Fowke v State of Queensland (Queensland Fire and Emergency Services)
[2020] QIRC 206
•27 November 2020
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: PARTIES: | Fowke v State of Queensland (Queensland Fire and Emergency Services) [2020] QIRC 206 Fowke, Caroline Kristina v State of Queensland (Queensland Fire and Emergency Services) | ||
| CASE NO: | PSA/2020/351 | ||
| PROCEEDING: | Public Service Appeal – Appointment to Higher Classification Level | ||
| DELIVERED ON: | 27 November 2020 | ||
| MEMBER: HEARD AT: | Knight IC On the Papers | ||
ORDER: | 1. The decision appealed against is confirmed. | ||
| CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where appellant requested appointment to higher classification level under s 149C of the Public Service Act 2008 – where request denied due to genuine operational requirements of the agency – whether the decision was fair and reasonable. Directive 13/20 Appointing a public service employee to a higher classification level Industrial Relations Act 2016 Public Service Act 2008 | ||
Reasons for Decision
Caroline Kristina Fowke ('the appellant') appeals a decision by Assistant Commissioner, Mr Stephen Smith of Queensland Fire and Emergency Services ('the respondent'), not to permanently appoint her to the position in which she has been acting at a higher classification level.
By way of background, Ms Fowke's appeal notice was received on 25 November 2020. In circumstances where the higher duties position she currently holds is scheduled to be abolished on Monday, 30 November 2020, a Directions Order was immediately issued by the Commission requesting the parties to file and serve written submissions by midday, 27 November 2020.
The appeal was lodged in time and there is no argument that the appellant is not entitled to appeal against the decision in question.
Determination of the appeal turns on whether it was fair and reasonable for the respondent to deny permanency as it did on the basis of genuine operational requirements.
Consideration
The appellant is substantively employed by the respondent in an administrative officer position (AO2). Since 28 April 2018, however, she has been acting in the Curriculum Development Officer role (A06) which falls under the 'RTO' unit within the School of Fire & Emergency Services Training ('SFEST').
According to the respondent, following a review, an organisational restructure was approved by senior management on 29 June 2020. One of the casualties of the restructure was the A06 position in which the appellant has been acting.
It is helpful to examine the circumstances of the review and consequent restructure set out in the submissions of the respondent, namely:
· the review was undertaken to ensure that the essential functions and structure of SFEST align with the strategic direction of the respondent; and
· the changes to SFEST are wide-ranging, relating to its functions, structures and focus of business units. Consultation was undertaken periodically between SFEST staff and the Together Union from early April 2020.
Within her appeal submissions, the appellant took issue with a separate decision by the agency to create a new systems administrator role within the new structure. As best I understand, the appellant holds the view that the AO5 systems administrator role does not serve the operational requirements of the RTO unit. She considers that any new role would be more akin to a senior systems analyst and administrator at the AO6 level.
According to the respondent, the A05 role has been advertised on an 'Expression of Interest' basis for 12 months. The closing date for the role was 20 November 2020. In his original decision letter dated 12 November 2020 which forms the basis of this appeal, Mr Smith encouraged the appellant to apply for the systems administrator role.
The reasoning of Mr Smith in rejecting the appellant's request for permanency was as follows:
I have considered your request and have determined that, due to genuine operational requirements of the agency, you are to continue to be engaged according to the terms of your existing arrangement. The role is a temporary position created for the Nexus onboarding project and through the recent restructure of School of Fire & Emergency Services Training, this position will be abolished on 30/11/2020 and an AO5 System Administrator has been reallocated in its absence.
As a result of this decision not to convert you to the higher classification level, you will continue in the role of Curriculum Development Officer until 30/11/2020 when the position will be discontinued. You are encouraged to apply for the AO5 System Administrator role which is currently advertised.
The Public Service Act 2008 ('the Act') relevantly provides:[1]
[1] my emphasis.
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.
(2) However, this section does not apply to the following public services employees—
(a)a casual employee;
(b)a non-industrial instrument employee;
(c)an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
(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.
In her appeal notice and written submissions, the appellant asserts inter alia that the A06 position remains valuable and needed; it is not solely concerned with work to be discontinued as a result of the restructure; the respondent has not met its consultation obligations; and a new A05 position entails duties which are not commensurate with that classification level.
Although I understand the appellant's disappointment insofar as it relates to the decision of the agency to abolish the AO6 role in which she was acting, many of her arguments are beside the point in circumstances where my role is to determine whether it was fair and reasonable for the respondent to deny permanency, as it did, on the basis of genuine operational requirements.
For instance, there were other avenues through which the appellant could have progressed her concerns relating to consultation obligations including grievances and dispute processes, or internal procedures associated with determining classifications for newly created positions.
In this matter, it is clear from the respondent's submissions that there is a significant restructuring underway within SFEST. It has been on foot for some time and resulted in a decision, regrettably for the appellant, to discontinue the position in which she is acting as of 30 November 2020.
Plainly, for the purposes of s 149C of the Act, this constitutes a genuine operational requirement against her permanent appointment.
The appellant has raised concerns the decision letter does not comply with the requirements set out in s 149C(5)(b) and (c) of the Act. That is, in addition to providing the reasons for the decision, it is necessary for the Chief Executive to provide the relevant employee with details about the total continuous period for which the person has been acting at the higher classification in the department; and how many times the person's engagement at the higher classification level has been extended.
The appellant included information about the total period for which she had been acting in higher duties in her appeal notice and the number of occasions when her appointment was extended. I have taken this information into account in considering the appeal.
Mr Smith's reasons for the decision are clear. I have concluded that the omission from the decision letter of specifics regarding those issues set out at s 149C(5)(b) and (c) has not materially impacted the decision. The inclusion of this information in the letter would not have changed the outcome of either the review or this appeal.
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
I order accordingly.
0
0
1