegate as the Respondent does not use permanent relief pools for Business Manager positions. The Respondent says that at the time of the decision, the higher classification position had not been relinquished nor permanently vacated by the substantive incumbent and remains permanently occupied.
  1. [62]
    The Respondent says that submissions made by Ms Cushing that the substantive employee has no desire to return and will not return to the role is a ‘subjective opinion proffered by the Appellant’. The Respondent says that the reasons for the substantive employee’s application for extended leave at the end of 2019 were personal in nature and may or may not be ongoing. The Respondent also submits that neither the Respondent nor Ms Cushing are at liberty under the Information Privacy Act 2009 to disclose personal information of a third party.

The Department’s genuine operational requirements

  1. [63]
    The Respondent relies on its previous submissions and says that the Department’s genuine operational requirements were considered in making the decision, specifically that the higher classification position is substantively occupied by another incumbent, who is currently absent from the position to perform another role within the entity, and the Respondent does not use permanent relief pools for the particular position.

Consideration

  1. [64]
    It is not in dispute that Ms Cushing is suitable for appointment to the position or that she worked in the role for the period required to be considered for appointment to the position.
  1. [65]
    I acknowledge that the decision does not list the number of times Ms Cushing’s acting arrangement or secondment has been extended as required by s 120(5)(c) of the PS Act.  I note that Ms Cushing does not rely upon the omission of this information from the letter in her reasons for appeal.  In hearing this appeal, I have been provided with sufficient details of Ms Cushing’s employment with the Respondent to enable me consider whether the decision was fair and reasonable.  I do not think the omission has caused prejudice to Ms Cushing. Further, I do not find that the inclusion of the information would have materially changed the decision and I do not find that it renders the decision unfair or unreasonable.
  1. [66]
    I have reviewed the decision and I am satisfied that it meets the requirements set out in s 120(5) of the PS Act (except for s 120(5)(c)). Further, I am satisfied that the decision makes clear to Ms Cushing why her application has been refused, that consideration was given to her human rights, and that she was informed of her appeal rights.
  1. [67]
    I have sympathy for the position Ms Cushing finds herself in. Ms Cushing has been acting in the higher classification role for a significant period; has been given reason to believe that her permanent appointment to the role is imminent; honestly believes the substantive occupant of the position will not be returning to the role; and on the basis of these beliefs, has not sought to apply for other positions at a higher level than her substantive AO2 role.
  1. [68]
    I also note from the tone and nature of the email correspondence attached to Ms Cushing’s submissions, it is clear that her Principal: similarly believes that the incumbent occupant of the role will not be returning; supported the application submitted by the incumbent to unattach from the position; and appears to support Ms Cushing’s appointment to the position at the higher classification level.
  1. [69]
    While it is frustrating for Ms Cushing to hold a view that the substantive occupant of the position will not be returning and that the position is practically ‘vacant’, it remains the case that the Department has not approved the application to unattach or relinquish and therefore the substantive occupant remains permanently employed in the higher classification role Ms Cushing as been occupying since 2020.
  1. [70]
    It is also the case that regardless of the reasons the substantive incumbent sought to take leave from the role, or the preference of the substantive incumbent to take on another role permanently either through transfer or application, that person is currently permanently employed in the AO5 role at Clover Hill State School.  As the unattachment application has not been approved, it may be the case that the substantive occupant has no choice but to return to the role (or consider other options) if they are unable to secure a permanent position elsewhere.
  1. [71]
    If the substantive incumbent chooses not to return to the role on 9 December 2023 and Ms Cushing’s temporary engagement is extended, it will be close to four years that Ms Cushing has been in the position. At this stage, the Department would need to be giving serious thought to whether it is fair and reasonable for Ms Cushing to continue to be substantively permanently employed as an AO2, having completed four years of service in an AO5 role. There is also the issue of the flow on effect for Ms Cushing’s substantive school in being unable to fill her AO2 role permanently while she is acting in the higher classification role at Clover Hill State School. It would also seem a great shame for the school she currently works in to lose her corporate knowledge and expertise should she decide that it is no longer tenable to remain in the role on a temporary basis and look to making application at other schools so that she may be permanently appointed to the classification level she has undertaken for almost four years.
  1. [72]
    While it appears the return of the substantive occupant is unlikely, it remains the case that at the time Ms Cushing’s application was being considered, the position was permanently held by an employee who has a known return date of 9 December 2023.   The substantive occupant of the role retains a right to return to that role, and if I were to appoint Ms Cushing to the role at the higher classification, I may well create a situation where from 9 December 2023, there are two permanently employed individuals reporting to work for the same single Business Manager role at the school. I accept the Department’s submission that it does not operate a relieving pool of Business Managers.  Effectively, this would mean there is a possibility that the Department has a surplus Business Manager in the region. I accept the Respondent’s submission that such a situation would not represent the effective, efficient and appropriate management of the department’s resources.
  1. [73]
    The Commission has previously concluded on a number of occasions that a higher classification position having an incumbent occupant in circumstances where there is a known expected end date to the temporary engagement is a genuine operational reason making it not viable or appropriate to appoint the person acting in the role to the higher classification position.[15]
  1. [74]
    I have considered Ms Cushing’s submissions regarding Aldiss, however, I find that this matter can be distinguished from the circumstances in this case. This application does not relate to Ms Cushing being permanently appointed as an AO5 Business Manager with the Respondent. It relates specifically to the appointment of Ms Cushing to the higher classification position[16] of AO5 Business Manager at Clover Hill State School. As has been discussed above, that role is not vacant. The role has a substantive occupant, albeit that person has apparently expressed a desire or intention to not return to the role. The Department has refused an application by the substantive employee to unattach from the position, thus signalling an expectation that they will return to the role at the end of their current temporary relieving duties in another school. I find that the Department has demonstrated genuine operational requirements preventing appointment to the higher classification. 

Order

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Respondent’s submissions filed 7 August 2023, [9].

[2] Ibid attachment 2.

[3] Ibid [12].

[4] Ibid [13].

[5] [2020] QIRC 195, [69].

[6] [2020] QIRC 203, [41]-[42].

[7] [2022] QIRC 242.

[8] Appellant’s submissions filed 17 August 2023, attachment B.

[9] Ibid attachment C.

[10] Ibid attachment D.

[11] Ibid attachment E.

[12] Ibid attachment C.

[13] Ibid attachment G.

[14] [2020] QIRC 230.

[15] See, eg, Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167 (Hartigan DP); Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038 (Merrell DP); Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015 (Power IC).

[16] Public Sector Act 2022 (Qld) s 120(1).

Close

Editorial Notes

  • Published Case Name:

    Cushing v State of Queensland (Department of Education)

  • Shortened Case Name:

    Cushing v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 252

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    01 Sep 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
Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167
2 citations
Jump To
Cite 1 - [2022] QIRC 167
Cite 2 - [2022] QIRC 167
Aldiss v State of Queensland (Department of Education) [2022] QIRC 242
2 citations
Jump To
Cite 1 - [2022] QIRC 242
Cite 2 - [2022] QIRC 242
Graves v State of Queensland (Department of Education) [2020] QIRC 230
2 citations
Jump To
Cite 1 - [2020] QIRC 230
Cite 2 - [2020] QIRC 230
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 38
2 citations
Jump To
Cite 1 - [2021] QIRC 38
Cite 2 - [2021] QIRC 38
Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 15
2 citations
Jump To
Cite 1 - [2021] QIRC 15
Cite 2 - [2021] QIRC 15

Cases Citing

Case NameFull CitationFrequency
Deans v State of Queensland (Department of Education) [2025] QIRC 1084 citations
Forrest v State of Queensland (Department of Education) [2025] QIRC 852 citations
Petersen v State of Queensland (Department of Education) [2024] QIRC 462 citations
1

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