Smith v State of Queensland (Department of Education)

[2022] QIRC 345

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Department of Education) [2022] QIRC 345

PARTIES:

Smith, Shane
(Appellant)

v

State of Queensland (Department of Education)
(Respondent)

CASE NO.:

PSA/2022/663

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

6 September 2022

HEARING DATE:

MEMBER:

On the papers

Merrell DP

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 5 August 2022 and Respondent's written submissions filed on 18 August 2022

ORDERS:

The orders made in paragraph [22] of these reasons for decision.

CATCHWORDS:

PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - Appellant employed on a fixed term temporary basis by the State of Queensland in the Department of Education as a Facilities Officer at the Mossman State High School - on 8 June 2022, the Appellant became eligible for his fixed term temporary employment to be reviewed pursuant to s 149B of the Public Service Act 2008 - no review decision was made within the required period as prescribed by s 149B(9) of the Public Service Act 2008 - decision taken to have been made pursuant to s 149B(7) of the Public Service Act 2008 to continue the Appellant's fixed term temporary employment - Appellant appealed decision - Appellant's fixed term temporary employment ended one day after appeal started - whether Commission, in light of the Appellant's fixed term temporary employment ending, has jurisdiction to hear and determine Appellant's appeal - Commission has jurisdiction - whether, pursuant to s 562A(3) of the Public Service Act 2008, the Commission should not hear the Appellant's appeal given that his employment has ended - orders made for submissions from the parties as to whether the Commission should hear the Appellant's appeal

LEGISLATION:

Industrial Relations Act 2016, s 562A

Public Service Act 2008, s 149B, s 194 and s 196

CASES:

Chen v State of Queensland (Queensland Health) [2021] QIRC 369

Chen v State of Queensland (Queensland Health) [2022] ICQ 15

Reasons for Decision

Introduction

1. Mr Shane Smith was employed by the State of Queensland as the Facilities Officer at the Mossman State High School, classification OO3 ('the position'), in the Department of Education ('the Department'). Mr Smith was employed in that position on a temporary fixed term basis as from 8 June 2020.

2. On 8 June 2022, Mr Smith's employment on a temporary fixed term basis was to be reviewed pursuant to s 149B of the Public Service Act 2008 ('the PS Act'). No decision was made about that review within the time prescribed by s 149B(9) of the PS Act, the consequence of which was that pursuant to s 149B(7) of the PS Act, the chief executive of the Department was taken to have made the decision not to offer to convert Mr Smith's employment to employment as a general employee on tenure or a public service officer ('the decision').

3. By appeal notice filed on 7 July 2022, Mr Smith, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision.

4. It is not in dispute that on 8 July 2022, Mr Smith's fixed term temporary employment in the position ended due to, as put by the Department in its submissions, '… the effluxion of time.'

5. As a consequence, the parties agreed that they should be ordered to make submissions about whether or not, in light of the fact that Mr Smith's fixed term temporary employment in the position has ended, the Commission has jurisdiction to hear and determine Mr Smith's appeal.

6. Both parties have made such submissions.

   The Appellant's submissions

7. In summary, the Appellant, who is represented by his agent, Together Queensland, Industrial Union of Employees, submits that:

   ·he was an employee at the time he started his appeal;

   ·there is no provision in the PS Act or in the Industrial Relations Act 2016 ('the IR Act') that provides for a lapse of an appeal if an appellant ceases to be an employee; and

   ·the Commission has jurisdiction to determine the appeal as a validly commenced appeal and such an appeal does not, upon the proper construction of s 194(1)(e)(i) and s 196(e) of the PS Act, lapse when he ceased to be an employee of the State of Queensland.

   The Department's submissions

8. The Department submits that on the authority of the decision of the Commission in Chen v State of Queensland (Queensland Health) ('Chen'),[1] there are, pursuant to s 562A(3)(b)(iii) of the IR Act, compelling reasons not to hear Mr Smith's appeal, namely, that there would be little utility in hearing his appeal given that his employment has ended.

   [1] [2021] QIRC 369 ('Chen').

9. The decision in Chen concerned appeals against two decisions, the first being a decision by the appellant's employer not to consider a request by the appellant for conversion to permanent employment pending a disciplinary investigation.[2] The second decision appealed was a decision by the appellant's employer to formally refuse the appellant's request for conversion.[3]

   [2] Ibid [8]-[9].

   [3] Ibid [10]-[14].

10. The Industrial Commissioner dismissed the appeal against the first decision because the appellant's employment had ceased and his appeal had lapsed within the meaning of the PS Act as it applied at the material time.[4]

    [4] Ibid [38]-[43].

11. In relation to the second decision, the Industrial Commissioner also held that it was not open to the Commission to hear a conversion appeal against a person who was no longer employed by the public service and, in any event, the Industrial Commissioner would have, pursuant to s 562A(3)(b)(iii) of the PS Act, declined to hear the appeal because of the lack of utility in hearing the appeal.[5]

    [5] Ibid [44]-[63].

    The Commission has jurisdiction to hear Mr Smith's appeal

12. The decision in Chen was appealed to the Industrial Court of Queensland.[6]

    [6] Chen v State of Queensland (Queensland Health) [2022] ICQ 15.

13. In the decision of the Court, Vice President O'Connor relevantly held:

    ·it was not in contention that the Industrial Commissioner's first decision was correct;[7] and

    ·in respect of the second decision, having regard to the PS Act as it is now enacted, a validly commenced public service appeal does not lapse upon the appellant subsequently ceasing to be a public service employee.[8]

    [7] Ibid [10].

    [8] Ibid [27]-[32].

14. The decision of the Vice President was not referred to by the Department in its submissions. The decision of the Commission in Chen and the Vice President's decision were not referred to by Mr Smith in his submissions.

15. Nevertheless, having regard to the decision of the Vice President, the Commission does have jurisdiction to hear and determine Mr Smith's appeal.

16. In fact, the submissions of the Department seem to accept that the Commission has jurisdiction to hear Mr Smith's appeal but that, as a matter of the exercise of discretion pursuant to s 562A(3)(b)(iii) of the IR Act, the Commission should not hear Mr Smith's appeal.

17. Mr Smith has not been given an opportunity to be heard about whether the Commission should exercise its discretion, pursuant to s 562A(3)(b)(iii) of the IR Act, not to hear his appeal. Mr Smith must be given the opportunity to respond to the submissions made by the Department.

18. The Department should be given an opportunity to make any brief submissions in reply.

    Conclusion

19. For the reasons I have given, the Commission has jurisdiction to hear and determine Mr Smith's appeal.

20. The correct question is whether or not, pursuant to s 562A(3) of the IR Act, I should decide not to hear Mr Smith's appeal.

21. The parties will be directed to make submissions about that question.

    Orders

22. I make the following orders:

    1.       That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions of no more than three (3) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages plus any relevant attachments, in response to the Respondent's written submissions filed on 18 August 2022, by 4.00pm on Tuesday, 20 September 2022 ('the Appellant's further submissions').

    2.       That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions of no more than three (3) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages plus any relevant attachments, in response to the Appellant's further submissions by 4.00pm on Tuesday, 4 October 2022.

    3.       That unless any party files an application by 4.00pm on Thursday, 6 October 2022, for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers.