Ahmad v State of Queensland (Queensland Corrective Services) - [2022] QIRC 167

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167
PARTIES:	Ahmad, Waise (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent)
CASE NO:	PSA/2022/304
PROCEEDING:	Public Service Appeal – Appeal against a conversion decision
DELIVERED ON:	20 May 2022
MEMBER: HEARD AT:	Hartigan IC On the papers
ORDER:	*Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016* (Qld), the decision appealed against is confirmed.**
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where appellant is employed in substantive position of Advisor, Re-entry Offender PO3 – where appellant has been acting in higher classification position of Principal, Advisor Re-entry AO7 since 7 October 2019 – where appellant requested to be permanently appointed to higher classification position – where respondent rejected the request on the basis of the genuine operational requirements of the Department – consideration of genuine operational requirements – where incumbent position holder is due to return – where respondent does not require two employees to be permanently appointed to the same role – where decision fair and reasonable – where decision confirmed
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Service Act 2008 (Qld), s 149C, s 194 Appointing an Employee to a Higher Classification Level: Directive 13/20, cl 4, cl 5, cl 6, cl 7, cl 11 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038

Reasons for Decision

Introduction

Mr Waise Ahmad is employed by the State of Queensland, Queensland Corrective Services ('the Department'), in the substantive position of Advisor, Re-entry Offender PO3, within the Offender Rehab and Management Services.
Mr Ahmad commenced employment in the higher classification position of Principal, Advisor Re-entry AO7 within the Offender Rehab and Management Services on 7 October 2019. This appointment is due to cease on 30 June 2022.
On 18 January 2022, Mr Ahmad requested that he be permanently appointed to the higher classification position of Principal, Advisor Re-entry AO7 pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act') and Appointing an Employee to a Higher Classification Level: Directive 13/20 ('Directive 13/20').

On 14 February 2022, the Department advised Mr Ahmad that it had determined to reject his request for conversion due to the genuine operational requirements of the Department, and that he would continue to be engaged according to the terms of the existing higher duties arrangement.
By notice of appeal filed in the Industrial Registry on 21 February 2022, Mr Ahmad appeals the decision to reject his request for conversion and relies on the following grounds in support of his appeal:
I seek to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmad v State of Queensland (Queensland Corrective Services)

Details

AGLC: Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167
Case: [2022] QIRC 167
Decision Date: 20 May 2022

CaseChat Overview and Summary

The case of Ahmad v State of Queensland (Queensland Corrective Services) concerned a dispute where Mr Ahmad, an employee of the Queensland Corrective Services, sought a permanent appointment to a higher classification position. Mr Ahmad had been acting in the position of Principal, Advisor Re-entry AO7 since October 2019, while his substantive position was Advisor, Re-entry Offender PO3. His request for conversion to the higher classification was rejected by the respondent on the basis of the genuine operational requirements of the Department, as the substantive position holder was due to return.

The primary legal issue the court had to address was whether the decision to reject Mr Ahmad's request for conversion was fair and reasonable. This required an examination of the decision-making process, particularly whether the decision-maker properly considered the genuine operational requirements of the Department as stipulated by section 149C of the Public Service Act 2008 (Qld). The court also needed to consider if the decision adequately addressed the statutory requirements for such conversions, including the provision of reasons for the decision and the impact of previous decisions.

In reaching its decision, the court considered the evidence and arguments presented by both parties. The court found that the decision-maker had appropriately considered the operational requirements of the Department, which included the impending return of the substantive position holder. The court held that the decision-maker's reliance on the genuine operational requirements, in light of the substantive position holder's return, was both fair and reasonable. Furthermore, the court noted that the decision adhered to the statutory requirements for such conversions, including the provision of detailed reasons and acknowledgment of previous decisions. Consequently, the court confirmed the decision to reject Mr Ahmad's request for conversion.

The final orders of the court confirmed the decision appealed against, in accordance with section 562C(1)(a) of the Industrial Relations Act 2016 (Qld).

Orders

Orders of the court

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons contained herein, I have determined that the decision was fair and reasonable. The decision The decision maker relied on the following reasons in support of the decision to reject Mr Ahmad's request for conversion: …At this time, the genuine operational requirements of the agency do not support your permanent appointment to the role you are currently performing as the position has a substantive incumbent and two people are not required to undertake the same role. The substantive incumbent is currently on secondment and is due to return to the role from 1 July 2022. You will continue to be engaged according to the terms of your existing higher duties arrangement until 3 April 2022, unless further advised.[4]…[4] The period of engagement was extended to 30 June 2022. Section 149C of the PS Act provides for the appointment of a public service employee to a higher classification level in the following terms: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 – continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).required period, for making a decision under subsection (4), means—(a)the period stated in an industrial instrument within which the decision must be made; or(b)if paragraph (a) does not apply—28 days after the request is made.

Ratio Decidendi

Legal Principle Established

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