Lambinon v TAFE Queensland[2024] QIRC 129

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Ms Tanya Lambinon (‘the Appellant’) commenced full-time, permanent employment with TAFE Queensland (‘the Respondent’), within TAFE Queensland SkillsTech, on 11 January 2016 as a Graphic Design Specialist (AO5).
2. [2]
   On 27 March 2017, the Appellant commenced in her current substantive role, at an AO6 classification, as a Senior Marketing and Communications Consultant. Due to subsequent changes to its position description, the Appellant’s substantive role is now known as Marketing Campaign and Project Lead.
3. [3]
   On 21 September 2022, the Appellant commenced acting in a higher duties position of Operations Manager, Marketing (AO7) (‘the AO7 position’).
4. [4]
   On 20 June 2022, the Appellant commenced acting in a second higher duties position as a Marketing and Communications Manager – Trades, TQST (AO8) (‘the higher duties position’ or ‘the AO8 position’). The substantive position was held at this time by Ms Shelley Lewis, who was seconded to the position of Corporate Solutions Manager (AO8) until September 2023.
5. [5]
   In early June 2023, Ms Lewis ceased acting in the position of Corporate Solutions Manager (AO8) and relinquished her substantive position as Marketing and Communications Manager – Trades, TQST (AO8).
6. [6]
   On 20 September 2023, the Appellant was notified that the roles of Corporate Solutions Manager (AO8) and Marketing and Communications Manager – Trades, TQST (AO8) would be consolidated into one role, Business Development and Marketing Manager (AO8). The Appellant was also notified that her higher duties position would cease at the conclusion of a recruitment process for the new consolidated role, and she would return to her substantive AO6 position.
7. [7]
   On 26 January 2024, the Appellant ceased acting in the higher duties position, and returned to her substantive position.
8. [8]
   On 5 March 2024, the Appellant filed a public sector appeal against a purported decision of the Respondent dated 19 December 2023 not to permanently appoint her to the higher classification level.

Appeal principles

9. [9]
   Section 562B(2)(3) of the Industrial Relations Act 2016 (Qld) provides that a public service appeal is decided by reviewing the decision appealed against and determining whether it was “fair and reasonable.”
10. [10]
    A public service appeal is not conducted by way of re-hearing.^[1] Instead, it entails reviewing both the decision-making process of the decision-maker, and the decision subsequently arrived at.^[2]
11. [11]
    In deciding the present appeal, the Commission may:

• confirm the decision appealed against;
• set the decision aside and substitute another decision; or
• set the decision aside and return the matter to the decision-maker, alongside a copy of the decision on appeal and any appropriate directions.^[3]

Jurisdictional objections

12. [12]
    The purported decision of the Respondent appealed against by the Appellant was dated 19 December 2023, but the appeal was not filed until some 78 days later on 5 March 2024. This is beyond the 21-day time limit for the Appellant to file an appeal against the purported decision, as prescribed by the Industrial Relations Act 2016.^[4]
13. [13]
    The parties filed written submissions in accordance with a Directions Order dated 18 March 2024. These directions pertained primarily to the Appellant’s reasons, if any, for filing their Appeal Notice with the Industrial Registry out of time. However, the submissions received from both parties in accordance with these directions were not limited to consideration of this issue only.
14. [14]
    Most relevantly, the Respondent filed their written submissions in accordance with these directions on 17 April 2024, in which they raised the following jurisdictional objections to the appeal:

• the Appellant did not make a request for conversion in accordance with the Directive;^[5]
• No decision, actual or deemed, has been made by them with respect to conversion of the Appellant’s employment;^[6] and
• The Appellant has not completed at least two years in the position of Marketing and Communications Manager – Trades, TQST, and therefore is ineligible to make an appeal against a conversion decision (notwithstanding their contention that no decision has been made and that the Appellant is otherwise out of time).^[7]

15. [15]
    The issue ordinarily for my determination is whether the decision was fair and reasonable.^[8] However, in light of the jurisdictional objections raised by the Respondent, I first need to decide the following preliminary issues before proceeding to any substantive consideration of the purported decision:

1. What is the relevant higher classification position held by the Appellant?
2. Was the Appellant eligible to request that she be permanently appointed to the higher classification position?
3. Did the Appellant make a request to be permanently appointed to the higher classification position? 
4. Did the Respondent make a decision on the Appellant’s employment?
5. Is the Appellant eligible to appeal a decision of the Respondent?

16. [16]
    While I have carefully considered all submissions and annexed documents, I have not endeavoured to summarise the entirety of the submissions of the parties. Instead, I will refer to the key positions of both parties in my consideration of these issues below.
17. [17]
    Pursuant to s 451(1) of the Industrial Relations Act 2016, no hearing was conducted in deciding this appeal. This matter has been decided on the papers.

What is ‘the position’ subject of this appeal?

18. [18]
    Section 120(1) of the Public Sector Act 2022 (Qld) (‘the Act’) provides that a public sector employee who has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, may request conversion to the position at the higher classification level on a permanent basis. Section 120(3) provides that the employee’s chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis if they consider the employee to be suitable to perform the role.
19. [19]
    In her Appeal Notice, the Appellant has identified two purported requests to be permanently appointed to a higher classification level, namely:

• her request in June 2023 to be appointed permanently to her (then-current) AO8 higher duties position; and
• her request of 4 December 2023, while acting in the AO8 position, to be appointed permanently into her former AO7 position.^[9]

20. [20]
    In her submissions of 3 April 2024, the Appellant submits that she commenced acting in the AO7 position on 20 September 2021, and in the AO8 position on 20 June 2022.^[10] She further contends, in essence, that it is “fair and reasonable” to consider her consecutive appointments to positions at various higher classification levels, as together constituting a period of acting in a position at a higher classification level amounting to 2 years, 4 months, and 5 days.^[11]
21. [21]
    However, as usefully outlined by Industrial Commissioner McLennan in Gibson v State of Queensland (Department of Education), the power afforded to the employee’s chief executive under section 120 to permanently appoint the employee is expressly confined to the unique position in which the employee is acting at the time of the chief executive’s review.^[12]
22. [22]
    The narrow language of section 120 does not empower the Respondent to review the Appellant against a position previously held by the Appellant, even if it too was at a higher classification than the Appellant’s substantive role (such as her former AO7 position), nor does it empower the Respondent to review the Appellant against positions of a comparable nature; it is “expressly confined to the position occupied by the [Appellant] at that time.”^[13]
23. [23]
    In conducting a review of the Appellant’s employment, therefore, the Respondent would be required to determine whether the Appellant should be permanently appointed to the position to which they were seconded, or in which they were acting, at the time the Appellant requested the review.^[14] It follows that the Appellant would only be able to be permanently appointed to the position she occupied when requesting the review.
24. [24]
    Therefore, if the Appellant did indeed request to be permanently appointed to a position at a higher classification level, pursuant to section 120 of the Act, in June 2023 and/or December 2023, the position subject of any resulting review conducted by the Respondent would be the position of Marketing and Communications Manager – Trades, TQST (AO8).
25. [25]
    The Appellant’s request of 4 December 2023 did not pertain to being considered for permanent appointment to the AO8 position she was acting in at that time. Instead, the Appellant requested that the AO7 position she had previously acted in be reinstated into the team structure by the Respondent, and for her to be permanently appointed into the position, in light of her imminent return to her substantive AO6 role.
26. [26]
    The Appellant’s request of 4 December 2023 to be reinstated into her former (by then non-existent) AO7 position is beyond the scope of section 120 of the Act and will not be further considered in this decision.

Was the Appellant eligible to request permanent appointment to the AO8 position?

27. [27]
    Under section 120(1) of the Act, a public sector employee is eligible to request a higher duties review if they have been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year. 
28. [28]
    Directive 03/23: Review of acting or secondment at higher classification level (‘Directive 03/23’) is made in accordance with section 120(7) of the Act. It stipulates at clause 8.1 that ‘continuous period’ is defined to mean a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same public sector entity.
29. [29]
    At the time of her purported request of 22 June 2023, the Appellant was occupying the position of Marketing and Communications Manager – Trades, TQST (AO8). She had commenced acting in this position on 20 June 2022.
30. [30]
    The Appellant was therefore eligible to make a request under s 120 of the Act to be employed in the AO8 position on a permanent basis after 20 June 2023.

Did the Appellant make a request pursuant to section 120 of the Act?

31. [31]
    Directive 03/23 stipulates that a request made by an employee under sections 120 or 121 of the Act “must be made to the chief executive in writing, unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.”^[15] Where such reasonable adjustments are required, the employee “must make it clear in the request that they are making the request under these provisions.”^[16]
32. [32]
    The Appellant contends that she met with the then General Manager of TAFE Queensland SkillsTech, Mr John Tucker, on 22 June 2023, to verbally request that she be appointed to the AO8 position on a permanent basis. She has made no submissions as to whether this verbal request was made as a result of requiring reasonable adjustments to make a request under section 120 verbally, or whether she made clear in this verbal request that it pertained to section 120.
33. [33]
    In their written submissions of 17 April 2024, the Respondent submits that copies of both their Review of Acting at Higher Classification Level Procedure (‘the Procedure’), and of Directive 03/23, are available on the Respondent’s intranet.^[17] A copy of the Procedure dated 14 March 2024 was attached to the Respondent’s submissions, but the footer of the Procedure document notes that the document is located on TAFE Queensland’s intranet.
34. [34]
    Clause 4.8 of the Procedure mirrors the relevant clauses of Directive 03/23 in requiring that an employee submit a “written request”, submitted via email to Human Resources, “unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.”^[18] The Procedure also identifies the submitting of a written request to Human Resources as a responsibility of eligible employees seeking permanent appointment at the higher classification level.^[19]
35. [35]
    The Respondent accepts that the Appellant “was eligible to make a written request for review of appointment at a higher classification level to the position of Marketing and Communications Manager – Trades, TQST” after 20 June 2023, but contends that no such written request was made by the Appellant.^[20]
36. [36]
    In the absence of any written request made by the Appellant, the Respondent submits that no eligible request for permanent appointment to the AO8 position was made by the Appellant, and therefore no conversion decision was made, or was required to be made, by the Respondent.^[21]
37. [37]
    In her further submissions of 24 April 2024, the Appellant contends in response that she “was not required to make a written request.”^[22] The Appellant does not further respond to the Respondent’s submissions in relation to the requirement for a written request, other than submitting that the Respondent “did not appropriately provide a duty of care to [her] for a fair conversion outcome by not directing [her] to appropriate policies and procedures at the time discussions were had.”^[23]
38. [38]
    While the Appellant may not have been directed to the Procedure, or to the relevant legislative framework more generally, at the time of her purported verbal request on 22 June 2023 or in subsequent discussions, the Respondent did not hide this information from the Appellant or their employees at large and the Appellant had access to it.
39. [39]
    Directive 03/23 requires that the Respondent “set out information on its intranet, or in another way that is accessible to employees, about how to request a review under sections 120 or 121 of the Act.”^[24] The Respondent has done so by publishing the Procedure on its intranet, for the reference of its employees. The six page Procedure, implemented on 28 February 2022, is clearly worded and interactive, and includes hyperlinks to related internal policies, relevant provisions of the Act, Directive 03/23, and the Commission’s Public Sector Appeal Guide. It also provides a link to the contact details of the Human Resources team to which written requests for a review under section 120 of the Act are to be submitted.
40. [40]
    Directive 03/23 is clear in requiring that a request under section 120 be made in writing unless reasonable adjustments are required. Had the Appellant accessed and referred to the copies of the Directive and/or the Procedure available on the Respondent’s intranet and submitted a request in writing accordingly, the present dispute between the parties as to whether she made a request at all would have likely been avoided entirely.
41. [41]
    However, the purpose of the Directive is to support and supplement the provisions of the Act,^[25] not to override them. Where a directive is inconsistent with an Act, that Act “prevails over the directive to the extent of any inconsistency”,^[26] noting that a directive “is not inconsistent with an Act or subordinate legislation to the extent the directive is at least as favourable as the Act or subordinate legislation.”^[27]
42. [42]
    The Appellant submits that she made a verbal request to then General Manager, Mr Tucker, on 22 June 2023 to be permanently appointed to the AO8 position. Although they submit that a verbal request cannot amount to an eligible request under section 120 of the Act, the Respondent has not disputed that a conversation between the Appellant and Mr Tucker occurred on 22 June 2023. It is also not disputed by the Respondent that the subject of this conversation was the Appellant’s permanent appointment to the AO8 position.
43. [43]
    Section 120 of the Act does not of itself require that a request for permanent appointment to a higher classification position be made in writing, or that a request take any specific form at all. It would be unfavourable in this instance to prefer the stricter requirements of Directive 03/23 over the Act’s prevailing, and less stringent provisions. In this regard, I also note that Directive 03/23 does anticipate the need in some circumstances for employees to make a request under section 120 in “another way” beyond a written request; to insist on a particular form of request would be inconsistent with the Directive’s own interest in accommodating other forms of request.^[28]
44. [44]
    While the Appellant has not submitted that, in accordance with Directive 03/23, she made her request verbally as a result of requiring reasonable adjustments, or that she clearly stipulated the statutory basis of this request, I do not consider that these potential omissions would invalidate a verbal request made effectively by the Appellant pursuant to section 120. 
45. [45]
    I will proceed with this decision on the basis that the Appellant made an eligible (verbal) request for permanent appointment to the AO8 position on 22 June 2023.

Did the Respondent make a decision following the Appellant’s request?

46. [46]
    If an employee has made a request to be permanently appointed in a higher classification position pursuant to section 120(1), the employee’s chief executive must decide the request within the required period,^[29] which is defined by the Act as being 28 days after the request was made.^[30]
47. [47]
    As the Appellant’s verbal request was made on 22 June 2023, the Appellant’s chief executive was required to make a decision on the request by 20 July 2023.
48. [48]
    It is not disputed by either the Appellant or the Respondent that no conversion decision was made by the Respondent within 28 days of the Appellant’s verbal request.^[31]
49. [49]
    Section 120(6) of the Act states that the employee’s chief executive is taken to have refused a request of an employee made pursuant to section 120 if the chief executive does not make the decision within the required period. A written notice is not required to be prepared to support such a deemed decision.^[32]
50. [50]
    In the absence of an actual decision of the chief executive on the Appellant’s request of 22 June 2023, the Respondent is deemed to have made a decision on 20 July 2023 not to employ the Appellant at the higher classification on a permanent basis.

Can the Appellant appeal against a conversion decision?

51. [51]
    An appeal may be made against a conversion decision under section 131(1)(a) of the Act.
52. [52]
    A conversion decision is defined as a decision 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 two years.^[33]
53. [53]
    Section 120(8) of the Act defers to the definition of ‘continuous service’ provided by Directive 03/23. As previously indicated, Directive 03/23 stipulates that ‘continuous period’ is defined to mean a period of unbroken engagement at the higher classification level in the same role and in the same public sector entity.^[34]
54. [54]
    That the Appellant acted in the AO8 position from 20 June 2022 to 26 January 2024 (for a total period of 1 year, 7 months and 7 days) is uncontentious amongst the parties. It is also uncontentious that the Appellant acted in the AO7 position, prior to commencing in the AO8 position, from 20 September 2021 to 20 June 2022 (for a total of 9 months and 1 day).
55. [55]
    With reference to these dates, the Respondent submits that the Appellant had not completed at least two years in the AO8 position, “and therefore is ineligible to make an appeal against a conversion decision (notwithstanding [their contention] that no decision has been made”^[35]
56. [56]
    In her further submissions of 24 April 2024, the Appellant claims that she was acting in the higher classification levels of Operations Manager, Marketing (AO7) and Marketing and Communications Manager – Trades, TQST (AO8) for a “total period of 2 years, 4 months, and 5 days.”^[36] The Appellant therefore contends that she “has completed at least two years at a higher-level classification, and therefore is eligible to make an appeal against a conversion decision.”^[37]
57. [57]
    However, neither the language of the Act or of Directive 03/23 support the Appellant’s length of service in the previous AO7 position being conflated with, or added to, her length of service in the AO8 position relevant to this appeal.
58. [58]
    As discussed above in my consideration of the relevant ‘position’ subject of this appeal, the language of section 120 of the Act is singular in character; the phrase ‘a higher classification level’ excludes a scenario where an employee has acted at various higher classification levels (plural).
59. [59]
    Directive 03/23 is also explicitly singular in its language when defining continuous service; it requires unbroken engagement at the higher classification level in the same role. As found by Industrial Commissioner Dwyer in Bell v State of Queensland (Queensland State Police Service), this definition “does not apply more broadly to multiple engagements across a number of (different) higher classifications.”^[38]
60. [60]
    It is clear that, between September 2021 and January 2024, the Appellant was serving at classification levels above her substantive AO6 position. However, for the purposes of section 120 of the Act, her employment during this period is more properly described as entailing multiple engagements at various higher classification levels over a period of 2 years, 4 months, and 7 days. 
61. [61]
    While the Appellant’s ability to serve at classification levels above her substantive AO6 position is clear from her work history, the Appellant had only acted in the AO8 position for a period of 1 year and 3 days at the time of her verbal request on 22 June 2023.
62. [62]
    As the Appellant had not acted in the AO8 position for an unbroken period of 2 years at the time of her request for permanent appointment, the deemed decision of the Respondent of 20 July 2023 is not a decision that can be appealed by the Appellant.^[39]

Conclusion

63. [63]
    Ms Lambinon did not act in the same role in a higher classification level for a continuous period of at least 2 years prior to her request of 22 June 2023 to be permanently employed at a higher classification level, and the subsequent deemed decision of the Respondent of 20 July 2023.
64. [64]
    It follows that the deemed decision of the Respondent dated 20 July 2023 is not a conversion decision as defined in section 129 of the Act. Accordingly, the Appellant is unable to appeal the decision pursuant to s 132(1)(k) of the Act.
65. [65]
    In these circumstances, the Commission has no jurisdiction to hear this appeal. I would therefore dismiss the appeal.
66. [66]
    I order accordingly.

Orders

67. [67]
    In the circumstances l make the following order:

The appeal is dismissed for want of jurisdiction.