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  4. Zischke v State of Queensland (Department of Education) - [2024] QIRC 164

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Zischke v State of Queensland (Department of Education)[2024] QIRC 164

Zischke v State of Queensland (Department of Education)[2024] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Zischke v State of Queensland (Department of Education) [2024] QIRC 164

PARTIES:

Zischke, Elke Rose

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2024/91

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

5 July 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – fixed term temporary employment review – appeal pursuant to the Public Sector Act 2022 (Qld) s 131(1)(a) – where the Appellant is currently employed on a temporary basis as a teacher aide – where the Appellant requested a review for conversion to permanent employment – where the Respondent decided that the Appellant was not eligible for a review – whether Appellant had been continuously employed for two years – where decision was fair and reasonable.

LEGISLATION AND OTHER INSTRUMENTS:

Education Teacher Aides' Certified Agreement 2022

Review of non-permanent employment (Directive 02/23), Cl 13

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

Public Sector Act 2022 (Qld), ss 111, 113, 114, 115, 120, 129, 131 and 133

CASES:

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

Goodall v State of Queensland [2018] QSC 319

Reasons for decision

Introduction

  1. [1]
    Ms Elke Rose Zischke ('the Appellant') is currently employed by the State of Queensland (Department of Education) ('the Respondent') as a teacher aide at Wolvi State School on a temporary basis until 8 July 2024. The Appellant is engaged to backfill the substantive incumbent who is currently on leave.
  1. [2]
    On 18 April 2024, the Appellant was notified by correspondence from Ms Joselyn Halton, Senior HR Services Officer, that the Appellant was eligible for a review of her employment status on the basis that she had been a non-permanent employee of the Respondent for a period of two or more years. Ms Halton further stated that the correspondence was sent in accordance with s 115 of the Public Sector Act 2022 ('the PS Act') and the Review of non-permanent employment (Directive 02/23) ('the Directive').
  1. [3]
    On 7 May 2024, the Appellant was notified by Ms Jo Turner, Senior HR Consultant, Employment ('the decision maker') that she was not eligible for a review of her non‑permanent employment. The Appellant was informed that the decision maker had determined that she had not been continuously employed by the Respondent for the required 35 school weeks within a 52-week period. The decision maker found that the periods of non-employment during the period that the Appellant worked exceeded the criteria to be considered eligible for a review under the PS Act and the Directive ('the decision').
  1. [4]
    By appeal notice filed on 27 May 2024, the Appellant appealed the decision pursuant to s 131(1)(a) of the PS Act.

Appeal principles

  1. [5]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision that the Appellant was ineligible for review of her non-permanent employment was fair and reasonable in all of the circumstances.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant provisions of the PS Act and the Directive

  1. [8]
    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. [9]
    Section 129 of the PS Act relevantly provides:

129  Definitions for part

In this part—

conversion decision means a decision—

  1. under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis;
  1. [10]
    Section 115 of the PS Act relevantly states:

115  Chief executive must review status after 2 years of continuous employment

  1. If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee’s chief executive must decide whether to—
  1. continue the employee’s employment according to the terms of the employee’s existing employment; or
  1. offer to convert the employee’s employment to a permanent basis.
  1. The employee’s chief executive must make the decision within the required period after—
  1. the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and
  1. each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.
  1. In making the decision—
  1. section 114(3) and (4) applies to the employee’s chief executive; and
  1. the employee’s chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee’s period of continuous employment.
  1. If the employee’s chief executive decides not to offer to convert the employee’s employment to a permanent basis, the chief executive must give the employee a notice stating—
  1. the reasons for the decision; and
  1. the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and
  1. how many times the employee’s employment on a non-permanent basis has been extended; and
  1. each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee’s period of continuous employment.
  1. [11]
    Section 114 of the PS Act relevantly provides:

114 Chief executive must make decision on employee’s request

 …

  1. The employee’s chief executive may decide to offer to convert the employee’s employment to a permanent basis only if—
  1. the employee’s chief executive considers—
  1. there is a continuing need for someone to be employed in the employee’s role, or a role that is substantially the same as the employee’s role; and
  1. the employee is suitable to perform the role; and
  1. any requirements of an industrial instrument are complied with in relation to the decision.
  1. If the matters in subsection (3) are satisfied, the employee’s chief executive must decide to offer to convert the employee’s employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.
  1. [12]
    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
  1. [13]
    While all of the provisions of the Directive have been considered, particular attention is paid to the following clause:

13.  Obligations when a decision is made not to offer to convert an employee’s employment to a permanent basis and to continue the employee’s employment according to the terms of the employee’s existing employment

13.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:

  1. a.
    set out the findings on material questions of fact, and
  2. b.
    refer to the evidence or other material on which those findings were based.

13.2  Any notice provided to the employee must include information about any relevant appeal rights available to the employee.

13.3  Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee’s employment to a permanent basis because the person was not suitable to perform the role, any notice provided to the employee must also include information about an employee’s right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.

Reasons for Appeal

  1. [14]
    The Appellant appeals the decision on the basis that she believes that her consistent teacher aide work throughout her education career should enable her to be made permanent.

Submissions

  1. [15]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [16]
    The Appellant's submissions are, in summary, as follows:
  1. a)
    The Appellant has been working as a teacher aide since 2020 and is currently an active employee completing casual relief work.
  2. b)
    The Appellant has had consistent teacher aide work throughout her education career and returned to work soon after finishing maternity leave for her two children.
  3. c)
    The implementation of the Standard Job Model means that principals in Gympie are now not offering contracts, they are instead providing casual work so as to not risk converting hours to permanent.
  4. d)
    The Appellant has been a passionate teacher aide for a number of years, is currently working at Wolvi State School, and would like to be made permanent.
  5. e)
    The Appellant outlined her DET Employment History at Gympie South State School, Widgee State School, Dagun State School, Two Mile State School, Gympie East State School, and Wolvi State School.
  1. [17]
    The Appellant also submits that she has had a number of unfair situations resulting in contracts being ended early, outlined as follows:
  1. a)
    The Appellant was not offered her previous position at Widgee State School after returning from maternity leave as the role was given to a casual teacher aide. Due to a change in Principal, the Appellant was unfairly left without work when she should have been able to return to her position. The Appellant believes that the replacement teacher aide is now working maximised hours.
  2. b)
    The Appellant was not paid for the end of Term 3 holidays while on a contract at Dagun State School due to an administration error on her timesheets.
  3. c)
    The contract with Two Mile State School ended early due to the school needing to provide permanent hours to a permanent teacher aide from Chatsworth State School. The Appellant was not re-employed after this teacher aide relinquished their hours. The Appellant was also not given two weeks' notice but was told on the day that her contract would be ending that day.

Respondent's submissions

  1. [18]
    The Respondent's submissions are, in summary, as follows:

Background

  1. a)
    Over the past two years the Appellant has been engaged in various temporary and casual roles with the Respondent, including a number of breaks in service.
  2. b)
    The Appellant had previously requested conversion to employment on a permanent basis pursuant to s 113 of the PS Act and the Directive on 9 November 2023. The Appellant was notified on 1 December 2023 that the Respondent had determined not to offer to convert her employment to permanent on the grounds that she was not an employee at the time she made the request.
  3. c)
    The decision accords with the PS Act and the Directive and is fair and reasonable.
  4. d)
    Notwithstanding the request for a review in the Appellant's email dated 18 April 2024, the Appellant was not eligible to make a request for a review pursuant to s 113 of the PS Act as she had already made a request under s 113 in the 12 months prior on 9 November 2023. Accordingly, the review was considered pursuant to s 115 of the PS Act.
  5. e)
    In coming to the decision, the decision maker noted:
  1. i)
    She had received the Appellant's email dated 18 April 2024 providing submissions for consideration on review;
  2. ii)
    Section 5.7(d) of the Education Teacher Aides' Certified Agreement 2022 ('the TA Agreement') applies to the Appellant's employment and requires that a teacher aide must have engaged for 35 school weeks within a 52-week period to be considered to have been 'continuously employed' for the purposes of the Directive; and
  3. iii)
    accordingly, she had determined that the Appellant was not eligible for a review of her employment status under ss 115 or 113 of the PS Act or the Directive, and her employment would continue according to the terms of her existing employment arrangement.
  1. f)
    The Respondent acknowledges that the decision does not address the matters prescribed in ss 115(3)-(4) for a notice of decision not to offer to convert an employee's employment to a permanent basis. However, the Respondent submits that given that the decision maker determined that the Appellant was not eligible for review as she did not meet the requirement set out in s 115(1), the decision maker was not required to list matters set out as ss 115(3)-(4)(b) to (d). The omission of this information does not render the decision not fair and reasonable. The Respondent refers to Brydon v State of Queensland (Queensland Health) [2024] in relation to substantially similar provisions in s 120 of the PS Act.

Appellant not eligible for review

  1. g)
    In order to be eligible for a review pursuant to s 115 of the PS Act, an employee must have been 'continuously employed' in the same public sector entity for at least two years.
  2. h)
    Clause 7.5(d) of the TA Agreement clarifies that as part of determining eligibility for review of fixed term temporary employment under the Directive, teacher aides engaged for 35 school weeks within a 52-week period are considered to have worked one year's service towards eligibility for conversion to permanency.
  3. i)
    The Appellant commenced employment with the Respondent on 18 April 2022. Between 18 April 2022 and the date of the s 115 review on 18 April 2024, the Appellant was engaged 64 school weeks. This includes that in the 52-week period from 18 April 2023 to 18 April 2024, the Appellant was engaged for 30 school weeks. Significantly, there was a 5-month period between 16 August 2023 and 21 January 2024 where the Appellant was not engaged by the Respondent in any capacity.
  4. j)
    Further, s 111(c) of the PS Act provides that if a person is employed on a non‑permanent basis other than a casual basis and on a casual basis during a period, they are ‘continuously employed’ if they are employed continuously for the period (in respect of the non-permanent employment other than casual employment) and on a regular and systematic basis during the period (in respect of the casual employment).
  5. k)
    By email dated 13 June 2024, the Appellant provided submissions in support of the Appeal. In the Appellant's submissions, she refers to 'a number of unfair situations' regarding the circumstances of her engagements with the Respondent ending early.
  6. l)
    The Respondent submits these submissions do not mean the decision maker's conclusion that the Appellant has not been 'continuously employed' for the required period and was therefore not eligible for a review of her employment status (pursuant to s 115 of the PS Act) was not fair and reasonable.
  7. m)
    On that basis, it was open for the decision maker to determine that the Appellant had not been 'continuously employed' with the Department for at least 2 years as required by s 115(1) of the PS Act, and that the Appellant was not eligible for review of her employment status pursuant to s 115 of the PS Act.

Appellant's Submissions in Reply

  1. [19]
    The Appellant elected to not file any further submissions in reply.

Consideration

  1. [20]
    This appeal requires a determination as to whether the Respondent’s decision that the Appellant was not eligible for review on the basis that she had not been continuously employed for 2 years was fair and reasonable.
  1. [21]
    The Appellant made a number of submissions described as ‘unfair situations’ relating to her employment. Whilst these matters may form the basis of a separate grievance to be addressed via the appropriate process, they are not relevant to a review of whether the decision by the decision maker of 7 May 2024 that the Appellant was not eligible for review was fair and reasonable.
  1. [22]
    It is noted that the review was considered pursuant to s 115 of the PS Act following the correspondence from Ms Halton. The Appellant was not eligible to make a request for a review pursuant to s 113 on the basis that she had already made a request within the previous 12 months and was ineligible to make a further request pursuant to s 113(2).[5]
  1. [23]
    The Appellant commenced employment on a temporary basis as a teacher aide at Wolvi State School on 18 April 2022. Over the following two years the Appellant was employed in a number of temporary and casual roles.
  1. [24]
    Attachment 1 to the Respondent’s submission provided an outline of the Appellant’s employment history which is reproduced below -

Dates

Position / Break in service

Duration

18 April 2022 to 24 June 2022

Teacher Aide, Gympie South State School (Temporary)

10 weeks

25 June 2022 to 10 July 2022

Break in service (during school holidays)

2 weeks

11 July 2022 to 4 October 2022

Teacher Aide, Dagun State School (Temporary)

12 weeks, 2 days

5 October 2022 to 9 October 2022

Break in service (partially during school holidays)

5 days

10 October 2022 to 24 February 2023

Teacher Aide, Gympie South State School (Casual)

21 weeks (inclusive of 6 weeks school holidays between 10 December 2022 and 22 January 2023)

27 February 2023 to 21 May 2023

Teacher Aide, Two Mile State School (Temporary)

12 weeks

22 May 2023 to 11 June 2023

Break in service

3 weeks

12 June 2023 to 15 August 2023

Teacher Aide, Gympie East State School (Casual)

9 weeks, 2 days

16 August 2023 to 21 January 2024

Break in service

5 months

22 January 2024 to 23 February 2024

Teacher Aide, Gympie East State School (Casual)

Note, the Appellant only worked 3 days during this casual engagement.

5 weeks

26 February 2024 to 10 April 2024

Teacher Aide, Wolvi State School (Temporary)

6 weeks, 3 days

11 April 2024 to 14 April 2024

Break in service

3 days

15 April 2024 to 8 July 2024

Teacher Aide, Wolvi State School (Temporary)

Currently ongoing

  1. [25]
    It is clear from the employment history above that there were a number of breaks in the Appellant’s service within the past 2 years.
  1. [26]
    As outlined in the decision, s 5.7(d) of the Education Teacher Aides’ Certified Agreement 2022 (‘the Agreement’) provides that for a teacher aide to be considered to have been ‘continuously employed’ for the purposes of the Directive, they must have been engaged for 35 school weeks within a 52-week period.
  1. [27]
    The Appellant had not been engaged for 35 school weeks within a 52-week period between 18 April 2023 and 18 April 2024 and accordingly had not been ‘continuously employed’ during this period. 
  1. [28]
    Section 111 of the PS Act defines ‘continuously employed’ in the following terms -

"continuously employed" , in relation to a person employed for a period in a public sector entity, means the person is employed in the entity—

  1. if the person is employed on a non-permanent basis other than a casual basis during the period—continuously for the period; or
  2. if the person is employed on a non-permanent basis that is a casual basis during the period—on a regular and systematic basis during the period; or
  3. if the person is employed on a non-permanent basis other than a casual basis, and on a casual basis, during the period—continuously under paragraphs (a) and (b) for the period.
  1. [29]
    The Appellant’s employment history confirms frequent breaks in service,[6] although it appears that most of the breaks were within the school holidays. However, the employment could not reasonably be considered to have been on a regular and systematic basis given the 5-month break in service from 16 August 2023 to 21 January 2024. Accordingly, the Appellant has not been ‘continuously employed’ in accordance with s 111 of the PS Act and is not eligible for review pursuant to the requirements of s 115 of the PS Act. 
  1. [30]
    In these circumstances, it was fair and reasonable for the decision maker to determine that the Appellant did not meet the criteria for conversion to permanency and was therefore ineligible for review.
  1. [31]
    I note that the decision does not outline the matters prescribed in ss 115(3)-(4) of the PS Act, however, in circumstances where the Appellant has not satisfied the jurisdictional barrier outlined in s 115(1) relating to 2 years of continuous employment, it was unnecessary to consider these further matters.

Order

  1. [32]
    I make the following order:

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

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] The Appellant made a request on 9 November 2023.

[6] including periods 25/6/22 - 10/7/22; 3/10/22 - 9/10/22; 22/5/23-11/6/23; 16/8/23-21/1/23; and 11/4/23-14/4/24.

Close

Editorial Notes

  • Published Case Name:

    Zischke v State of Queensland (Department of Education)

  • Shortened Case Name:

    Zischke v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 164

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    05 Jul 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
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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