QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	KJ v State of Queensland (Queensland Corrective Services) [2021] QIRC 224

KJ
(Appellant)

v

State of Queensland (Queensland Corrective Services)
(Respondent)
	
CASE NO:
	PSA/2021/186
	
PROCEEDING:	Public Service Appeal - Conversion Decision
	
DELIVERED ON:	22 June 2021	
		
MEMBER:

HEARD AT:	Pidgeon IC

On the papers

OUTCOME:
	1.	The deemed decision is set aside.

2.	A copy of this decision is to be provided to the decision maker and the order is as per [53].
	
CATCHWORDS:

LEGISLATION:
	INDUSTRIAL LAW - PUBLIC SERVICE APPEAL - where the appellant was reviewed for conversion to permanent employment - whether general operational requirements preclude conversion - where there was a deemed decision - whether it was fair and reasonable to rely on the deemed decision - whether the appellant meets merit principle

Public Service Act 2008, s 148, s 149, s 149B.

Industrial Relations Act 2016, s 562C

Directive 09/20 Fixed term temporary employment	

Reasons for Decision

	Appeal Details

[1]	The Appellant is employed on a fixed term temporary basis in the AO6 role in Brisbane for the State of Queensland (the Respondent), Queensland Corrective Services (QCS). The Appellant has been continuously employed with QCS since 3 April 2018 when they commenced in the position which was previously known under a different title. 

[2]	Under Public Service Commission Directive 09/20 – Fixed term temporary employment (the Directive) and s 149B of the Public Service Act 2008 (the PS Act), the Respondent's chief executive was required to make a decision in regard to the Appellant's fixed term temporary employment by 1 May 2021, 28 days after the Appellant had been continuously employed as a fixed term temporary employee for three years.

[3]	As no written notice of a decision regarding the Appellant's employment was provided to them by 1 May 2021, the chief executive is taken to have made a 'deemed decision' not to offer to convert the Appellant's employment and to continue their employment as a fixed term temporary employee.

[4]	The Appellant's Appeal Notice sets out the following reasons for appeal (in summary): 

•	There is a continuing need for them to be employed in the role;

•	the role is substantively vacant;

•	the functions the role performs are ongoing;

•	they understand the role is funded on a permanent basis;

•	no genuine operational requirement of the department has been advanced to mean it is not viable or appropriate to convert their employment to permanent;

•	they have demonstrated merit with respect to s 27 of the Public Service Act; and

•	as required by s 149B(5)(a), they should be appointed to permanent employment status. 

[5]	There is no dispute between the parties that the deemed decision regarding the Appellant's employment is an appealable decision.  The appeal notice was received within 21 days of the deemed decision.  As the decision was a deemed decision and therefore there were not written reasons provided for it, I determined to ask the Respondent to file submissions first. 

Relevant sections of the Act and Directive 

[6]	In order to determine the appeal, it is necessary to consider the relevant provisions of the the PS Act and the Directive.  The relevant parts are replicated below:

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).

(2)	The merit principle applies subject to chapter 5, part 2, division 2. 
Editor's note— 
chapter 5, part 2, division 2 (Reappointment of particular election candidates)

(3)	In this section—
appointment does not include a transfer.

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; and

(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. 

149B Review of status after 2 years continuous employment

(1)	This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same Department for 2 years or more.	

(2)	However, this section does not apply to a non-industrial instrument employee. 

(3)	The Department's chief executive must decide whether to —

(a)	Continue the person's employment according to the terms of the person's existing employment; or 
(b)	Offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer. 

(4)	The Department's chief executive must make the decision within the required person after—

(a)	The end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the Department; and 
(b)	Each 1-year period after the end of the period mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department. 

(5)	In making the decision —

(a)	Section 149A(2) and (3) applies to the Department's chief executive; and 

(b)	The Department'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 149A in relation to the person during the person's period of continuous employment. 

(6)	If the Department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating —

(a)	The reasons for the decision; and 

(b)	The total period for which the person has been continuously employed in the Department; and

(c)	For a fixed term temporary employee — how many times the person's employment as a fixed term temporary employee or causal employee has been extended; and 

(d)	Each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment. 

(7)	If the Department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment. 

(7A) 	For working out how long the person has been continuously employed in the Department —

(a)	All periods of authorised leave are to be included; and 

(b)	The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non-employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out. 

	The Directive

[7]	While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

4. Principles 

4.1 	Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government’s Employment Security Policy. 

4.2 	Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B. 

4.3 	Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee. 

4.4 	Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate. 

4.5 	Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. …

…
8. 	Decision on review of status 

8.1 	When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2): 

• 	whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same 

• 	the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act 

• 	whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and 

• 	the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment. 

8.2 	Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency. 

8.3 	If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment: 

(a)	the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements).

(b)	where the employee is part-time, an explanation of the days and hours of work offered in the decision; and

(c)	the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.
 
8.4 	Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must: 

(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. 

8.5 	Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days). 

8.6 	Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5. 

8.7 	Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.

What decisions can the Commission make?
[8]	In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:

(a)	confirm the decision appealed against; or
…
(b)	For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 

Submissions of the parties

Respondent submissions 

[9]	With reference to the criteria to be considered when deciding whether to offer permanent employment, the Respondent says that there are concerns regarding the merit of the Appellant having regard to the merit principle in s 27 of the PS Act.

[10]	Further to this, the Respondent says that there are genuine operational requirements that would make the Appellant's conversion to permanent not viable or appropriate. 

[11]	The Respondent submits that the Crime and Corruption Commission (CCC) have opened a file into allegations relating to the Appellant's employment, including the initial appointment as a fixed term temporary employee and extensions of their temporary employment in the matter.

[12]	The Respondent says that the CCC has requested that the Respondent provide information about how QCS responds to corruption risks associated with fixed term temporary employment.  Amongst other things, the corruption matter will consider whether the Appellant was appointed on and has the requisite merit for the position and whether they were complicit in the matters being reviewed. 

[13]	The Respondent says that until the corruption matter is finalised the level of corruption concern and involvement of the Appellant is unknown.   The Respondent is also unable to confirm the merit of the Appellant and the operational viability of the Appellant being able to undertake the duties of the role and continue employment until the corruption matter is finalised.

[14]	The Respondent says that until the outcome of the corruption matter is known, it is not viable or appropriate to convert the Appellant's employment. 

[15]	Given the nature of the corruption matter, it was not appropriate for written detail to be provided to the Appellant when making a decision about whether to offer permanent employment under s 149B of the PS Act. 

[16]	The Respondent requests that while this is a deemed decision, the Commission takes into account the additional information provided in these submissions and says that s 567(2) of the IR Act enables the Commission to take into account the additional evidence provided by the Respondent. 

Submissions of the Appellant

[17]	The Appellant's union has made submissions on their behalf.  The Union understands that the Respondent concedes that the Appellant is eligible to be reviewed and that there is a continuing need for their employment in the role.  Therefore, the matters in contention are those submitted by the Respondent, being merit and whether there are genuine operational reasons precluding an offer of permanent employment. 

[18]	With regard to merit, the Appellant is not the subject officer of the investigation and has been informed in a letter from the Respondent regarding the investigation that the allegations are not against them.  The Appellant was informed that they would be advised if there were to be allegations investigated against them.  No such advice has been provided.

[19]	It submitted that for the Respondent to identify and rely on merit as a factor in deciding conversion under the Directive is an error of law.  The Union contends that it is a not a requirement of the legislation scheme that a fixed-term employee be engaged through a merit process to satisfy the merit principle in s 27 of the PS Act. Rather, the merit principle is to be assessed in accordance with s 28 of the PS Act. 

[20]	The investigation is not examining the conduct or merit of the Appellant but the alleged corrupt conduct of another employee. There has been no process where the Appellant has been required to answer allegations or where findings have been made against them. 

[21]	While the Commission may have the discretion to consider other evidence as the Respondent submits, there is no evidence before this Commission, that the Appellant does not meet merit in accordance with s 28 of the PS Act. 

[22]	The Appellant's submissions to the Respondent in support of their conversion assert that they have received positive feedback from the executive team over the course of their temporary employment and lists a number of other matters with regards their positive performance in the role. These matters have not been disputed by the Respondent. 

[23]	The Appellant has many emails and documents providing positive feedback regarding their work performance and that they have received various citations in other public service roles.

[24]	As the Appellant meets the merit principle, the deemed decision is unfair and unreasonable and subsequently, the Appellant must be offered to be converted to permanent employment status. 

[25]	With regard to genuine operational requirements, in determining that it is not viable or appropriate to consider the Appellant's permanent employment until the outcome of the investigation is known, the Respondent is denying the Appellant their statutory right to a review of their employment status on the basis of matters that have not been proven. This is a breach of the PS Act and the principles of natural justice rendering the decision unfair and unreasonable. 

[26]	The Respondent has detailed no genuine operational requirements of the agency so significant that it overrides the statutory requirement to convert the Appellant's employment. 

[27]	 Clause 8.6 of the Directive expressly provides that agencies are not to make an intentional decision to rely on a deemed decision.  The Union contends that the submissions of the Respondent suggest the decision maker deliberately did not provide a decision because it was decided that it was not appropriate to discuss the investigation in writing. Lack of compliance with the Directive is relevant to whether the decision was made fairly and reasonably. 

Respondent submissions in reply

[28]	With regard to the nature of the corruption matter, the Respondent says that while the Appellant is not the 'Subject Officer' of this particular process, the corruption matter considers their initial employment and extensions and any arising from the investigation are necessary to ascertain whether there are any potential implications for the Appellant.

[29]	While the Appellant says they would be advised if the investigation gave rise to allegations against them, there are implications which may arise from the investigation given the matter concerns, in part, the relationship between the Subject Officer of the investigation and the Appellant and the effects of that relationship on their employment. 

[30]	It is unknown at this point what outcomes may arise following consideration of the decision maker in the current investigation process. 

Merit

[31]	With regard to merit, the Respondent says that the existence of a selective number of instances which indicate good team performance do not constitute merit under the merit principle that must be taken into account when deciding whether to offer the Appellant permanent employment. The Respondent also questions the relevance of the citations awarded in other public service roles in the merit assessment of the Appellant in their current role with QCS.

[32]	The current circumstances of the corruption matter are relevant to merit.  The 'Subject Officer' of the current investigation is the person who authorised the Appellant's initial employment and extensions to their fixed term temporary employment and is responsible for the Appellant's ongoing performance management and supervision in their employment.   As the matter is ongoing, it is unknown whether the Appellant's performance has been appropriately assessed and whether they have the requisite merit for the role, having regard to the merit principle, due to the conflict in the relationship between the Appellant and their manager (Subject Officer). 

[33]	The chief executive is unable to confirm, at this point time, whether the Appellant is eligible for appointment having regard to the merit principle and is subsequently unable to offer to convert the Appellant's employment to permanent.

Genuine operational requirements

[34]	With regard to the decision of DP Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women) and s 25 of the PS Act, the Respondent says that in considering genuine operational requirements, the chief executive must consider the effective, responsible and accountable management of public resources. 

[35]	Having regard to the nature of the QCS operations, the necessity to maintain confidence in the public service, and the requirement to manage resources in a fully accountable way, noting the file opened by the CCC, it would not be appropriate for the QCS to appoint the Appellant to the role on a permanent basis until the corruption matter has progressed further and the outcomes of the current investigation and potential implications on the Appellant's employment are known. 

Deemed decision

[36]	The Respondent denies that it deliberately failed to provide a decision because it was decided it was not appropriate to discuss the investigation in writing.  The Respondent says that the timeframe for the decision had simply lapsed. 

[37]	The Respondent says that it is not appropriate for a detailed account of the corruption matter to be provided to the Appellant, however as an appeal had been lodged, it was necessary for the Respondent to provide some information on the corruption matter in submissions in response to the directions order. 

Consideration of submissions 

Merit

[38]	A threshold question to be considered by the decision maker in determining if an employee is eligible for conversion to permanent is whether that employee has merit as per the legislation.  

[39]	I note the Respondent's submissions about being unable to determine whether the Appellant meets the requirements of the merit principle due to the ongoing corruption matter involving the manager who appointed them, extended the temporary engagements and was responsible for their line management and performance management.  However, there are two concerns I have with regard to these submissions, the first is that while the investigation is ongoing the Appellant continues to be employed by the Respondent and their employment has been extended until September this year.  The second is that it is inconceivable to me that there has not been any capacity for an alternative person to undertake an assessment of whether the Appellant currently meets the merit principle.  It would appear that the Appellant has not been informed of any concerns with their performance in the role.  One can only assume that while the corruption investigation is ongoing, there is work to be done, that work is being allocated to the Appellant and they are performing the work. 

[40]	However, in circumstances where there is an ongoing investigation that may yet give rise to findings that lead to allegations being put to the Appellant, I accept that the chief executive has left the question of merit open at this time and that as no review was undertaken, merit was not considered at the time of the deemed decision. 

[41]	I do not find that the Appellant either meets the merit principle or does not meet the merit principle.  There is not enough information before me to determine that question either way.  And in any case, no decision was made on this matter for me to determine.

Genuine Operational Requirements 

[42]	It seems to me that an ongoing corruption investigation into the circumstances of the Appellant's initial employment, extensions to their temporary employment where and a possible conflict in terms of the relationship with their manager is a genuine operational requirement precluding conversion of employment.

[43]	I note the Union's submission that to not convert the Appellant's employment on the basis of an investigation into another person and where no findings have been made against the Appellant is unfair and unreasonable. However, where the ongoing investigation concerns the Appellant's employment and the findings of the investigation are as yet unknown and may raise more questions for investigation, or give rise to questions for the Appellant to answer, the practical thing to do would be to extend the Appellant's temporary employment.

[44]	However, for the reasons given below, I am of the view that this decision should have been communicated to the Appellant by way of a written decision and not through an appeals process arising from a deemed decision. 

Deemed decision 

[45]	I do not accept the Respondent's submissions that the ongoing corruption investigation into the Appellant's subject officer/manager and the circumstances regarding the Appellant's initial employment and ongoing extensions did not lead the Respondent to rely on a deemed decision. 

[46]	It seems to me more likely than not, that a decision not to review the Appellant's employment was made due to the ongoing CCC investigation and that the result was a deemed decision being made 28 days after the eligibility for review.  I note the initial submissions of the Respondent:

Given the nature of the corruption matter, the Respondent submits that it was no appropriate for this to be provided to the Appellant in written detail when making a decision in regard to where to offer permanent employment to the Appellant under s149B of the PS Act.

[47]	It is not as though the date for review eligibility simply arose and passed without attention being drawn to the Appellant's eligibility.  The Appellant made a notification in accordance with the Directive on 1 April 2021 and attached a submission in support of their request.

[48]	The Directive states that Agencies are expected to undertake each review as required by the PS Act and the directive and must not make an intentional decision to rely on a deemed decision referred to in cl 8.5.

[49]	While it may not be ideal for the Respondent to provide details of a CCC investigation to an employee as part of the review process, this is not a case where the Appellant knew nothing of the investigation.  The Appellant has been interviewed as a part of the investigation and has been informed that they will be advised if there are any allegations arising against them.  The letter provided to the Appellant on 2 October 2020 regarding the investigation outlined the need for confidentiality.  Such a reminder regarding confidentiality could have been included in a review decision letter which explained the impact of the ongoing investigation on the decision maker's consideration of the Appellant's employment.  

[50]	If the ongoing CCC investigation has had an impact on both an assessment of the Appellant's merit and on the genuine operational requirements of the Respondent and these are the reasons to not convert their employment to permanent at this time, it would be fair and reasonable for this to be communicated to the Appellant by way of a review decision. 

Disposition

[51]	I find that it was not fair and reasonable for the Department to fail to conduct a review of the Appellant's employment with 28 days of the request for a review, resulting a deemed decision.

[52]	However, having read the Respondent's submissions and determining that at this stage there are genuine operational reasons precluding the conversion of the Appellant's employment, to direct a fresh review be undertaken at this stage would like result in a similar outcome for reasons as those put forward by the Respondent in this appeal.

[53]	The Appellant is not the subject officer of the corruption investigation.  When the investigation is complete, should the Appellant still be employed on a temporary basis and should it be established that there are no further unresolved matters regarding the Appellant's employment, the Department must undertake a fresh review of the Appellant's employment status within 21 days.  If the Appellant remains in the role for a further 12 months and the anniversary date for review arises, a review is to be undertaken and decision be made at that time with the provision of reasons for the decision as per the Directive.