QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Olesk v State of Queensland (Department of Education) [2022] QIRC 214
	
PARTIES:	
	Olesk, Angela
(Appellant)

v

State of Queensland (Department of Education)
(Respondent)	
CASE NO:	PSA/2022/562	
PROCEEDING:
	Public Service Appeal – Appointment to Higher Duties 	
DELIVERED ON:	15 June 2022	
MEMBER:	Knight IC
	
HEARD AT:	On the papers
Final submissions received 2 June 2022	
ORDERS:
	1.	The Appellant is granted an extension of time in which to commence her appeal.
2.	The decision appealed against is confirmed.	
CATCHWORDS:	PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – where Appellant requested appointment to higher duties position pursuant to s 149C of the Public Service Act 2008 (Qld) – whether genuine operational requirements preclude appointment – decision confirmed

INDUSTRIAL LAW – QUEENSLAND – APPEALS – application to extend time in which to commence appeal – where appeal lodged four days out of time – whether extension of time ought to be granted – consideration of relevant factors – application granted	
LEGISLATION AND INSTRUMENTS:	Directive 13/20 Appointing a public service employee to a higher classification level cls 4.2, 5, 6

Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564

Public Service Act 2008 (Qld) ss 25, 27, 197, 149C	
CASES:	Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 097

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Graves v State of Queensland (Department of Education) [2020] QIRC 230

Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102

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

Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 187

Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education) [2022] QIRC 141

Ulowski v Miller (1968) SASR 227	

Reasons for Decision
[1]	Mrs Angela Olesk is employed by the State of Queensland through the Department of Education ('the Department'). 
[2]	Mrs Olesk has been acting in the higher duties position of Project Manager (Occupational Violence and Aggression Prevention) (A08), within the Organisational Safety and Wellbeing team since 18 February 2020. In this role, Mrs Olesk contributes to the Department's Strategy to address Occupation Violence and Aggression ('OVA') within its workplaces ('the OVA Strategy').
[3]	On 17 March 2022, Mrs Olesk requested she be permanently appointed to the higher duties position pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act') and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
[4]	A decision was not made within the required period such that a decision is deemed to have been made that her request has been refused ('the Decision').
[5]	Mrs Olesk's present contract is due to expire on 30 June 2022.
[6]	By appeal notice filed 9 May 2022, Mrs Olesk appeals the decision under ch 7 pt 1 of the PS Act. Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein. Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.
[7]	In addition to determining whether the decision appealed against is fair and reasonable, I am required to determine whether Mrs Olesk should be granted an extension of time in which to commence to her appeal. This is so, because Mrs Olesk has filed her appeal, at best, four days out of time.
[8]	My reasons follow.
Relevant Principles
[9]	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.
...
(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.
(5)	If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
(a)	reasons for the decision; and
(b)	the total continuous period for which the person has been acting at the higher classification level in the department; and
(c)	how many times the person’s engagement at the higher classification level has been extended; and
(d)	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.
(6)	If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
(7)	The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
(8)	In this section—
...
required period, for making a decision under subsection (4), means—
...
(b)	if paragraph (a) does not apply—28 days after the request is made.
[10]	The Directive relevantly provides:
5.	Employee may request to be appointed at the higher classification level
5.1	Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.
5.2	To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
(a)	have been seconded to or assuming the duties and responsibilities of the higher classification level
(b)	for a continuous period of at least one year
(c)	be eligible for appointment to the higher classification level having regard to the merit principle.
...
5.5	The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.
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. 
...
Should Mrs Olesk be granted an extension of time to commence her appeal?
[11]	Mrs Olesk explains she was away from her workplace during the period 2 to 6 May 2022 due to caring responsibilities, and immediately lodged her appeal when she returned on 9 May 2022. During this time, the completed appeal notice, signed and dated 28 April 2022, remained on her desk waiting to be actioned.
[12]	The Department argues Mrs Olesk has failed to disclose a compelling reason why she should be granted an extension of time. In this respect, it submits Mrs Olesk was required to lodge her appeal by 28 April 2022 and Mrs Olesk's obligations between 2 and 6 May 2022 are not relevant to the Commission's consideration.
[13]	In reply submissions, Mrs Olesk maintains the date on which the appeal period lapsed was 5 May 2022, and not 28 April 2022 as contended by the Department.
Consideration – Extension of Time
[14]	Section 564(1) of the IR Act states that, unless the Commission allows an appeal to be started within a longer period under sub-s (2), it must be commenced within 21 days of the decision being given.
[15]	The decision the subject of the present appeal was deemed to have been made on 14 April 2022. Consequently, Mrs Olesk was required to file her appeal by no later than 5 May 2022.
[16]	It is clear from the Department's submissions that its calculation of the appeal period is simply an error. This is so, because it acknowledges within the same submissions that Mrs Olesk had 21 days from 14 April 2022 to commence her appeal.
[17]	Consequently, I am satisfied Mrs Olesk has filed her appeal only four days out of time.
[18]	Mrs Olesk did not apply for an extension of time to lodge her appeal within her appeal notice as would ordinarily be expected. However, out of fairness to Mrs Olesk, I caused an email to be sent to her asking whether she wished to make such an application to which she responded that she did.
[19]	The principles applicable to applications to allow an appeal out of time are well established. I do not consider it necessary to repeat those principles here, other than to reflect that, generally, the Commission will have regard to the following:
(a)	length of the delay;
(b)	explanation for the delay;
(c)	conduct of the respondent;
(d)	prejudice to the applicant if the discretion is not exercised; and
(e)	prejudice to the respondent if the discretion is exercised.
[20]	Having regard to those factors, I do not consider four days to be a particularly significant amount of time in the circumstances, particularly where those days also coincided with a weekend during which the Commission and the Department are unlikely to have received the appeal notice in any event.
[21]	Similarly, I do not consider the delay likely to have caused any prejudice to the Department, nor has it raised such an issue in its submissions. I do, however, accept that denying a person the opportunity to commence an appeal of this kind will almost certainly cause prejudice to that person. There is no evidence before me regarding the actions of the Department during the appeal period or immediately after so I do not consider that factors weighs either for or against granting the extension.
[22]	Finally, although Mrs Olesk has provided no evidence in the form of a medical certificate or other materials in support of her claims she was away from her workplace and caring for a family member during the relevant period, the Department has not challenged Mrs Olesk's reasons and I consider it to be a reasonable explanation for her delay.
[23]	I am therefore satisfied that, in the present circumstances, it is appropriate to grant Mrs Olesk's application for an extension of time to commence her appeal.
Was the Decision Fair and Reasonable?
[24]	Mrs Olesk submits the State Government has made a commitment to the OVA Strategy which is currently being delivered which includes a two-year action plan with 20 initiatives. She argues there is insufficient time to fully implement the OVA Strategy before 30 June 2022 and submits a variation request has already been put forward which confirms the delivery will extend beyond 2023. 
[25]	In this respect, she submits there are two significant initiatives yet to be delivered which will require resources beyond 30 June 2022, namely:
(a)	the establishment of an OVA response team; and
(b)	de-escalation training for specific employee groups.
[26]	Further, Mrs Olesk explains that OVA is an emergent issue posing significant and ongoing risks to staff which urgently require departmental resources to:
(a)	continue to deliver the OVA Strategy's initiatives;
(b)	ensure new OVA risks are addressed as they emerge; and
(c)	publicly reinforce the Department's commitment to addressing OVA risks.
[27]	She argues publicly available data, including WorkCover claims and acceptance rates, reveals the risks and incidents associated with OVA are increasing each year, requiring resources and ongoing support from the Department.
[28]	Mrs Olesk observes the current OVA strategy has delivered several well-received initiatives, including the OVA incident support and response process and the psychological first aid training pilot but there is significant work required to deliver on the current action plan.
[29]	She argues that in the coming year, consultation will almost certainly commence on developing a new action plan and that resourcing will be required in circumstances where the issue of OVA is not going away.
[30]	Finally, Mrs Olesk submits the Department has previously had difficulty recruiting to the project team and retaining staff, such that if Mrs Olesk ceases in her role, there will likely be a delay in suitably filling her position to continue the project delivery.
[31]	For its part, the Department commenced it submissions by setting out the reasons for its failure to provide Mrs Olesk with a written decision within the required time. Those reasons related primarily to communication difficulties and oversights between the decision-maker and Mrs Olesk's supervisors.
[32]	In any event, the Department argues the material obtained from Mrs Olesk's supervisors, albeit after the decision deadline, reveals the request for appointment ought to have been refused in any event. This is so, it submits, because:
(a)	Mrs Olesk's position is funded, on a temporary basis, through the Department's Workforce Priorities Program;
(b)	the OVA Strategy is due to be completed on 30 June 2022, with the majority of initiatives completed and any remaining tasks to be absorbed by the Department's State Schools Operations team; and
(c)	Mrs Olesk's role is not funded beyond that date.
[33]	Consequently, the Department argues appointing Mrs Olesk would not be consistent with the proper and efficient management of public resources and the decision to refuse her request was therefore fair and reasonable.
[34]	In reply submissions, Mrs Olesk maintains delivery of the work associated with the commitments in the OVA Strategy will continue beyond 30 June 2022 and regardless of the closure of the Workforce Wellbeing Program.
Consideration – Fair and Reasonable
[35]	It is not in dispute that Mrs Olesk was eligible for appointment to the higher duties position, or that she met the merit principle. In those circumstances, the only relevant consideration was whether there were genuine operational requirements which prevented Mrs Olesk's appointment.
[36]	As is clear from s 149C(4A)(a) of the PS Act and cl 6.2(a) of the Directive above, the decision-maker must have regard to the 'genuine operational requirements of the department' when making their decision.
[37]	The phrase 'genuine operational requirements of the department' is not defined in the PS Act or the Directive. In Morison v State of Queensland (Department of Child Safety, Youth and Women), Merrell DP observed:
[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]	His Honour then found that the phrase would at least include a consideration of whether there was 'an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department' to convert the employee's employment.
[39]	Relevantly for this appeal, this Commission has consistently held that the fact that a position will cease to exist due to lack of funding is a genuine operational requirement which may be relied upon to refuse appointment. This is so, because there is no real need for an unfunded position to be filled.
[40]	Additionally, although the PS Act establishes that employment on tenure should be the default basis of employment in the public service, there are circumstances that support the temporary engagement of an employee and where such employment is not appropriate. As is made clear by the Directive, this includes where the employee is engaged in higher duties to perform work for a particular project or purpose that has a known end date. 
[41]	Having regard to the above, I consider it was open to the Department to refuse Mrs Olesk's request due to genuine operational requirements.
[42]	Although Mrs Olesk maintains the delivery and implementation of the OVA Strategy will extend beyond 30 June 2022, I consider those submissions to be misconceived. 
[43]	This is so because, regardless of the work performed or her personal views about the scope and direction of the project in the future, the position in which Mrs Olesk is currently acting, will not be funded beyond 30 June 2022. How the Department manages and funds the workload presently undertaken by Mrs Olesk beyond that date, is largely a matter for the organisation to resolve.
[44]	Although it was no doubt disappointing for Mrs Olesk to have not received a written decision setting out the above factors for her consideration, before having to bring this appeal, I consider the (deemed) Decision was fair and reasonable in the circumstances. 
Conclusion
[45]	Notwithstanding the fact that I consider Mrs Olesk should be granted an extension of time in which to bring her appeal, I have determined that the Decision was fair and reasonable.
[46]	This is so because Mrs Olesk's higher duties position is project based and not recurrently funded. In those circumstances, I consider there is a genuine operational requirement which precludes Mrs Olesk's higher duties appointment.
[47]	For the reasons given above, I consider the Decision was fair and reasonable.
[48]	I order accordingly.
Orders
1.	The Appellant is granted an extension of time in which to commence her appeal.
2.	The decision appealed against is confirmed.