Dean v State of Queensland (Queensland Health)
[2025] QIRC 283
•24 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Dean v State of Queensland (Queensland Health) [2025] QIRC 283 Dean, Elaine v State of Queensland (Queensland Health) |
CASE NO: | PSA/2025/199 |
| PROCEEDING: | Public Sector Appeal – Appeal against a conversion decision |
DELIVERED ON: | 24 October 2025 |
DATES OF WRITTEN SUBMISSIONS: | Appeal Notice (7 October 2025) Respondent's submissions (15 October 2025) Appellant's submissions in reply (20 October 2025) Respondent's further submissions in reply (22 October 2025) |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
| OUTCOME: | The orders contained in paragraph [47] of these reasons for decision |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a conversion decision – where the Appellant is employed by the Respondent on a temporary basis – where the decision not to convert the Appellant was not fair and reasonable – where there are no genuine operational requirements precluding the Appellant's conversion to permanent employment – where the decision appealed against is set aside – where the Appellant is converted to permanent employment |
LEGISLATION AND | Industrial Relations Act 2016 (Qld) s 562C(1)(c) Public Sector Act 2022 (Qld) ss 114, 115 |
CASES: | Battaglia v State of Queensland (Queensland Health) [2023] QIRC 055 Keenan v State of Queensland (Queensland Health) [2023] QIRC 297 Kelly v State of Queensland (Queensland Health) [2021] QIRC 55 |
Reasons for Decision
Introduction
Ms Elaine Dean ('the Appellant') works as a fixed term temporary Quality & Safety Officer, AO5, with the Cairns Hinterland Hospital and Health Service ('CHHHS'). On 2 October 2025, Ms Dean was informed that the employer had reviewed her employment status and that her employment would remain as non-permanent, fixed term until 26 October 2025 when her temporary fixed term contract ends.
Ms Dean appeals the decision of her employer, the State of Queensland (Queensland Health) ('the Respondent') not to convert her to permanency.
Ms Dean commenced with CHHHS on 18 September 2023 as a fixed term temporary employee (AO4) and over the past two-years has carried out various fixed term temporary engagements.
When Ms Dean commenced in her current Mental Health Quality and Safety Officer role on 2 January 2025, it was an AO4 position. She is backfilling an employee who is on secondment.
On 21 February 2025, the position was reviewed and was reclassified to an AO5.[1] Following reclassification, the position was advertised in August as a fixed term contract for six-months with the possibility of extension. Ms Dean applied for this advertised vacancy and was not the preferred candidate following a merit-based process.
[1] Pursuant to HR Policy B29 – Job Evaluation – Roles Covered by the Classification and Remuneration System, 4; Respondent’s submissions filed in the Industrial Registry on 15 October 2025.
Ms Dean has identified a role substantially the same as the one she is currently employed in on a temporary basis. Ms Dean requests a substituted decision that she be converted to permanent by way of appointment to that role.
For the following reasons, I have determined to set the decision aside and substitute it with another decision, that Ms Dean's employment is converted to permanent.
The decision letter
In the letter dated 2 October 2025, the decision-maker wrote to Ms Dean advising her, relevantly, that:[2]
[2] Appellant’s Notice of Appeal filed in the Industrial Registry on 7 October 2025.
Considerations when making the decision
I have considered the requirements of the Public Sector Act 2022 (the Act), the Review of non-permanent employment (Directive 02/23) and your employment history, including any previous conversion review decisions.There are two considerations for deciding whether to convert from non-permanent fixed term temporary employment to permanent employment:
·there is a continuing need for you to perform your role or a role that is substantially the same, and
·you satisfy being suitable to perform the role.
I have addressed these two aspects below.
I have determined that there is no continuing need for someone to be employed in the role you are currently employed in, or a role that is substantially the same.
As such I have decided that I am unable to offer to convert your employment to a permanent basis. Specifically, my reason is there is no continuing need for you to perform your current role because substantive incumbent is returning to the role on a full-time basis following higher duties on 30 June 2026. I note that this position was recently advertised for the fixed term temporary backfill for six months which you were unsuccessful in.
A review of Smart Jobs has been conducted and as of 29 September 2025, there are no permanent AO5 positions available within CHHHS for you to be converted into.
Thank you for your performance in a non-permanent fixed-term capacity over the period since 18 September 2023. You have demonstrated over this time that you satisfy the requirements for the role.
As a result of this decision not to convert you to permanent, you will continue in the role Mental Health Quality and Safety Officer, MHAODS Clinical Governance until 26 October 2025 when your current temporary contract concludes.
…
Ms Dean's reasons for appeal and Respondent's position
Ms Dean says that she has been informed by the Acting Clinical Director that the employee who previously held the Mental Health Act Delegate position has resigned from the CHHHS and that the position is now vacant. Ms Dean expresses her interest in being considered for that role on a permanent basis and says that she has the requisite skills, experience and understanding to successfully fulfil the responsibilities of that role.
Ms Dean asks for her application for conversion to a permanent position to be reconsidered in light of the vacancy and her demonstrated performance and suitability.
The Respondent says that following receipt of Ms Dean's appeal, indicating that the role of Mental Health Act Delegate (AO5) was substantively vacant, it undertook inquiries regarding that role. The Respondent says that the Mental Health Unit has advised: the role of Mental Health Act Delegate (AO5) is not vacant, the incumbent is on approved leave; and no resignation has been received. The unit advised that the role is currently backfilled to 30 November 2025.
The Respondent seeks that the appeal be dismissed and the decision to not convert Ms Dean's employment to permanent be confirmed.
Consideration
As required by the Public Sector Act 2022 (Qld) ('the PS Act'), the CHHHS was required to review Ms Dean's non-permanent employment status after two-years of continuous employment. This occurred, and a decision was made to continue Ms Dean's employment according to the terms of her existing employment.[3]
[3] Pursuant to s 115(1)(a) of the PS Act.
As required by the PS Act, the CHHHS had regard to previous conversion review decisions.[4]
[4] Pursuant to s 115(3)(b) of the PS Act; Letter 2 October 2025 page 1 and attachments.
A decision can be made to convert Ms Dean's employment to a permanent basis only if: there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same and the employee's role; and the employee is suitable to perform the role.[5] If these matters are satisfied, Ms Dean must be converted to permanent unless it is not viable or appropriate to do so, having regard to the genuine operational requirements of the CHHHS.
[5] Pursuant to s 114(3)(a) of the PS Act.
The parties agree that Ms Dean is suitable to perform the role and on this basis, whether the decision is fair and reasonable depends on whether there is a continuing need for someone to be employed in Ms Dean's role or a role that is substantially the same.
Is there a continuing need for someone to be employed in Ms Dean's role or a role that is substantially the same as Ms Dean's role?
The Respondent submits that there is not a continuing need for Ms Dean to be employed in the role or a role that is substantially the same. This is because the role Ms Dean is currently temporarily employed in is substantively filled by another employee who is currently on secondment.
Ms Dean had identified that the role of Mental Health Act Delegate, AO5 is substantially the same as the role she is performing. Ms Dean had also identified that role as substantively vacant. However, as discussed at [11] above, that role is permanently filled by another employee who is currently on leave.
Ms Dean has submitted email correspondence between the Team Leader and the employee who substantively owns the Mental Health Act Delegate role from 18 August 2025 where the Team Leader seeks an update regarding the employee's leave. The employee replies stating that they intend to exhaust their leave before resigning the position and that they need to determine what date that will be, guessing that it will be the end of October 2025.[6]
[6] Appellant’s submissions filed in the Industrial Registry on 20 October 2025, Attachment 1.
Ms Dean submits further email correspondence between the Team Leader and the employee dated 4 September 2025 where the employee asks how much notice is required to give notice of resignation.[7]
[7] Ibid, Attachment 2.
Ms Dean says that she manages the generic email account for the Mental Health, Alcohol and Other Drugs ('MHAODS') Clinical Governance Unit and has access to correspondence within the account. Ms Dean submits that the content of the emails referred to above indicates that the Mental Health Act Delegate will resign from the CHHHS when all leave is exhausted.
Ms Dean says that the Mental Health Act Delegate position has been filled by an employee on a temporary basis for six-months. Ms Dean acknowledges the Mental Health Act Delegate has not completed the administrative actions to resign from the CHHHS, but says that once this has occurred the role will be advertised as a permanent vacancy, and the current temporary contract cannot be extended past six-months.
On 22 October 2025, the Respondent provided brief closing submissions confirming that as of 21 October 2025, a resignation had not been received by the substantive Mental Health Act Delegate position holder and as such, the position is not vacant.
It is not in dispute that the role Ms Dean currently fills is not substantively vacant and that there is not a continuing need for her to perform the role. The submission Ms Dean makes is that the Mental Health Delegate role is going to become vacant and that it is substantially similar. As it will be vacant, there will be a continuing need for someone to undertake that role.
The Respondent does not argue that the Mental Health Delegate role is not substantially the same as the role Ms Dean has been undertaking.
There have been occasions where the Commission has found that the imminent or possible return of the substantive role holder, or some ambiguity about their intentions with regard to the role is a compelling reason to find that there is not a continuing need for the temporary employee to fill a role.
However, this current situation differs from one where the substantive role holder has been undertaking long-term or multiple secondments in other roles or is on some leave with a known return date. The email correspondence Ms Dean has annexed to her submissions makes it clear that the substantive role holder intends to resign when their leave is exhausted.
The correspondence Ms Dean has annexed leaves no room for ambiguity. The substantive role holder specifically stated that they intend to exhaust their leave entitlements and then resign. More specifically, they have submitted leave applications for that leave, with an apparent end date of the leave being 24 October 2025 (the date of release of these reasons).
The Respondent is aware that this correspondence has been put before me and has not sought to make reply submissions other than to confirm that as of 21 October 2025, the substantive employee has not submitted a resignation.
Without further submissions or the provision of correspondence indicating that the employee has since stated that they will be returning to the role now that they have exhausted all leave entitlements and that they no longer intend to resign, I have no reason to believe that the situation has changed.
In fact, the CHHHS clearly does not expect the substantive employee to be returning when she exhausts her leave. Their submissions provide that the Mental Health Act Delegate role is currently backfilled until 30 November 2025.
I accept that the decision-maker undertook a review of Smart Jobs on 29 September 2025 and that there were no A05 positions available for Ms Dean to be converted into. However, a substantively vacant position is not a requirement for conversion.[8] I am also of the view that the decision-maker could have considered AO5 positions the CHHHS have a reasonable belief will become vacant, requiring a permanent appointment.
[8] Kelly v State of Queensland (Queensland Health) [2021] QIRC 55 [48]; Battaglia v State of Queensland (Queensland Health) [2023] QIRC 055 [69]; Keenan v State of Queensland (Queensland Health) [2023] QIRC 297 [86].
I am satisfied on the balance of probabilities that the substantive role holder will not return to the position and that there is a continuing need for someone to be employed in the role.
Neither party has made submissions addressing any requirement of an industrial instrument which may preclude conversion.[9]
[9] s 114(3)(b) of the PS Act.
On that basis, I find that it was not fair and reasonable for the decision-maker to not convert Ms Dean's employment to permanent on the basis that there is no continuing need for someone to be employed in a role substantially the same as the one she was undertaking.
Ms Dean's employment must be converted to permanent unless there are genuine operational reasons preventing conversion.
Are there genuine operational requirements preventing conversion?
As the decision-maker decided that there was not a continuing need for Ms Dean to be employed in the role or a role substantially the same as that role, they determined that it was not open to the delegate to decide to convert Ms Dean's employment to permanent. Therefore, it was not necessary to go on and consider whether there were genuine operational requirements preventing Ms Dean's conversion to permanent.
However, the Respondent has made brief written submissions on this point. The Respondent says that converting Ms Dean's employment status to permanent would result in the generation of a new role which is not required, needed and/or currently not funded or budgeted for, compromising the effective management of resources within the CHHHS.
In response to the Respondent's submission that converting Ms Dean to permanent will generate a new role, Ms Dean says that there would only be a 5 to 6 week period when the Mental Health Act Delegate role would be over establishment. Further, Ms Dean says that the MHAODS service has other over establishment roles and that employees have been in over-establishment roles for periods up to 7 months and provides two examples of this.[10]
[10] Appellant's submissions (n 6) [19].
I accept that it is not unusual for there to be circumstances where for short periods of time, agencies operate some positions 'over establishment'. This is a risk which is managed by agencies in a variety of situations. Without any submissions from the Respondent to refute Ms Dean's submissions that this is currently occurring with regard to the particular position she has identified in her submissions, I accept that this is a practice which is currently being implemented for whatever reason.
The permanent position holder is not currently occupying the role, appears to have exhausted their leave entitlements or will imminently do so. I cannot identify a significant financial detriment to the CHHHS if Ms Dean is appointed permanently in circumstances where there will only be a short period of time where the Mental Health Act Delegate role will be over-establishment.
I do not accept that carrying an over-establishment permanent AO5 employee in circumstances where the role is currently being temporarily backfilled and is likely to be substantively vacant in the immediate future is a genuine operational requirement preventing conversion. The Respondent's submissions on this point are brief and are not supported by any additional information or documents to support the contentions it makes with regard to its genuine operational requirements preventing conversion.
On that basis, I am satisfied that there are no genuine operational requirements precluding the permanent appointment of Ms Dean to the Mental Health Delegate role.
Conclusion and order
For the reasons given above from paragraphs [17]–[35] of these reasons for decision, I do not think it was fair and reasonable for the decision-maker to determine that there was no continuing need for Ms Dean to be employed in a role substantially the same as the one she is currently occupying, namely the Mental Health Delegate role.
For the reasons given from paragraphs [37]–[43] of this decision, I am satisfied that there are no genuine operational requirements precluding Ms Dean's employment from being converted from temporary to permanent.
On that basis, the decision of 2 October 2025 is set aside and is substituted with a decision that Ms Dean's employment be converted to permanent.
Orders:
Accordingly, I make the following orders:
1.Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision not to convert Ms Dean's employment to permanent is set aside, and another decision is substituted; and
2.Ms Dean's temporary employment status is converted to full-time employment as Mental Health Act Delegate (AO5).
0
2
0