Pathak v State of Queensland (Department of Communities, Housing and Digital Economy)
[2021] QIRC 96
•23 March 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Pathak v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 096 |
PARTIES: | Pathak, Darshay v State of Queensland (Department of Communities, Housing and Digital Economy) |
CASE NO: | PSA/2020/448 |
PROCEEDING: | Public Service Appeal – Conversion of fixed term temporary employment |
DELIVERED ON: | 23 March 2021 |
MEMBER: HEARD AT: | Knight IC On the papers |
ORDERS: | 1. The appeal is allowed. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and another decision is substituted in lieu thereof. 3. Mr Drashay Pathak's fixed term temporary employment be converted to permanent employment. |
| CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant is employed on a fixed term temporary contract – where employment reviewed pursuant to s 149B of the Public Service Act 2008 – decision not to convert – whether the decision was fair and reasonable |
LEGISLATION AND INSTRUMENTS: | Directive 09/20 Fixed term temporary employment Industrial Relations Act 2016 Public Service Act 2008 |
Reasons for Decision
Mr Darshay Pathak has been continuously employed as a fixed term temporary employee in the position of AO5 Senior Network Officer within Connectivity Services, Centre for Information Technology and Communication (CITEC) Integration and Enabling Technologies since 5 November 2018. He is employed by the State of Queensland through the Department of Communities, Housing and Digital Economy ('the Department').
In a decision dated 3 December 2020 which detailed the outcome of a review of Mr Pathak’s fixed term temporary employment status, Deputy Director-General Dallas Stower advised Mr Pathak his employment status would not be converted to permanent at this time ('the Decision').
By appeal notice filed 24 December 2020, Mr Pathak, pursuant to ch 7 of the Public Service Act 2008 (‘the PS Act’), appealed against the decision not to convert his fixed term temporary status to permanent.
The question for determination is whether the Decision was fair and reasonable.
For the reasons that follow, I consider the Decision was not fair and reasonable.
The Decision
Mr Stower commenced the Decision by noting the following with respect to Mr Pathak:
· Since 5 November 2018, you have been employed as a fixed term temporary employee in the position of AO5, Senior Network Officer, within Connectivity Services, CITEC Integration and Enabling Technologies, Transformation and Enabling Technologies (TET), Queensland Government Customer and Digital Group (QGCDG), for the following reasons:
Between 5 November 2018 and 30 October 2020, to backfill the substantive occupant, Mr Craig Jackson, while Mr Jackson was performing higher duties in an alternate role
Between 1 November 2020 to 30 June 2021, to continue filling the role on a temporary basis until such time as the future of the Department of Education (DoE) service is determined.
· The key responsibilities of an AO5, Senior Network Officer within Connectivity Services, CITEC Integration and Enabling Technologies, is to:
perform complex incident analysis, problem identification and resolution services in line with Service Level Agreement (SLA) arrangements with the DoE
support all equipment within wide and local area network infrastructure
participate in technical projects in relation to network infrastructure implementation, installation and upgrades.
· Since 5 November 2018 your engagement in the position of AO5, Senior Network Officer, within Connectivity Services, CITEC Integration and Enabling Technologies, has been extended three times.
· Your current fixed term temporary engagement in the role of A5, Senior Network Officer, within Connectivity Services, CITEC Integration and Enabling Technologies, has an end date of 30 June 2021.
· With respect to your merit in the role of AO5, Senior Network Officer, within Connectivity Services, CITEC Integration and Enabling Technologies, no issues have been raised that you have not met the performance requirements of either of those roles. This satisfies the merit principle in section 27 of the PSA.
· I note there are no conversion requirements specified in an industrial instrument that applies to you.
He then decided as follows:
Having considered the information available to me, I have determined that the temporary circumstances for your engagement are continuing and that your employment will continue on a fixed term temporary basis. The reasons for my decision are as follows:
· The SLA with the DoE has lapsed and CITEC does not have a clear understanding as to when or if the DoE will be renewing the SLA with CITEC.
· In the event that the SLA is not renewed there would no longer be a continuing need for the AO5, Senior Network Officer role [in which] you are currently employed.
Grounds of Appeal
Mr Pathak's grounds of appeal may be summarised as follows:
·Mr Stower erred by failing to take into account a mandatory consideration under s 149A(2)(i) of the PS Act, namely whether there is a continuing need for Mr Pathak to be employed in a role substantially the same as his current role;
·Mr Stower erred by taking into account an irrelevant consideration, namely that a decision may be made in future which may then form a basis that employment on tenure is not viable or appropriate as contemplated by s 148(2) of the PS Act;
·Even if the service level agreement ('the SLA') is not continued, Mr Stower erred by concluding that there is no continuing need for Mr Pathak to perform his role beyond 30 June 2021.
He therefore seeks an order that the Decision be set aside, and the following decision be made in its place:
That Darshay Pathak's employment status be converted to permanent in a role similar to the roles he has been performing with the Department of Communities, Housing and Digital Economy.
The Department's Submissions
After setting out Mr Pathak's employment history and the nature of his position, the Department argues the Decision not to convert was fair and reasonable having regard to genuine operational requirements.
It submits that, notwithstanding the fact that Mr Pathak occasionally services other CITEC clients, the primary purpose of his temporary employment is to provide services to the Department of Education ('the DoE').[1]
[1] Respondent's submissions filed 25 January 2021, [13].
The Department submits that at the time the decision was made, it did not have a clear understanding of whether the SLA with the DoE would continue, noting that the DoE went to market in November 2020 seeking tenders for services currently provided by CITEC.[2] Should the SLA not continue, the Department submits the workload performed by AO5 Senior Network Officers would decrease such that it would not be viable or appropriate to continue Mr Pathak's employment.[3]
[2] Ibid [17]-[18].
[3] Ibid [20].
Although not reflected in the Decision notice itself, the Department maintains that, at the time of undertaking the review, steps were taken to identify an ongoing similar role whereby it was established that there were no positions with the same, or substantially the same, capability requirements within the Department, such that there was a continuing need for Mr Pathak to be employed.[4]
[4] Ibid [22].
Mr Pathak's Reply Submissions
Mr Pathak refutes the submission that his position is, or has ever been, contingent on providing services to the DoE stating he primarily services other CITEC clients.[5]
[5] Appellant's submissions filed 1 February 2021, [4].
In making that submission he relies on reporting which indicates that in October 2020, immediately before Mr Stower delivered the Decision, only 23% of the total jobs performed by CITEC related to the DoE.[6] With respect to his own workload, he notes that only 20% of the work he performed between 1 July 2020 and 11 December 2020 related to the DoE, the remaining 80% relating to other CITEC clients.[7]
[6] Appellant's submissions filed 18 January 2021, [15].
[7] Ibid [16].
With respect to the SLA, he notes it lapsed prior to his employment commencing and submits that it is disingenuous for the Department to now contend his position is contingent on the SLA.[8] He contends that speculation regarding the future of the SLA does not displace the presumption that public service employment should be on tenure.[9] Further, he argues it did not form a relevant consideration with respect to the present operational requirements of the Department.[10]
[8] Appellant's submissions filed 1 February 2021, [7].
[9] Relying on s 25(2)(d) the Public Service Act 2008 (Qld) ('the PS Act'). which relevantly provides:
(2) Public service employment is to be directed towards promoting—
...
(d)employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial instrument employees.
[10] Appellant's submissions filed 1 February 2021, [9].
Finally, Mr Pathak doubts the breadth of enquiry undertaken by the Department with respect to an alternative role, stating he is aware of future and ongoing work arising from new service contracts.[11]
[11] Ibid [11].
Relevant Principles
The PS Act relevantly provides:
149A Decision on review of status
...
(2)The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if—
(a)the department’s chief executive considers—
(i)there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
(ii)the person is eligible for appointment having regard to the merit principle; and
...
(3)If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
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 period 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 mentioned 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 casual 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.
...
(8)The commission chief executive must make a directive about making a decision under this section.
(8A)The directive must provide for—
(a)the matters a department’s chief executive must consider in deciding the hours of work to be offered in converting a person’s employment under subsection (3)(b); and
(b)the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person’s employment.
...
The applicable directive for the purpose of s 149B(8) of the PS Act is Directive 09/20 Fixed term temporary employment ('the Directive'). Clause 8 of the Directive relevantly provides:
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.
...
Was the Decision fair and reasonable?
That Mr Pathak met the merit principle is not in dispute.[12] Therefore, Mr Stower was required to offer to convert Mr Pathak's temporary employment to permanent employment if there was a continuing need for someone to be employed in his role, or a role that is substantially the same.[13] The only exception is where it is not viable or appropriate to do so having regard to the genuine operational requirements of the Department.[14]
[12] The merit principle is set out in pt 4 of the PS Act.
[13] PS Act s 149(2); Directive 09/20 Fixed term temporary employment ('the Directive') cl 8.1.
[14] PS Act s 149(3); the Directive cl 8.2.
In submitting that there is not a continuing need for Mr Pathak to continue in his role, the Department relies on the fact that the SLA with the DoE has lapsed. However, as highlighted by Mr Pathak, the SLA lapsed prior to his appointment to his current role. That factor weighs heavily against the Department and I agree with Mr Pathak that it is disingenuous for the Department to now claim his role is dependent on that agreement.
Although I do consider it relevant that the DoE has recently gone to market with respect to the SLA, that is not to say it will not be renewed. Relevantly, in its submissions, the Department stated that it would commence discussions with the DoE with respect to renewing the SLA in early 2021.
Even if those discussions are not successful and the SLA is not renewed, the Department has not sufficiently specified, in my view, the impact such an outcome would have on its workforce and in particular, Mr Pathak’s workload.
In any event, having regard to the materials filed in the Commission, I accept Mr Pathak's submissions that the work he performs is not predominantly contingent on the SLA and further, that it is likely there will be ongoing work emanating from other CITEC clients. As such, I am satisfied that there is a continuing need for someone to be employed in his role, regardless of whether or not the SLA is renewed.
Even if I am wrong with respect to his current role and ongoing workload, the relevant Directive makes it clear the Department was required to consider whether there is a continuing need to employ Mr Pathak in a role that is substantially the same. I am not satisfied it has done so.
There is no reference to having done so in the Decision and the Department's submissions with respect to this point are vague as to the breadth and nature of its enquiries.
Operational Requirements
Where it is determined there is a continuing need for a person such as Mr Pathak to be employed in the role, or a role that is substantially the same, and the employee is eligible for appointment having regard to the merit principle, the only circumstance where a chief executive can decide not to make a conversion offer is where it is determined that it is not viable or appropriate to so having regard to the genuine operational requirements of the department.[15]
[15] PS Act s 149A(b)(3).
With respect to those requirements, the Department relies on the same circumstances already addressed, namely the lapsed SLA.
For the same reasons already mentioned in this decision, I am not satisfied that the failure to renew the SLA would result in a genuine operational requirement that would prevent Mr Pathak from having his status converted to permanent.
Conclusion
For the reasons given above, I have determined that the Decision was not fair and reasonable. I will make orders accordingly.
Order
1.The appeal is allowed.
2.Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and another decision is substituted in lieu thereof.
3.Mr Darshay Pathak's fixed term temporary employment be converted to permanent employment.
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