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Ottaway v State of Queensland (Queensland Fire and Emergency Services)[2024] QIRC 7

Ottaway v State of Queensland (Queensland Fire and Emergency Services)[2024] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ottaway v State of Queensland (Queensland Fire and Emergency Services) [2024] QIRC 7

PARTIES:

Ottaway, Vaughan

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO.:

PSA/2023/120

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

18 January 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – where appellant requested to be permanently appointed to higher classification position – where respondent refused the appellant’s request – where jurisdictional objection raised by respondent – whether decision was appealable pursuant to s 132 of the Public Sector Act 2022 – where decision was not appealable

LEGISLATION:

Public Sector Act 2022 (Qld), ch 3 pt 8 div 3, ss 98, 131, 132

Reasons for Decision

Introduction

  1. [1]
    Mr Vaughan Ottaway ('the Appellant') is employed by the State of Queensland (Queensland Fire and Emergency Services) ('the Respondent') as a Station Officer Leader, and acted in the position of Area Commander, Hendra, at the rank of Inspector from 17 May 2022 to 17 May 2023.
  1. [2]
    By letter dated 13 June 2023, Mr Matthew Bulow ('Mr Bulow'), A/Assistant Commissioner, confirmed the decision (‘the decision’) to deny the Appellant's request for conversion for the following reasons:
  1. You are not being converted to permanent employment in the higher classification and will continue your current engagement.
  1. The reason for this decision is that at the time of your request you had not completed 12 months continuous relieving in the role, furthermore your higher duties were ceased on 17 May 2023 and at that time you were not performing the role which prevents your conversion at this time.

..

You are not eligible for review under the provisions of section 20 of the Public Sector Act 2022 (the Act), relating to Review of acting or secondment to higher classification level (Directive 03/23 due not performing the role for 12 months at the time of your request on 12/05/2023 and the conclusion of your acting as from 17/05/2023.

  1. [3]
    On 27 June 2023, the Appellant filed a notice of appeal in the Industrial Registry pursuant to s 131(1)(a) of the Public Sector Act 2022 ('PS Act').
  1. [4]
    On 31 July 2023, a telephone conference was held during which relevant jurisdictional issues were discussed.
  1. [5]
    On 3 August 2023, the Appellant notified the QIRC that they wished to proceed with the appeal and a Directions Order was issued directing that submissions be filed.

Legislative Framework

  1. [6]
    Section 131 of the PS Act provides the following:
  1. 131
    Decisions against which appeals may be made
  1. An appeal may be made against the following decisions—
  1. a conversion decision;
  2. a directive decision;
  3. a disciplinary decision;
  4. a fair treatment decision;
  5. a promotion decision;
  6. a suspension without pay decision;
  7. a transfer decision;
  8. a work performance direction decision;
  9. a decision about anything else against which another Act allows a person to appeal.
  1. However, if an appeal may be made under this section against a decision, other than under subsection (1)(d), the appeal can not be made under subsection (1)(d).
  2. This section is subject to section 132.
  1. [7]
    Section 132 of the PS Act provides that a person cannot appeal against any of the following decisions: 
  1. 133
    Decisions against which appeals can not be made
  1. (1)
    A person can not appeal against any of the following decision—
  1. (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;

Grounds of appeal

  1. [8]
    In the appeal notice, the Appellant provided the following reasons for appeal:

I am Appealing the process (Review of acting or secondment to higher classification level) (Directive 03/23) as I have held the position of an Acting Inspector with the QFES since the 17 May 2022 till the 17 th May 2023. My actinhg [sic] was processed through to June 2023 however that was canceled [sic].

I have been off work having cancer treatment for some time, however, it is my understanding that approved leave is counted within the time acting in that role.

It is my belief that if I was not off work with cancer that I would have been able to continue my acting and would have had prior to my cancer diagnosis and was able to complete the first part of the process post resume.

I was advised that I cannot appeal this decision which I am not satisfied with, hence my application for appeal.

Submissions

  1. [9]
    On 3 August 2023, an Order was issued by the Commission directing parties to provide written submissions addressing the jurisdictional issue of whether the decision is appealable under the PS Act.

Appellant's submissions

  1. [10]
    The Appellant submits that he wishes to appeal the decision made regarding conversion to permanent employment in the higher classification role of Inspector pursuant to Directive 03/23 and further submits the following chronology of events:
  1. On the 23/06/2023 I received an email with an attached document signed and dated 13/06/2023 stating that I had been unsuccessful in my application for a permanent inspector’s position within QFES. The reason stated for the decision is that at the time of my request I had not completed 12 months continuous relieving in the role, furthermore my higher duties were ceased on 17/05/2023 and at that time I was not performing the role which prevents my conversion at this time.
  1. My response to the letter of refusal follows. On the 18/05/20232 I received email outlining the process of applying and that a review of my application has been initiated. This email was after the 17/05/2023 and as such I interpreted that due process had been completed and hence this correspondence was an acceptance of my application to proceed. It stated in the letter of being unsuccessful that my acting had been ceased on the 17/05/2023 concurrently on this date I received email notification that my acting had been extended through to the 25/06/2023. On the 14/06/2023 I received and email notification rescinding my acting and back dating it to the 17/05/2023. The dates of receiving my notification of being unsuccessful and the rescinding my acting seem convenient for the respondent.
  1. On the Operations Management System, my acting position started on the 16/05/2022 which would equate to 12 months and 1-day continuous acting. It is true that I was not performing the role on the date noted in the letter of non-eligibility I was on approved leave having treatment for Pancreatic Cancer. In support of my appeal, I refer to “Review of acting or secondment at higher classification level” (Directive 03/23) 8.1 Meaning of continuous period.
  1. [12]
    The Appellant submits that he is aggrieved by 'this process' and 'feel[s] that he is being discriminated against because of his illness.' The Appellant submits that he returned to work on 1 August 2023 at the Community Safety Branch in the Appellant's substantive position as a Station Officer and will also be acting in an inspector's role in September 2023 for holiday relief.

Respondent's Submissions

  1. [11]
    The Respondent submits that the appeal should be dismissed as Mr Bulow's decision is not an appealable decision pursuant to s 132(1)(k) of the PS Act.
  1. [12]
    The Respondent submits s 120(1) of the PS Act provides that a public sector employee who has been acting at or seconded to a higher classification level for a continuous period of at least one year may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis. This occurs after the end of one year acting at or being seconded to the higher classification level, and at the end of each subsequent one-year period.
  1. [13]
    Mr Ottaway submitted his request to be appointed to the higher classification level position on 12 May 2023.
  1. [14]
    At the time Mr Ottaway submitted his request to be employed at the higher classification level he had not yet completed at least one year acting at the higher classification level for a continuous period.
  1. [15]
    Therefore, Mr Ottaway was not eligible to be considered for appointment to the higher classification level at the time of his request being submitted under section 120(1) of the PS Act and QFES had no other option than to decline his request.
  1. [16]
    Additionally, Mr Ottaway had only been continuously acting at the higher classification level for a period of almost one year.
  1. [17]
    As such, Mr Ottaway has submitted an appeal about a decision that is not appealable under section 132(1)(k) of the PS Act.
  1. [18]
    The PS Act provides that the Commission may decide not to hear a public service appeal if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal is misconceived or lacks substance, or should not be heard for another compelling reason.
  1. [19]
    Mr Ottaway was not eligible to request to be appointed to the higher classification level at the time of his submission and was not eligible to appeal the decision.
  1. [20]
    QFES also submits that Mr Ottaway’s appeal does not provide an arguable case for why he should receive special consideration outside of the requirements of the PS Act that apply to all other QFES employees.
  1. [21]
    In response to the Mr Ottaway's submissions at paragraphs 2 and 4, QFES regrets that Mr Ottaway feels aggrieved, and encourages Mr Ottaway to submit a request for appointment at the higher classification level again in the future should he become eligible.

Consideration

  1. [22]
    The Respondent contends that the Appellant had been acting in the higher classification role for less than one year when he applied to be converted to the higher classification level permanently. Consequently, the Respondent declined to convert the Appellant’s employment on the basis that he was not eligible for conversion pursuant to s 120(1) of the PS Act. The Appellant contends that he was eligible for conversion as he had been acting in the higher classification role for one year, notwithstanding his period of sick leave taken during this period.
  1. [23]
    Section 132 of the PS Act outlines decisions against which appeals cannot be made. Section 132(1)(k) provides that a decision under s 120 to not 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 two years, is not an appealable decision. Although the parties are in dispute as to whether the Appellant has been acting in the higher classification role for one year, it is uncontroversial that the Appellant has not been acting in the higher classification level for two years. Accordingly, the Appellant is unable to appeal the decision pursuant to s 132(1)(k).
  1. [24]
    In these circumstances, the Commission has no jurisdiction to hear this appeal.
  1. [25]
    Pursuant to s 562A(3)(b)(ii) and (iii) of the IR Act, I consider that this appeal is misconceived, and it will not be heard due to the jurisdictional barrier.

Order

  1. [26]
    I make the following order:
  1. Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard.
Close

Editorial Notes

  • Published Case Name:

    Ottaway v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Ottaway v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2024] QIRC 7

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    18 Jan 2024

Appeal Status

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

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