QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	MK v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 288

MK
(Appellant)

v

State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)
(Respondent)

CASE NO:
	PSA/2021/261
	
PROCEEDING:	Public Service Appeal – Appeal against a conversion decision
	
DELIVERED ON:	24 August 2021	
		
HEARING DATE:

MEMBER:

HEARD AT:
	17 August 2021

Pidgeon IC

Brisbane 	
OUTCOME:
	1.	The Decision of 30 June 2021 is set aside.

2.	A fresh review is to be undertaken according to the current Directive within 21 days of the finalisation of the current show cause disciplinary process and/or any appeal process which may arise from that disciplinary decision.
	
CATCHWORDS:

LEGISLATION:

APPEARANCES: 
	INDUSTRIAL LAW - public service appeal - where the appellant requested a review for conversion to permanent employment – where Commission directed a fresh review of request for conversion – where appellant found ineligible for conversion due to merit – where show cause process was underway at time of conversion decision – where appellant maintains show cause process flawed -where any review undertaken before resolution of show cause process likely to result in the same manner. 

Public Service Act 2008, s 149C, s 194, s 27

Industrial Relations Act 2016, s 562C 

Directive 01/17: Conversion of casual employees to permanent employment

Directive 08/20: Casual employment 

Mr Hamwood of the Together Queensland for the Appellant

Mr Waugh for the Respondent

Reasons for Decision

	Appeal Details

[1]	The Appellant is currently employed by the State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships), (the Respondent) as a casual (PO3/3) Forensic Disability Clinician at the Forensic Disability Service at Wacol. 

[2]	On 18 September 2020, the Appellant received a decision refusing her request for conversion of her employment from casual to permanent.  The Appellant appealed this decision by appeal notice filed 9 October 2020.

[3]	On 9 June 2021, the Commission allowed the appeal and ordered that a fresh review of the Appellant's request be undertaken in accordance with the now superseded Directive 01/17: Conversion of casual employees to permanent employment (the previous Directive) which was in place at the time of the appealed decision.

[4]	On 30 June 2021, the Appellant received a decision following a fresh review being undertaken per the order of the Commission.  On 21 July 2021, the Appellant filed a notice appealing that decision.

[5]	Upon reviewing the decision of 30 June 2021 which the Appellant appeals, I noticed the following on page 2:

Merit
Having reviewed your employment against the merit principle I note that on 23 March 2021 I issued with you with a notice to show cause on discipline liability in relation to allegations that: 

•	You made disparaging and racist comments in the workplace regarding people from different races and ethnicities;
•	You signed the FDS observation book to confirm that you had conducted observations of clients when you had not done so; and
•	You made inappropriate sexualised, and/or disparaging statements towards your work colleagues.

I further note that your response to these allegations dated 24 June 2021 is currently residing with me for consideration. 

Given the fact that there are unresolved matters relating to your conduct that may result in disciplinary action, I am of the view that you are not eligible for conversion to permanent employment because you do not satisfy the merit requirements of the role. 

[6]	The Appellant does not make reference to the merit issue raised by the Respondent in her appeal notice. 

[7]	While the Commission ordered that the fresh review be undertaken using the previous Directive, the decision letter of 30 June 2021 states that the review has been undertaken using Directive 08/20: Casual Employment (the current Directive).

[8]	Given that satisfactory performance and merit are threshold issues for decision makers to consider in either directive, I determined to call a mention of the matter to address this issue.

[9]	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
…
(c)	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. 

[10]	At the mention of the matter, I noted that the appeal notice relates directly to the conversion criteria regarding the continuing need for the Appellant to undertake the role and to the operational reasons outlined in the decision.  The Respondent made it clear that while the merit issue was addressed in the decision and it was found that the Appellant was ineligible for conversion due to the ongoing disciplinary process in place at the time, the decision maker addressed genuine operational reasons in the decision.  The Respondent's position was that even if there were no issues to address regarding merit, permanent employment would not be viable due to the genuine operational requirements of the Department.

[11]	The Appellant's representative addressed a number of issues that were not included in the reasons for appeal listed in the Appellant's appeal notice.  These issues included that Together Union had written to the Respondent on 22 April 2021 to raise concerns and request a review of the conduct of the show cause process which had been commenced on 23 March 2021.  The concerns included matters regarding: the background of the matter including a formal complaint of sexual harassment made by the Appellant and later assessed by Ethical Standards as constituting a public interest disclosure in mid-March 2020; the ongoing investigation into the Appellant's formal complaint; the Appellant's genuine belief that the complaint made against them and subject of the show cause process was in response to their formal complaint against a co-worker; the conduct of an interview with the Appellant regarding the allegations; the independence of the employee conducting the interview and investigation; concerns with the content of the show cause notice; evidence relied on in the show cause notice.

[12]	The Appellant's representative also raised concerns about the length of time it was taking for both the Appellant's complaint to be investigated and resolved and for the show cause process to be resolved. 

[13]	The Respondent indicated that it was expected that the Appellant would soon be provided with correspondence regarding the show cause process.

[14]	The Respondent further indicated that the Appellant's anniversary of employment was approaching and that they would be eligible for a further review of their employment on 20 August 2021. 

[15]	It was discussed by the parties that depending on whether the Appellant chose to exercise appeal rights in regard to the outcome of the disciplinary matter, the new review, taken within 28 days of 20 August 2021, may not be impacted by unresolved issues regarding merit. 

[16]	Having reviewed the decision letter, the appeal notice and in consideration of the submissions of both the Appellant's representative and the Respondent, I note the following:

•	The fresh decision of 30 June 2021 was undertaken according to the current Directive rather than the previous Directive as ordered by the Commission. This was an oversight on the part of the Respondent and was not raised as a concern in the Appellant's appeal notice;

•	the decision of the Commission ordering the fresh review be undertaken was in relation to the reasons provided in the decision and the 'paucity of supporting materials before the Commission in respect of whether or not it can be established there is some factual basis upon which genuine operational reasons exist such that the Appellant cannot be converted';

•	the decision maker determined that the unresolved matters relating to the Appellant's conduct meant that they were not eligible for conversion to permanent employment because they did not satisfy the merit requirements of the role; 

•	the decision maker did not make reference to the Appellant's unresolved complaint which had been assessed as a public interest disclosure and which the Appellant believes was the cause for the complaints against them subject of the allegations put to them in the show cause notice;

•	the Appellant's appeal notice also made no reference to the complaint or disciplinary matter, however submissions were made on this point; and 

•	while the decision of 30 June 2021 provided detailed reasons regarding genuine operational reasons, it did so in the context of the Appellant being ineligible for conversion due to the merit issue ongoing at the time. 

[17]	It was acknowledged by the parties that there are matters in the background and surrounding this conversion decision that I am unable to consider or deal with in relation to this appeal against a conversion decision.  

[18]	There seems to me to be little utility in ordering any fresh review be undertaken when the circumstances with regard to the merit issue are unresolved.  I suggested to the parties that in the circumstances, a fair outcome could be for me to set the decision of 30 June 2021 aside and direct that a further fresh review be conducted within 21 days of the resolution of the disciplinary process and/or any appeal resulting from it. 

[19]	The parties agreed with this suggested way forward, though noted the possibility that the review due on 20 August 2021 may potentially be undertaken following the conclusion of the disciplinary process should that occur within 28 days of 20 August 2021.  

[20]	This will enable the decision maker to consider the genuine operational requirements of the Department, which I note may not have changed significantly from those provided in the 30 June 2021 letter, and communicate a decision to the Appellant. In the event the Appellant is dissatisfied with the outcome of the review, they may exercise their appeal right and seek a review of the decision. 

[21]	The original decision of 18 September 2020 was made under the previous Directive.  It is now almost one year since that time, as evidenced by the Appellant's imminent review date of 20 August 2021. As discussed with the parties at the conference, any fresh review should be undertaken under the current Directive.

[22]	The decision of 30 June 2021 is set aside.  A fresh decision is to be undertaken according to current Directive within 21 days of the finalisation of the current show cause disciplinary process and any appeal process which may arise from that disciplinary decision.