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  4. Wyer v State of Queensland (Department of Education) - [2024] QIRC 140

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Wyer v State of Queensland (Department of Education)[2024] QIRC 140

Wyer v State of Queensland (Department of Education)[2024] QIRC 140

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wyer v State of Queensland (Department of Education) [2024] QIRC 140

PARTIES: 

Wyer, Nathan

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/158

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

31 May 2024

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDERS:

  1. The respondent’s application in existing proceedings is dismissed;
  1. The matter will be listed for further mention on a date to be advised

CATCHWORDS:

PUBLIC SECTOR – APPLICATION IN EXISTING PROCEEDINGS – appeal against promotion decision – jurisdictional objection – whether decision can be appealed against – where the respondent alleges non-appealable promotion decision – where appellant alleges appointee unsuitable for the role – where criteria for non-appealable appointment considered – where evidence of required elements for declaration of non-appealable appointment not provided – application in proceedings is dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 447

Public Sector Act 2022 (Qld) s 44, s 131, s 132, s 140, s 141

Public Service Commission Directive 04/23: Appeals cl 17

Public Service Commission Directive 11/20: Individual employee grievances cl 6

Queensland Government Gazette No. 60 page 433

Statutory Instruments Act 1992 (Qld) s 20

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Wyer v State of Queensland (Department of Education) [2022] QIRC 408

Reasons for Decision

 Introduction and background

  1. [1]
    Mr Nathan Wyer is employed by the State of Queensland ('Department of Education') ('the respondent') as an acting Senior Guidance Officer within the Metropolitan South Region at the Ipswich Office.
  1. [2]
    Mr Wyer appeals a decision of the respondent to appoint another employee ('the appointee') to the position of (HO2) Senior Guidance Officer, North Coast Region, Early Childhood and State Schools Division at the Maryborough Regional Office (Job Reference Number QLD/NCR 468082/23P) on a permanent part-time basis (0.5 FTE) ('the Position').
  1. [3]
    Mr Wyer previously successfully appealed the appointment of the same candidate (‘the previous appeal decision’).[1]
  1. [4]
    As a consequence of the previous appeal decision a new selection panel was formed to determine the appointment of an employee to the position. Applications for the position closed on 9 February 2023.
  1. [5]
    On 1 June 2023, Mr Wyer received advice from the respondent by email that he was not successful in his application to be appointed to the position. In response to that advice, Mr Wyer requested the respondent provide him written feedback from the Panel to explain, amongst other things, the reasons why his application had not been successful in respect to obtaining the position.
  1. [6]
    The successful candidate relinquished the role shortly after.  In or around early July 2023, a decision was made collectively by the panel to appoint the next candidate in line (based on merit). That appointee accepted the offer of appointment to the position on 7 July 2023. That appointee was the same person who was the subject of the contested appointment in the previous appeal decision.
  1. [7]
    On 21 July 2023, the Queensland Government Gazette No. 60, page 433 ('the Gazette Notice') was published. In the Gazette Notice, the employee’s date of duty in the position was publicly recorded as being effective as at 13 July 2023. The Gazette Notice deemed the appointment as being a non-appealable appointment.
  1. [8]
    On 26 July 2023, Mr Michael Rogers, College Principal, Mango Hill State Secondary School, sent an email to Mr Wyer providing him written advice as to the reasons he had not been successful obtaining the promotion to the Position. Relevantly, Mr Wyer received no information as to how the appointment met the criteria of a non-appealable appointment.
  1. [9]
    By Appeal Notice filed 14 August 2023, Mr Wyer appeals the decision to appoint the appointee on 13 July 2023 (‘the decision’).

Proceedings before the Commission

  1. [10]
    On 14 September 2023, Mr Wyer filed and served submissions in support of his Appeal.
  1. [11]
    On 11 October 2023, the respondent filed and served a Form 4 – Application in existing proceedings (‘the application') requesting an interlocutory decision in relation to the Commission’s jurisdiction to hear Mr Wyer’s Appeal on the following basis:
  • The Decision is a 'non-appealable appointment' in accordance with s 132(1)(l) of the Public Sector Act 2022 (Qld) ('PS Act'); and
  • the Appeal was filed out of time.
  1. [12]
    On 16 October 2023, a mention was held in respect to the respondent’s Application. Following the mention, the Commission issued a Further Directions Order which required Mr Wyer to file and serve written submissions in respect of the jurisdictional objections raised by the respondent in the application.
  1. [13]
    Mr Wyer accordingly filed and served submissions in respect of the jurisdictional issues on 13 November 2023.
  1. [14]
    On or about 14 November the respondent indicated they no longer pressed the application with respect to the appeal being filed out of time.
  1. [15]
    On 23 November 2023, the respondent filed and served submissions, seeking the appeal be dismissed for want of jurisdiction on the grounds the decision was a 'non-appealable appointment' pursuant to s 132(1)(l), 132(5)(a), and 132(5)(b) of the PS Act, the Gazette Notice, and the Public Service Commission Directive 04/23: Appeals ('the Appeals Directive').
  1. [16]
    These proceedings deal exclusively with the respondent’s application.

Relevant legislative provisions

  1. [17]
    Section 131 of the PS Act sets out decisions against which appeals may be made, as follows:

131 Decisions against which appeals may be made

  1.  An appeal may be made against the following decisions—
  1. …;

…

  1.  a promotion decision;…

….

  1.  This section is subject to section 132.

(Emphasis added)

  1. [18]
    Relevantly, s 132 of the PS Act sets out decisions against which appeals cannot be made:

132  Decisions against which appeals can not be made

  1.  A person can not appeal against any of the following decisions—
  1.  a decision of the Governor in Council;
  1.  a decision of a Minister;
  1.  a decision about superannuation benefits or workers’ compensation;
  1.  a decision about probation;
  1.  a decision to terminate the employment of a person, including, for example, a person employed on probation;
  1.  a decision about the classification level of employment, unless the decision is declared under a directive to be a decision against which an appeal may be made;
  1.  a decision to promote, transfer, redeploy or second a person as a chief executive, a senior executive or a senior officer;
  1.  a decision to promote, transfer, redeploy or second a public sector executive, unless the decision is declared under a directive to be a decision against which an appeal may be made;
  1.  a decision of the commissioner relating to reviewing a procedural aspect of the handling by a public sector entity of a work performance matter at the request of an employee under section 124, other than to the extent allowed under section 131(1)(h);
  1.  a decision under section 114 not to convert the employment of a public sector employee to a permanent basis;

(k)  a decision under section 120 not to appoint a public sector employee to a position at a higher classification level, if the employee has been acting at, or seconded to, the higher classification level for less than 2 years;

(l)  a non-appealable appointment.

…

  1.  In this section—

non-appealable appointment means an appointment or employment—

  1.  for which the commissioner is satisfied the principles mentioned in section 44 are sufficiently protected by ways other than an appeal under this part; and
  1.  that the commissioner has declared by gazette notice, or a directive, to be an appointment or employment against which an appeal may not be made.

(Emphasis added)

  1. [19]
    Clause 17 of the Appeals Directive outlines non-appealable decisions, as follows:

17.  Non-appealable appointments

17.1  In consideration of the definition of ‘non-appealable appointment’ provided for in section 132(5) of the Act, it is declared that an appeal may not be made against the following appointments or employment:

  1. a.
    an appointment or employment that is not a promotion
  1. b.
    to a role remunerated in excess of:

i.  the maximum salary applicable to the AO8 classification level within the relevant entity (or the full-time equivalent for part-time roles), or

ii.  in cases where an entity does not have a remuneration scale that includes an AO8 classification level, the maximum salary applicable to the AO8 classification level provided for in the Queensland Public Service Officers and Other Employees Award- State 2015, or the core State Government Entities certified agreement, whichever is the higher rate (or the full time equivalent for part time roles).

…

(Emphasis added)

Submissions in respect of the application

Respondent’s submissions

  1. [20]
    Attached to the application filed on 11 October 2023 were detailed submissions in support of the respondent’s jurisdictional argument.
  1. [21]
    The decision was listed in the Gazette Notice under 'APPOINTMENTS PART II – NON-APPEALABLE'. Accordingly, the respondent submits the decision cannot be appealed against on that basis.
  1. [22]
    In their application, the respondent contends the question to determine is whether the decision is a non-appealable appointment pursuant to s 132(1)(l) and 132(5)(a) of the PS Act, the Gazette Notice, and clause 17.1.(b)(i) of the Appeals Directive.
  1. [23]
    Whilst the respondent acknowledges the Commission previously considered a similar line of argument from the respondent in Wyer v State of Queensland (Department of Education),[2] and decided to allow that appeal, the respondent submits the circumstances regarding the Appeal are different in that:
  • the decision relates to a non-appealable appointment as defined by s 132(1)(l) and 132(5)(a) of the PS Act; and
  • the Appeals Directive effective 1 March 2023 expressly provides in clause 17.1(b)(i) how to consider remuneration for a part-time role, in sum, by considering its full-time equivalent.
  1. [24]
    Accordingly, the respondent submits that the issue as to whether the Commission has jurisdiction regarding these matters ought to be considered afresh.
  1. [25]
    Accordingly, the respondent sought:
  • the Directions Order dated 22 August 2023 be vacated;
  • a further Directions Order be issued ordering Mr Wyer to respond to the respondent’s Application; and
  • the Commission to dismiss the Appeal for want of jurisdiction on the basis that the decision is a non-appealable appointment, pursuant to s 132(1)(l) and (5)(a) and (b) of the PS Act, the Gazette, and the Appeals Directive

Mr Wyer’s submissions

  1. [26]
    Mr Wyer argues the decision is appealable.
  1. [27]
    More specifically, Mr Wyer claims there are unresolved issues preceding his appeal which form the basis of the decision requiring the Commission to hear it, and that he, alongside other experienced Guidance Officers, have made numerous attempts to discuss and resolve their concerns with the respondent.
  1. [28]
    Mr Wyer submits the respondent failed to acknowledge, address and/or investigate the initial concerns, and instead continues to promote the appointee. He then reiterates the same concerns that are expressed in the submissions attached to his Appeal Notice.
  1. [29]
    Mr Wyer states his submissions in support of his Appeal are a continuation of concerns raised as far back as the 2021 school year, making this an ongoing dispute requiring resolution. He emphasises that these are not 'fresh claims' and reiterates that concerns regarding the appointee were held by several experienced Guidance Officers who had made grievances regarding their concerns due to conflicts of interest between the Panel Members and the appointee, which were not acted upon by the respondent.
  1. [30]
    He also claims that although the decision is gazetted as being 'non-appealable', there is evidence to the contrary through presumption of s 132(5)(a) of the PS Act, which states an appointment or employment is 'non-appealable' if the commissioner is satisfied the principles in s 44(3)(b) of the PS Act are sufficiently protected by ways other than an appeal under this part, namely the principle that recruitment and selection processes must be fair and transparent.
  1. [31]
    Mr Wyer also contends that the consideration of the comparative remuneration necessary to determine whether an appointment is non-appealable in accordance with the Directive  ought to be conducted by reference to the actual annual salary of an AO8 classification (as opposed to the virtual annual salary at a given point in the year).
  1. [32]
    My Wyer states the 'justice of this case' warrants the need for a decision and direction by the Commission due to the ongoing dispute, unwillingness of the respondent to 'take action', the respondent’s repeated appointment of the appointee without investigation or consideration of the concerns raised, particularly to do with ignoring an Integrity Referral for a failure to report student protections, and the continuation of the appointee into the position, where the responsibility of that role is to uphold safety and to prevent harm to vulnerable children.
  1. [33]
    Lastly, Mr Wyer states he wishes that the respondent be directed to revoke and readvertise the position and to engage in a fair and transparent process.

The Respondent’s submissions in reply

  1. [34]
    Whilst the respondent acknowledges there was a delay between the application closing date of 9 February 2023 and the issuing of the Gazette Notice on 21 July 2023, the appointee had been appointed to the Position on 31 July 2023, which was a time the position was remunerated in excess of the maximum AO8 salary. Accordingly, the respondent argues Mr Wyer’s contention in respect to the salary potentially being lower than the maximum amount, which would deem the decision appealable, ought to be rejected on that basis.
  1. [35]
    In response to Mr Wyer’s argument regarding the full financial and annual yearly taxation salaries, the respondent states the non-appealable declaration made at clause 17.1(b)(i) of the Appeals Directive applies to an appointment or employment to a role remunerated in excess of the maximum salary applicable to the AO8 classification level. The respondent submits in the absence of any express definitions, these terms are to be given their ordinary meaning[3], and the construction contended by Mr Wyer is not consistent with the ordinary meaning of the language contained within clause 17.1(b)(i) of the Appeals Directive. The respondent further submits Mr Wyer’s reading would require the words 'in the relevant financial year' or 'over the period 1 July to 30 June' to be added, and there is no principle of construction by which such a meaning could be arrived at, having regard to very plain and unambiguous language in the relevant clause.
  1. [36]
    Further, in response to Mr Wyer’s contention that the Appeal proves the principles are insufficiently protected, the respondent states it is the Public Sector Commission Chief Executive and not the Industrial Commission who is the 'commissioner' to be 'satisfied the principles mentioned in s 44 are sufficiently protected by ways other than an appeal' in s 132(5)(a) of the PS Act. Accordingly, the respondent argues that the Public Sector Commission Chief Executive must be satisfied the relevant principles are sufficiently protected by 'other ways' to declare by gazette or directive that an appointment or employment is non-appealable. Therefore, the respondent states the substance of a subsequent appeal against a non-appealable decision cannot be considered by the Commission by virtue of the jurisdictional bar imposed by s 132(1)(l) of the PS Act.
  1. [37]
    In response to Mr Wyer’s claims regarding the Commissions functions and website information, the respondent argues that the general information on the Commission’s website and s 447(1)(n)(i) of the IR Act, which notes the Commission’s functions include dealing with applications brought under the IR Act or another act, such as public service appeals under the PS Act, must be read in conjunction with the specific provisions of Chapter 3, Part 10 of the PS Act and any relevant directive, namely s 132(1)(l) and 132(5) of the PS Act and the Appeals Directive.
  1. [38]
    In respect to Mr Wyer’s statements regarding concerns relating to recruitment or selection decisions, the respondent submits that the combination of the PS Act and directives is such to provide that a decision regarding recruitment or selection can only be appealed in a very narrow set of specific circumstances.
  1. [39]
    Further, the respondent states s 140(1)(a) of the PS Act provides that a decision to appoint or employ, or not to appoint or employ, a person under the PS Act is an 'excluded matter', and the s 141(1) of the PS Act goes on to stipulate that an excluded matter, or a matter affecting or relating to an excluded matter, is not an ‘industrial matter' under the IR Act. The respondent goes further to state the Public Service Commission Directive 11/20: Individual employee grievances ('the Grievance Directive') has an exclusion at clause 6.1(c) regarding decisions relating to recruitment and selection. The respondent states these matters mean that industrial avenues have either been very tightly restricted or eliminated by legislation and the Public Sector Commission, and if any person has a valid reason to believe a public sector employee has engaged in suspected wrongdoing, they ought to report their concerns through the appropriate industrial avenue.
  1. [40]
    Accordingly, the respondent submits the Commission ought to dismiss the Appeal for want of jurisdiction on the basis the decision is a 'non-appealable appointment pursuant to s 132(1)(l), 132(5)(a), and 132(5)(b) of the PS Act, the Gazette Notice, and/or the Appeals Directive.

 Consideration

  1. [41]
    The singular question raised by the respondent’s interlocutory application is narrow.
  1. [42]
    The respondent contends that Mr Wyer’s appeal pertains to a decision about a ‘non-appealable appointment’ within the meaning of s 132 of the PS Act and the Directive. It is relevant to these proceedings that the legislation and the directive that applied at the time of the previous appeal by Mr Wyer have both been repealed. The language used in the PS Act is not materially different, but the language used in the Directive to define a non-appealable appointment is.
  1. [43]
    The meaning of the term ‘non-appealable appointment’ is defined by reference to both s 132(5) of the PS Act and Clause 17 of the Directive. While both are reproduced earlier in these reasons it is helpful to set them out again.

Section 132(5) of the PS Act

  1. [44]
    Section 132(5) of the PS Act relevantly provides that:

non-appealable appointment means an appointment or employment—

  1.  for which the commissioner is satisfied the principles mentioned in section 44 are sufficiently protected by ways other than an appeal under this part; and
  1.  that the commissioner has declared by gazette notice, or a directive, to be an appointment or employment against which an appeal may not be made.
  1. [45]
    Section 132(5) of the PS Act contains two limbs that define a non-appealable appointment. Both must be satisfied in order for an appointment to satisfy the definition.
  1. [46]
    As the respondent correctly points out, the reference to ‘commissioner’ in s 132(5) of the PS Act is a reference to the Public Sector Commissioner (‘PSC’).[4] The PSC is a unique office within the public sector. The PSC is appointed by Governor in Council, and they are vested with prescribed functions, responsibilities and powers.[5] Those powers include the power to declare, both in the gazette and in a directive, that an appointment is non-appealable for the purposes of the PS Act.[6]
  1. [47]
    In order for an appointment to fall within the first limb of the definition contained at s 132(5) the PSC has to be satisfied:
  • the principles mentioned in section 44 of the PS Act
  • are sufficiently protected
  • by ways other than an appeal. 
  1. [48]
    In the previous appeal decision, the Commission as currently constituted found that the respondent entirely failed to demonstrate how the commission chief executive (as the repealed Act then provided) was so satisfied:[7]

A 'non-appealable appointment'

[32]  The Department's submissions appear to exclusively rely on clause 7.2(b) of the Appeals Directive. There are two significant problems with the arguments made by the Department.

[33] Firstly, the Department appears to ignore the full definition of 'non-appealable appointment' as it appears in s 195(5) of the PS Act. The provision is very clear:

non-appealable appointment means an appointment—

(a) for which the commission chief executive is satisfied merit in selection processes is sufficiently protected by ways other than an appeal under this part; and

(b) that the commission chief executive has declared by gazette notice, or a directive for this part, to be an appointment against which an appeal may not be made.

[34]  The definition is in two parts and both parts must be satisfied. The submissions of the Department fail entirely to address s 195(5)(a). The submissions of the Department fail to demonstrate how the commission chief executive is '...satisfied merit in selection process is sufficiently protected...'.

[35] Even if the Department is correct in its arguments under clause 7.2(b) of the Appeals Directive, the Appeals Directive does not displace the PS Act. The Appeals Directive must be read in conjunction with the definition at s 195(5) of the PS Act. I hasten to add that the fact the commission chief executive has issued the Appeals Directive (in accordance with s 195(5)(b)) is in no way an express or implied indication that they are satisfied for the purposes of s 195(5)(a).

[36] While I appreciate this may be an oversight in the submission by the Department, they have had ample opportunity to address all relevant matters. In circumstances where the Department has failed to make a submission or demonstrate how the decision under review relates to a non-appealable appointment as defined by s 195(5)(a) of the PS Act, their jurisdictional objections must fail.

  1. [49]
    The conclusion set out immediately above was the first of two alternative conclusions to the respondent’s identical jurisdictional objection in the previous appeal decision. It appears that the matters raised by the Commission with respect to the second conclusion have been addressed in the new Directive and now appear at Clause 17. They are discussed later in these reasons.
  1. [50]
    But regrettably, it seems that notwithstanding the Commission’s overt rejection of the respondent’s first jurisdictional argument in the previous appeal decision (with clear and unambiguous reasons), the respondent has yet again failed to satisfactorily explain how the PSC was satisfied of the matters prescribed by s 132(5)(a) of the PS Act.
  1. [51]
    To be fair, the respondent has made two attempts to address the issue, but neither attempt has succeeded in doing so.
  1. [52]
    Firstly, the respondent’s submissions relevantly state that from ‘their perspective’ the principles in s 44 are sufficiently protected.[8] Unless the respondent is now authorised to speak for the PSC in these proceedings, that does not inform the Commission (or Mr Wyer) how the PSC was ‘satisfied’ when declaring the appointment non-appealable. The respondent appears to acknowledge this inadequacy immediately following their submission about ‘their perspective’.[9]
  1. [53]
    The second argument relied on by the respondent attempts to invoke s 20 of the Statutory Instruments Act 1992 (Qld) (‘SI Act’) which provides:

20 Presumption of validity

All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.

  1. [54]
    The submission of the respondent is that the Directive is a statutory instrument in which the PSC has declared inter alia appointment to a role remunerated in excess of the AO8 classification level is a non-appealable appointment. By applying the presumption of validity referred to at s 20 of the SI Act to the Directive, the respondent says that the PSC must have been ‘satisfied’ as required by s 132(5)(a) of the PS Act.
  1. [55]
    Apart from the submission that the Directive meets the definition of a statutory instrument for the purposes of the SI Act, nothing else about the respondent’s submission is correct.
  1. [56]
    The presumption referred to in s 20 of the SI Act is plainly limited to the ‘conditions and preliminary steps’ for the ‘making’ of the Directive. Part 5 of Chapter 6 of the PS Act contains, inter alia, the conditions and preliminary steps required for making a directive. The sections contained in that part include examples of the matters the PSC can make directives about and compels the PSC to consult with affected entities and consider any advice given.[10]  Beyond Part 5 of Chapter 6, the PS Act contains numerous more specific conditions and preliminary requirements unique to certain types of directives.[11]
  1. [57]
    When s 20 of the SI Act presumes validity, the presumption is that the statutory provisions for the making of a directive have been complied with and thus, in the absence of evidence to the contrary, the directive is lawfully made and binding. The presumption of validity does not, as the respondent seems to contend, extend to every subsequent application of the provisions contained within the subject directive. More importantly, the presumption of validity cannot apply to statutory requirements such as s 132(5)(a) of the PS Act that operate outside of the directive.
  1. [58]
    While they both must be fulfilled, the parts of s 132(5) of the PS Act are discrete. In order to demonstrate how an appointment attains non-appealable status, the respondent needs to demonstrate how both parts are satisfied.
  1. [59]
    The simple summary of the respondent’s second argument is that the PSC must have been satisfied in terms of s 132(5)(a) of the PS Act because they declared the appointment non-appealable in the Directive and the gazette as required by s 132(5)(b) of the PS Act. This argument is an ineffective attempt to side-step the simple question that remains unanswered since the previous appeal decision and now, again in these proceedings: how was the PSC ‘satisfied’ as required by s 132(5)(a) of the PS Act?
  1. [60]
    The singular task for the respondent to succeed with this interlocutory application was to demonstrate how the appointment in question satisfied both s 132(5) of the PS Act and Clause 17 of the Directive. Given the confined and clear nature of the definition for ‘non-appealable appointment’ the Commission would expect to be furnished with evidence to demonstrate how each element of the definition was satisfied. Insofar as the respondent has attempted to prove satisfaction of s 132(5)(a) of the PS Act, they have failed.
  1. [61]
    The implications of this failure by the respondent will be discussed later in these reasons.

The Directive

  1. [62]
    Again, it is useful to reproduce the relevant Directive passage:

17.  Non-appealable appointments

17.1  In consideration of the definition of ‘non-appealable appointment’ provided for in section 132(5) of the Act, it is declared that an appeal may not be made against the following appointments or employment:

  1. b.
    to a role remunerated in excess of:
  1. i.
    the maximum salary applicable to the AO8 classification level within the relevant entity (or the full-time equivalent for part-time roles), or…

 (Emphasis added)

  1. [63]
    The conclusions reached in the previous appeal decision regarding the salary provisions of the (then) directive plainly no longer apply. The language of the current Directive clearly extends the exclusion to full-time equivalent of part-time salary applicable to a part-time role.
  1. [64]
    The contest between the parties on this occasion centres on whether the maximum salary applicable to the AO8 classification should be calculated at the time of the subject appointment or by having regard to the actual annual salary.
  1. [65]
    The respondent contends that the time at which the salary is considered is as at the date of the appointment. In this matter the appointment occurred in July 2023. Between July and September 2023, the role in question was remunerated by a salary of $146434.00 per annum. The maximum salary for an AO8 employee was $143016.0 per annum. On that simple comparison the role in question has a full-time equivalent salary in excess of the maximum salary for an AO8 classification level.
  1. [66]
    Mr Wyer does not dispute that those figures were correct for the period July to September 2023. But he submits that from September the maximum salary for the AO8 classification was increased to exceed the (full-time equivalent) salary for the position in question. Mr Wyer contends that the Commission ought to consider the salaries by reference to the actual annual salary (as opposed to the salaries on the date of appointment).
  1. [67]
    The respondent does not dispute that the salary for the position in question only exceeded the AO8 salary for that three-month period. 
  1. [68]
    The Commission can appreciate the concerns underpinning Mr Wyer’s submission. The timing of the appointment on this occasion would seem to have occurred very conveniently at a time where an already controversial appointment could, on the respondent’s construction of the Directive, avoid the scrutiny of an appeal. But as tempting as it might be to entertain theories that this was by design, the earlier appointment of another candidate who later relinquished the role wholly explains the timing that occurred.
  1. [69]
    When considering the application of Clause 17 of the Directive, Clause 17.1(b)(i) must be read in conjunction with the introductory passage of the clause. The exclusion declared is in relation to ‘appointment to a role remunerated in excess of the maximum salary applicable to the AO8 classification’.  It is not the role per se that determines the character as non-appealable. It is the combination of appointment, to a role, with the requisite excess salary.
  1. [70]
    These three elements combine to form the character of an appointment and (as is well demonstrated by this matter) at given times during 2023 all three might not have been satisfied. But given it is the appointment that may (or may not) be appealable, it follows that its character crystalises on the date that it occurs. Any other construction of Clause 17 would lead to appointments suddenly being subject to challenge at any time when salary conditions changed throughout a year.
  1. [71]
    On the facts of this matter, the date of appointment is July 2023. The undisputed facts are that the appointment was to a role remunerated by a salary that, on that date, was in excess of the applicable AO8 classification.
  1. [72]
    In all of those circumstances, at least insofar as the application of Clause 17 of the Directive is concerned, the appointment meets the criteria for a non-appealable appointment.

Disposal of the respondent’s application

  1. [73]
    For all of the preceding reasons the Commission is satisfied that the respondent has presented evidence to demonstrate that the appointment in question meets the definition of non-appealable appointment contained at s 132(5)(b) and in accordance with Clause 17 of the Directive.
  1. [74]
    However, the respondent has not demonstrated that the PSC was satisfied to the requisite standard required by s 132(5)(a) of the PS Act. The basis of the respondent’s application is exclusively about the characterisation of the appointment. The controversy between the parties is not about whether adequate reasons were issued to support the characterisation as non-appealable.
  1. [75]
    It is unclear what steps are typically taken by the PSC to inform candidates or other interested parties as to how they are satisfied for the purposes of s 132(5)(a) of the PS Act. A failure to make any public disclosure of this type renders the entire function liable to genuine criticism. It is difficult to accept that the legislature intended the PSC to have the power to simply declare appointments non-appealable without any obligation to explain how they have validly made such a declaration.
  1. [76]
    Had Mr Wyer been provided with a more detailed written statement outlining how the PSC was satisfied of the matters set out in s 132(5)(a) of the PS Act, he may well have accepted why an appeal could not be made. At the very least, had such a statement been issued, this application might have been more expeditiously dealt with.
  1. [77]
    The dilemma for the Commission in this matter is that, while the respondent has entirely failed to present evidence demonstrating how the PSC was satisfied to the standard required by s 132(5)(a) of the PS Act, they have provided submissions that demonstrate how the PSC might have been satisfied.[12]
  1. [78]
    On consideration, the Commission is of the view that the matters referred to in the respondent’s submissions would have been sufficient to protect the principles mentioned in s 44 of the PS Act in other ways. But the Commission does not stand in the place of the PSC. It is not sufficient for the Commission to be satisfied in accordance with s 132(5)(a) of the PSA. To uphold the application of the respondent, the Commission must be satisfied that the PSC was satisfied. More particularly, the Commission will need evidence as to how the PSC was satisfied as at the time of making the declaration in the gazette in July 2023.
  1. [79]
    In those circumstances the respondent’s application must be dismissed for lack of evidence demonstrating compliance with s 132(5)(a) of the PS Act.

Other matters

  1. [80]
    Upon filing of their interlocutory application, the respondent was relieved of the need to file submissions in respect of Mr Wyer’s substantive appeal. A resumption of the directions in that regard will be subject to a further mention of the matter to ascertain what, if any, alternative steps might be considered.
  1. [81]
    To be clear, the conclusions set out in these reasons do not exclude the possibility (at some later stage) of the respondent successfully demonstrating to the Commission that the appointment in question is non-appealable. In the event the respondent can satisfactorily demonstrate compliance with s 132(5)(a) of the PS Act, the matter may be re-enlivened. If such evidence had been produced in these proceedings, the matter might have been resolved already. 
  1. [82]
    Of course, if satisfactory evidence cannot be provided by the respondent, the decision contested by Mr Wyer will continue to be within the Commission’s jurisdiction to review.
  1. [83]
    Another matter warrants mention. In the previous appeal decision, the Commission as currently constituted made these comments:[13]

[102] In summary, the failure by the Department to action the very comprehensive grievance authored by five Guidance Officers is confounding. Despite a no doubt valid technical barrier allowing it to be ignored, given the compelling content, the Department ought to have had regard to the grievance and ought to have paused the appointment process while the complaint was examined.

[103] The Department's failure in this regard is no small matter. What cannot be forgotten is that Guidance Officers deal with the most vulnerable students in schools operated by the Department. The Department has a duty to ensure the quality of the people it employs to fill these roles (or to manage others in these roles).

[104] While it might be easy to dismiss this dispute as a mere skirmish with disgruntled or unreasonable employees, the Department could not legitimately reach that conclusion without first objectively examining the (potentially) significant complaints about the skills and experience of the appointee that were raised by five of her professional contemporaries.

(Emphasis added)

  1. [84]
    Apparently, the grievance the subject of those previous comments remains entirely unactioned. There may well be valid reasons for that. But if there are not, then those previous comments remain valid.
  1. [85]
    If it transpires that the inaction on this critical issue is not capable of justification, then these reasons ought to stand as a public record of the inaction by the Department of Education. More importantly, these reasons ought to form a basis for any subsequent discussions about liability of the Department of Education in the event of any adverse outcomes attributable to the matters warned of by Mr Wyer and his colleagues.   

Orders

  1. [86]
    The Commission makes the following orders:
  1. The respondent’s application in existing proceedings is dismissed;
  1. The matter will be listed for further mention on a date to be advised.

Footnotes

[1] Wyer v State of Queensland (Department of Education) [2022] QIRC 408.

[2] [2022] QIRC 408.

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HC 10; (1995) 183 CLR 245, 261 (Mason CJ), Brennan and Toohey JJ), as cited and applied in Wyer v State of Queensland (Department of Education) [2022] QIRC 408, [39]–[42].

[4] Public Sector Act 2022 (Qld) sch 2.

[5] Ibid ss 217–218.

[6] Ibid s 143(2)(b).

[7] Wyer v State of Queensland (Department of Education) [2022] QIRC 408, [34]–[36].

[8] Respondent’s submissions filed 11 October 2023, [25].

[9] Respondent’s submissions filed 11 October 2023, [26].

[10] Public Sector Act 2022 (Qld) ss 222, 224–225.

[11] Ibid s 143.

[12] Respondent’s submissions accompanying Application in existing proceedings filed 11 October 2023, [25]. 

[13] Wyer v State of Queensland (Department of Education) [2022] QIRC 408, [102]–[104].

Close

Editorial Notes

  • Published Case Name:

    Wyer v State of Queensland (Department of Education)

  • Shortened Case Name:

    Wyer v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 140

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    31 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
1 citation
Jump To
Cite 1 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Wyer v State of Queensland (Department of Education) [2022] QIRC 408
6 citations
Jump To
Cite 1 - [2022] QIRC 408
Cite 2 - [2022] QIRC 408
Cite 3 - [2022] QIRC 408
Cite 4 - [2022] QIRC 408
Cite 5 - [2022] QIRC 408
Cite 6 - [2022] QIRC 408

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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