Ryan v State of Queensland (Queensland Police Service)
[2022] QIRC 176
•24 May 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Ryan v State of Queensland (Queensland Police Service) [2022] QIRC 176 Ryan, Daniel James v State of Queensland (Queensland Police Service) |
CASE NO: | PSA/2022/375 |
| PROCEEDING: | Public Service Appeal - Higher Duties Conversion Decision |
| DELIVERED ON: | 24 May 2022 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
OUTCOME: | The appeal is dismissed for want of jurisdiction |
CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW - Public Service Appeal - where the appellant requests appointment to higher classification level - where there was a deemed decision - where the appellant had not been appointed for 2 years - whether the decision can be appealed Public Service Act 2008, s 149, s 149C, s 194, s 195 Industrial Relations Act 2016, s 562C, s 564 Directive 13/20 Appointing a public service employee to a higher classification level |
Reasons for Decision
Appeal Details
Mr Ryan (the Appellant) is employed by the State of Queensland (Queensland Police Service) substantively in the position of AO7, Software Development Group Manager.
Since 10 March 2020, Mr Ryan has been acting AO8 Manager, Frontline and Digital Division, having had the higher duties role renewed seven times, the current period is due to end on 30 June 2022.
On 13 December 2021, Mr Ryan made a request pursuant to s 149C of the Public Service Act 2008 (PS Act) to be permanently converted to the higher duties role. This request was not answered within the 28 day period and therefore it is taken to be a deemed decision not to permanently employ Mr Ryan in the higher duties role.[1]
[1] Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.3.
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 13/20 Appointing a public service employee to a higher classification level (the Directive):
Section 149C of the PS Act relevantly provides:
149C Appointing public service employee acting in position at higher classification level
(1) This section applies in relation to a public service employee if the employee-
(a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
(b)has been seconded to or acting at the higher classification level for a continuous period of at least one year; and
(c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
(3) The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after -
(a)the end of 1 year of being seconded to or acting at the higher classification level; and
(b) each 1-year period after the end of the period mentioned in paragraph (a).
…
(4A) In making the decision, the department's chief executive must have regard to –
(a)the genuine operational requirements of the department; and
(b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
The Directive
While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
(a)when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
(b)when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
(c)to perform work for a particular project or purpose that has a known end date
(d)to perform work necessary to meet an unexpected short-term increase in workload.
…
6. Decision making
6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documents and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.
6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
(a)the genuine operational requirements of the department, and
(b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.
7. Statement of reasons
7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
(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. Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
…
Section 194(e)(iii) is relevant to this matter:
Decisions against which appeals may be made
(1) An appeal may be made against the following decisions-
…
e.A decision (each a conversion decision)-
…
(iii) under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.
Section 195(1)(j) of the Public Service Act is also relevant to this matter:
Decisions against which appeals can not be made
(1) A person can not appeal against any of the following decisions –
…
(j) a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than two years.
Is the Appellant entitled to appeal?
The appeal was filed out of time
Mr Ryan submits that the date of the Respondent's decision was 16 February 2022 and that the appeal was submitted on time on 14 March 2022, 26 days into the 28 days timeframe. I note that Mr Ryan is not correct in that regard. The relevant statutory time limit for commencing an appeal is 21 days (not 28 days) and is set out at s 564 of the Industrial Relations Act 2016.
The appeal notice was filed with the Industrial Registry on 14 March 2022. This means that it was filed some five days outside the appeal period. The appeal notice caters for those who wish to apply for an extension of time to lodge their appeal notice in a longer time frame. Mr Ryan has not selected this option, however does provide information where the notice prompts for reasons:
A 'Not Approved' status was posted against my internal QPS HR request on 16/02/22 application #651681 (see attached). However no official decision/advice has been received from HR regarding my HD Conversion to Permanent, depite [sic] numerous emails and phone calls to their department. Normal procedure is that this advice should be supplied when the internal application is rejected/not approved. I also contacted QPS ER who escalated to QPS HR, however still no response was received.
The Respondent says that Mr Ryan has provided no extraordinary personal circumstances to explain the late lodgement of the appeal.
Mr Ryan does not appear to have provided any detailed explanation for his appeal being lodged out of time. It appears Mr Ryan erroneously believed that the appeal period was 28 days.
Based on the submissions before me, I am unable to find that Mr Ryan has provided a compelling reason for filing the appeal out of time. However, I am not required to make a decision on this point, as I have determined the decision is not one that can be appealed.
The decision cannot be appealed
The Respondent has raised a jurisdictional objection and submits that the deemed decision is not a decision that can be appealed.
Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(1)(e)(iii) provides that an appeal may be made against a decision "under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years".
Mr Ryan's appeal notice, filed on 14 March 2022, states 'Please note I have now hit two years performing higher duties in my current role…(starting on 10/03/2020), therefore as I understand it I am within my rights to appeal the decision.'.
The Respondent submits that Mr Ryan cannot appeal the decision as he has been seconded to or acting at the higher classification level for less than two years.[2]
[2] Public Service Act 2008, s 195(1)(j).
The Respondent says that at the time Mr Ryan lodged his application for appointment to a higher classification level on 13 December 2021, he had been acting at the higher classification level for one year, nine months and three days. Further, the Respondent says that at the time the deemed decision was made on 11 January 2022, Mr Ryan had been acting at the higher classification level for one year, 10 months and one day.
Mr Ryan claims the decision was made on the date he says he became aware of it on 16 February 2021. Even if I were to accept Mr Ryan's position in that regard, at the time of that decision, Mr Ryan had been acting at the higher classification level for one year, 11 months and six days.
Mr Ryan appears to argue that for the purposes of this appeal, the relevant time to determine if he has met the two year threshold of appointment to the higher classification position is the time at which he lodged the appeal. As Mr Ryan lodged the appeal on 14 March 2022, he says that he had been appointed to the higher classification position for a period two years and four days.
The Respondent points to cl 8.1 of the Directive (set out above) and states that those employees eligible to appeal are only those employees who satisfy s 149C(3)(b) of the PS Act.
Regardless of whether I accept the Respondent's date of decision being 11 January 2022 or Mr Ryan's date of decision being 16 February 2022, Mr Ryan had been acting at the higher classification level for less than two years at both the time of his request for appointment to the higher duties position and the date that the deemed decision was made.
Pursuant to s 195(1)(j) decision is therefore not able to be appealed. The appeal is dismissed for want of jurisdiction.
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