Kerr v State of Queensland (Queensland Health)
[2021] QIRC 352
•19 October 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Kerr v State of Queensland (Queensland Health) [2021] QIRC 352 Kerr, Katie v State of Queensland (Queensland Health) |
CASE NO: | PSA/2021/354 |
| PROCEEDING: | Public Service Appeal - Conversion Decision |
| DELIVERED ON: | 19 October 2021 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
OUTCOME: | I am setting the decision aside, providing the decision maker with a copy of these reasons and directing that a fresh review of Ms Kerr's employment be undertaken prior to the conclusion of her current temporary engagement on 31 October 2021. If Ms Kerr's temporary engagement has been extended, I direct that the fresh review be undertaken within 21 days of this decision. |
CATCHWORDS: LEGISLATION: | PUBLIC SERVICE APPEAL - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - where the appellant was reviewed for conversion to permanent employment - whether there was a continuing need for the appellant to be employed in a role that was substantially the same or similar Public Service Act 2008, s 148, s 149, s 149B. Industrial Relations Act 2016, s 562C Directive 09/20 Fixed term temporary employment |
Reasons for Decision
Appeal Details
Ms Katie Kerr is employed by the State of Queensland (Queensland Health) at Metro South Hospital and Health Service (MSHHS) as a fixed term Administration Officer with the Logan Hospital on a part time basis (48 hours per fortnight). Since 29 July 2019 Ms Kerr has undertaken multiple fixed term contracts with the current contract set to cease 31 October 2021.
In a decision dated 9 September 2021 regarding the outcome of a review of Ms Kerr's fixed term temporary employment status, Executive Director Noelle Cridland ("the decision maker") gave the following reasons:
The decision not to permanently appoint you is based on continuing staffing needs at this time Specifically, my reasons are there will not be a continuing need for you to perform your current role as the substantive incumbent is expected to return. The role was made temporary for a specified period to backfill leave entitlements for Administration staff within the Emergency Department. Additionally, there is no permanent vacancy within the Emergency Department at this time.
Ms Kerr's grounds of appeal appear to be based on the lack of consideration given to roles beyond the one she is currently employed in. Ms Kerr acknowledges that she has been employed on a temporary basis to backfill leave entitlements for administration staff, however raises that she has done so on a frequent/regular basis which renders employment on tenure viable or appropriate pursuant to s 148(3) of the Public Service Act 2008 (the PS Act).
Relevant sections of the Act and Directive
In order to determine the appeal, it is necessary to consider the relevant provisions of the PS Act and Directive 09/20 Fixed Term Temporary Employment ("the Directive").
Section 149B of the PS Act relevantly provides
149B Review of status after 2 years continuous employment
(1) This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same Department for 2 years or more.
(2) However, this section does not apply to a non-industrial instrument employee.
(3) The Department's chief executive must decide whether to —
(a)Continue the person's employment according to the terms of the person's existing employment; or
(b)Offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
(4) The Department's chief executive must make the decision within the required person after—
(a)The end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the Department; and
(b)Each 1-year period after the end of the period mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department.
(5) In making the decision —
(a)Section 149A(2) and (3) applies to the Department's chief executive; and
(b)The Department'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 149A in relation to the person during the person's period of continuous employment.
(6) If the Department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating —
(a)The reasons for the decision; and
(b)The total period for which the person has been continuously employed in the Department; and
(c)For a fixed term temporary employee — how many times the person's employment as a fixed term temporary employee or causal employee has been extended; and
(d)Each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
(7) If the Department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.
(7A) For working out how long the person has been continuously employed in the Department —
(a)All periods of authorised leave are to be included; and
(b)The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non-employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out.
The Directive
While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government’s Employment Security Policy.
4.2 Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B.
4.3 Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee.
4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.
4.5 Under the Human Rights Act 2019 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. …
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8. Decision on review of status
8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):
• whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
• the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act
• whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and
• the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.
8.2 Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.
8.3 If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:
(a)the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements).
(b)where the employee is part-time, an explanation of the days and hours of work offered in the decision; and
(c)the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.
8.4 Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
(a)set out the findings on material questions of fact, and
(b) refer to the evidence or other material on which those findings were based.
8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).
8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
Appeal Principles
Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker.
In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
(a) confirm the decision appealed against; or
…
(b) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Consideration of Submissions
Merit and requirements of an industrial instrument
The decision letter provided to Ms Kerr states that she satisfies the merit requirements for the role.
The parties have not identified any requirements of an industrial instrument that need to be considered in making the decision.
Continuing need for Ms Kerr to be employed in the role or a role substantially the same
'The role'
The decision-maker determined that there was not a continuing need for Ms Kerr to be employed in 'the role' as the substantive incumbent is expected to return. Ms Kerr does not appear to take issue with that submission.
'A role substantially the same'
Ms Kerr's submissions surround the determination that there is no continuing need for her to be employed in a role that is 'substantially the same' as there is no permanent vacancy in the Emergency Department. Ms Kerr believes that her work history demonstrates that there is an ongoing requirement for her to perform AO3 duties within the health service. Further, between fixed-term temporary appointments, Ms Kerr reverts to her casual AO3 position within the Relief and On Call Unit, this further indicates there being a continuing need for her to perform as an AO reliever.
Ms Kerr says that since she commenced employment with MSHHS as a casual employee, Relief and On Call Unit, on 29 July 2021, she has completed at least 27 fixed-term temporary engagements, across a range of organisational units with the hospital.[1] Ms Kerr says that the conclusion that her fixed-term temporary status could not be converted to permanent employment status is inconsistent with her historical circumstances.
[1] Applicant submissions filed 11 October 2021, attachment A.
The Respondent characterises Ms Kerr's 27 fixed term temporary engagements since 29 July 2019 as irregular and unpredictable. Further, MSHHS contends that the large number of distinct engagements working different hours per fortnight and backfilling different people demonstrates the short-term nature of each engagement to backfill a temporary or emergent need.
In reply, Ms Kerr says that with the exception of a 27-day period in October/November 2020 and 20 days in April/May 2021 (when she reverted to casual status), she has been continuously engaged without a break in employment.
MSHHS submits that consideration was given to whether, at the time, there was a continuing need to place Ms Kerr in a role and the likelihood of the role being ongoing. MSHHS submits that each of Ms Kerr's fixed term engagements have been to backfill a temporary vacancy of various reasons and timeframes, often in different positions and working different full time equivalencies. MSHHS does not consider these engagements to be regular or predictable in nature.
Despite the decision letter indicating that only vacancies in the Emergency Department were explored, MSHHS submissions of 6 October 2021 state that roles with the Patient Administration Services, Emergency Department and within other facilities under the control of the MSHHS were also explored, however, there were no similar roles of a permanent nature available at the time the decision was made. Ms Kerr submits that no detail is set out to evidence this search and/or the finding.
In further submissions filed on 14 October 2021, MSHHS confirms that the search outlined above took place:
For clarity, 'searching' for roles that are the same or similar in nature involves simply reviewing the MSHHS's vacant positions at the point in time the review was undertaken. Ms Kerr has not provided any evidence to suggest that the searches were not undertaken or detailed what evidence the MSHHS could provide to satisfy her that the searches were undertaken beyond a suggestion that the MSHHS has been disingenuous or misleading.
I have considered that submission and it seems to me that it is not for Ms Kerr to provide evidence that the searches were not undertaken or to detail evidence that would satisfy her that they were. It is for MSHHS to fulfil the requirement of the Directive and describe firstly, that a search was undertaken and secondly, explain the outcome of that search in enough detail for Ms Kerr to understand the outcome. I agree with Ms Kerr that the decision letter provided to her does not state what actions were taken to identify roles substantially the same as hers beyond the Emergency Department at Logan Hospital.
While the Respondent can expand on the nature of the search for roles that was undertaken in its appeal submissions, this is no substitute for a decision that meets the requirements of the Directive.
I accept that there was no continuing need for Ms Kerr to be employed in the current role due to the scheduled return of the incumbent. However, given Ms Kerr has consistently performed roles in a range of work areas of the Logan Hospital and the nature of these roles could be considered substantially the same, it seems to me that the decision maker should have considered roles beyond the Emergency Department and explained to Ms Kerr that such roles were considered and why a finding was made that (a) there was no continuing need for her to be employed in such a role; or (b) there was a continuing need for her to be employed but that genuine operational requirements prevented permanent appointment at this time.
The decision letter finally reaches a conclusion that there are genuine operational requirements that mean it is not viable or appropriate to convert Ms Kerr at this time. While it may appear self-evident that the return of the incumbent to 'the role' provides a genuine operational requirement precluding permanent appointment to 'the role', as stated above Ms Kerr is provided with no context or explanation about what genuine operational requirements preclude her appointment to a 'role substantially the same'.
Clause 8.4 of the Directive makes it clear that the decision must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The decision letter explained the situation with regard to the role Ms Kerr is currently undertaking but did not adequately address roles substantially the same. For this reason, the decision was not fair and reasonable.
I would also note that simply stating that there are no permanent vacancies available to enable conversion does not provide sufficient explanation in circumstances where this is not the requirement of the PS Act or the Directive.
It appears that Ms Kerr's employment history points to a continuing need for her to be employed in a role substantially the same as her current fixed term temporary appointment, due to the consistency of relieving duties performed. However, I do not know enough about circumstances which existed at the time of the decision regarding the continuing need for Ms Kerr to perform a substantially similar AO3 role in another area of the hospital or in multiple areas as a permanent reliever, to make a substitute decision converting Ms Kerr to permanent.
I am setting the decision aside, providing the decision maker with a copy of these reasons and directing that a fresh review of Ms Kerr's employment be undertaken prior to the conclusion of her current temporary engagement on 31 October 2021. If Ms Kerr's temporary engagement has been extended, I direct that the fresh review be undertaken within 21 days of this decision.
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