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Sharma v State of Queensland (Department of Education)[2024] QIRC 255

Sharma v State of Queensland (Department of Education)[2024] QIRC 255

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sharma v State of Queensland (Department of Education) [2024] QIRC 255

PARTIES:

Sharma, Arpana

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/230

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

30 October 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

2. The matter is returned to the decision maker with a copy of the decision on appeal;

3. The decision maker is directed to conduct a fresh review of the Appellant's employment and issue a new decision within 14 days of this decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – fixed term temporary employment review – appeal pursuant to the Public Sector Act 2022 (Qld) s 131(1)(a) – where the Appellant is employed on a temporary basis as a temporary relief staff replacement teacher – where the Appellant requested a review for conversion to permanent employment – where the Respondent decided that the Appellant was not eligible for full-time conversion due to genuine operational requirements – whether the decision was fair and reasonable – where decision was not fair and reasonable due to deficiencies in process.

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld), s 27B

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

Public Sector Act 2022 (Qld), s 81, s 113, s 114, s 115, s 129, s 131, s 132, s 133

Review of non-permanent employment (Directive 02/23), cl 7, cl 10, cl 13

CASES:

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

Goodall v State of Queensland [2018] QSC 319

Power v Queensland [2021] QIRC 053

Reasons for decision

Introduction

  1. [1]
    Ms Arpana Sharma ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as a casual Temporary Relief Staff ('TRS') replacement teacher within the Teacher Relief and Contract Employment Register Unit ('TRACER') of the Respondent, working in the South‑East region. The Appellant has been undertaking engagements with the Respondent since 10 May 2021.
  1. [2]
    The Appellant sought a review of her non-permanent employment status on that basis that she had been continuously employed by the Respondent for two years.
  1. [3]
    The Appellant was notified by correspondence from Mr Jeff Sheldon, Director, Talent Unit, ('the decision maker') that the Appellant's employment would not be converted to a permanent basis ('the decision'). The Appellant was informed that the decision maker had determined that there was not a continuing need for someone to be employed in the role that the Appellant was performing, or a role that was substantially the same, and that the purpose of the Appellant's employment was to fill a casual vacancy arising because an employee was absent from their substantive role for a known period. The Appellant was further advised that it was not viable or appropriate to convert the Appellant's employment to a permanent basis having regard to the genuine operational requirements of the Respondent.
  1. [4]
    The decision was then appealed by the Appellant pursuant to s 131(1)(a) of the Public Sector Act 2022 ('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's employment was not to be converted to permanent 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

  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 113 of the PS Act states:

113 Employee may request review of status after 1 year of continuous employment

  1. A public sector employee who has been continuously employed on a non-permanent basis in the same public sector entity for at least 1 year, may ask the employee's chief executive to 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 can not make more than 1 request under subsection (1) in each 12 month period starting on the day the request is made.
  1. For working out how long the employee has been continuously employed in the public sector entity—
  1. all periods of authorised leave are to be included; and
  1. the employee is to be regarded as continuously employed even if there are periods during which the employee is not employed in the entity, if the periods of non-employment in the entity total 6 weeks or less in the year occurring immediately before the time when the duration of the employee's continuous employment is being worked out.
  1. [11]
    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. [12]
    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. [13]
    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

Reasons for Appeal

  1. [14]
    The Appellant's grounds for appeal as stated in the appeal notice are outlined as follows:

…

My most recent service history records from DoE HR Reporting indicate that I have completed approximately 380 days of teaching with 936 calendar days making me suitable for a non-permanent employment review. I am keen to convert my casual employment to permanent under the Review of non-permanent employment (Directive 02/23).

…

I submitted a request for a employment review on the 16th of November 2023 and it was denied on the 23rd of November 2023. The DoE assert that my request was made under s 113. However I have been working for them since 2021 and the Department has not done an employment review. As such I believe my request was made under s 115 and that I have the right to appeal.

Further, the decision states that an existing employee is expected to return to the position I was working in. However I have worked as a casual relief teacher replacing multiple teachers' absences in various public schools and so this reason does not apply to me. It seems like a standard answer rather than a genuine response to my request. Therefore I believe that I meet the requirements and have a valid ground for an appeal.

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 amended submissions are, in summary, as follows:

Background

  1. The Appellant first commenced casual employment with the Respondent on 10 May 2021. Since that date the Appellant has worked for 1913 hours with a full day being 5 hours, translating to the Appellant being engaged to work for the Respondent for 383 school days. There are approximately 200 school days each year of which the Appellant has worked 383 of 535 possible school days equivalent to a service history completion of 2 years and 7 months.
  1. On 16 November 2023, after completing 2 years and 6 months with the Respondent, the Appellant requested a review of her employment under the PS Act and Directive 02/23 – Review of non-permanent employment ('the Directive').
  1. The Appellant made this request because, at that stage, she had worked for the Respondent for 2 years and 6 months and no reviews were undertaken by the department, despite the requirements set out in cl 7 of the Directive and s 115 of the PS Act.

Reasons for Conversion

  1. Consistent with s 114(3)(a)(i) of the PS Act, there is a continuing need for replacement teachers. While TRS casual teachers are engaged to backfill temporary absences, the Respondent also has permanent employees fulfilling Local Relief Teacher (LRT) and District Relief Teacher (DRT) roles who also backfill temporary vacancies. These teachers work either in one school (LRT) or for a circuit of schools (DRTs) and enable the Respondent to meet their operational requirements while fulfilling the obligation under the PS Act to maximize employment security and permanent employment.
  1. As such, the Respondent's decision not to convert the Appellant contravenes s 81(2) of the PS Act. The Respondent could have converted the Appellant as a permanent employee and placed the Appellant as a DRT and her role would have remained substantially the same. The Appellant is also open to LRT in one school and/or a regular classroom teacher role for any year levels. It was both viable and appropriate that the Respondent did so.
  1. The Appellant's role involves a high degree of dedication, reliability, availability, and flexibility to perform and meet professional standards and expectations of several schools with different policies and duty of care for thousands of students. The Appellant argues that she can continue to work as a replacement teacher and be permanently employed if appointed as LRT; her employment status does not need to alter the work that she does. The Appellant is also willing to become a regular classroom teacher for any given level as she is fully qualified to teach junior, middle, and senior year levels.
  1. Unlike a temporary teacher, the Appellant has not worked to backfill one individual; instead, the Appellant has worked in a number of schools and in multiple age levels and specialist teacher areas. Given the ongoing demand for replacement teachers, the Appellant argues that it is reasonable to assume there will be similar work for the Appellant to do even if the multiple absent substantive incumbents that she has previously backfilled in various schools returned at an expected return date. Therefore, the Appellant argues that there are no genuine operational requirements preventing conversion.
  1. The Appellant argues that she satisfies the conversion criteria set out in s 81(4) of the PS Act, which states that:

…employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis.

The Appellant fills in multiple teacher absences in various schools on a regular basis to assist with the ongoing demand and delivery of teachers to schools on time as evidenced by the numerous, recurring daily bookings the Appellant received by TRACER over the years. As such, there is a continuing need for the Appellant's role or one that is substantially the same.

  1. The Appellant states that she satisfies the conversion criteria set out in s 81(5) of the PS Act, which states that:

…employment of a person on a permanent basis, or on a temporary basis for a fixed term, may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(b) on a regular or systematic basis.

Due to an ongoing requirement, the Appellant has been engaged on a regular and systematic basis for recent years and has filled gaps in various work rosters from Prep to Year 6 as a replacement teacher, including all Specialist roles; Music, Health, Physical Education, Science, Library, Language Other Than English, Arts, Technology, Inclusion and Special Education Profiling.

  1. The Appellant further states that she satisfies the suitability requirements set out under cl 10.1 of the Directive and is suitable to perform the role under s 114(3)(a)(ii) of the PS Act. The Appellant is not subject to any unresolved and documented conduct or performance matters that have been put to her in writing.
  1. The Appellant acquired invaluable teaching skills and classroom management strategies, professional development, training in school policy and operational systems, curriculum, planning and assessment knowledge and successfully progressed towards a permanent classroom teacher role that is challenging, rewarding, and professionally satisfying. The Appellant argues that she has made a valuable contribution to the Respondent, and it seems unfair, after all this time, that she should continue without the benefits of permanent employment, such as stable remuneration and sick leave and vacation pay entitlements.
  1. After more than 2.5 years of meritoriously undertaking various roles, and demonstrating flexibility and diversity in her skill set, the Appellant does not consider it reasonable for the Respondent to retain her as a casual employee indefinitely, impeding her future growth and development and employment security as a proficient teacher. It does not follow that having invested this time and resources; the Respondent is unwilling to convert her casual employment to permanent.

Respondent's submissions

  1. [17]
    The Respondent's submissions are, in summary, as follows:

Continuing Need

  1. Despite the identified deficiencies in the Decision Notice which the Respondent addresses later in their submissions, the Respondent submits that there was no continuing need for someone to be employed in the Appellant's role or in a role that was substantially similar to the one that she was performing at the time of making the decision.
  1. In assessing whether there was a 'continuing need', the decision maker considered the individual, numerous roles that the Appellant was engaged in to relieve the substantive holder of each of those roles, as well as whether there was any continuing need in any substantially similar roles, namely preferred replacement teacher work at any one of the schools where the Appellant undertook engagements as well as district-level relief teacher positions.
  1. The decision maker had evidence and material before him which indicated that:
  1. each of the Appellant's engagements with schools, which were all facilitated through the TRACER, were discrete and therefore for a specific purpose for which an ongoing need did not exist;
  2. following enquiries made by the Respondent when assessing the Request, it became known that none of the schools at which the Appellant had been engaged had any requirement to engage her on a permanent basis as their preferential replacement teacher and none of those schools advised of any ongoing need for the Appellant as their preferential replacement teacher; and
  3. the Respondent made an assessment of any available permanent district-level relief positions (not based at an individual school) and could not identify any ongoing need for such a position.
  1. The decision maker assessed the pattern of the Appellant's engagements and considered local information for each school at which the Appellant was engaged and formed the view that an ongoing need in respect of any of the discrete roles undertaken by the Appellant, as well as any substantially similar roles, did not exist.
  1. In the circumstances, the Respondent submits that it was reasonably open to the decision maker to determine that there was no continuing need for someone to be employed in the role the Appellant performed or a role that was substantially similar.

Genuine operational requirements

  1. Further, the Respondent submits that there was a genuine operational requirement that reasonably prevented the conversion of the Appellant to permanent employment.
  1. Section 81(2) of the PS Act provides that a public sector employee may be employed on a non-permanent basis only if the employment of the employee on a permanent basis is not viable or appropriate.
  1. Section 81(3)(a)(i) of the PS Act indicates employment of a person on a permanent basis may not be viable or appropriate if the employment is for the purpose of filing "a temporary vacancy arising because a person is absent for a known period."
  1. The Respondent submits conversion was not viable or appropriate having regard to the genuine operational requirements of the Respondent.
  1. While the decision indicates that the decision maker made the assessment by reference to the 'casual vacancy' of an 'existing employee' in the singular, this was a typographical error. The decision maker made his assessment by reference to all of the casual vacancies that had been undertaken by the Appellant, and in respect of all 'existing employees' who were substantively engaged in those numerous roles.
  1. The Respondent has a discrete budget reflected by the workforce allocated to each school. The only budget that exists to create additional teaching positions is a limited budget to address additional allocation requirements to meet changed service delivery needs (e.g. significant increase in enrolments during a school year) and not in response to a casual employee seeking conversion to permanent employment. There are currently 1,847 primary qualified casually employed teachers in the Gold Coast area. The number of teachers engaged casually to replace a permanent employee absent from duty varies each day depending on the number of absences. In some cases, teacher absences are not replaced as replacement arrangements are in place within a school (e.g. Head of Department covering individual teacher absence on class). Creating additional budget funding in this circumstance would set a dangerous precedent and compromise the Respondent's efficient, effective, and suitable management.
  1. The Respondent submits that in the absence of the vacancy of any substantive positions which the Appellant had filled temporarily and the lack of funding for the creation of a new position which the Appellant could fill, genuine operational requirements exist that preclude a permanent appointment.
  1. The Appellant's conversion would therefore affect the efficient, effective, and sustainable management of the Respondent, having regard to the fact each of the positions temporarily occupied by the Appellant was substantively occupied by another employee and that the Appellant only occupied the position until that other employee returned to the position after their temporary absence.
  1. The Respondent submits that the decision was appropriate in that there was a genuine operational requirement that reasonably prevented the conversion of the Appellant's employment to a permanent basis and in those circumstances, it is not appropriate for the Commission to make an order for conversion.

Deficiencies in decision – Typographical Errors

  1. The decision referred to the Request being made under s 113 of the PS Act and the decision being made under s 114 of the PS Act. These references were typographical errors.
  1. The Respondent acknowledges that the decision stated that, because it purported to be a decision made under s 114 of the PS Act (rather than s 115), the Appellant did not have a right of appeal in respect of the Decision.
  1. The Respondent concedes this statement within the decision had the potential to cause unfairness to the Appellant in misleading her as to her appeal rights but notes that it did not actually have that effect, as the Appellant did in fact bring the Appeal.

Deficiencies in the decision - Mandatory Decision Criteria

  1. Section 114(3) of the PS Act contains the mandatory decision criteria for temporary employment conversions to permanent including, relevantly, whether 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.
  1. If the matters in s 114(3) are satisfied, the decision maker 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. Section 114(5) of the PS Act requires the decision maker, when deciding not to offer to convert an employee's employment to a permanent basis, to give the employee a notice stating:
  1. the reasons for the decision;
  2. the total period for which the employee has been continuously employed; and
  3. how many times the employee's employment on a non-permanent basis has been extended.
  1. Clause 13.1 of the Directive and s 27B of the Acts Interpretation Act 1954 ('the AI Act') requires the decision maker, in providing reasons for a decision under s 114(5)(a) of the PS Act, to set out the findings on material questions of fact; and refer to the evidence or other material on which those findings were based.
  1. The decision did not state the total period for which the Appellant had been continuously employed; or how many times the employee's employment on a non-permanent basis has been extended.
  1. However the Respondent submits that this omission, of its own, does not render the decision unfair or unreasonable in circumstances where the inclusion of this information would not have materially changed the decision and the omission has not caused any prejudice to the Appellant.
  1. The decision stated that the decision maker decided not to offer to convert the Appellant's employment basis to permanent and in respect of the reasons for that decision relevantly stated "…there is not a continuing need for someone to be employed in the role you are performing or a role that is substantially the same as the role you are performing…".
  1. In respect of the decision maker's reason for finding there was not any continuing need for someone to be employed in a role that was substantially similar to the role the Appellant was performing, the Respondent accepts that the decision did not provide the detail required by cl 13.1 of the Directive and s 27B of the AI Act.
  1. The Respondent concedes that fairness requires that the Appellant should have been provided with this information in the decision and be given the opportunity to fully understand (through provision of reasons) the extent to which the Respondent complied with its obligations in considering her potential conversion.
  1. [18]
    The Appellant filed submissions in reply relating to the substantive decision.

Consideration

  1. [19]
    This appeal requires consideration of whether the decision maker's decision not to convert the Appellant's employment to permanent was fair and reasonable.
  1. [20]
    The decision maker outlined the following under the heading of 'considerations when making the decision'  -

I have considered the requirements of the PS Act, the Directive and your employment history.

In summary, I have taken into consideration:

  • whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing;
  • whether you are suitable to perform the role;
  • if any requirements of the Award and Certified Agreement need to be complied with in relation to making the decision;
  • the relevant genuine operational requirements of the department; and
  • Part 2 of the Human Rights Act 2019 (HR Act)
  1. [21]
    The decision maker proceeded to outline the following as the reasons for the decision –

I have determined that:

there is not a continuing need for someone to be employed in the role you are performing or a role that is substantially the same as the role you are performing, and that specifically the purpose of your employment is to perform work for a particular purpose that has a known end date.

I consider that it is not viable to offer to convert your employment basis to permanent having regard to the genuine operational requirements of the department.

Specifically, the purpose of your employment was to fill a casual vacancy arising because an employee was absent from their substantive role for a known period.

The existing employee was absent from their position, and requiring replacement only until the date of their expected return.

As an existing employee is substantively engaged in the role, with an expected return date, a genuine operational requirement exists to not offer to convert your employment basis to permanent

  1. [22]
    Under the heading 'Appeal' in the decision, the decision maker outlines the following –

In accordance with in [sic] clause 14.1 of the Directive and section 132(1)(j) of the PS Act, a non‑permanent employee does not have a right of appeal in relation to a decision not to convert in response to an application made under section 113.

  1. [23]
    The decision contains multiple errors as conceded by the Respondent.
  1. [24]
    The decision letter referred to the request being made pursuant to s 113 of the PS Act and the decision being made pursuant to s 114 rather than s 115 of the PS Act. Although the Respondent states that these were typographical errors, the consequence of those errors is that the Appellant was erroneously advised that she did not have a right of appeal in relation to the decision.
  1. [25]
    The Respondent is correct in the submission that ultimately this error did not prejudice the Appellant given that she exercised her appeal right, however it is nonetheless a deficiency in the decision.
  1. [26]
    Section 114(5) and (6) of the PS Act is outlined as follows –
  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 under section 113(3) in the public sector entity; and
  1. how many times the employee's employment on a non-permanent basis has been extended.
  1. Subsection (5)(c) does not apply in relation to employment on a casual basis.
  1. [27]
    The decision did not state the total period for which the Appellant had been continuously employed as required by s 114(5)(b).
  1. [28]
    Section 114(6) outlines that the requirement to state how many times the employee's employment has been extended on a non-permanent basis did not apply given the Appellant's employment was on a casual basis.
  1. [29]
    The Directive at clause 13 provides the following –

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:

a. set out the findings on material questions of fact, and

b. refer to the evidence or other material on which those findings were based

  1. [30]
    The reasons for the decision did not comply with the decision maker's obligations in accordance with cl 13 of the Directive in that they did not set out the findings on material questions of fact nor did they refer to the evidence or other material on which those findings were based.
  1. [31]
    The Respondent submits that the reference to the 'casual vacancy' of an 'existing employee' in the singular was a typographical error. The Respondent's submissions state that the decision maker made the decision with reference to all of the casual vacancies that had been undertaken by the Appellant in respect of all existing employees who were substantively engaged in those numerous roles. This is not apparent from the decision.
  1. [32]
    The Appellant outlined in her appeal notice that the decision seemed like ‘a standard answer rather than a genuine response to my request’. It is entirely understandable that the Appellant formed that view given the phrasing of the decision. While the Respondent outlined in greater detail the reasons for the decision in the submissions, this does not cure the deficient reasoning in the original decision.
  1. [33]
    As noted by Commissioner Dwyer in Power v Queensland,[5] where the PS Act compels mandatory content in decisions such as the one under appeal, the presence of that content is a prerequisite for a conclusion that the decision is fair and reasonable.
  1. [34]
    Minor deficiencies may not be fatal for a decision of this type, however, in this matter the significant failure to comply with the requirements of the PS Act and the Directive resulted in the Appellant being unable to assess the genuine merits of the decision.
  1. [35]
    For the reasons outlined above, the decision was not fair and reasonable. Accordingly, I consider the most appropriate course of action is for the decision to be set aside and returned to the decision maker for a fresh review.

Order

  1. [36]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside;
  1. The matter is returned to the decision maker with a copy of the decision on appeal;
  1. The decision maker is directed to conduct a fresh review of the Appellant's employment in accordance with s 115 of the PS Act and Directive 02/23 and issue a compliant notice within 14 days of this decision.

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] [2021] QIRC 053

Close

Editorial Notes

  • Published Case Name:

    Sharma v State of Queensland (Department of Education)

  • Shortened Case Name:

    Sharma v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 255

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    30 Oct 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
Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53
2 citations
Jump To
Cite 1 - [2021] QIRC 53
Cite 2 - [2021] QIRC 53

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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