Ross v State of Queensland (Department of Communities, Disability Services and Seniors)
[2021] QIRC 31
•29 January 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Ross v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 31 |
PARTIES: | Ross, Gwyneth v State of Queensland (Department of Communities, Disability Services and Seniors) (Respondent) |
CASE NO: | PSA/2020/434 |
PROCEEDING: | Public Service Appeal – Conversion Decision |
DELIVERED ON: | 29 January 2021 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
| ORDERS: | 1. Allow the appeal. 2. Set aside the decision subject of the appeal and return the matter to the Department to conduct a fresh review in accordance with the relevant provisions of the Public Service Act 2008 (Qld) and Directive 08/20. 3. The review is to be conducted by the Department within 21 days. |
CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where appellant applied to convert from casual to permanent status – consideration of "unique circumstances" Casual employment - Directive 08/20, cl 6, cl 7, cl 8, cl 9.1, cl 11 Industrial Relations Act 2016 (Qld), s562B Public Service Act 2008 (Qld), s 27, s 28, s 147, s 148A, s 149A, s 149B, s 197, s 293, s 294A Public Service and Other Legislation Amendment Act 2020 (Qld) |
| CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
Ms Gwyneth Ross appeals a decision of the State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) ("the Department") to not convert Ms Ross's employment from casual to permanent status.
Ms Ross is employed as a casual OO4 Residential Care Officer (RCO) at the Nundah Accommodation Support and Respite Service (AS&RS), Northern Service Area.
On or about 13 October 2020, Ms Ross requested that her casual employment be converted to permanent status.
The Department conducted a review of Ms Ross's casual employment and, on 1 December 2020, Ms Ross was advised that the Department was not able to offer her a permanent role at present ("the decision").
Ms Ross appeals that decision.
The Department submits that it does not dispute that Ms Ross may appeal the decision not to convert her employment to permanent, however, it submits that the decision on Ms Ross's casual conversion has been deferred due to what the Department describes as "Ms Ross's unique circumstances".
Ms Ross appeals the decision on the grounds that the decision maker has erred by taking into account an irrelevant consideration and has not correctly applied the merit principle under s 27 of the Public Service Act2008 (Qld) ("the PS Act"), in accordance with s 149A(2) and clause 8.1 of Directive 08/20: Casual Employment ("Directive 08/20").
The appeal is made pursuant to s 197 of the PS Act, which provides[1] that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
[1] Pursuant to the Public Service and Other Legislation Amendment Act 2020 (Qld), amendments were made to the Industrial Relations Act 2016 (Qld) and the Public Service Act 2008 (Qld), commencing on 14 September 2020.
Sections 562B(2) and (3) of the IR Act replicate the now repealed ss 201(1) and (2) of the PS Act. Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not be re-hearing[3] but, rather, involves a review of the decision arrived at and the decision making process associated with it.[4]
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3] See discussions of various legal categories of appeal in Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[4] Ibid.
For the reasons that follow, I have determined that the decision was not fair or reasonable.
The decision
The decision was forwarded to Ms Ross by way of email correspondence on 5 November 2020. The decision was in the following relevant terms:
…
As you are aware, the Department has recently reviewed your ongoing casual employment as required under Directive 08/20: Casual employment (the directive).
Your application has been assessed by Ms Colleen McMullin, Acting Senior Service Manager, Northern Service Area. Unfortunately, the department is not able to offer you a permanent role at present for the reasons provided below.
As you are aware, you meet the requirement for a two year review in the role of Residential Care Officer (RCO), however, section 8.1 of the directive requires consideration of the merit principle, which is outlined in section 27 of the Public Service Act 2008. Specifically, this includes '…the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question'. I am aware that your treating medical practitioner, Dr J Mackerras, provided a statement of work capabilities (SWC) dated 27 October 2020, indicating limits on your ability to undertake all duties of your orle, due to a complex degenerate meniscal tear of your hip, with moderate to severe secondary osteoarthritis. Dr Mackerras reported that your SWC will be reviewed on 27 January 2021. As such, I feel it necessary to wait until I have further information from your treating medical practitioner and so I will defer a decision about your casual conversion review until this time.
I would like to express my appreciation for your work in the RCO role to date and would like to assure you that I am only deferring a decision and will give your application proper consideration once I have received further medical information.
…
The decision also advised Ms Ross that she had a right to appeal the decision in accordance with s 9.1 of the Directive 08/20.
The Department submitted that the decision was not a "definitive" decision in accordance with Directive 08/20 due to limited medical information and an uncertain medical prognosis with respect to Ms Ross. The Department submitted it was deferring the decision on Ms Ross's application, only until such time as she provides sufficient medical information regarding her ability to undertake all the requirements of the RCO role.
I do no accept the Department's characterisation that it deferred the decision because the terms of the decision clearly state that a review of Ms Ross's casual employment was conducted pursuant to the terms of the Directive 08/20 and that following that review, the Department had determined that it was not able to offer a permanent role to Ms Ross. My determination that the decision was one made in accordance with Directive 08/20, rather than a deferment, is also consistent with the advice that the Department provided to Ms Ross that she may appeal the decision in accordance with that directive.
Whilst I accept that the Department may review Ms Ross's employment upon receipt of further medical information that does not preclude Ms Ross seeking to appeal the decision that has been made.
Accordingly, I will conduct this appeal having regard to the decision made by the Department and having regard to the reasons provided by the decision maker for the decision.
The relevant provisions of the IR Act and Directive 08/20 – Casual Employment
In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 08/20, including those provisions which I set out below.
Section 147 of the PS Act relevantly provides:
147 Employment of general employees
(1) A chief executive may employ a person as a general employee to perform work of a type not ordinarily performed by a public service officer.
(2) The employment may be—
(a)on tenure or a temporary basis for a fixed term and full-time or part-time; or
(b)on a casual basis.
(3) A person employed under this section does not, only because of the employment, become a public service officer.
(4) Subsections (1) and (2) are subject to a directive about general employees.
Section 148A of the PS Act relevantly states:
148A Employment of casual employees
(1) A chief executive may employ a person on a casual basis to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive, if employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.
(2) A person employed under this section does not, only because of the employment, become a public service officer.
(3) The commission chief executive must make a directive about the employment of casual employees employed under this section or section 147, including the circumstances in which employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.
Section 149A of the PS Act relevantly states:
149A Decision on review of status
(1) The department’s chief executive must decide a request made under section 149 within 28 days after receiving it.
(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
(b)any requirements of an industrial instrument are complied with in relation to the decision.
(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.
(4) 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 person 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 under section 149; and
(c)for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee has been extended.
(5) If the department’s chief executive does not make the decision within the period required under subsection (1), 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.
(6) The commission chief executive may make a directive about making a decision under this section.
Section 149B of the PS Act relevantly states:
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.
(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.
(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.
(9) In this section—
"fixed term temporary employee" includes a general employee employed under section 147 on a temporary basis for a fixed term.
"required period", for making a decision under subsection (3), means—
(a)the period stated in an industrial instrument within which the decision must be made; or
(b)if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (4) (a) or (b).
Directive 08/20 came into effect on 25 September 2020. Directive 08/20 applies to Public Service employees employed on a casual basis under ss 147(2)(b) or 148A of the PS Act.
Directive 08/20 recognises that the PS Act provides that casual employment should only be used when tenured or fixed term temporary employment is not viable or appropriate. Clause 6 of Directive 08/20 provides that a casual employee may request a review of their employment status after being continuously employed for one year. Clause 6.1 is relevantly in the following terms:
6.1 Section 149 of the PS Act (Appendix C) provides that a casual employee who has been
continuously employed for one year or more may request a review for conversion to
permanent employment. An employee may only make one request in a 12-month period.Clause 7 of Directive 08/20 provides that there is a requirement to review employment status of a casual employee after they have been continuously employed for two years. Clause 7 of Directive 08/20 relevantly states as follows:
7.1 7.1 Section 149B of the PS Act (Appendix C) provides that an agency must review the employment status of a casual employee for conversion to employment as a general employee on tenure or a public service officer:
(a)under section 149B(4)(a), at the end of two years after the employee has been continuously employed as a casual employee, and
(b)under section 149B(4)(b), annually after the end of the initial two years during which the employee remains continuously employed.
7.2 For a review under section 149B, section 149B(7A) sets out the matters to be considered
when working out how long the employee has been continuously employed in the
agency.
7.3 Under section 149B(3), the chief executive must decide within 28 days whether to offer
to convert the person’s employment basis to employment as a general employee on
tenure or a public service officer, or continue the person’s employment according to the
terms of the person’s existing employment.
7.4 Unless there are exceptional circumstances, when deciding the hours of work to be
offered when converting an employee under section 149B(3)(b), the chief executive
should offer hours of work no less than the greater of the following amounts:(a)the hours worked by the employee in the continuing role or a role that is substantially the same, in the week immediately before the chief executive’s decision, or
(b)the average hours per week worked by the employee in the continuing role or a role that is substantially the same, over the last two years.
Clause 8 of Directive 08/20 provides that the chief-executive must consider the following criteria when deciding whether to offer permanent employment under ss 149A or 149B as follows:
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 employee to be employed in the role, or a role which is substantially the same
•the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
•whether any requirements of an industrial instrument are complied with in relation to 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) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, 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 casual employee to employment as a general employee on tenure or a public service officer:
(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 casual 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 or149B(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.
8.6 Agencies are expected to consider 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.
8.8 A casual employee who is converted could be subject to a probationary period following conversion in accordance with section 126 of the PS Act. However, given that the casual employee has performed the required service with the agency, it would not be expected that agencies would apply probation other than in exceptional circumstances.
Clause 11 of Directive 08/20 defines the following relevant terms:
Continuously employed in relation to a person employed in a department for a period is defined
in schedule 4 of the PS Act to mean the person is employed in the department:
•continuously as a fixed term temporary employee, or
•as a casual employee on a regular and systematic basis during the period, or
•in a combination of casual employment on a regular and systematic basis and continuous fixed term temporary employment.
Section 293 of the PS Act provides for the transitional provisions for the application of s 149(3) of the PS Act.
Section 294A sets out the transitional provisions for the application of s 149B of the PS Act.
Relevantly, s 293 of the PS Act states as follows:
293 Application of s 149 for existing temporary or casual employees
(1) This section applies if—
(a)immediately before the commencement, a person was employed as a relevant employee in a department; and
(b)the person—
(i)has, on the commencement, been continuously employed as a relevant employee for
a period of at least 1 year but not more than 2 years; or
(ii)within 3 months after the commencement, would have been continuously employed
as a relevant employee for a period of at least 1 year if the amending Act had not
commenced.
(2) The person may ask the department’s chief executive for a decision under section 149(3) within—
(a)3 months after the commencement; or
(b)if a longer period for a particular class of employees of which the person is a member is agreed between the department’s chief executive and an employee organisation for the class of employee, and approved by the commission chief executive—the longer period.
(3) For applying section 149 to the person—
(a)a reference in section 149 to a fixed term temporary employee is taken to include a reference to the person; and
(b)the period for which the person was continuously employed as a relevant employee is to be taken into account for working out the period for which the person has been continuously employed in the department.
(4) The department’s chief executive must decide the request within 28 days after the period mentioned in subsection (2)(a) or (b) ends.
(5) In this section—
"amending Act" means the Public Service and Other Legislation Amendment Act 2020.
"employee organisation" see the Industrial Relations Act 2016, schedule 5 .
"relevant employee" means a person employed on a temporary or casual basis under section 147 or 148 as in force before the commencement.
Section 294A of the PS Act relevantly states as follows:
294A Application of s 149B for existing temporary and casual employees
(1) This section applies in relation to a person if—
(a)immediately before the commencement, the person was an employee employed on a temporary or casual basis in a department under former section 147 or 148; and
(b)the day that is the end of 2 years of continuous employment in the department by the person occurs on or after the commencement; and
(c)section 293 does not apply to the person, or the person does not ask for a decision under that section.
(2) Section 149B applies in relation to the person.
(3) For applying section 149B—
(a)a reference in section 149B to a fixed term temporary employee is taken to include a reference to the person; and
(b)the period for which the person was continuously employed on a temporary or casual basis under former section 147 or 148 is to be taken into account for working out the period for which the person has been continuously employed in the department; and
(c)if the person is employed on a casual basis, the required period is taken to be the later of—
(i)4 months after the commencement; or
(ii)if a longer period for a particular class of employees of which the person is a
member is agreed between the department’s chief executive and an employee organisation for the class of employee, and approved by the commission chief executive—the longer period; or
(iii)the required period for the decision about the person under section 149B(9).
(4) Subsection (5) applies if—
(a) the person is employed on a casual basis; and
(b) before the end of the required period mentioned in subsection (3)(c), the person would have become eligible for a review of the person’s employment under former section 149A if the Public Service and Other Legislation Amendment Act 2020 had not commenced.
(5) In addition to section 149B as applied under subsections (2) and (3), former section 149A and any directive made under that section continue to apply in relation to the person as if the Public Service and Other Legislation Amendment Act 2020 had not commenced.
(6) In this section—
"employee organisation" see the Industrial Relations Act 2016, schedule 5 .
"former section 147 or 148" means section 147 or 148 as in force before the commencement.
"former section 149A" means section 149A as in force before the commencement.
Was the decision fair and reasonable?
Ms Ross contends that the decision to continue her employment on a casual basis was not fair or reasonable because the decision maker:
(a)failed to consider the mandatory considerations;
(b)took into account an irrelevant consideration; and
(c)considered an attribute that is discriminatory and/or unfair and unreasonable to consider.
Consideration of mandatory criteria
As noted above the PS Act, together with clause 8.1 of Directive 08/20, requires the decision maker, when deciding whether to offer permanent employment under ss 149A or 149B of the PS Act, to consider, inter alia, whether there is a continuing need for the employee to be employed in a role, or a role that is substantially the same.
The Department contends that at the time of reviewing Ms Ross's casual employment, the decision maker considered Ms Ross did not meet all of the requirements of Directive 08/20. Specifically, it was contended that the chief executive may offer to convert an employee's employment to tenure status only if the person is eligible for appointment having regard to the merit principle. It was submitted that Ms Ross, by her own admission, would not currently have the ability to carry out the full requirements of the RTO role and consequently was not eligible for appointment having regard to the merit principle.
This submission made by the Department does not directly respond to Ms Ross's criticisms that it did not have regard to a matter that it must have regard to in accordance with the PS Act and Directive 08/20; namely, consideration as to whether there was a continuing need for the employee to be employed in the role, or a role which is substantially the same.
A review of the decision and the reasons provided for it disclose that the decision maker did not have regard to the matters that it must consider when making a determination in accordance with ss 149A or 149B and/or Directive 08/20 to determine whether an employee's employment status should be changed from casual to permanent employment.
Whilst it is accepted that the mandatory criteria also require consideration of the merit of the casual employee, the failure by the Department to consider a component of the mandatory criteria leaves the decision deficient to the extent that it does not comply with the requirements set out in the PS Act and Directive 08/20. Consequently, I have determined that the decision, in so far as it does not address the matters that it must address in accordance with the PS Act and Directive 08/20, is not fair or reasonable.
Consideration of the merit principle
Ms Ross contends that the decision maker also erred by considering the medical condition as part of the consideration of the merit principle pursuant to s 149A(2)(ii) of the PS Act. Ms Ross submits that in doing so, the Department has considered:
(a)an irrelevant consideration; and
(b)failed to consider a mandatory consideration as required by the PS Act.
Ms Ross submits that her impairment and the restrictions placed on her work are not a relevant consideration as they do not form part of the criteria for the merit principle. Relevantly in this regard, consideration must be had to ss 27 and 28 of the PS Act. Section 28 of the PS Act sets out the criteria that must be taken into account when applying the merit principle. Section 28 of the PS Act relevantly states:
28 Merit criteria
In applying the merit principle to a person, the following must be taken into account—
(a)the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
(b)if relevant—
(i) the way in which the person carried out any previous employment or occupational
duties; and
(ii) the extent to which the person has potential for development.
Ms Ross submits that an idea that an injury, illness or disability would be considered as part of the decision under the PS Act to which this principle applies is directly inconsistent with the words of the provision. She submits that the requirement is that the decision must be "based on merit alone" and that the consideration of her impairment is something other than merit. Further Ms Ross submits that even if an assessment of her physical capability was a legitimate consideration of her "ability", in this matter, there has been no assessment, consideration or analysis of the way in which the medical restriction means that the appellant does not have the abilities to perform the role, or how she does not meet the merit requirements of the role. The only factor that has been considered by the decision maker is that she has a medical condition and has a scheduled review of her treating medical officer.
In response, the Department submits that Ms Ross provided it with a Statement of Work Capabilities dated 27 October 2020 from her treating medical practitioner which advised that she was suffering a severe degenerative physical condition which placed limitations on her ability to undertake some of the duties required of the RCO role. The Statement of Work Capabilities advised that her prognosis was uncertain and that Ms Ross would be reviewed again on 27 January 2021.
The Department submits that to meet the requirements of the Statement of Work Capabilities, the Department has temporarily made adjustments to Ms Ross's work by allocating her to specific residences where the support needs of the clients are less physically demanding then generally required for an RCO. This is a temporary arrangement pending further medical advice as the ability to work between houses and provide support as required is a critical component of the RCO role.
The Department submits that in relation to Ms Ross' application for permanent employment, the decision maker has considered that the information stated in Ms Ross's Statement of Work Capabilities means that she did not have the abilities to carry out the RCO role in its entirety. As such, the Department submitted Ms Ross does not currently meet the merit criteria required by s 149 as defined by s 28 of the PS Act. The decision maker determined that the decision would be deferred until the Department was in receipt of further medical information from Ms Ross's treating medical practitioner about her prognosis.
I accept that the decision maker has engaged in an assessment, consideration and analysis of the way in which the medical restrictions currently impact on Ms Ross's ability to perform the role. Relevantly, the decision specifically refers to the Statement of Work Capabilities which identifies that there are currently limits on Ms Ross's ability to undertake all duties of her role due to a complex degenerate meniscal tear of her hip, with moderate to sever secondary osteoarthritis.
I consider that when considering s 28 of the PS Act that it is open for the decision maker to consider the extent to which the person has abilities, including physical abilities to carry out the duties in question. Accordingly, I have concluded that the decision, in so far as it considers the impact of Ms Ross's impairment on her abilities to perform the role is a relevant consideration when applying the merit principle.
However, as noted above, the decision, despite the stated intent of the decision maker was not deferred. I note that Ms Ross is due to be reviewed on or about 27 January 2021 and that the Department has undertaken to review her matter further once it is in receipt of further medical information from her doctor.
As noted above, I have concluded that the decision was not fair or reasonable in so far as the decision maker did not have regard to some of the mandatory criteria it must have regard to when determining whether to convert a casual employee to permanent.
Accordingly, I will allow the appeal and order that the matter be remitted to the Department for a fresh review to be conducted in accordance with the relevant provisions of the PS Act and Directive 08/20. Such a further review will also provide an opportunity for the Department to consider further medical information arising from the medical review to be conducted by Ms Ross's treating medical practitioner on or about 27 January 2021.
Order
I make the following order:
1. Allow the appeal.
2. Set aside the decision subject of the appeal and return the matter to the Department to conduct a fresh review in accordance with the relevant provisions of the Public Service Act 2008 (Qld) and Directive 08/20.
3. The review is to be conducted by the Department within 21 days.
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