Francis v State of Queensland (Department of Justice and Attorney-General)

Case [2022] QIRC 138

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138

PARTIES:

Francis, Joshua Andrew
(Appellant)

v

State of Queensland (Department of Justice and Attorney-General)
(Respondent)

CASE NO.:

PSA/2021/410

PROCEEDING:

Public Service Appeal - Conversion to higher classification level

DELIVERED ON:

HEARING DATE:

13 April 2022

22 March 2022

MEMBER:

HEARD AT:

Merrell DP

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 5 January 2022, Appellant's written submissions in reply filed on 11 February 2022, Respondent's written submissions filed on 2 February 2022 and Respondent's further written submissions filed on 4 March 2022
ORDER: 

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

PUBLIC SERVICE - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - PUBLIC SERVICE APPEAL - since 13 March 2019 the Appellant has been substantively employed by the Respondent as a Senior Legal Officer, classification PO4 - from 12 August 2019, the Appellant has been acting at a higher classification level, being that of Crown Prosecutor, classification PO5 - Appellant acting at a higher classification across positions with three different position numbers - on 20 October 2021, the Appellant made request pursuant to s 149C(3) of the Public Service Act 2008 to be permanently appointed to the position of Crown Prosecutor, classification PO5 - no decision made by the Respondent within the required period with the consequence that, pursuant to s 149C(6) of the Public Service Act 2008, a decision was taken to have been made that the Appellant's request was refused - Appellant appealed against that decision - whether decision was fair and reasonable within the meaning of s 562B(3) of the Industrial Relations Act 2016 - Appellant's most recent acting at the higher classification level was and is to backfill for an incumbent who has been on approved spousal leave - whether s 149C of the Public Service Act 2008 only permits appointment to the specific position at the higher classification level in which the Appellant was acting at the time of the request or whether the appointment can be to any position of the same title and classification level - Appellant could only be considered to be appointed to the position in which he was acting at the time of the request - genuine operational requirements of the Department against the appointment of the Appellant to that position - decision fair and reasonable - decision appealed against confirmed

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - principles of statutory construction - construction of s 149C of the Public Service Act 2008
LEGISLATION:

Acts Interpretation Act 1954, s 14A

Directive: 12/20 - Recruitment and selection, cl 3.3 and cl 6.3

Directive: 13/20 - Appointing a public service employee to a higher classification level

Industrial Relations Act 2016, s 562B and s 562C

Public Service Act 2008, s 27, s 28, s 29, s 98, s 120, s 148, s 149, s 149A, s 149B, s…

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AGLC
Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138
Case
[2022] QIRC 138
Decision Date

CaseChat Overview and Summary

In Francis v State of Queensland (Department of Justice and Attorney-General), the appellant, Mr Francis, sought a permanent appointment to the position of Crown Prosecutor, classification PO5, after acting in that capacity for a period exceeding one year. The respondent, the State of Queensland, did not make a decision within the required period, leading to an implied refusal under section 149C(6) of the Public Service Act 2008. Mr Francis appealed this decision, arguing that it was neither fair nor reasonable under section 562B(3) of the Industrial Relations Act 2016.

The court needed to determine whether section 149C of the Public Service Act 2008 permits appointment to any position of the same title and classification level or if the appointment must be to the specific position in which the employee was acting at the time of the request. The court also needed to consider whether the decision to refuse the request was fair and reasonable, taking into account the genuine operational requirements of the Department.

The court concluded that the narrow construction of section 149C of the Public Service Act 2008 was correct, meaning that an appointment can only be to the specific position in which the employee was acting at the time of the request. The assessment of the genuine operational requirements, as per section 149C(4A)(a), pertains to the specific position in which the employee is relieving. The court found that the decision to refuse Mr Francis' request was fair and reasonable, given the operational requirements of the Department. The decision was affirmed under section 562C(1)(a) of the Industrial Relations Act 2016.

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

Orders

Orders of the court

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

Background

Background to the litigation

For the reasons that follow, the decision taken to have been made by the Chief Executive was fair and reasonable.Relevant background It was not disputed by Mr Francis[7] that, as set out in the Department's submissions filed on 2 February 2022, the facts are that:·between 12 August 2019 and 10 May 2020, Mr Francis acted in the position of Crown Prosecutor, classification PO5, located in Townsville,[8] position number 750679;·between 11 May 2020 and 11 May 2021, Mr Francis acted in the position of Crown Prosecutor, classification PO5, located in Townsville, position number 711676; and·from 12 May 2021 to the present, Mr Francis has acted in the position of Crown Prosecutor, classification PO5, located in Townsville, position number 713817, while the incumbent of that position has been on approved spousal leave, with the incumbent due to return to the position.[9][7] T 2-12, ll 16-19.[8] The Department, in its written submissions filed on 4 March 2022 ('the Department's March submissions'), clarified that Mr Francis' acting in position number 750679 as Crown Prosecutor, classification PO5, between 12 August 2019 and 10 May 2020 was in Townsville and not in Cairns as it originally submitted. [9] As at the date of hearing, the Department had extended the leave of the incumbent until 29 April 2022: T 2‑15, ll 8‑14. At the hearing of his appeal, Mr Francis confirmed that he has been further directed to act, for a further period of time, in the position of Crown Prosecutor, classification PO5.[10][10] T 2-13, l 33 to T 2-14, l 9.Section 149C of the PS Act Section 149C of 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.…(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.Mr Francis' submissions and material

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Department also submitted that the narrow construction had to be correct because the assessment of the genuine operational requirements of the Department in s 149C(4A)(a) of the PS Act, in context, was in respect of the appointment of the employee to the position in which they are relieving and not in respect of a position title.[26][26] T 2-18, l 44 to T 2-19, l 43.The decision was fair and reasonable I considered the construction of s 149C of the PS Act in Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) ('Nangit').[27] [27] [2021] QIRC 038. In Nangit, I stated:[35] Section 149C(1) of the PS Act provides that the section applies in relation to a public service employee if, relevantly, the employee:·is acting at a higher classification level in the department in which the employee holds an appointment or is employed; and·has been acting at the higher classification level for a continuous period of at least one year; and·'… is eligible for appointment to the position at the higher classification level having regard to the merit principle.'[36] Section 149C(3) of the PS Act provides that after the end of one year of acting at the higher classification level, 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.'[37] The phrase used in s 149C(1)(c) and in s 149C(3), namely '… the position at the higher classification level' is very specific. The purposes of these provisions are, respectively, that:·it is the specific position at the higher classification level, in which the employee has been acting, that an assessment of the employee's eligibility for appointment, having regard to the merit principle, must be made; and·the request made by an eligible employee is to be appointed, as a general employee on tenure or a public service officer, to the position at the higher classification level in which the employee is acting.…[39] If it were otherwise, then the Parliament would have used different words or a different phrase to '… the position at the higher classification level' in s 149C(1)(c) and in s 149C(3) of the PS Act. [28][28] Citations omitted. The same construction has been applied in public service appeal decisions of the Commission about decisions not to appoint public service employees to the positions at a higher classification level in which they have been acting. The decisions include Holcombe v State of Queensland (Department of Housing and Public Works)[29], Thorne v State of Queensland (Department of Housing and Public Works)[30] and Golder v State of Queensland (Department of Housing and Public Works)[31] and Wilson v State of Queensland (Public Trustee Office) ('Wilson').[32] [29] [2020] QIRC 195, [48]-[54] (Industrial Commissioner McLennan).[30] [2021] QIRC 015, [27] (Industrial Commissioner Power).[31] [2021] QIRC 020, [18]-[20] (Industrial Commissioner Hartigan).[32] [2021] QIRC 084 ('Wilson'), [33] (Industrial Commissioner Dwyer).

Ratio Decidendi

Legal Principle Established

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