Fennell v State of Queensland (Queensland Health) - [2021] QIRC 92

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Fennell v State of Queensland (Queensland Health) [2021] QIRC 092 Fennell, Travis (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2021/5
PROCEEDING:	Public Service Appeal - Conversion Decision
DELIVERED ON:	22 March 2021
MEMBER: HEARD AT:	Pidgeon IC On the papers
OUTCOME:	The decision appealed against is confirmed
CATCHWORDS: LEGISLATION:	INDUSTRIAL LAW - 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

Mr Fennell is employed by the State of Queensland (Queensland Health) at Metro South Hospital and Health Service (MSHHS) as a fixed term Administration Officer (AO3), Medical Records, Health Information Management Services (HIMS) with the Princess Alexandra Hospital (PAH). Since 9 November 2015 Mr Fennell has undertaken multiple fixed term contracts with his current contract set to cease 2 May 2021.
In a decision dated 9 December 2020 regarding the outcome of a review of Mr Fennell's fixed term temporary employment status, Director of Human Resources Adam Lavis ("the decision maker") gave the following reasons:
The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, my reasons are that there is no continuing need for you to perform your current role because the role is not continuing due to the implementation of documented organisational change.
Additionally there is no continuing need for you to perform a role that is substantially the same as all alternative roles have been considered.
I have considered the conditions for conversion in the PS Act and determined that you have demonstrated merit and there is a continuing need for you to fill the role or a role that is substantially the same. However, there are genuine operational requirements of the agency that mean it is not viable or appropriate to convert you at this time. Specifically, Metro South Health's Medical Record Department is undergoing significant workforce change following the Digital Hospital Implementation.
Mr Fennell provides his grounds of appeal in a four page document attached to his appeal notice. The document appears to state that the decision maker failed to provide sufficient reasons for their decision in order for Mr Fennell to understand why the role would not be ongoing. Mr Fennell goes on to explain the types of day to day duties he performs and does not believe the PAH Scanning Unit/Medical Records Department will not be ongoing.
Relevant sections of the Act and Directive
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").
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…

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 Fennell v State of Queensland (Queensland Health)

Details

AGLC: Fennell v State of Queensland (Queensland Health) [2021] QIRC 92
Case: [2021] QIRC 92
Decision Date: 22 March 2021

CaseChat Overview and Summary

The case involves Mr Fennell and the State of Queensland, represented by Queensland Health. Mr Fennell challenges the decision to not convert his position to a permanent role, arguing that the decision was unfair and unreasonable as it failed to consider roles that were substantially the same as his current position. The dispute was heard and determined by the Queensland Industrial Relations Commission.

The primary legal issue was whether the decision not to convert Mr Fennell's position to a permanent one was fair and reasonable, particularly in light of the roles he currently performs and the organisational changes affecting his department. The court had to examine whether the decision-maker provided adequate detail about the operational requirements of Queensland Health, and whether these requirements justified the decision.

The Commission found that the decision-maker provided sufficient detail about the operational requirements, including the ongoing organisational change and the impact of the Digital Hospital Implementation on the workload. The Commission noted that Mr Fennell had been informed about these changes and the trial period to assess the nature of the workload. Given this context, the Commission concluded that the decision was fair and reasonable, as there was no continuing need for Mr Fennell to perform his current role due to the changes in workload.

The final order was that the decision not to convert Mr Fennell's position to a permanent one was upheld as fair and reasonable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Fennell submits that as the functions of an AO3 in the Scanning Unit are functions he currently performs as part of his position in Medical Records, that these 3.0 FTE positions are roles which are substantially the same as his present AO3 role which should have been considered for conversion into. The failure to consider this makes the decision unfair and unreasonable. Consideration of submissions The decision letter dated 9 December 2020 states that genuine operational requirements preclude Mr Fennell from being converted to permanent. In determining that there is no continuing need for Mr Fennell to perform his role, Mr Lavis makes reference to 'the implementation of documented organisational change' and the 'Metro South Health's Medical Record Department is undergoing significant workforce change following the Digital Hospital Implementation'. MSHHS states that the business case for change was provided to "the unions and impacted employees, including Mr Fennell…" on 2 December 2020. Mr Fennell makes reference to the business case for change in his submissions. In his reply submissions he does not challenge MSHHS submission that he had been provided with the business case for change prior to receipt of the decision letter. I have reviewed the business case for change which was attached to MSHHS's submissions. The document sets out the reduction in workload experienced by the PAH Medical Records Department over the time since ieMR was introduced. The business case refers to a trial underway until 5 May 2021 to determine whether the workload is ongoing or temporary in nature. The business case says, "Further consideration will be given to any staffing and budget shortfall once the workloads are clear at the end of this trial". 5.1.2 of the report says that current temporary arrangements will be honoured until the contract end dates (2 May 2021). As Mr Fennell points out, the business case also says that any permanent vacancy will be filled by appropriate industrial mechanisms with priority given to current employees within HIMS Unit. The decision clearly indicates to Mr Fennell the reason that the decision maker has determined there is no continuing need for Mr Fennell to perform his current role and that the genuine operational requirements of MSHHS preclude his conversion to permanent at this time. In circumstances where Mr Fennell is aware of the organisational change currently under consideration and subject to consultation with unions and employees, and has access to detailed information about the workload changes affecting his area, I find that the level of detail provided by the decision maker with regard to the genuine operational requirements of MSHHS was fair and reasonable. I further find that the circumstances outlined by the MSHHS with regard to the organisational change process currently under consultation as a result of changes to the workload of the area Mr Fennell works in make it fair and reasonable to determine that at the time of making the decision, there is not a continuing need for Mr Fennell to be employed in the role.