QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Lisle v The Public Trustee of Queensland [2021] QIRC 353

Lisle, Lindy
(Appellant)

v

The Public Trustee of Queensland
(Respondent)
	
CASE NO:
	PSA/2021/293
	
PROCEEDING:	Public Service Appeal - Conversion Decision
	
DELIVERED ON:	21 October 2021	
		
MEMBER:

HEARD AT:	Pidgeon IC

On the papers

OUTCOME:
	The decision appealed against is confirmed
	
CATCHWORDS:

LEGISLATION:
	PUBLIC SERVICE APPEAL - where the appellant was reviewed for conversion to permanent employment - whether there was a continuing need for the Appellant to be employed 

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]	Ms Lisle has been employed as a Public Trust Officer (AO3) with the Public Trustee of Queensland (the Respondent/PTQ) at the Rockhampton office since 20 June 2019. 

[2]	An employment history for Ms Lisle was provided by the Respondent along with their submissions filed 2 September 2021.   Ms Lisle has been appointed on a temporary basis against six positions, and her temporary employment has been extended six times.  The reasons for these temporary engagements are variously explained as 'temporary appointment to backfill substantive incumbent on annual leave or higher duties'; 'temporary appointment to backfill substantive incumbent on leave – transitioning to retirement'; 'temporary appointment to backfill substantive incumbent on maternity leave'; 'temporary appointment to job share with substantive incumbent while substantive incumbent working part-time'.

[3]	On 16 July 2021, Lynda Hall-Watson, Senior Human Resource Business Partner wrote to Ms Lisle to inform her that a review of her status as a fixed term temporary employee had been completed and it was determined that she would continue to be employed in the role until the end of her fixed term temporary engagement on 2 February 2022.

[4]	The letter noted that Ms Lisle had satisfied the merit principle and thanked her for her performance in the role.

[5]	With regard to the continuing need for Ms Lisle to perform the role or one which is substantially the same, the letter said:

The decision not to permanently appoint you is based on your temporary end date of 2 February 2022, which is in-line with the permanent substantive holder's part-time agreement.  Should the substantive officer increase their hours to full-time, your temporary part-time employment will cease.

[6]	The letter went on to say:

A review was undertaken of the establishment of the Rockhampton Regional Office.  This review determined that there are no full time or part time substantive vacant positions that you could be appointed to.

Furthermore, there are no operational requirements or funding available to create an additional position on Rockhampton's establishment.

[7]	On 19 August 2021, Ms Lisle filed her Appeal Notice.  Ms Lisle stated the following reasons for appeal:

I have worked for The Public Trustee since 20 June 2019.  My role has always been completed with utmost professionalism to deliver a high standard of service to all customers.  I have met all performance merit to be eligible to conversion to a permanent position. 

Previously the Rockhampton office has gone over FTE to convert an employee to permanent after a two year period. 

There is a continuing need for my position within the Rockhampton office as we often run positions vacant for extended periods of time. This work is reallocated within our team to complete without additional staffing resources to cover these vacancies.

Of recent a Rockhampton Office AO3 position has been put against the Sunshine Coast Office.  This position is still held by the Rockhampton Office but is planned to be moved to the Sunshine Coast Office.  This position has not been re-filled in the Rockhampton Office. 

Jurisdictional issue – Appeal filed out of time

[8]	Section 564 of the Industrial Relations Act 2016 (the IR Act) requires an appeal to be lodged within 21 days after the day the decision appealed against was given.

[9]	As the decision was provided to Ms Lisle on 27 July 2021, an appeal against the decision was required to be filed by 17 August 2021.  The decision letter informed Ms Lisle of her appeal rights and the statutory timeframe for filing the appeal. 

[10]	Ms Lisle's appeal notice was filed on 19 August 2021, two days out of time. 

[11]	In its initial submissions, the Respondent says that in circumstances where Ms Lisle has not provided 'acceptable and compelling reasons (or any reasons at all) for the delay, Ms Lisle's delay of two days is significant and the Commission should decline to hear the appeal pursuant to s 564 of the IR Act.

[12]	In her reply submissions, Ms Lisle explains that she filed the appeal notice with the Industrial Registry on 17 August 2021:

On 17 August 2021 the Industrial Registry contacted me to state that the decision notice had not been included with the submitted Form 89.  I provided the decision notice to the Registry on 17 August 2021 at 3.50pm.  I was further contacted by the Industrial Registry on 18 August 2021 advising due to a technical issue they were unable to open the attachment and was asked to re-send the decision notice which was done on 18 August 2021 at 4.44pm. As the decision was supplied to the Industrial Registry on 17 August 2021 at 3.50pm this (was) within the required timeframe.

[13]	Ms Lisle says that in the event the Commission determines the application was made outside the 21-day timeframe, the Commission should consider the following matters and use its discretion to hear the conversion decision appeal:

•	Ms Lisle attempted to comply with the requirements of the Commission by submitting an application within the 21-day timeframe.

•	The issue with providing the decision letter is an acceptable explanation for the delay.

•	Ms Lisle made every effort to provide the decision notice to the Registry as soon as she was able to do so.

•	There has been no prejudice to the Respondent in the delay of providing the decision notice.

•	The argument regarding her conversion is not without merit and given the resources of a public service agency compared to an individual public servant, it would be fair to hear the appeal.

[14]	In reply, the Respondent relies on its initial submissions on the jurisdictional matter. 

[15]	I have reviewed the email correspondence surrounding the lodging of the appeal and the issue regarding opening the attachment and the eventual provision of the letter in a different format which led to the Registry accepting the form for filing.  I accept Ms Lisle's explanation as outlined in her submissions reflects the sequence of events associated with her filing.

[16]	The matters to be taken into consideration in determining whether to exercise discretion and allow an appeal to be heard out of time were summarised by Hall P in Breust v Qantas Airways Ltd:

•	The length of the delay; 

•	the explanation for the delay; 

•	the prejudice to the Appellant if the extension of time is not granted; 

•	the prejudice to the Respondent if the extension of time is granted; and 

•	any relevant conduct of the Respondent. 

[17]	The 21 day appeal period has been established in the legislation as the appropriate period of time for a person to file an appeal and that the exercise of discretion to extend time must be exercised carefully. For the following reasons, I am not persuaded that the appeal should be dismissed:

•	The delay was two days, and in fact the delay was not in the filing of the appeal notice but in the provision of an attachment which was unable to be opened by the Industrial Registry;

•	essentially, the Industrial Registry was unable to accept the form for filing until the decision letter was attached.  The Industrial Registry contacted Ms Lisle and later that afternoon, she replied by email, attaching a document which was unable to be opened by the Registry;

•	Ms Lisle's explanation for the delay is entirely plausible and is supported by the contemporaneous email correspondence between Ms Lisle and the Industrial Registry;

•	the prejudice to Ms Lisle if I do not extend time is that her appeal will not be heard and she will need to wait another 12 months for the next opportunity to have her employment reviewed; and

•	the Respondent have not articulated in any specific way how the filing of the appeal two days out of time causes them prejudice.  I note that the Respondent has directed me to other decisions of the Commission considering extension of time.  Each case turns on its own facts and I find that the facts in this matter are quite distinct from those in the decisions cited in the Respondent's submissions.

[18]	Ms Lisle made every effort to comply with the timeframe required.  Circumstances beyond her control meant that the appeal, while with the Industrial Registry, was not filed until 19 August 2021.  The explanation for the delay is entirely reasonable in the circumstances.

Relevant sections of the Act and Directive 

[19]	In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 09/20 Fixed Term Temporary Employment ("the Directive").   

[20]	Section 149B of the PS Act relevantly provides

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

[21]	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?
[22]	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. 

[23]	There is no dispute between the parties that Ms Lisle is eligible for appointment with regard to the merit principle.  The matter for consideration in this appeal is whether it was fair and reasonable for the decision maker to determine that there was not a continuing need for Ms Lisle to be employed in the role, or a role that is substantially the same as the person's role.

Was there a continuing need for Ms Lisle to be employed in the role, or a role that is substantially the same as the person's role?

Respondent submissions

[24]	The Respondent says that from the commencement of her temporary employment with PTQ on 20 June 2019, Ms Lisle has been temporarily employed in a number of fixed term positions to backfill incumbents who have been absent on approved leave or fulfilling higher duties.  There has been no ongoing need to permanently appoint Ms Lisle to any of these roles as the substantive position holders have returned or are scheduled to return to their roles, or the vacancy has been filled by conversion of another temporary employee to permanent employment.

[25]	The Respondent notes that in Katae v State of Queensland & Anor [2018] QSC 225, it was considered that where an employee had been employed for a period of more than three and a half years, and throughout that period had found similar roles in the department, the 'role' was likely to be 'ongoing'.  However, in the case of Ms Lisle, the circumstances which gave rise to the need to fill temporary AO3 vacancies on an ongoing basis no longer exist.  When Ms Lisle commenced, an AO3 officer was absent on maternity leave, so a temporary employee was needed to manage workloads in the event of additional absences of AO3 officers.  That employee returned from maternity leave on a part-time basis from 2 February 2020.

[26]	Since 2 February 2020, Ms Lisle has performed 0.6 Full-Time Equivalent (FTE) of the role while the substantive incumbent works 0.4 FTE in a part-time work arrangement.  The incumbent is due to return to work full-time at the end of the part-time arrangement on 2 February 2022, at which time there will no longer be a need for Ms Lisle to be employed in the role. 

[27]	The Respondent submits that it considered whether there is a continuing need for someone to be employed in a role that is 'substantially the same' as Ms Lisle's role.  In doing so, it considered AO3 roles with the same or substantially the same capability requirements in the Rockhampton Office.  The Respondent explains in its submissions why AO2 and AO4 roles were not considered, but says that in any case, there are no vacancies at these levels.

[28]	There are nine AO3 positions allocated to the Rockhampton office including the position in which Ms Lisle is currently employed part-time.  The eight other AO3 positions are full-time roles which are substantively occupied by employees on a full-time basis.  There are no ongoing roles with the same or substantially the same capability requirements to which Ms Lisle can be appointed. 

[29]	With regard to 'genuine operational reasons' which mean it is not viable or appropriate to convert Ms Lisle's employment to permanent, the Respondent submits that s 148(2)(a) of the PS Act states that filling a temporary vacancy arising because a person is absent for a known period is a circumstance where employment on tenure may not be viable or appropriate. 

[30]	The workload of the Rockhampton office does not support the creation of an additional permanent AO3 position on the basis that each of the AO3 positions established at the Rockhampton Office is substantively occupied at present. 

[31]	The Sunshine Coast position Ms Lisle refers to in her appeal notice is substantively occupied.  The Sunshine Coast role is fully occupied with files of customers that reside locally as the Rockhampton office does not have sufficient file load to accommodate the position. There is no available funding to create an additional permanent role in Rockhampton.

[32]	With regard to Ms Lisle's appeal reason that the Rockhampton office has gone over FTE to convert an employee to permanent, the Respondent says that this employee was an AO2 officer appointed over establishment two days per week to a position already occupied by a full-time employee.  This appointment was made in consideration of the particular circumstances of the employee and the operational requirements of the office. 

Ms Lisle's submissions

[33]	Ms Lisle submits the following reasons why there is a continuing need for the role to be filled:

•	Ms Lisle works 0.6 and has a 0.6 file load allocated to her position;
 
•	there is a continuing need for the files to be managed and files are frequently allocated to the office;

•	there is a continuous need for staff to be backfilled.

•	Ms Lisle could be permanently appointed to cover leave.

•	there are currently multiple staff members on extended sick leave.

•	there is an AO2 role being advertised, thus there is a need for staff in the region;

•	the Rockhampton office runs with vacant positions on frequent occasions as there is no one experienced to fill in for absences; and

•	the work is expected to be shared out across the team without further time allocated to complete tasks.

[34]	Ms Lisle says that there are currently AO3 roles being advertised within PTQ and that she would be capable of doing these roles remotely from the Rockhampton office.  She says that the time and funding required to train a new staff member is not reasonable when she could do the role with little guidance.

[35]	Ms Lisle submits that the position which was transferred to the Sunshine Coast office was advertised and filled by a new employee.  Ms Lisle says that this role could have been offered to other temporary or causal employees already within the organisation.

[36]	In response to the Respondent's submission that funding is not available to provide for conversion, Ms Lisle says that funding is not a consideration that is provided for to prevent conversion under the PS Act or the Directive.

Respondent submissions in reply to Ms Lisle

[37]	The Respondent's reply submissions largely repeat and rely on the initial submissions of 2 September 2021 but additionally reply to some of Ms Lisle's submissions.  In summary:

•	While roles may become temporarily vacant when substantive owners are on leave from time to time, such roles may not require backfilling.  Such vacancies are only temporary and do not create a vacancy to which Ms Lisle could be permanently appointed;

•	the Rockhampton office has one staff member on extended sick leave.  That staff member is at AO4 classification and substantively owns the position, therefore no permanent vacancy exists;

•	the AO2 position currently being advertised is to for a short duration to cover annual leave/higher duties arrangements; and 

•	it is open for Ms Lisle to apply for other advertised vacancies within PTQ in other regions and it would be at the Regional Manager or Director's discretion as to whether or not Ms Lisle's proposed remote working arrangement meets the operational requirements of that particular position. 

[38]	The Respondent says that funding arrangements are relevant to the genuine operational requirements of a department in considering whether or not it is viable or appropriate that a person may be employed as a fixed term temporary employee.

Consideration of submissions 

[39]	As the matter of merit is not contested between the parties, I need to consider whether it was fair and reasonable for the delegate to determine that there was not a continuing need for Ms Lisle to be employed in the role, or a role substantially the same as the AO3 role she has been undertaking.

[40]	It appears that what prompted Ms Lisle's temporary engagement with PTQ was the commencement of maternity leave of a substantively employed AO3 employee.  Ms Lisle backfilled a range of positions over the period of her fixed term temporary engagements and has most recently been undertaking a part-time arrangement with that staff member.  At the time the decision was made, the part-time arrangement was due to conclude early in 2022 and the substantive position holder will return to full-time work.

[41]	This means that the work that Ms Lisle is doing will be undertaken by the substantive position holder upon their return. To that end, there is no need for Ms Lisle to continue to be employed in the role she is currently performing. 

[42]	Additionally, the submissions of the Respondent indicate that the file load allocated to the Rockhampton Office is managed by the nine AO3 positions that already exist and are permanently occupied.   In fact, it seems that one position was relocated from the Rockhampton office to the Sunshine Coast office as it was surplus to the needs of the Rockhampton office in consideration of file allocations.   There does not appear to be a need for Ms Lisle to be employed as an additional AO3 employee as the work needing to be undertaken is being done by the established positions.

[43]	Even if, as Ms Lisle contends, people at the Rockhampton office will continue to take leave and need to be replaced, these absences will be for a known period and indicate that, in the event it is decided backfill is needed for the period of absence, temporary fixed term employment of someone to backfill the role would be appropriate pursuant to s 148(2)(a) of the PS Act.

[44]	It was fair and reasonable for the delegate to determine that there is no continuing need for Ms Lisle to be employed in the role or a role that is substantially the same.  Having determined that, it was fair for the decision maker to determine that Ms Lisle had not met the requirements of s 149A(2) of the PS Act and therefore could not be offered conversion. 

[45]	In that case, it is not necessary for me to consider the submissions made regarding the genuine operational requirements of the Department. I note, however, that the submissions provide further context as to why there is no ongoing need to employ Ms Lisle in the role, or one substantially like it.

[46]	The decision appealed against is confirmed.