QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106

PARTIES:	
	Hood, Russell
(Appellant)

v

State of Queensland (Department of Justice and Attorney-General)
(Respondent)
	
CASE NO:
	PSA/2020/295
	
PROCEEDING:
	Public Service Appeal – Appointment to a Higher Classification

DELIVERED ON:
	26 March 2021
	
MEMBER:

HEARD AT:	Knight IC

Conference – 22 February 2021
On the papers

ORDERS:
	1.	The appeal is allowed.

2.	Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with a decision that Mr Russell Hood be permanently appointed to the position of PO6 Senior Crown Prosecutor within the Office of the Director of Public Prosecutions.
	
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested to be appointed to a higher classification position in which he had been acting – where the decision is deemed to have been made under s 149C of the Public Service Act 2008 – whether the deemed decision was fair and reasonable – whether genuine operational requirements prevented appointment – where the respondent commenced a recruitment and selection process after request – whether the appellant met the merit principle – decision not fair and reasonable
	
LEGISLATION AND INSTRUMENTS:

	Directive 12/20 Recruitment and selection

Directive 13/20 Appointing a public service employee to a higher classification level cls 6, 7, 9

Industrial Relations Act 2016 s 562B

Public Service Act 2008 ss 27, 28, 149C 

Queensland Public Service Officers and Other Employees Award – State 2015 cl 12.9
	
CASES:	Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203	

Reasons for Decision

[1]	Mr Russell Hood is employed by the State of Queensland. His substantive position is that of Crown Prosecutor, classification level PO5, located within the Office of the Director of Public Prosecutions, at the Department of Justice and Attorney-General ('the Department'). 
[2]	On 9 April 2018, Mr Hood commenced acting at the higher classification level of PO6 in the position of Senior Crown Prosecutor ('the PO6 position'). Within this period, his acting position has been extended on ten occasions. The expiry date for his current higher duties acting role is 30 April 2021. 
[3]	Pursuant to s 149C(3) of the Public Service Act 2008 ('the PS Act'), on 22 September 2020, Mr Hood requested by email that he be permanently appointed to the PO6 position.
[4]	A decision was not made within the prescribed period such that the request was deemed to have been refused on 20 October 2020 ('the deemed decision'). By notice of appeal filed 10 November 2020, Mr Hood appeals the deemed decision.
[5]	The question for determination is whether the deemed decision was fair and reasonable. For the reasons that follow, I consider it was not fair and reasonable. 
Background
[6]	Before turning to the parties' submissions, it is relevant to note the following. 
[7]	Firstly, a conference was held on 22 February 2021 during which the parties assisted the Commission to better understand the material which had been filed and further discussions about the deemed decision were held.
[8]	Secondly, the Department does not dispute that Mr Hood was eligible to make his request to be appointed to the PO6 position and that the deemed decision is taken to have been made under s 149C(6). 
[9]	Thirdly, the PO6 position in which Mr Hood is acting is substantively vacant.
[10]	Fourthly, since refusing Mr Hood's request, the Department has commenced a recruitment and selection process to fill several PO6 Senior Crown Prosecutor positions across South East Queensland, Toowoomba and Rockhampton. One of the positions the Department seeks to fill is the PO6 position in which Mr Hood is acting.
[11]	Finally, the Department provided Mr Hood with an undertaking that it would not fill that position until this appeal had been determined.
Submissions
[12]	Mr Hood contends the Department's failure to properly consider his request and provide him with written reasons amounts to an error of law. He submits the Department was required to consider his request in accordance with the provisions of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). 
[13]	In accordance with s 149C(4A), Mr Hood argues the Department was required to consider relevant genuine operational requirements at the time of his request for appointment. Those operational requirements, Mr Hood argues, support his appointment, which is further evidenced by the recruitment and selection process currently underway. 
[14]	On the issue of merit, Mr Hood contends he satisfies the merit principle for appointment under the PS Act as he has not been subject to disciplinary proceedings since commencing his higher duties, and his satisfactory performance is demonstrated by the fact that his contract has been extended numerous times.
[15]	For its part, the Department submits that its genuine operational requirements support Mr Hood's temporary engagement to the PO6 position pending the outcome of the current recruitment process but did not support his permanent appointment under the Directive.
[16]	Further, it contends Mr Hood was ineligible for appointment to the PO6 position as he had been considered "unsuitable" in an earlier recruitment process finalised in February 2020, in circumstances where it is now argued Mr Hood did not meet the merit principle for appointment at the time of his request. 
[17]	Although the Department acknowledges Mr Hood has since continued acting in the position for which he was considered unsuitable, it submits this has occurred with the objective of providing Mr Hood with an opportunity to develop his skills, so that he may demonstrate his suitability in future.
[18]	Finally, the Department submits it was more appropriate to permanently appoint a person to the position in which Mr Hood has been acting through a full merit recruitment and selection process. 
[19]	In making that submission, it states there are fourteen other staff acting in PO6 Senior Crown Prosecutor positions and the Department was required to consider those staff members' eligibility, rights and merit in making the appointment.
[20]	Mr Hood devotes a significant portion of his reply submissions to the issue of merit, submitting:
•	an earlier interview summary, upon which the Department solely relies in support of its position that he is not eligible for appointment, notes:
Written application:
Russell boasts extensive experience as a prosecutor with over 5 years' experience as a PO5 and 20 months as a PO6. He has conducted over 90 trials and appeared in the COA and on a trafficking trial. His application is good. His written work is persuasive and addressed the criteria well ...
•	he possesses the abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to carrying out of the duties in question having performed the higher duties role for the previous two and a half years;
•	his ability to perform the role is further supported by the Department's actions in extending him on four more occasions since the 4 December 2019 interview, providing him with yet another year of experience at the PO6 level as a Senior Crown Prosecutor;
•	in the event the Department held the view he did not possess the requisite capability, skills, qualifications, experience and personal qualities relevant to performing the role, he would not have been permitted to conduct a notable prosecution at short notice, nor been trusted to undertake other duties relevant to the PO6 position description;
•	his paypoint increment has been increased annually during the two and a half years he has been acting in the higher duties role, in circumstances where the relevant award prevents an upwards movement unless it is considered "performance objectives have been achieved as certified by the chief executive";
•	it is not in contention that there have been no performance concerns directly raised with Mr Hood, either verbally or in writing, in respect to the performance of his duties as a Senior Crown Prosecutor in the two and a half years he has been acting in the PO6 position;
•	although conceding the interview upon which the Department relies was not his finest hour, it was held within a thirty-minute window during which time he found the role play format to be disconcerting, despite generally experiencing no issues when appearing before judicial officers in a court environment;
•	it is questionable as to whether a sufficiently comprehensive assessment of his merit was able to be undertaken during the role play;
•	although the Department now maintains he was ranked at 23 out of 25 for the interview process and deemed unsuitable, he was not advised of his ranking and was instead advised via email on 5 February 2020 that, "[t]here was no merit list and no decision re suitability";
•	in the interview summary provided to the Commission by the Department, his previous supervisor described him as "a solid performer and one suitable for the PO6 position".
[21]	In response to the Department's submission that it was required to consider other staff members' eligibility for appointment, he argued he was the only person eligible for appointment to the PO6 position under the Directive at the time of his request.
Relevant provisions
[22]	The PS Act relevantly provides:
149C	Appointing public service employee acting in position at higher classification level
(1)	This section applies in relation to a public service employee if the employee—
(a)	is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
(b)	has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
(c)	is eligible for appointment to the position at the higher classification level having regard to the merit principle.
(2)	However, this section does not apply to the following public services employees—
(a)	a casual employee;
(b)	a non-industrial instrument employee;
(c)	an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
(3)	The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
(a)	the end of 1 year of being seconded to or acting at the higher classification level; and
(b)	each 1-year period after the end of the period mentioned in paragraph (a).
(4)	The department's chief executive must decide the request within the required period. 
(4A)	In making the decision, the department's chief executive must have regard to— 
(a)	the genuine operational requirements of the department; and
(b)	the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
[23]	With respect to the merit principle and criteria, it provides:
27	The merit principle
	(1)	The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).
	...
28	Merit criteria
	In applying the merit principle to a person, the following must be taken into account—
	(a)	the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
	(b)	if relevant—
		(i)	the way in which the person carried out any previous employment or occupational duties; and
		(ii)	the extent to which the person has potential for development.
[24]	The Directive relevantly provides:
6.	Decision making 
6.1	When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle. 
6.2	In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to: 
	(a)	the genuine operational requirements of the department, and 
	(b)	the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level. 
6.3	In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.
...
7.1	A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954: 
(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. 
7.2	A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3.
... 
9.	Exemption from advertising 
9.1	Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive.
Was the deemed decision fair and reasonable?
Merit principle
[25]	With respect to the merit principle, I find the Department's reliance on the outcome of a thirty-minute interview within a recruitment process finalised some eight months prior to Mr Hood's request, problematic.
[26]	It is the case that when deciding whether to permanently appoint Mr Hood to the PO6 position, it was open to the decision-maker to consider whether he had any performance concerns that had been put to Mr Hood, documented and remained unresolved, resulting in him no longer being eligible to be appointed to the PO6 position. 
[27]	The difficulty I have with the Department's submissions in respect of its reliance on merit as a bar to appointment, is that there are no materials before me that indicate any performance concerns were directly raised with Mr Hood either during, or on the completion of the interview, or in the two and a half year period he was undertaking the higher duties role. 
[28]	Although the interview summary provided to the Commission included a comment from a referee which suggested he could be indecisive on occasion, in the same document Mr Hood is noted as being a solid performer and suitable for the PO6 position. 
[29]	On its own admission, the purpose of the Department extending his contract since December 2019 has been to allow Mr Hood to continue to develop his skills and demonstrate his suitability for future appointment. It is implicit in that sentiment that his suitability would be reconsidered when he next applied for permanent appointment to the PO6 position.
[30]	Further, the use of the present tense "has" in the merit criteria set out in the PS Act (see at [23] above), indicates the decision maker is required to consider, as at the time of making the decision, whether the person presently meets the merit principle. 
[31]	In my view, it does not appear as if a meaningful assessment as to merit was undertaken at the time Mr Hood made his request. 
[32]	I hasten to add that that a failure to properly consider the merit criteria does not impliedly mean that Mr Hood did in fact meet the merit principle at the time of the deemed decision. However, on balance, having regard to the materials before me which indicate Mr Hood's contract had been continually extended in the lead up to his request for appointment, and in the absence of any evidence supporting a conclusion that performance issues had been directly raised by a representative of the Department at any time while Mr Hood has been engaged in the higher duties position, I am satisfied that he likely did meet the merit principle.
Genuine operational requirements of the Department
[33]	Among other factors, s 149C(4A) of the PS Act provides that when making the decision, the chief executive must have regard to the genuine operational requirements of the department.  
[34]	The Department relies heavily on the conduct of a recruitment process which commenced in late 2020, at the conclusion of which it proposes to fill eight existing vacancies for a Senior Crown Prosecutor (PO6), as a bar to Mr Hood being permanently appointed to the higher duties role. It is argued the genuine operational requirements of the Department support the temporary engagement of Mr Hood at a higher-level classification, pending the outcome of the current recruitment and selection process. 
[35]	It submits that it is fair and reasonable for the Department to consider the eligibility, rights and merit of those staff members (along with Mr Hood) for permanent PO6 appointment. Moreover, it argues the recruitment process currently underway is the most appropriate means to fill the positions. 
[36]	The phrase "genuine operational requirements of the department" is not defined in the PS Act or the Directive.
[37]	The phrase was considered in the context of s 149C of the PS Act in Morison v State of Queensland (Department of Child Safety, Youth and Women), where Merrell DP relevantly stated:
[37]	The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
[38]	The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
•	managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
•	planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.
[38]	As I understand it, the commencement of the formal recruitment process for the positions identified above, including the higher duties role currently undertaken by Mr Hood, occurred in the weeks following his request for appointment. 
[39]	An appeal under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 is not by way of a rehearing but instead, involves a review of the decision arrived at and the decision-making process associated herewith.
[40]	The difficulty I have with the Department's submissions is that at the time Mr Hood made his request, the recruitment and selection process it relies on as a bar to his appointment had not yet commenced. 
[41]	In considering the genuine operational requirements of the Department, it was relevant to consider whether there was a need, having regard to the effective, efficient and appropriate management of the public resources of the agency, to appoint Mr Hood, who had been performing the duties and responsibilities of a Senior Crown Prosecutor for some time, to the role.
[42]	Having considered the intent of the legislation and the submissions before me, I am not persuaded of the existence of any genuine operational reasons that would have supported Mr Hood's ongoing temporary appointment to the PO6 position, but not his permanent appointment. 
[43]	The simple fact the Department commenced a recruitment process to permanently fill his position some weeks after his request for appointment was made, is evidence in my view that there was in fact a genuine operational requirement that a person be substantively appointed to the position.
Compliance with the PS Act and Directive
[44]	The difficulty in this matter is that the Department has, in my view, clearly misconceived its obligations to Mr Hood under the Directive.
[45]	As Mr Hood correctly pointed out, it is now well accepted by this Commission that the reference to "the position" in s 149C(1)(c) of the PS Act, is a reference to the particular position with respect to which the request for appointment is made. Mr Hood was the only person acting in the relevant PO6 position, which is based in Brisbane, at the time of his request and was therefore the only person eligible to apply for appointment under the Directive to "the position" he was performing. 
[46]	Further, cl 9 of the Directive (set out at [24] above) provides that the directive in relation to recruitment and selection does not apply under its terms. 
[47]	Although I have some sympathy for the Department's position with respect to other staff members presently acting in higher duties as Senior Crown Prosecutors, it was obliged to consider Mr Hood's request according to the Directive. 
[48]	Had they done so, I am satisfied Mr Hood would have been permanently appointed to the Senior Crown Prosecutor role. 
Conclusion
[49]	Having regard to the materials before the Commission, I am unable to be satisfied Mr Hood did not meet the merit principle.
[50]	Likewise, I am not persuaded the operational requirements raised by the Department in support of its deemed decision not to appoint Mr Hood to the higher duties Senior Crown Prosecutor role at the time of his request, were a genuine bar to his appointment. 
[51]	On balance, I consider the Department has not adequately considered Mr Hood's request having regard to the criteria prescribed by the PS Act and the Directive. 
[52]	I have therefore concluded that the deemed decision was not fair and reasonable.
[53]	I will make orders accordingly.
Order
1.	The appeal is allowed.

2.	Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with a decision that Mr Russell Hood be permanently appointed to the position of PO6 Senior Crown Prosecutor within the Office of the Director of Public Prosecutions.