Jenkins v State of Queensland (Department of Justice)

[2025] QIRC 237

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jenkins v State of Queensland (Department of Justice) [2025] QIRC 237

PARTIES:

Jenkins, David
(Appellant)

v

State of Queensland (Department of Justice)
(Respondent)

CASE NO:

PSA/2025/144

PROCEEDING:

Public Sector Appeal – Conversion Decision

DELIVERED ON:

5 September 2025

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1.         The appeal is allowed;

2.         The decision not to convert Mr Jenkins' employment to permanent is set aside, and another decision is substituted; and

3.         That Mr Jenkins' temporary employment status is converted to permanent full-time employment as Senior Legal Officer (PO4).

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – appeal against conversion decision – where the appellant was not deemed 'suitable' to perform the role – consideration of whether the appellant is 'suitable' to perform the role – whether the decision was fair and reasonable – appeal allowed

LEGISLATION AND INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 27B

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Sector Act 2022 (Qld) s 3, s 4, s 114, s 115, s 131

CASES:

Directive 02/23: Review of non-permanent employment cl 4, cl 10, cl 13

Directive 02/24: Positive performance management cl 5, cl 9, cl 10

Directive 07/23: Recruitment and Selection

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106

State of Queensland (Queensland Health) v Hume [2024] ICQ 3

Reasons for Decision

1. Mr David Jenkins (the Appellant) is employed by the State of Queensland, within the Department of Justice (the Department, the Respondent).  He has been continuously employed within the Office of the Director of Public Prosecutions, Cairns since 5 June 2023.

2. Mr Jenkins has worked in the role of Acting Senior Legal Officer (PO4) since 13 November 2023.

3. Mr Jenkins submitted that his fixed term temporary employment contract has now been extended eight times.  His contract was most recently extended on 21 June 2025, with a cessation date of 26 September 2025.

4. The Department commenced a review of Mr Jenkins' non-permanent employment status on 5 June 2025, pursuant to the requirements under s 115 of the Public Sector Act 2022 (Qld) (PS Act).

5. Mr Jenkins was advised that his employment would not be converted to permanent on 'suitability' grounds.  The decision was contained in correspondence from Mr Nathan Crane, Deputy Director of Public Prosecutions (the Delegate) dated 4 July 2025.

6. Mr Jenkins has filed this appeal against the Delegate's decision.

   Jurisdiction

7. Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision".

8. The Appellant has been an employee of the Respondent at all times relevant to this appeal.

9. I am satisfied that the conversion decision can be appealed.

   Timeframe to Appeal

10. Section 564(3)(d) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.

11. The Delegate's decision letter was dated 4 July 2025.  This appeal was filed on 21 July 2025.

12. I am satisfied that the Appeal Notice was filed within the required timeframe of 21 days.

    Appeal principles

13. Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[1] 

    [1] Industrial Relations Act 2016 (Qld) s 562B(3).

14. A public service appeal under the IR Act is not by way of rehearing,[2] but involves a review of the decision arrived at and the decision-making process associated therewith. 

    [2] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

15. Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. 

16. Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

    'Fair and reasonable'

17. In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[3] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals. 

    [3] [2024] ICQ 3.

18. His Honour observed that, for appeals of this type, "the question of whether the internal decision was fair and reasonable was not to be answered by the application of the test of legal reasonableness" in the decision of the Supreme Court in Gilmour v Waddell & Ors.[4]

    [4] [2019] QSC 170.

19. In State of Queensland (Queensland Health) v Hume,[5] his Honour explained (citations omitted):

    [5] [2024] ICQ 3.

    [41]      Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.

    [42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning.

    [43]      The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.

    [44]      Similar arguments made to the Commission have been rejected by the Commission.

    [45]      Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.

    …

    [48]      Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:

    • that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and

    • that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.

[49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice'46 and the word 'reasonable' means '… agreeable to reason or sound judgment'.47 Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact.

[50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.

[51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.

…

[53]      The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.

What decisions can the Industrial Commissioner make?

1. In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

   ·confirm the decision appealed against;

   ·set the decision aside and substitute another decision; or

   ·set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Delegate's reason for conversion refusal

1. In the Delegate's decision letter dated 4 July 2025, Mr Jenkins was informed that (emphasis added):

   … there is a continuing need for someone to be employed in the role you are currently employed in or a role that is substantially the same as the role you are currently employed in.

   Unfortunately, you are not eligible for conversion to permanent employment because you do not satisfy the requirements for being suitable to perform the role.

   I note that there are unresolved performance concerns with regards to your work performance in the PO4 Senior Legal Officer role which have been raised with you in writing on several occasions by your signing Senior Crown Prosecutor.  These concerns include:

   ·        Problematic grammar and typographical errors;

   ·        Flawed recommendations on charges in indictments;

   ·        Poor work quality requiring significant redrafting; and

   ·        Failure to follow directions given by the Senior Crown Prosecutor.

   You will continue in the PO4 Senior Legal Officer role until the end of your contract with this time providing you an opportunity to address the performance issues raised. Should the performance issues resolve you may request an additional review under section 116 of the Public Sector Act (the Act).[6]

   [6] Correspondence to Mr David Jenkins from Mr Nathan Crane, Deputy Director of Public Prosecutions dated 4 July 2025.

2. As the above extract showed, the reason the Delegate decided Mr Jenkins would not be converted to permanency was that he was not "suitable to perform the role."

   Work History

1. Mr Jenkins has been employed on a series of consecutive temporary contracts with the Department. 

2. The Respondent's submissions contained a table setting out the appointments, as reproduced below.

Start	Finish	Duration	Title	Classification	Position #	Appointment
5 June 2023	14 January 2024	6 months 9 days	Legal Officer	PO3	711155	Temporary
13 November 2023	12 January 2024	2 months	Senior Legal Officer	PO4	716119	Higher Duties
15 January 2024	28 June 2024	5 months 13 days	Senior Legal Officer	PO4	716119	Temporary
29 June 2024	4 October 2024	4 months 5 days	Senior Legal Officer	PO4	716119	Temporary
5 October 2024	12 November 2024	1 month 7 days	Senior Legal Officer	PO4	716119	Temporary
13 November 2025	28 February 2025	3 months 15 days	Senior Legal Officer	PO4	716119	Temporary
1 March 2025	11 April 2025	1 month 10 days	Senior Legal Officer	PO4	716119	Temporary
12 April 2025	23 May 2025	1 month 11 days	Senior Legal Officer	PO4	716119	Temporary
24 May 2025	20 June 2025	27 days	Senior Legal Officer	PO4	716119	Temporary
21 June 2025	26 September 2025	3 months 5 days	Senior Legal Officer	PO4	732849	Temporary

Submissions

1. The parties filed written submissions in accordance with the Directions Order issued.  I have carefully considered all submissions and materials. 

   Appeal grounds

1. Mr Jenkins' appeal is based on two grounds:[7]

   1.Denial of procedural fairness; and

   2.Incorrect / flawed reasoning.

   Consideration

   [7] Appeal Notice filed 21 July 2025, Schedule A, [3].

   Decision criteria for conversion to permanency

2. The PS Act states that an employee must be converted to permanent if the following tests are met,[8] "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity" (emphasis added):[9]

   (a)there is a continuing need for someone to be employed in the role, or a role that is substantially the same; and

   (b)     the employee is suitable to perform the role; and

   (c)any requirements of an industrial instrument are complied with in relation to the decision.

   [8] Public Sector Act 2022 (Qld) s 114(3).

   [9] Ibid s 114(4).

3. The Delegate's reason for refusing conversion is important, in light of s 114(3)-(4) of the PS Act above. That is, the Delegate stated Mr Jenkins' employment was not converted to permanency because he was not 'suitable'.

4. The Delegate confirmed there was a "continuing need" and made no reference to any requirements of an industrial instrument that needed to be complied with that may prevent conversion to permanency.

   Operational requirements

5. Further, the Respondent did not submit that there were any 'genuine operational requirements' that would otherwise prevent conversion to permanency, in the event the Commission does not accept the Delegate's determination that Mr Jenkins was not suitable to perform the role. 

6. The only reference to "operational requirements" was made by Mr Jenkins, in the Appeal Notice.  Relevantly, the Respondent's submissions (filed after that) did not rebut Mr Jenkins' account of meetings held with the current practice manager, Ms Juliet Chipp, on 7 July 2025 (after the conversion refusal decision was given).  Mr Jenkins reported that Ms Chipp told him that (emphasis added) "to her knowledge, the [conversion refusal] decision was one based upon operational requirements, and in particular that there had not been recent appointment process for the role in which I was acting, therefore there was not the capacity for the Department to convert my employment." [10]  Later that day, Ms Chipp advised Mr Jenkins that aside from the aforementioned operational issues, there were unresolved performance issues.[11] 

   [10] Appeal Notice filed 21 July 2025, Schedule A, [14].

   [11] Ibid.

7. I note that the reasons contained in the Delegate's correspondence were limited to "suitability" concerns - and did not expand on any "operational" impediments to conversion, as later shared by Ms Chipp.

8. With respect to the comments attributed to Ms Chipp, and not denied in the Respondent's subsequent submission, there is no requirement for there to be first a "vacancy" before a person is appointed permanently to a role, under a process of review of non-permanent employment.  That principle is well-established by numerous decisions of this Commission.  Whether or not there had been any "recent appointment process for the role in which [Mr Jenkins] was acting" does not meet the threshold of a genuine operational requirement that would prevent conversion.

9. For those reasons, I find there are no genuine operational requirements that would otherwise prevent Mr Jenkins' conversion to permanent employment.

   Relevant legislative provisions

10. The PS Act establishes 'permanent employment' as the default basis of employment in the Queensland public sector, as follows:

11. Sections 3 and 4 of the PS Act provides:

    3       Main purposes of Act

    The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.

    4       How main purpose is primarily achieved

    The main purpose of this Act is to be achieved primarily by —
    …

    (c) creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -

    (i)providing for the key rights, obligations and employment arrangements of public sector employees; and

    (ii)maximising employment security and permanency of employment; and

    (iii)taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and

    (iv)ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and

    (v)ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and

    (vi)setting a positive performance management framework for public sector employees; and

    (vii)fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and

    …

12. The purpose of Directive 02/23: Review of Non-permanent Employment (the Directive) includes establishment of permanent employment as "the default basis of employment in the Queensland public sector."  Its purpose also "supports and supplements the provisions of the Act with respect to the review of non-permanent employment" and "sets out procedures for reviews and requirements for decisions in the context of reviewing a non-permanent employee's employment status."

13. The PS Act prescribes:

    114      Chief executive must make decision on employee's request

    …

    (3)     The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if—

    (a)      the employee's chief executive considers—

    (i)there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and

    (ii)      the employee is suitable to perform the role; and

    (b)any requirements of an industrial instrument are complied with in relation to the decision.

    (4)     If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

    …

    115     Chief executive must review status after 2 years of continuous employment

    (1)     If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee's chief executive must decide whether to—

    (a)continue the employee's employment according to the terms of the employee's existing employment; or

    (b)offer to convert the employee's employment to a permanent basis.

    …

    (3)     In making the decision—

    (a)section 114(3) and (4) applies to the employee's chief executive; and

    (b)the employee's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.

    (4)     If the employee's chief executive decides not to offer to convert the employee's employment to a permanent basis, the chief executive must give the employee a notice stating—

    (a)the reasons for the decision; and

    (b)the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and

    (c)how many times the employee's employment on a non-permanent basis has been extended; and

    (d)each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.

1. Section 115(2)(a) and s 115(11)(b) of the PS Act provides when the "required period" for a conversion review decision must be made.  That is, "28 days after…the end of 2 years after the employee has been continuously employed."  In this case, Mr Jenkins' two-year anniversary was 5 June 2025.

2. Section 114(9) of the PS Act refers to the Directive for the definition of "suitable" (my emphasis):

   Meaning of suitable10.     

   10.1    A public sector employee is to be considered suitable to perform the role where:

   a.the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and

   b.the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and

   c.the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.

3. Directive 02/24: Positive performance management (PPM Directive) is also relevant in this case.  The purpose of the PPM Directive is to (emphasis added):

   (a) outlines the principles of positive performance management in section 85 of the Public Sector Act 2022 (the Act)

   (b)     sets a positive performance management framework to treat public sector employees fairly

   (c)     provides how the positive performance management principles are to be applied by public sector managers (managers) when managing the work performance of public sector employees and, in some circumstances, the personal conduct of public sector employees.

4. The PPM Directive proceeds to specify the following Principles (emphasis added):

5.2     Managers must apply the positive performance management principles by:

(a) proactively managing the work performance and personal conduct of public sector employees

(b) constructively engaging with public sector employees to identify development and training opportunities, improve work performance, and build expertise in the public sector

(c) taking prompt and appropriate action to address any unacceptable work performance or personal conduct that arises.

5.3     Timely, open and regular, constructive communication is the mutual responsibility of managers and employees, who should work together to improve work performance outcomes.

…

5.8 The management of public sector employees must be directed towards the positive performance management principles outlined at section 85 of the Act. These are:

(a) pro-actively managing the professional and personal development of public sector employees, with a view to continuously building expertise within the public sector

(b) ensuring regular and constructive communication between public sector managers and employees about the work performance and personal conduct principles

(c) recognising the strengths, requirements and circumstances of individual employees, and valuing their contributions

(d)recognising performance that meets or exceeds expectations

(e)providing opportunities and support to employees for improving performance

(f) continuously improving performance through the provision of training and development

(g)identifying at the earliest possible stage performance that does not meet expectations

(h)integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.

1. The PPM Directive sets out the required process for managing employee work performance and some relevant Definitions (emphasis added):

   9.       Process for managing employee work performance

   9.1     A chief executive must incorporate the positive performance management principles into their entity's processes about managing employee work performance, to ensure that public sector managers:

   (a) set clear expected outcomes linked to organisational performance objectives and plans, including through the use of performance development agreements in line with entity policies

   (b) provide regular and constructive feedback on an employee's work performance, including recognising work performance that meets and exceeds expectations, and feedback on areas of work performance that need improvement, as is appropriate in the circumstances

   (c) promptly communicate and document any gaps between actual and expected work performance of an employee and allow reasonable time for the employee to self-correct

   (d)undertake constructive engagement with an employee to identify development and training opportunities, to improve work performance, and to build expertise in the public sector.

   9.2     Effective work performance management starts with appropriate induction and onboarding processes for all new employees of the entity.

   9.3     The purpose of induction is to welcome a new employee and provide them with information and support to help them transition into their role.

   9.4     Where the chief executive considers it appropriate, an induction may also be provided to employees returning to the workplace following leave or other absence of 12 months or more, and to employees who have been promoted, or have moved to positions with different or enhanced responsibilities.

   9.5     An induction process must be designed to provide employees with:

   (a) knowledge and understanding of the work performance and personal conduct principles

   (b)     an awareness of the entity's work performance expectations for their role

   (c) an understanding of how the entity will apply the positive performance management principles.

   9.6     As soon as practical after a new employee's commencement, the performance and development agreement process outlined below should commence, including providing the new employee with a clear statement of their work performance expectations.

   9.7     From commencement and throughout the employment relationship, which may include any applicable probationary period, all employees must receive prompt and appropriate feedback on work performance, including recognition of acceptable and exceptional work performance and feedback on areas of work performance that need improvement.

   9.8     Ongoing support and development should be provided to employees by using performance and development agreements, with regular reviews that promote constructive communication, reflect the positive performance management principles, and assist the employee to meet and exceed work performance expectations.

   9.9     Where areas of work performance arise that require improvement, proactive and supportive steps that are reasonable in the circumstances and directed towards the positive performance management principles should be taken to assist the employee to improve in the identified areas.

   9.10    These steps must account for work-related factors and non-work-related factors that may be affecting the employee's performance, and where appropriate, supports and strategies should be put in place to further assist the employee.

   9.11    Where unacceptable work performance issues persist that, if not resolved, may result in termination of employment during an applicable probationary period, the chief executive must ensure the employee receives structured feedback, and is afforded reasonable timeframes to respond to the feedback. This structured feedback process is not a PIP under clause 10.

10.     Decision to commence a structured process to manage unacceptable work performance or poor personal conduct in a supportive way

10.1    The process for managing unacceptable work performance or poor personal conduct must be supportive, directed to the positive performance management principles, and consider work-related factors and non-work-related factors that may be affecting the employee.

10.2    A chief executive may initiate a PIP as a structured process to address unacceptable work performance where the chief executive considers it fair and reasonable in the circumstances.

10.3    Where a chief executive holds a view that an employee's behaviour is not consistent with policies, expectations or an applicable code of conduct, and that the behaviour is not sufficiently serious to warrant disciplinary action but is impacting on the employee's work performance or workplace, the chief executive may also initiate a PIP in relation to the poor personal conduct, or deal with that poor personal conduct as part of a PIP. This can only occur where the chief executive considers it fair and reasonable in the circumstances. Examples of poor personal conduct for this purpose may include, for example, absenteeism or not treating other employees with courtesy or respect.

10.4    For clarity:

(a) a PIP is not required, and may not be appropriate, for an employee's poor personal conduct

(b) where a PIP is being undertaken in accordance with clause 10.3 if, at any stage, the chief executive believes the employee's poor personal conduct means that they may be liable to discipline, for a reason other than unsatisfactory work performance, then chapter 3, part 8, division 3 (Disciplinary action) of the Act may be applied and no further action is required to be taken under this directive.

10.5    Prior to determining whether it is fair and reasonable to initiate a PIP, the chief executive must:

(a) ensure that they have acted in accordance with the Act and this directive, followed the steps outlined in their stand-alone positive performance management policy, and determined that support and management action has not brought about improvement to the employee's work performance or personal conduct to the required standard

(b) consider whether there are any work-related factors and non-work-related factors that may be affecting the employee's performance and, if so, whether it is more appropriate to put in place relevant supports and strategies that are reasonable in the circumstances to further assist the employee, rather than commence a PIP

(c)      ensure the following conditions have been met:

(i) the expected level of work performance or personal conduct for the role was documented and provided to the employee and the employee had a reasonable opportunity to demonstrate the expected level of work performance or personal conduct

(ii) the expected level of work performance or personal conduct was relevant and appropriate to the role

(iii) the unacceptable work performance or personal conduct, or the gap between actual and expected work performance or personal conduct, was previously raised, discussed with the employee and documented

(iv) the employee was offered support that was reasonable in the circumstances and allowed a reasonable period of time to self-correct.

…

Definitions

Management action is a course of local action that is reasonably open to a manager to support and correct situations of employee conflict, unsatisfactory work performance or unacceptable behaviours at the earliest possible opportunity.
…
Non work-related factors that may be affecting an employee could include personal circumstances that may be impacting their work performance. For example, domestic and family violence, family caring responsibilities, cultural obligations or a medical condition.

…

Work performance includes, but is not limited to, matters relating to an employee's:

•        quality of work (accuracy, thoroughness, competence, including professional competency)

•        quantity of work and diligence (productivity level, time management, ability to meet deadlines)

•        job knowledge (skills and understanding of the work)

•        working relationships (ability to work with others, including communication skills).

Mandatory conditions

1. The Directive refers to the Directive 07/23: Recruitment and Selection (RS Directive), to define the term 'mandatory condition/s'.[12]  The RS Directive provides the following definition:

   Mandatory conditions are inherent requirements of the role and can include certain classes of drivers' licence, statutory restrictions, any requirement for the person employed in the position to undertake regular travel etc.

   [12] Directive 07/23: Recruitment and Selection, Definitions.

2. The Respondent provided the template position description for a Senior Legal Officer document, as an attachment to submissions filed on 7 August 2025.  With respect to that document, the Respondent submitted:

   Of significance is the key responsibility of "preparing complex matters referred to prosecution (including appeal submissions) in a professional and timely manner."[13]

   [13] Respondent's submissions filed 7 August 2025, [42].

3. I consider that the position description document provides the "mandatory conditions" of the role are: the requirements for the role holder to be "admitted as a Legal Practitioner," pass a "criminal history check," and ability to fulfil matters listed under "Physical demands and nature of work" and "Exposure to trauma and / or vicarious trauma" headings.  Those sections of the role description contains the matters indicated in the Directive as the "mandatory conditions" - drivers' license, travel requirements, vaccination status, police checks and the like.  There is no contention that Mr Jenkins cannot meet those expressed "mandatory conditions".

4. For that reason, I will consider Mr Jenkins' key responsibility of "preparing complex matters referred to prosecution (including appeal submissions) in a professional and timely manner" alongside any suggested "unresolved and documented conduct or performance matters,"[14] rather than in the context of a purported "mandatory condition."

   [14] Directive 02/23: Review of Non-permanent Employment, cl 10.1(b).

   Suitability assessment on "conduct or performance matters"

5. This case turns on whether or not Mr Jenkins is "suitable to perform the role."  It is noted that a key responsibility of that role is "preparing complex matters referred to prosecution (including appeal submissions) in a professional and timely manner."  Mr Jenkins will be found "suitable" if he was not subject to:

   …any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.

   Conduct concerns considered at the time of the earlier 12 month review

6. The precise words of the Directive are important.  That is because Mr Jenkins' suitability must be assessed by the Delegate at the time the review takes place. 

7. Sections 115(2)(a), (11) of the PS Act provides when the conversion review decision must be made - that is, after 5 June 2025. 

1. For that reason, a conduct issue that arose in the past, was addressed and "resolved," cannot be later invoked as a reason to prevent Mr Jenkins' conversion to permanent employment sometime in the future.[15]  That is particularly relevant where the Department has made several decisions to extend his temporary employment contracts in the period since such settled resolution. 

   [15] Respondent's submissions filed 7 August 2025, [10]-[13].

2. I find then that the particular circumstances leading to the Department's determination not to convert Mr Jenkins to permanent employment at the time of the earlier 12 month review were fairly and appropriately resolved at the time by counselling and the provision of an undertaking. That does not infect Mr Jenkins' assessment of "suitability" at the time of the Delegate's mandatory two-year review under s 115 of the PS Act because that matter was not "unresolved" when the review was undertaken.

   Work performance issues

3. In circumstances where an employee is not satisfactorily meeting the requirements of the role, processes are available to support and develop the worker to perform work to the required standard - escalating to formal PIPs, or even a disciplinary process, if Positive Performance Management strategies do not elicit the required results. 

4. Although these documents are advisory in nature only - and not binding on decision makers, unlike the provisions of the PS Act and Directive - the Public Sector Commission has published two resources that outline some useful considerations with respect to the suitability requirement (emphasis added):[16]

   [16] Asked Questions: Review of non-permanent employment," effective September 2024

   What is included in documented and unresolved performance concerns?

   Clause 10.1(c) of the Review of non-permanent employment (Directive 02/23) (the directive) provides that a public sector employee is to be considered suitable to perform the role where:

   •        they are not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing, and

   •        where required, are managed in accordance with the relevant directives relating to positive performance management or discipline.

   It is at the discretion of the decision maker to determine whether the employee meets this criteria, with context being relevant in each circumstance in terms of what would be reasonable in that circumstance.

   However, at the very least, specific performance concerns need to have been raised in writing with the employee and they need to have had an opportunity to address the concerns. Where a structured process to manage unacceptable work performance has been commenced (such as a formal performance improvement plan), the decision maker must be satisfied that the process has been managed in accordance with the requirements of the directive relating to positive performance management.

2."Non-permanent conversion checklist"

1.3     Is the employee currently the subject of a formal and unresolved performance improvement or discipline process?

1.4     Is the employee currently the subject of any unresolved conduct or performance concerns?

1.5     Have the unresolved conduct or performance concerns been raised with the employee in writing and, where relevant, managed in accordance with a relevant directive*?

*for example, the directive relating to positive performance management or discipline.

…

As the unresolved conduct or performance concerns have not been raised in writing and, where relevant, managed in accordance with a relevant directive, the decision maker cannot rely on the requirement to be suitable to perform the role to refuse conversion for the employee.

Appellant's submissions

1. With respect to the first ground of appeal - "Denial of procedural fairness" - Mr Jenkins submitted that:[17]

   [17] Appeal Notice filed 21 July 2025, Schedule A, [8]-[15].

   ·The Delegate's letter identified four performance concerns, as grounds to refuse conversion to permanency:

   ·     Problematic grammar and typographical errors;

   ·     Flawed recommendations on charges in indictments;

   ·     Poor work quality requiring significant redrafting; and

   ·     Failure to follow directions given by the Senior Crown Prosecutor.

   ·The alleged performance concerns were not raised with Mr Jenkins "in a manner consistent with the principles of procedural fairness," so it is "unfair and unreasonable to rely upon them as 'unresolved' if I have not been provided with a fair opportunity to respond to them or even be made aware that they existed."

   ·"…work performance issues have never been raised with me in writing.  Without any actual notice of performance issues, it was my understanding any feedback, redrafting directions or similar was within the ordinary scope of the indictment drafting and Crown Prosecutor review process." 

   ·"The only meeting or discussion that has occurred with any person in relation to performance issues were the ones that occurred upon my request post the decision not to convert my employment."  Mr Jenkins stated those were (emphasis added):[18]

   a.       On 7 July 2025, on my request I briefly met with the current practice manager Juliet Chipp in the morning.  That discussion principally involved her explaining that, to her knowledge, the decision was one based upon operational requirements, and in particular that there had not been recent appointment process for the role in which I was acting, therefore there was not the capacity for the Department to convert my employment.

   b.       On the same date I met with Juliet and my current signing prosecutor where the upshot of the discussion was that it was confirmed by Juliet that there were operational issues tending against my conversion but even if that was not the case I would not have been converted due to the supposed unresolved performance issues.  It also emerged during this discussion that the supposed performance issues were raised by a previous signing prosecutor, a person who had taken maternity leave on 7 May 2025.

·"…the previous extensions of my contract must have assessed and considered my merit…in particular I note the extension that occurred on 21 June 2025 must have contemplated my current performance.  There has at no time been some caveat or other accompanying note to my extensions that put me on notice to address any issues.  I had no basis to believe that performance issues existed or if they did that, they were of the level to be a concern…"

"The decisions to extend my role…means that I do…meet the merit principle…To claim otherwise is an admission by the Department that they have failed to carry out their statutory obligations with respect to the appropriate extension of employees."

Mr Jenkins asserted the Commission's decision in Hood v State of Queensland (Department of Justice and Attorney-General) ('Hood')[19] was relevant here.

·"I note that I was given and remain to hold responsibility for a complex police operation involving about 30 Supreme Court drug trafficking files during the relevant period of having supposed performance issues."

[18] Ibid.

[19] [2021] QIRC 106.

1. With respect to the second ground of appeal - "Incorrect / flawed reasoning" - Mr Jenkins submitted that:[20]

   My current signing Prosecutor has been doing so since on or about 15 April 2025 and then took leave from 2 May 2025 until 16 June 2025…if he was the person whose feedback the view on my performance was based there has not been adequate time for him to form a considered view.  If the feedback that forms the view on my performance was based on a different Crown Prosecutor feedback a core feature of the conversion decision is wrong.  That feature of the decision is of such importance that its fault infects the whole decision-making process because the Department has failed to properly identify a basis for their decision.  With such a fundamental error there can be no confidence in the decision made by the Department.

   [20] Appeal Notice filed 21 July 2025, Schedule A, [15].

Respondent's submissions

1. The Respondent submitted that there are "unresolved performance issues associated with the way in which the Appellant had performed the role of Senior Legal Officer."[21]   

   [21] Respondent's submissions filed 7 August 2025, [6].

2. The Respondent stated that Mr Jenkins' work between February and May 2025 was infected by "a litany of performance issues [that] has been provided to [Mr Jenkins] in writing.  These ongoing performance issues were in the lead up to the decision to review [Mr Jenkins'] status as a temporary employee."[22] 

   [22] Respondent's submissions filed 7 August 2025, [44].

1. Further, that Mr Jenkins "is not performing at the required level and despite detailed feedback and directions to change elements of his work, he has repeatedly failed to do so."[23]

   [23] Ibid [44]-[47].

2. The Respondent's submissions have not pressed the complaint of "Problematic grammar and typographical errors" issue, as identified by the Delegate.  That is appropriate.  While Mr Jenkins is urged to pay close attention to the presentation of his professional work, this is not a sufficient reason to determine a person is unsuitable for conversion to permanency in my view.

3. What remains then are three key issues identified by the Delegate: "Flawed recommendations on charges in indictments;" "Poor work quality requiring significant redrafting;" and "Failure to follow directions given by the Senior Crown Prosecutor."

4. With respect to the Dvorkin matter, the Respondent submitted that:[24]

   ·Mr Jenkins received a submission from the defence solicitor, regarding the plea.

   ·Mr Jenkins recommended acceptance of that to Ms Grasso (Acting Senior Crown Prosecutor, Cairns Chambers) within 15 minutes of receipt. 

   ·It was clear Mr Jenkins had not read the submission - or at least failed to adequately review it, prior to suggesting it be accepted.

   ·Mr Jenkins did not first seek or consider the Complainant's views, as required.  That is "contrary to a level of understanding and diligence that would be expected of a Senior Legal Officer…"

   ·An email exchange was attached to the Respondent's submissions.

   [24] Ibid [14]-[18].

5. With respect to the Stewart matter, the Respondent submitted that:[25]

   ·Ms Grasso provided detailed instructions to Mr Jenkins, listing all the amendments she required be made before sending the Statement of Facts to the defence counsel.

   ·On 18 February 2025, Ms Grasso asked Mr Jenkins why he had ignored the written and verbal instructions.

   ·Mr Jenkins acknowledged he had not made the amendments.

   ·Mr Jenkins made changes to the SOF and provided the update on 24 February 2025, though still not in accordance with Ms Grasso's instructions.  She gave further direction on required amendments.

   ·Mr Jenkins made further changes and provided the revised SOFs to Ms Grasso the next day, stating he had completed it to the best of his ability.  Ms Grasso made the final changes herself.

   ·This demonstrated Mr Jenkins' lack of attention to detail and failure to follow directions.

   ·An email exchange was attached to the Respondent's submissions.

   [25] Ibid [19]-[25].

6. With respect to the Usher matter, the Respondent submitted that:[26]

   ·On 22 January 2025, Ms Grasso gave Mr Jenkins detailed written instructions as to required amendments to the SOF, as it was "poor and missing many legal elements".

   ·Ms Grasso asked Mr Jenkins to provide it to her for review again, once the changes had been made - before sending it to the defence solicitor.

   ·On 24 January 2025, Ms Grasso received a submission from the defence counsel, in response to the SOF.  It was clear that Mr Jenkins sent the SOF to defence counsel, without first providing it to Ms Grasso as instructed.

   ·Mr Jenkins provided Ms Grasso with the SOF.  She replied to him by email that the changes had not been made to the SOF and asked for an explanation as to why that had not occurred.

   ·Mr Jenkins did not provide an explanation as to why he had neglected to make the changes required by Ms Grasso.  Mr Jenkins did make some changes to the SOF on 7 March 2025 and provided it to Ms Grasso. 

   ·Ms Grasso saw further amendments were required and made them.  Ms Grasso returned the SOF to Mr Jenkins on 13 March 2025.

   ·This demonstrated Mr Jenkins' lack of attention to detail and failure to follow directions.

   ·An email exchange was attached to the Respondent's submissions.

   [26] Respondent's submissions filed 7 August 2025, [26]-[30].

7. With respect to the Hindle matter, the Respondent submitted that:[27]

   ·Ms Elizabeth Kelso, Consultant Crown Prosecutor, reviewed an indictment prepared by Mr Jenkins.

   ·Ms Grasso noted Mr Jenkins failed to retain Ms Kelso's feedback on the indictment, the marked-up copy of the SOF and some correspondence on the file.

   ·Further, Ms Grasso observed Mr Jenkins had failed to make the changes requested by Ms Kelso.

   ·This demonstrated Mr Jenkins' failure to follow directions.

   ·An email exchange was attached to the Respondent's submissions.

   [27] Respondent's submissions filed 7 August 2025, [31]-[35].

8. With respect to the Hajiyasemi matter, the Respondent submitted that:[28]

   ·Mr Jenkins first prepared advice in relation to this matter on 11 April 2025. 

   ·It was returned to him for amendment before Mr Jenkins again provided it on 22 April 2025.

   ·Ms Grasso provided detailed written and verbal feedback.  Ms Grasso had checked on Mr Jenkins' progress several times, and on one occasion he pointed to a draft SOF template and stated a summary of evidence was completed.

   ·Ms Grasso could see that Mr Jenkins had only copied and pasted the evidence from the police form, complete with errors.

   ·Ms Grasso reviewed the evidence and found the summary to be poor and inaccurate.  Ms Grasso asked Mr Jenkins to correct it, though the work remained of poor quality when returned to her.

   ·This demonstrated Mr Jenkins' lack of attention to detail and failure to follow directions.

   ·An email exchange was attached to the Respondent's submissions.

   [28] Ibid [36]-[40].

9. Regarding the Commission's decision in Hood, the Respondent argued that was not analogous to the current matter because Industrial Commissioner Knight held that there was no material before the Commission "that indicate performance concerns were raised."  The Respondent stated the situation in Hood differed from the present case because there was here documentary evidence of the email exchanges between Mr Jenkins and Ms Grasso, that demonstrated performance issues had been raised with him on several occasions.

10. The Respondent denied Mr Jenkins was not afforded natural justice because (emphasis added):[29]

    At this stage no disciplinary action has been taken against the Appellant, nor has a performance improvement plan been implemented.

    It is apparent however that management action has been taken in relation to the Appellant's performance issues consistent with the definition of "management action" as contained in Positive performance management Directive (02/24).

    Appendices 2, 3, 4, 5 and 6 demonstrates that performance issues have been raised with the applicant to provide an opportunity to address those performance issues.

    …There is no obligation on the employer to provide any further procedural processes other than those in compliance with the relevant legislation and directive.

    [29] Respondent's submissions filed 7 August 2025, [53]-[56].

    Appellant's reply submissions

11. In his reply submissions, Mr Jenkins stated that:[30]

    ·There has not been "any follow up communication with respect to supposed performance issues affecting suitability."

    ·Mr Jenkins' temporary contract as Senior Legal Officer was extended several times and he continued to have carriage of complex matters.  Therefore "it is an untenable position to maintain there were unresolved performance issues affecting suitability."

    ·While accepting that SOF and other legal documents should be drafted properly, Mr Jenkins submitted that the SOF send with the indictment "is considered a draft until it has been agreed to by the defence" and there was never the possibility that the problems described could have possibly caused an appeal or otherwise "derail a prosecution."  Mr Jenkins retained carriage of all cases the Respondent's submissions have referred to as being afflicted by performance issues.

    ·If the Respondent's concerns were so significant that it considered Mr Jenkins "unsuitable" to be Senior Legal Officer, surely more would have been said or done about it.  For example, a PIP was not implemented and no discussions were held about returning to the PO3 Legal Officer role.

    ·"In the absence of actual constructive communication or any form of support there cannot be said to have been any real engagement with me of the kind required and referred to in the [PPM] Directive…"

    ·"The supposed performance issues going to suitability were either of such a low level that they didn't trigger genuine management action and the Department is now seeking to conflate matters to reverse engineer a basis for non-conversion or the Department blindly extended a person 'unsuitable for the position of Senior Legal Officer' eight times."

    ·In circumstances where there has not been any follow up or other action, Mr Jenkins cannot be considered 'unsuitable' as there are no unresolved and documented performance issues.

    ·"…any feedback, redrafting directions or similar that is referred to by the respondent was within the ordinary scope of the indictment drafting and Crown prosecutor review process." 

    [30] Appellant's reply submissions filed 14 August 2025, [2]-[13].

12. Mr Jenkins asserted there was also a non-work factor that Ms Grasso was aware of, that the Department should have considered.  He asserted that "…errors also occurred within a particular timeframe which has now ended, namely a period of time when my daughter was having difficulty sleeping," between the ages of 6 to 9 months old (being the period in which the Respondent stated the performance issues occurred).[31]  Mr Jenkins submitted Ms Grasso was "seemingly understanding" of his caring responsibilities and provided him with a sleep training guide that she found helpful for her child (via email on 27 February 2025).[32]  Mr Jenkins submitted that his daughter is now almost a year old "and sleeping much better which has in turn allowed me to have improved concentration."  The non-work related factor has now resolved. 

    [31] Respondent's submissions filed 7 August 2025, [44].

    [32] Appellant's submissions filed 14 August 2025, Attachment DJ-1.

13. Further, Mr Jenkins' suggested he has difficulty in proof reading but has explored ways to ameliorate this (such as the read aloud function on Microsoft word).  Ms Grasso told him that his work quality improved, after using this function.

14. Mr Jenkins provided documentary evidence of positive feedback received from Ms Grasso about his work, in the two matters of Hatton (25 March 2025)[33] and Morris-Wilson (28 March 2025)[34].  Mr Jenkins stated that:

    During my period of employment with the Department on a conservative estimate I would have directly drafted documents or had input on about 200 matters.  The respondent has identified six emails which are sought to be an accurate reflection and assessment of my suitability while ignoring the overwhelming majority of my work output.

    [33] Ibid Attachment DJ-2.

    [34] Ibid.

15. With respect to Hood, Mr Jenkins submitted that:[35]

    …I was continually extended in a higher duties role without proper notice and engagement about supposed performance issues affecting suitability in a similar way to what occurred in Hood.  Here the Department seeks to rely upon six emails as management action but what is absent is any real engagement in conversation or discussion with me about supposed issues or follow up to track the supposed strong need for improvement.  How was I to know that the emails by just one Crown Prosecutor, Ms Grasso, went above and beyond the usual feedback process of the review of an indictment and related material.  In Hood there was at least the existence of a recruitment process to alert that appellant that all may not have been what it seemed insofar as his prospects of conversion were concerned.  I had no reason to suspect that if there were suitability issues that they hadn't resolved.

    [35] Appellant's reply submissions filed 14 August 2025, [14].

16. With respect to the earlier matter considered by the Department at the time of the 12 month review, Mr Jenkins noted the Delegate had not referred to it and it was not relevant to the current appeal.

17. With respect to the Dvorkin matter, Mr Jenkins stated that:[36]

    ·His initial email to Ms Grasso was not a final position, it was intended only to advise her that a submission had been received and to indicate his "first thoughts."

    ·His subsequent email to Ms Grasso noted that Mr Jenkins would "consider the submission properly before giving a further and considered recommendation."  Mr Jenkins asserted that he did not ignore the Charter of Victims' Rights.

    ·Since the initial email, Mr Jenkins has provided numerous detailed written advice.  On 2 July 2025, Mr Jenkins recommended to the current signing Crown prosecutor that the submission not be accepted.[37]

    ·Mr Jenkins remains the allocated case lawyer and "it is difficult to see how [he] would remain" as such "and there be no further discussion whatever with the Department in a matter where I am said to have blatantly ignored the Charter of Victims' Rights if that was a genuinely held position by the Department."

    [36] Ibid [19]-[22].

    [37] Appellant's submissions filed 14 August 2025, Attachment DJ-3.

18. With respect to the Stewart matter, Mr Jenkins submitted that:[38]

    ·Errors were made in the context of a heavy workload and demanding pressures, as the indictment deadline was fast approaching and there was a significant amount of discussion about the facts.

    ·He acknowledged the error and retained carriage of the matter, which was finalised by way of sentence on 19 May 2025.

    ·If the errors were so significant or there were unresolved issues, surely Mr Jenkins would not have retained carriage of the matter or there would have been some follow up discussion.

    [38] Appellant's reply submissions filed 14 August 2025, [23]-[26].

19. With respect to the Usher matter, Mr Jenkins submitted that:[39]

    ·He retained carriage of this matter, listed for sentence on 12 September 2025.

    ·There was extensive discussions about this matter.  "There was not an overt intention to disregard the directions of Ms Grasso but rather pressure to complete the required work…in a timely manner within a context of reduced sleep."

    ·There was no follow up or any other ongoing discussion about the supposed lack of attention to detail that led Mr Jenkins to believe the matter was unresolved.

    [39] Appellant's reply submissions filed 14 August 2025, [27]-[30].

20. With respect to the Hindle matter, Mr Jenkins submitted that:[40]

    ·He retained carriage of this matter.  The defendant was arraigned on a 17-count indictment on 5 August 2025, he pled guilty to all but 5 counts.

    ·He did not intend to disregard Ms Kelso's direction, but rather was working hard to complete a complex matter task "in a timely way with competing priorities and obligations."

·There was no follow up or any other ongoing discussion about the supposed lack of attention to detail that led Mr Jenkins to believe the matter was unresolved.

[40] Ibid [31]-[34].

1. With respect to the Hajiyasemi matter, Mr Jenkins submitted that:[41]

   ·He retained carriage of this matter, listed for sentence on 5 September 2025.

   ·The summary of evidence document referred to by the Respondent is an internal use reference document, prepared "to quantify the amount of sales the defendant had carried out." 

   ·This practice was performed by Mr Jenkins, and praised by Ms Grasso, on several other occasions;[42]

   ·Mr Jenkins prepared documents for Ms Grasso's consideration "as part of the…Crown prosecutor review process."

   ·There was no follow up or any other ongoing discussion about the supposed lack of attention to detail that led Mr Jenkins to believe the matter was unresolved.

   [41] Ibid [35]-[38].

   [42] Appellant's submissions filed 14 August 2025, Attachment DJ-4.

   'Suitability' Consideration

2. Pursuant to cl 10.1(c) of the Directive, Mr Jenkins will be considered "suitable" if he:

   …is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.

3. As earlier noted, although the PSC documents are not binding on decision makers (unlike the provisions of the PS Act and Directive) there are two resources that outline some useful considerations with respect to the suitability requirement. 

4. The PSC's FAQ document stated:

   However, at the very least, specific performance concerns need to have been raised in writing with the employee and they need to have had an opportunity to address the concerns. Where a structured process to manage unacceptable work performance has been commenced (such as a formal performance improvement plan), the decision maker must be satisfied that the process has been managed in accordance with the requirements of the directive relating to positive performance management.

5. The PSC's Checklist document encouraged consideration of the following questions:

   3.3     Is the employee currently the subject of a formal and unresolved performance improvement or discipline process?

   3.4     Is the employee currently the subject of any unresolved conduct or performance concerns?

   3.5     Have the unresolved conduct or performance concerns been raised with the employee in writing and, where relevant, managed in accordance with a relevant directive*?

   *for example, the directive relating to positive performance management or discipline.

   …

   As the unresolved conduct or performance concerns have not been raised in writing and, where relevant, managed in accordance with a relevant directive, the decision maker cannot rely on the requirement to be suitable to perform the role to refuse conversion for the employee.

1. In this case, the Delegate's conversion decision was made after 5 June 2025, pursuant to s 115(2)(a), (11) of the PS Act.

2. With respect to Mr Jenkins' work performance, the Respondent submitted that:

   ·a key responsibility of the role of Senior Legal Officer involved "preparing complex matters referred to prosecution (including appeal submissions) in a professional and timely manner." 

   ·Mr Jenkins work performance was deficient because:

   o   He did not seek or consider the complainant's views before providing a recommendation to Ms Grasso, contrary to the Charter of Victims' Rights, in the Dvorkin matter.

   o   His work lacked attention to detail and he failed to follow directions, in the Stewart, Usher, Hindle and Hajiyasemi matters.

   ·"a litany of performance issues" were advised to Mr Jenkins "in writing," in the period "between February and May 2025."  Email exchanges between Mr Jenkins and Ms Grasso were provided to demonstrate her directions and advice.

   ·"These ongoing performance issues were in the lead up to the decision to review [Mr Jenkins'] status as a temporary employee."[43] 

   ·While the Delegate referred to four work performance concerns, only three were pressed in the Respondent's submissions: "Flawed recommendations on charges in indictments;" "Poor work quality requiring significant redrafting;" and "Failure to follow directions given by the Senior Crown Prosecutor."

   [43] Respondent's submissions filed 7 August 2025, [44].

3. Relevantly, the Delegate was required to make the conversion decision in the 'required period',[44] after 5 June 2025.  Clause 10.1(c) of the Directive provides that "suitable" is a state where the employee (emphasis added) "is not subject to" any unresolved, documented performance matters that have been put to them in writing.  That is, the relevant inquiry is what is currently the case, at the time the Delegate is required to make the decision.  That "current" emphasis is supported in the PSC guidance resources.  Importantly, the words contained in the Directive do not refer to what may have been the case in the past - the Directive does not say (emphasis added) "was not subject to."

   [44] Public Sector 2022 (Qld) s 115(2)(a), (11)(b).

4. Having established then that the relevant period of inquiry fell after 5 June 2025, the question is whether or not Mr Jenkins was then currently subject to any unresolved, documented performance matters, put to him in writing? 

   Dvorkin matter

5. The Respondent's submissions attached an email exchange between Ms Grasso and Mr Jenkins on 13 February 2025, regarding an email from Dvorkin's legal representative that day.

6. Dvorkin's legal representative's email to Mr Jenkins suggested:

   ·what Dvorkin may plead;

   ·that he "not yet enter a plea but rather inform the court on Monday" that the matter be adjourned to enable time for negotiations with the DPP;

   ·"if those negotiations are unsuccessful, then the matter can be set down for trial;" and

   ·"Can you please advise whether you consent to this adjournment? And if so, how long you would require to respond to the representations."

7. Fifteen minutes later, Mr Jenkins emailed Ms Grasso stating, "My view is that we would accept this and could ask to have it listed on Monday."  It appears to me that Mr Jenkins' brief email answered the direct question posed by Dvorkin's legal representative at the end.  That is, Mr Jenkins suggested that the DPP consent to an adjournment and request that of the court on Monday.  That was to enable time for negotiations to occur, with the proviso that if those negotiations were unsuccessful, the case would go to trial in the normal course.

8. It appears to me that Mr Jenkins' message was not interpreted by Ms Grasso, as intended.  Twenty-four minutes later, Ms Grasso emailed Mr Jenkins reacting to Dvorkin's plea proposal - though not mentioning whether she agreed to an adjournment to enable some negotiations to first take place, before the matter was potentially set down for trial.

9. Mr Jenkins' reply to Ms Grasso attempted to assure her that his brief email was not "the recommendation."  Mr Jenkins' reply submissions stated that the email was only his "first thoughts" and asserted he did not ignore the Charter of Victims' Rights.

10. I believe the email exchange between Mr Jenkins and Ms Grasso was a communication breakdown because he was responding to the direct question at the end of Dvorkin's legal representative's email and Ms Grasso was responding to the plea proposal.  In my view, that was part of the proposed negotiations with the DPP that would ensure, if the court consented to the adjournment request.  Mr Jenkins' failure was that he did not immediately clarify "what" his expressed view was in relation to, and left Ms Grasso to labour under a false impression. 

11. As earlier noted, the relevant period of inquiry is after 5 June 2025 (the two-year anniversary date).  That is when the Delegate was required to make the conversion decision, based on the "current" situation, including "suitability" measure.  Mr Jenkins' submitted that he recommended to the current signing Crown prosecutor that the submission not be accepted on 2 July 2025 (within the 'required period'), noting that recommendation was endorsed.  By the time the Delegate's decision was required to be made, there was no current "unresolved" issue and Mr Jenkins' recommendation had been accepted by the signing Crown prosecutor. 

12. In fact, there is no evidence before the Commission of any criticism of Mr Jenkins' work by Ms Grasso with respect to the Dvorkin case after 13 February 2025.  So consideration must be given to whether Ms Grasso's email to Mr Jenkins on 13 February 2025 constituted "documented…performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive…"  The Respondent does not assert there was a "formal" process to manage the alleged performance concern.  Neither does Ms Grasso's email comply with the requirements of the PPM Directive for managing unacceptable work performance.  Ms Grasso's one-off email is simply the communication of her different view on the Dvorkin matter, in circumstances where there was poor communication between the pair - a case of "crossed wires" with Mr Jenkins.  It was not "management action" taken to "support and correct situations of…unsatisfactory work performance." 

13. I cannot discern from Ms Grasso's email, or the Respondent's submissions, that Mr Jenkins has been afforded the natural justice protections of the PPM Directive because:

    ·There is no material before the Commission that the performance and development agreement process was commenced when Mr Jenkins started in the role, including the provision of a "clear statement of their work performance expectations."[45]  The template Senior Legal Officer role does not fulfil that requirement.

    ·To the extent that Ms Grasso's email could be taken to be "prompt…feedback on work performance," there is no subsequent use of "performance and development agreements, with regular reviews that promote constructive communication, reflect the [PPM] principles, and assist the employee to meet and exceed work performance expectations."[46] 

    ·Nor is there material before the Commission to show Ms Grasso had taken "proactive and supportive steps…directed towards the [PPM] principles…to assist the employee to improve in the identified areas."[47] 

    ·Nor was Mr Jenkins given any document that set out "any gaps between actual and expected work performance" and provision of "reasonable time for the employee to self-correct."[48]  (I note that the requirement to provide "structured feedback, and is afforded reasonable timeframes to respond to the feedback" are provided for in circumstances where an employee may not otherwise pass probation and before initiation of a PIP).[49] 

    ·There is no evidence that Ms Grasso "undertook constructive engagement with [Mr Jenkins] to identify development and training opportunities, to improve work performance…"[50] either.

    ·There is a requirement to "account for…non-work-related factors that may be affecting [Mr Jenkins'] performance…[including] supports and strategies"[51] that may be put in place to assist.  While Mr Jenkins noted that Ms Grasso emailed him on 27 February 2025 with some infant sleep strategies that she had utilised, there was no further follow up or appearance of accounting for that non-work-factor that has since resolved.

    ·The only document before the Commission is the email of 13 February 2025, in which Ms Grasso expressed disagreement with Mr Jenkins.  The PSC resources express that "at the very least, specific performance concerns need to have been raised in writing with the employee and the need to have an opportunity to address the concerns", and "where relevant, managed in accordance with a relevant directive" - if that does not occur, the PSC resource is clear that "the decision maker cannot rely on the requirement to be suitable to perform the role to refuse conversion for the employee."[52]  The Respondent has not met that threshold with respect to its complaints about Mr Jenkins' performance on the Dvorkin matter.

    [45] Directive 02/24: Positive performance management cl 9.6.

    [46] Ibid cl 9.8.

    [47] Ibid cl 9.9.

    [48] Ibid cl 9.1.

    [49] Ibid cl 9.11.

    [50] Ibid cl 9.1.

    [51] Ibid cl 9.10.

    [52] At [52] of this Decision.

14. Further, Mr Jenkins remained the allocated case lawyer on the Dvorkin matter, I accept his conclusion that would be unlikely if he was believed to have "blatantly ignored the Charter of Victims' Rights."

15. Finally, Mr Jenkins' temporary contract was extended about two weeks after the email exchange with Ms Grasso on 13 February 2025 - and would be extended a further three times after that.  That clearly indicates that if there were any performance concerns, they were by the time of the contract extension considered "resolved."

[100]For the foregoing reasons, I do not consider it was fair and reasonable for the Delegate to refuse conversion to permanency on the grounds of "Flawed recommendations on charges in indictments," in reliance on the Dvorkin matter example.

Stewart matter

[101]The Respondent's submissions attached an email exchange between Ms Grasso and Mr Jenkins between 18 February and 25 February 2025, that centred on the Statement of Facts for that case.  Also attached were emails about the case in the period from 24 October 2024 to 18 February 2025, together with the Statement of Facts.

[102]The Respondent submitted Ms Grasso gave Mr Jenkins detailed instructions regarding required amendments to the Statement of Facts, that he did not action as directed.  Ms Grasso brought his error to Mr Jenkins' attention on 18 February 2025, at which time he acknowledged his mistake.  Mr Jenkins made further changes to the Statement of Facts and again provided it to Ms Grasso on 24 February 2025.  She remained unsatisfied with the document and made further changes herself.

[103]The Respondent argued this demonstrated Mr Jenkins' lack of attention to detail and failure to follow directions.

[104]Mr Jenkins submitted that he readily accepted he made errors, in the context of a heavy workload and demanding pressures, as the indictment deadline was fast approaching and there was a significant amount of discussion about the facts.  Mr Jenkins' email to Ms Grasso, in response to her written criticism of the standard of work he completed, was sent on 19 February 2025 at 7:03 am.  Mr Jenkins wrote:

Sorry I should have made those changes - I let things get on top of me and didn't have time to make the changes before the PRIN which was close to the 6-month deadline.  I anticipated more discussions with defence, so the draft sent was not thought of as the final settled facts.

I will ensure this doesn't occur again.

[105]Further, I note that Mr Jenkins' contract was extended on 1 March 2025.  That was very shortly after:

·Ms Grasso raised the work performance matter (18 February 2025 email);

·Mr Jenkins replied to acknowledge his error and apologise (19 February 2025 email);

·Ms Grasso emailed Mr Jenkins further instructions on the Stewart matter, also attaching an amended Statement of Facts (25 February 2025 email); and

·Ms Grasso provided the baby sleep plan information (27 February 2025).

[106]It is clear that Mr Jenkins was struggling with focus and concentration in the period around February 2025, due to not getting sufficient sleep as a result of his caring responsibilities for his baby daughter.  Mr Jenkins' submitted that issue has now passed - as his daughter is older and sleeping much better.  Mr Jenkins also provided evidence of an email received from Ms Grasso very shortly afterwards (on 27 February 2025) attaching a sleep plan that she had used to good effect with her own baby.  That is a relevant non-work-related factor that Ms Grasso was aware of, and it appears that she took account of it when determining how to manage Mr Jenkins' performance in the context of PPM principles. 

[107]Specifically, cls 9.9 to 9.10 of the PPM Directive provides that:

9.9     Where areas of work performance arise that require improvement, proactive and supportive steps that are reasonable in the circumstances and directed towards the positive performance management principles should be taken to assist the employee to improve in the identified areas.

9.10    These steps must account for work-related factors and non-work-related factors that may be affecting the employee's performance, and where appropriate, supports and strategies should be put in place to further assist the employee.

[108]In the Stewart matter, it appears to me that Ms Grasso was satisfied that the work performance matter was "resolved" because she took no further action on it.  If Ms Grasso was not so satisfied the work performance concern was resolved, she would be expected to have proceeded to manage Mr Jenkins, in accordance with the PPM Directive for circumstances "where unacceptable work performance issues persist."

[109]In my view, the work performance concerns at that time were "resolved" and do not now impact Mr Jenkins' assessment of "suitability" because:

·Mr Jenkins' contract was extended on 1 March 2025 - and was again extended three times thereafter;

·Ms Grasso took no further remedial action with respect to the matter;

·Mr Jenkins retained carriage of the matter;

·The time period in which the work performance issue occurred was around February 2025.  That is not "current" to the "required period" after 5 June 2025, when the Delegate made the conversion decision;

·Ms Grasso was aware a non-work factor was impacting Mr Jenkins' sleep, concentration and focus - and provided a resource to him to assist on 27 February 2025.  Mr Jenkins submitted the particular circumstances have now resolved (his daughter is now older and sleeping better);

·The Respondent's specific concern was with Mr Jenkins' failure to prepare the Statement of Facts properly and in accordance with Ms Grasso's instructions.  Before the Commission are two emails from Ms Grasso to Mr Jenkins (dated 25 March 2025 and 28 March 2025), in which she complements Mr Jenkins on his work on the Statement of Facts for two cases.  That further evinces that the work performance issue had been resolved by mid-April 2025 at least, and thus had no impact on the assessment of "suitability" at the time of the conversion decision.

[110]For the foregoing reasons, I do not consider it was fair and reasonable for the Delegate to refuse conversion to permanency on the grounds of "lack of attention to detail" and "failure to follow directions," in reliance on the Stewart example submitted.

Usher matter

[111]The Respondent's submissions attached an email exchange between Ms Grasso and Mr Jenkins, in the period from 22 January and 13 March 2025.

[112]The Respondent submitted that Ms Grasso gave Mr Jenkins detailed written instructions as to the preparation of the Statement of Facts on 22 January 2025.  In that email, Ms Grasso reminded Mr Jenkins to proofread the document, once completed - and to provide it to her when amended.

[113]Mr Jenkins did not make the changes as instructed by Ms Grasso, nor provide the document to her.  On 24 February 2025, Ms Grasso emailed Mr Jenkins to ask "why/how that's happened". 

[114]The Respondent submitted that Mr Jenkins did not provide an explanation to Ms Grasso, though did make changes to the Statement of Facts on 7 March 2025 and provide it to her.  That email was attached to the Respondent's submissions.

[115]Interestingly, Ms Grasso's email reply almost a week thereafter does not again refer to her request of 24 February 2025 for Mr Jenkins to explain "why/how that's happened" - and indeed neither Mr Jenkins or the Respondent submitted there was any other verbal discussions about it that may account for either the lack of explanation by Mr Jenkins, or the lack of follow up by Ms Grasso. 

[116]Nonetheless, the documentary evidence makes clear that the pair appeared to have moved on from the work performance issue that was identified by Ms Grasso on 24 February 2025. 

[117]My reasoning with respect to the Stewart matter above are also apposite here.

[118]In my view, the work performance concerns raised by Ms Grasso on 24 February 2025 were "resolved" and do not now impact Mr Jenkins' assessment of "suitability" because:

·Mr Jenkins' contract was extended on 1 March 2025 - and was again extended three times thereafter;

·Ms Grasso took no further remedial action with respect to the matter;

·Mr Jenkins retained carriage of the matter;

·The time period in which the work performance issue occurred was around February 2025.  That is not "current" to the "required period" after 5 June 2025, when the Delegate made the conversion decision;

·Ms Grasso was aware a non-work factor was impacting Mr Jenkins' sleep, concentration and focus - and provided a resource to him to assist on 27 February 2025.  Mr Jenkins submitted the particular circumstances have now resolved (his daughter is now older and sleeping better);

·The Respondent's specific concern was with Mr Jenkins' failure to prepare the Statement of Facts properly and in accordance with Ms Grasso's instructions.  Before the Commission are two emails from Ms Grasso to Mr Jenkins (dated 25 March 2025 and 28 March 2025), in which she complements Mr Jenkins on his work on the Statement of Facts for two cases.  That further evinces that the work performance issue had been resolved by mid-April 2025 at least, and thus had no impact on the assessment of "suitability" at the time of the conversion decision.

[119]For the foregoing reasons, I do not consider it was fair and reasonable for the Delegate to refuse conversion to permanency on the grounds of "lack of attention to detail" and "failure to follow directions," in reliance on the Usher example submitted.

Hindle matter

[120]The Respondent's submissions attached an email exchange between Ms Grasso and Mr Jenkins between 23 March and 15 April 2025. 

[121]The Respondent characterised the work performance concern as Mr Jenkins' "failure to follow directions."  The Respondent submitted that the work performance concern raised with Mr Jenkins at this time was about his failure to retain Ms Kelso's feedback on the indictment, the marked-up copy of the SOF and some correspondence on the file - and that he had not made the changes as requested by Ms Kelso either.

[122]The documentary evidence before the Commission of the email exchange between Mr Jenkins and Ms Grasso does not reveal any attempt by Mr Jenkins to hide the fact of Ms Kelso's input.  It is clear that Mr Jenkins' email to Ms Grasso dated 26 March 2025 attached those documents and brought their existence to her notice in the body of the email as well.  Although Mr Jenkins did not file the documents authored by Ms Kelso in the correct place, he had demonstrably retained them for further and future reference.

[123]More than two weeks then elapsed before Ms Grasso sent the next email to Mr Jenkins about the Hindle matter, in which she asked him to "…please make sure Liz's email, marked copy of the SOF, and the corro are put on Tab 4?"  The words and tone of Ms Grasso's email are not consistent with her allegedly raising a work performance issue with a subordinate - I understand why Mr Jenkins would not have considered himself on notice that there was any issue of concern.  It appeared to me to be simply a 'reminder' to attend to the filing process.  Managers give such work direction and guidance routinely to colleagues all the time, in the usual course of 'managing' them - Ms Grasso's comment does not reach the threshold of a work performance concern, and certainly not one of the level that would cause Mr Jenkins to be found "unsuitable" for the role he occupied.  In any case, Ms Grasso's email to Mr Jenkins was sent on 14 April 2025 at 4:06 pm.  At the start of the following day (15 April 2025, 8:52 am), Mr Jenkins' email to Ms Grasso reported that he had done as she directed.  I do not accept that this was an example of raising a work performance matter with Mr Jenkins.  Though even if it were, the filing process matter was "resolved" at the point it was raised with Mr Jenkins and he simply actioned it, as reminded, at the start of the next working day.

[124]The Respondent further submitted that Mr Jenkins "failed to follow directions" because he had not made the original changes requested by Ms Kelso.  Mr Jenkins submitted that his oversight was caused by workload and work pressure, and denied it was caused by any "deliberate choice to not follow the direction of a senior colleague."  Relevantly, when Ms Grasso drew the task to Mr Jenkins' attention and asked him to fix "some typos and a couple of questions that need answering in the facts document" and to "double-check" it was the latest version of the document (email sent 14 April 2025 at 4:06 pm), Mr Jenkins was able to report to her that he had now "cleaned up the facts and clarified some points but will make further changes subject to your final view of the submission" by reply email on 15 April 2025 at 8:52 am.  An hour later, Ms Grasso responded with thanks, complementing Mr Jenkins for helpfully pointing out a correlation between two counts in the case, and asking supplementary questions about available evidence.  Neither the Respondent, nor Mr Jenkins, contended there was any further follow up by Ms Grasso required with respect to the amended Statement of Facts.  Once again, it appeared to me that Ms Grasso simply issued some guidance on work direction to Mr Jenkins, of the sort that it is usual for managers to do so.  Ms Grasso's comment does not reach the threshold of a work performance concern, and certainly not one of the level that would cause Mr Jenkins to be found "unsuitable" for the role he occupied. 

[125]Once again, my reasoning with respect to the Stewart and Usher matters above are apposite here.

[126]While it is dubious that the work direction provided by Ms Grasso on 14 April 2025 could be characterised as raising a work performance concern, in my view the matter was certainly "resolved" on 15 April 2025 when Ms Grasso emailed Mr Jenkins to thank him and complement his "helpful" correlation between the two counts.  Ms Grasso's email guidance should not have impacted the Delegate's assessment of Mr Jenkins' "suitability" for conversion to permanency because:

·Mr Jenkins' contract was extended just a few days prior, on 12 April 2025 and was extended once again 6 weeks later.  It was then extended again after that.  Presumably, Mr Jenkins' contract would not have been extended in April, and then again subsequently, if his work were beleaguered with such persistent performance concerns as to render him "unsuitable;"

·Ms Grasso took no further remedial action with respect to the matter.  That demonstrated that she considered it "resolved"- it would otherwise be incumbent upon her to continue to 'manage' Mr Jenkins, in accordance with the PPM principles;

·Mr Jenkins retained carriage of the matter;

·The time period in which the issue arose was between 23 March to 15 April 2025.  That is not "current" to the "required period" after 5 June 2025, when the Delegate made the conversion decision;

·Ms Grasso was aware of a non-work factor that was impacting Mr Jenkins' sleep, concentration and focus - and provided a resource to him to assist on 27 February 2025.  Mr Jenkins submitted the particular circumstances have now resolved (his daughter is now older and sleeping better);

·The Respondent's specific concern was with Mr Jenkins' "failure to follow direction," with respect to the preparation of the Statement of Facts in accordance with Ms Kelso's earlier instructions.  Before the Commission are two emails from Ms Grasso to Mr Jenkins (dated 25 March 2025 and 28 March 2025), in which she complements Mr Jenkins on his work on the Statement of Facts for two cases.  That further evinces that the particular issue had been resolved by mid-April 2025 at least, and thus had no impact on the assessment of "suitability" at the time of the conversion decision.

[127]For the foregoing reasons, I do not consider it was fair and reasonable for the Delegate to refuse conversion to permanency on the grounds of "failure to follow directions," in reliance on the Hindle example submitted.

Hajiyasemi matter

[128]The Respondent's submissions attached an email exchange between Ms Grasso and Mr Jenkins between 11 April and 2 May 2025. 

[129]The Respondent characterised the work performance concern as Mr Jenkins' "lack of attention to detail" and "failure to follow directions." 

[130]Mr Jenkins emailed Ms Grasso a summary of evidence document on 11 April 2025.  The Respondent submitted it was returned to him for amendment and that there were still problems with it when Mr Jenkins provided Ms Grasso with a revised document again on 22 April 2025. 

[131]The Respondent submitted that, despite Ms Grasso's detailed written and verbal feedback, she could see that Mr Jenkins' draft SOF template had been populated with "copied and pasted…evidence from the police form complete with errors."  The Respondent's stated that "Ms Grasso reviewed the evidence and found the summary to be poor and inaccurate.  Ms Grasso asked him to correct it and it was still poorly put together when [Mr Jenkins] returned it to her."

[132]Ms Grasso's email dated 2 May 2025 stated that:

·The document required further work.

·She had itemised all changes that were required in her email "so you can revert back to it because my last day is Wednesday."

·She had only three working days remaining;

·She and Mr Jenkins had had "a long chat about this one two weeks ago, and you got the file back to me the next business day.  I'm worried that you rushed it.  Can you please have another go at it based on what we spoke about."  (That would be reference to the amended document provided by Mr Jenkins on 22 April 2025).

·"I can see you had a go at it, but there is still heaps missing including the entire section about the supplies…the table is still very brief…and has a number of errors…"

[133]Mr Jenkins replied by submitting that:[53]

[53] Appellant's reply submissions filed 14 August 2025, [35]-[38].

·The summary of evidence document referred to by the Respondent is an internal use reference document - not provided externally.  The 'copy and paste' exercise was done in order "to quantify the amount of sales the defendant had carried out." 

·This practice was performed on several other occasions and had received positive feedback from Ms Grasso, including her comment (on Hatton matter table, email dated 26 March 2025) that: "Thank you for doing that table - that meant I could review this file very quickly and get a good grasp of our case in a easily-digestible way."[54]

[54] Appellant's submissions filed 14 August 2025, Attachment DJ-4.

·Mr Jenkins prepared documents for Ms Grasso's consideration "as part of the ordinary scope of the indictment drafting and Crown prosecutor review process."

[134]Essentially, Ms Grasso's email dated 2 May 2025 advised Mr Jenkins that the document drafted required more work - and she set out specifically what he was required to do (emphasis added) "because [Ms Grasso's] last day is Wednesday".  The email was an aide memoire for Mr Jenkins, as she would not be at work to have further conversations with him about the task.  I do not believe that Ms Grasso took the step of placing the required amendments in writing because she was putting Mr Jenkins on notice that there were concerns with his work performance.  It was simply a matter of convenience to put it all in writing, as she would not be available to have further discussions about the case.

[135]It appeared to me that if Mr Jenkins indeed "rushed" the amendment of the document, in order to return it to Ms Grasso the following day, he may have done so considerate of the need for timeliness given her impending leave. 

[136]It is also clear that Ms Grasso acknowledged Mr Jenkins "had a go at it," and he in turn acknowledged that his supervisor's comments would be received as part of the review process.  As earlier observed, the provision of guidance and work direction to subordinate employees is part and parcel of 'managing' them.

[137]I also accept Mr Jenkins' explanation that the document he was working on was an "internal use" reference document, not dissimilar to the type of document Ms Grasso had complemented him on about a month earlier (i.e. Hatton table, 26 March 2025).

[138]Relevantly too, Mr Jenkins submitted that "there was a complete absence of follow up or any other on-going discussion such that I would consider the supposed issue unresolved."  The Respondent does not suggest that there was further discussion with Mr Jenkins about the Hajiyasemi matter, that may presumably have been conducted by Ms Grasso's replacement.  Neither are there any further emails before the Commission evidencing that Mr Jenkins did anything other than proceed to complete the task as Ms Grasso had directed.  The only indicator before me as to whether the matter was considered to be "unresolved" or not was the extension of Mr Jenkins' contract about three weeks after Ms Grasso's 2 May 2025 email was sent.  An offer to further extend Mr Jenkins in the role is a persuasive indicator that he remained suitable to perform it, and he also retained carriage of the Hajiyasemi matter.

[139]Therefore, I conclude that even if the Respondent's position were to be accepted that there was a work performance concern here - there is no evidence before me that it was "unresolved" more than a month later, at the current time when the Delegate made the conversion decision.  Ms Grasso's email dated 2 May 2025, and Mr Jenkins' apparent attendance to the performance of the task as required, seemed to me to be the end of the matter.

[140]For the foregoing reasons, I do not consider it was fair and reasonable for the Delegate to refuse conversion to permanency on the grounds of "failure to follow directions," in reliance on the Hajiyasemi example submitted.

Other matters - Second appeal ground

[141]With respect to the second ground of appeal, "Incorrect / flawed reasoning," Mr Jenkins submitted that his current signing Prosecutor had limited time to "form a considered view" of his performance.  Mr Jenkins submitted that if the view of his performance "was based on a different Crown Prosecutor feedback a core feature of the conversion decision is wrong."[55] 

[55] Appeal Notice filed 21 July 2025, Schedule A, [15].

[142]I am unsure what to make of those submissions.  I suspect the Respondent was also unclear on the point Mr Jenkins was trying to make, as they do not address it in their submissions. 

[143]While ultimately the suitability assessment determination is a matter for the Delegate (Mr Nathan Crane, Deputy Director of Public Prosecutions), I note that the documents attached to the Respondent's submissions, in support of its contention that Mr Jenkins had "unresolved" work performance issues, were between he and Ms Grasso. 

[144]I do not see how that second appeal ground advances Mr Jenkins' position.

Other matters - Commission's decision in Hood

[145]The Respondent argued Hood was not analogous to the current matter because Industrial Commissioner Knight held that there was no material before the Commission "that indicate performance concerns were raised."  The Respondent stated the situation in Hood differed from the present case because there was here documentary evidence of the email exchanges between Mr Jenkins and Ms Grasso, that demonstrated performance issues had been raised with him on several occasions.

[146]Mr Jenkins asserted the relevance of Hood was that his contract was continually extended:

…without proper notice and engagement about supposed performance issues affecting suitability in a similar way to what occurred in Hood.  Here the Department seeks to rely upon six emails as management action but what is absent is any real engagement in conversation or discussion with me about supposed issues or follow up to track the supposed strong need for improvement.  How was I to know that the emails by just one Crown prosecutor, Ms Grasso, went above and beyond the usual feedback process of the review of an indictment and related material…I had no reason to suspect that if there were suitability issues that they hadn't resolved.[56] 

[56] Appellant's submissions filed 14 August 2025, [14].

[147]Mr Jenkins also observed that the Respondent "has identified six emails" alleged to be "an accurate reflection and assessment of my suitability while ignoring the overwhelming majority of my work output."  Mr Jenkins submitted that was not a fair or "complete picture" of his "overall work performance…over the entire period of [his] employment… not rising to a level that would affect suitability…preventing conversion".  As Mr Jenkins elaborated: "During [his] period of employment with the Department on a conservative estimate I would have directly drafted documents or had input on about 200 matters…"[57]

[57] Appellant's submissions filed 14 August 2025, [13].

[148]As earlier observed, my view is that the emails produced by the Respondent reflected guidance and work direction to be expected in the usual course of 'managing' employees.  The fact of email exchanges with Ms Grasso about document drafts for the case examples provided are not evidence that performance issues were "put to the employee in writing," managed and remained "unresolved" as at the time the Delegate made the decision to refuse conversion, on "suitability" grounds. 

[149]The Commission's decision in Hood is instructive on the matter of decision timing too.  In determining that the suitability assessment was required to be made in the "required period" (after the two year anniversary date, 5 June 2025), I have rejected the Respondent's argument about the "litany of performance issues" it alleged occurred between February and May 2025.  For the foregoing reasons, I have concluded there were no "unresolved" matters as at 5 June 2025.  I have followed Industrial Commissioner Knight's approach in Hood, where she explained:

…the use of the present tense "has" in the merit criteria set out in the PS Act…indicates the decision maker is required to consider, as at the time of making the decision, whether the person presently meets the merit principle.[58]

[58] Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106, [30].

'Suitability' Finding

[150]The Delegate refused to convert Mr Jenkins' employment to permanent because it was decided that he was not "suitable". 

[151]For the above reasons, the Delegate's decision was not fair and reasonable. 

[152]I will set aside the Delegate's decision. 

[153]Instead, I find that Mr Jenkins was 'suitable' for permanent conversion to the Senior Legal Officer (PO4) role he held, at the time the review took place.[59] 

[59] Correspondence from Mr Nathan Crane, Deputy Director of Public Prosecutions to Mr David Jenkins dated 4 July 2025.

Failure to comply with all mandatory elements of refusal notice

[154]I cannot accept the Respondent's submission that it has complied with the "process for conversion and decisions made around conversion" as set out in the PS Act and Directive.  In light of that submission, some observations about the Respondent's inattention to the mandatory requirements for decisions are necessary in my view.

[155]The Delegate's decision does not address all the matters prescribed in s 115(4) of the PS Act for a notice of a decision not to offer to convert an employee's employment to a permanent basis.

[156]Section 115(4) of the PS Act sets out the mandatory elements of the 'refusal notice' to be given to the employee, in circumstances where a decision is made not to convert their non-permanent employment to a permanent basis:

a)the reasons for the decision; and

b)the total period the employee has been continuously employed on a non-permanent basis in the public sector entity; and

c)how many times the employee's employment on a non-permanent basis has been extended; and

d)each decision previously made, or taken to have been made, under this section or section 114 during the employee's period of continuous employment.

[157]Clause 13 of the Directive sets out the Respondent's obligations when a decision is made to not offer to convert an employee's employment to a permanent basis.  That includes the requirement to include the following matters in the notice given to the employee:

a)Information about any relevant appeal rights;

b)Information about an employee's right to request an additional review under s 116 of the PS Act, in circumstances where the Delegate decided "not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role";

c)Compliance with s 27B of the Acts Interpretation Act 1954 (Qld) (AIA) to:

·       Set out the findings on material questions of fact; and

·       Refer to the evidence or other material on which those findings were based.

[158]In my view, the Respondent has not properly complied with all of the above mandatory elements of the refusal notice.  My reasons follow:

a)Reasons for the decision

The Delegate's decision included some of the decision criteria (s 114(3)(a) of the PS Act) for conversion to permanency.  The Delegate confirmed the "continuing need" element was met - and asserted conversion was refused on suitability grounds.  The Delegate stated there were "unresolved performance concerns with regards to your work performance…which have been raised with you in writing on several occasions…"  Four dot points describing the general concerns were listed.

However, the Delegate's reasons are not compliant with s 27B of the AIA[60] because he has not provided "the evidence or other material on which those findings were based", such as the email exchanges reflecting work guidance provided to Mr Jenkins and/or corrections made to his work, that was later filed as an attachment to the Respondent's submissions. 

[60] Acts Interpretation Act 1954; Directive 02/23: Review of non-permanent employment cl 13.1.

Further, while the Respondent explained the impact of the earlier matters present at the time of the 12 month review, no supporting documentation was provided.  I accept that the Respondent expressed that the earlier matter meant that Mr Jenkins was deemed "unsuitable" at the time of the 12 month review and does not appear to press its relevance to his current suitability as at the mandatory two-year review.  In light of those comments, the relevance in raising the issue at all in submissions, in the context of the current appeal, is unclear.

The Delegate also did not include an extract of the meaning of 'suitable' under the Directive (cl 10) nor state the particular element of that clause by which the Delegate determined to refuse Mr Jenkins' conversion on 'suitability' grounds.  Only in the Respondent's submissions was it expressly stated that the refusal was made under cl 10.1(c) of the Directive.[61]

[61] Respondent's submissions filed 7 August 2025, [8].

b)Total period the employee has been continuously employed on a non-permanent basis in the public sector entity

The Delegate's decision does not contain "the total period the employee has been continuously employed on a non-permanent basis in the public sector entity." That is a required inclusion in the refusal notice, pursuant to s 114(5)(b) of the PS Act. The Respondent's submissions in this appeal showed that Mr Jenkins has been continuously employed on a non-permanent basis in the public sector entity since 5 June 2023.

c)How many times the employee's employment on a non-permanent basis has been extended

The Delegate's decision did not include this mandatory element of the refusal notice.

Mr Jenkins submitted that the current contract is "the eighth extension of my appointment as a Senior Legal Officer."[62]

[62] Appeal Notice filed 21 July 2025, Schedule A, [4].

The table detailing Mr Jenkins work history with the Department, as contained in the Respondent's submissions, shows that he was first appointed as a Legal Officer (PO3) but worked in that role for only 6 months before being elevated to work as an Acting Senior Legal Officer (PO4).  Mr Jenkins has worked in that higher classification role since that time, his contract being extended on 8 occasions subsequent.  The current contract is due to expire on 26 September 2025, at which time Mr Jenkins will have worked continuously with the Department for more than 2 years and 3 months.

d)Each decision previously made, or taken to have been made, under this section or s 114 of the PS Act during the employee's period of continuous employment

The Delegate's decision did not refer to this matter.

e)Information about any relevant appeal rights

The Delegate's decision included information about his appeal right, as an attachment to the correspondence.

f)Information about an employee's right to request an additional review under s 116 of the PS Act, in circumstances where the Delegate decided "not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role"

The Delegate's decision included this information, as an attachment to the correspondence.

[159]In addition to the above, the Delegate's correspondence to Mr Jenkins dated 4 July 2025 does not explain how proper consideration was given to 'Human Rights' when making the conversion decision, pursuant to cl 4.5 of the Directive.  I acknowledge that the Delegate's correspondence contained an attachment, reproducing various provisions.  That attachment concludes with a section titled "Human Rights," though the reference does not include how the Delegate discharged his obligation.  The Public Sector Commission's "Review of Non-Permanent Employment Checklist" document encourages decision makers to comply with their human rights obligations, as follows (emphasis added):

Step seven - human rights assessment Under the Human Rights Act 2019 (HR Act), decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. Where a decision maker decides not to offer to convert a non-permanent employee's employment to a permanent basis, a human rights assessment should be undertaken and documented in accordance with the HR Act. Additional information and guidance can be found at human rights resources.

[160]The Delegate's correspondence does not refer to any consideration of human rights.

[161]The Delegate's omission of some mandatory elements in the decision letter / refusal notice was not fair and reasonable.  The result was that information was withheld from Mr Jenkins that he was entitled to, and fairly required, in order to assess whether to appeal the Delegate's decision and the grounds on which to do so.  While in this case, Mr Jenkins has determined to file an appeal that I will uphold , other employees faced with such scant information may have made a different decision.  The PS Act and Directive specifies a series of mandatory elements, and they must be complied with. 

Conclusion

[162]The Delegate's decision to refuse to convert Mr Jenkins' employment to permanent, on the basis that he was not "suitable", was not fair and reasonable.  I have decided that the conversion of Mr Jenkins' employment to permanent is warranted.

[163]Further, I have noted Mr Jenkins' account of his discussions with Ms Chipp on 7 July 2025 regarding 'operational requirements', following receipt of the Delegate's decision.  The Respondent did not refute that occurred as Mr Jenkins said it did.  I have earlier explained that the particular matter conveyed by Ms Chipp was not a genuine operational requirement.

[164]Finally, I have noted the omission of some mandatory inclusions in the Delegate's correspondence.

Orders

[165]I order accordingly.

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1.       The appeal is allowed;

2.       The decision not to convert Mr Jenkins' employment to permanent is set aside, and another decision is substituted; and

3.       That Mr Jenkins' temporary employment status is converted to permanent full-time employment as Senior Legal Officer (PO4).