Softa v State of Queensland (Department of Housing and Public Works)

[2021] QIRC 19

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Softa v State of Queensland (Department of Housing and Public Works) [2021] QIRC 19

PARTIES:

Softa, Sandra Zaklina
(Appellant)

v

State of Queensland (Department of Housing and Public Works) 
(Respondent)

CASE NO:

PSA/2020/302

PROCEEDING:

Public Service Appeal – Conversion to a higher classification level

DELIVERED ON:

20 January 2021

MEMBER: 

Hartigan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal is dismissed.

CATCHWORDS:

LEGISLATION:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant appealed a decision in respect of another employee – jurisdictional objection

Public Service Act 2008 (Qld), s 149B, s 149C, s 194, s 196

Reasons for Decision

Introduction

1. Ms Sandra Softa filed a Notice of Appeal which identified that she sought to appeal a conversion decision made under ss 149B and 149C of the Public Service Act 2008 (Qld) ("PS Act"). The respondent to the appeal is the State of Queensland (Department of Housing and Public Works) ("the Department").

2. However, the decision which is the subject of the Notice of Appeal relates to a decision made about another employee's conversion to a higher classification level.

1. The decision made by the Department in relation to the other employee was communicated to staff, including Ms Softa, by email on or about 29 October 2020.

1. On 2 November 2020, Ms Softa lodged an application seeking to be permanently appointed to a higher classification level.

1. The Notice of Appeal was lodged by Ms Softa on 10 November 2020.

1. No decision had been made in relation to Ms Softa's application to be permanently appointed to a higher classification level at the time that Ms Softa filed the Notice of Appeal.

1. The Department raised a jurisdictional objection to the appeal on the basis that Ms Softa is excluded from appealing the decision as she is not the employee subject of the decision being appealed.

2. On 2 December 2020, further directions were issued requesting that Ms Softa file and serve written submissions addressing whether she has an arguable case for the appeal, having regard to the matters raised by the respondent in its submissions filed on 24 November 2020 at [22], including but not limited to, whether the decision was an appealable decision pursuant to ss 194 (1)(e)(iii) and 196(e) of the PS Act.

1. On 7 December 2020, Ms Softa provided email correspondence wherein she stated that:

…

In reference to the respondent’s submission dated 24 November 2020 at [22] of the response, I understand that ss194(1)€(iii) [sic] and s196€ [sic] specifically refers to the employee appointed in the conversion decision under the Public Service Act.

I would like to reference that I am not appealing the decision of the employee in question, but the ‘unfair and unreasonable process’ of the conversion decision and not considering other employees (myself) who have been acting in higher duties in the generic A06 Team Leader role within Regulatory Services. I refer to s194(1)(eb) of the Public Service Act – a decision a public service employee believes is unfair and unreasonable.

…

1. For the following reasons I have determined that the Commission does not have jurisdiction to determine the appeal as filed by Ms Softa.

Jurisdictional objection

1. Chapter 7, Pt. 1, Div. 1 of the PS Act provides for a right of appeal for public service appeals.

2. Section 194 of the PS Act identifies decisions against which appeals may be made. Relevantly ss 194(1)(e)(ii) and 194(1)(e)(iii) of the PS Act states:

   …

(ii) under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B (8A) ; or

(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;

…

1. Section 196 of the PS Act identifies who may appeal a decision. Relevantly, s 196 states as follows:

196  Who may appeal

The following persons may appeal against the following decisions—

…

(e) for a conversion decision—the employee the subject of the decision;

…

1. Whilst the decision which is the subject of Ms Softa's appeal is a conversion decision,[1] it is nevertheless, a decision that relates to another employee. By operation of s 196(1)(e) of the PS Act it is only the employee who is subject of the conversion decision who may appeal it. Accordingly, I accept the Department's jurisdictional objection.

   [1] In accordance with s 194(1)(e)(ii) of the Public Service Act 2008 (Qld).

2. Ms Softa's submissions contained in the email of 7 December 2020, state that she is "not appealing the decision of the employee in question but 'the unfair and unreasonable process' of the conversion decision". In this regard, Ms Softa submits that she does not object to the relevant employee having their employment classification converted but, rather, she objects to the process in which the conversion decision was made. Ms Softa refers to s 194(1)(eb) of the PS Act being a decision a public service employee believes is unfair and unreasonable.

3. However, Ms Softa's complaint in this regard relates, in any event, to the processes associated with the making of the conversion decision. Accordingly, and for the above reasons, I have determined the Commission does not have jurisdiction to entertain the appeal.

Order

1. I make the following order:

1.Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal is dismissed.