Suffolk v State of Queensland (Department of Education)
[2023] QIRC 98
•13 March 2023 13 March 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Suffolk v State of Queensland (Department of Education) [2023] QIRC 098 |
PARTIES: | Suffolk, Annalise v State of Queensland (Department of Education) |
CASE NO.: | PSA/2022/1006 |
PROCEEDING: | Public Service Appeal - Appointment to a higher classification level |
DELIVERED ON: HEARING DATE: | 13 March 2023 13 March 2023 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
| DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 12 December 2022 and Respondent's written submissions filed on 27 January 2023 |
| ORDER: | The order made in paragraph [17] of these reasons for decision. |
| CATCHWORDS: | PUBLIC SERVICE - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - Appellant substantively employed as a teacher at the Bli Bli State School - between October 2021 and December 2022 the Appellant performed duties in a position at the higher classification level of Guidance Officer - on 11 October 2022, the Appellant, pursuant to s 149C of the Public Service Act 2008, requested that she be appointed to the position at the higher classification level - no decision made within the required period regarding the Appellant's request - Appellant appealed against decision said to be taken to have been made pursuant to s 149C(6) of the Public Service Act 2008, namely, that the Appellant's request was refused - appeal started out of time - whether Appellant should be allowed a further period of time to start the appeal - whether appeal competent having regard to s 194(1)(e) and s 195(1)(j) of the Public Service Act 2008 - Appellant's appeal not competent - Appellant not allowed a further period of time to start appeal |
| LEGISLATION: | Industrial Relations Act 2016, s 564 Public Service Act 2008, s 149C, s 194, s 195 and s 196 |
| APPEARANCES: | The Appellant in person, with Mr A. Luck as a support person. Ms L. Graham of the State of Queensland (Department of Education) for the Respondent. |
Reasons for Decision (ex tempore)
Ms Annalise Suffolk is substantively employed by the State of Queensland as a Teacher in the Department of Education ('the Department') at the Bli Bli State School. From 5 October 2021, Ms Suffolk performed duties in a position at a higher classification level, namely, that of Guidance Officer ('the higher classification position').
On 11 October 2022, Ms Suffolk requested, pursuant to s 149C(3) of the Public Service Act 2008 ('the PS Act'), to be appointed to the higher classification position. No decision was made with 28 days of that request. By appeal notice filed on 1 December 2022, Ms Suffolk appealed against the decision taken to have been made, by virtue of s 149C(6) of the PS Act on 8 November 2022, not to appoint her to the higher classification position due to the fact no decision was made by that date ('the decision').
Ms Suffolk informed me today that in the latter part of 2022 and for the first part of 2023 she has continued to act in the role of Guidance Officer, splitting her time between various State Schools; and that presently, she acts in the position of Guidance Officer in the Student Well-Being Program and also acts in the position as Guidance Officer at the Yandina State School.
The Department contends in its written submissions that Ms Suffolk's appeal is incompetent for two reasons:
·first, by virtue of the effect of s 194(1)(e)(iii) and s 195(1)(j) of the PS Act, Ms Suffolk cannot appeal against the decision because she had not acted in the higher classification position for at least two years; and
·secondly, and in any event, her appeal was started out of time in that it was not started within 21 days of 8 November 2022 (as required by s 564(1) of the Industrial Relations Act 2016), namely, by 29 November 2022.
The question for my determination is whether I should allow Ms Suffolk a further period of time, namely, two days until 1 December 2022, to start her appeal. A related question is whether Ms Suffolk's appeal is competent having regard to s 194(1)(e)(iii) and s 195(1)(j) of the PS Act.
The relevant provisions of the Public Service Act 2008
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 1 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).
(4)The department’s chief executive must decide the request within the required period.
(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.
(5) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-
(a) reasons for the decision; and
(b) the total continuous period for which the person has been acting at the higher classification level in the department; and
(c) how many times the person’s engagement at the higher classification level has been extended; and
(d) 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.
(6)If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
…
(8) In this section-
continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).
required period, for making a decision under subsection (4), 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 request is made.
Section 194(1)(c)(iii) of the PS Act provides:
(1) An appeal may be made against the following decisions-
…
(e) a decision (each a conversion decision)-(i) under section 149B not to convert the basis of employment of an employee; or
(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;
Section 196(1)(j) of the PS Act provides that a person cannot appeal 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 less than two years.
As at the date she started her appeal, namely, 1 December 2022, Ms Suffolk had not been acting in the higher classification position for a continuous period of at least two years.
In these circumstances, s 195(1)(e)(iii) and s 195(1)(j) of the PS Act have operation. As referred to earlier, the effect of these sections is that a person cannot appeal against a decision under s 149C of the PS Act not to appoint them to a higher classification position if they have not acted in such a position for at least two years. As at the date of her appeal, Ms Suffolk had not acted in the higher classification position for at least two years.
Ms Suffolk started her appeal outside the appeal period but, in any event, Ms Suffolk cannot appeal against the decision because her appeal is unable to be pursued as she had not acted in the higher classification position for at least two years as at 1 December 2022. In those circumstances, I would not, pursuant to s 564(2) of the Industrial Relations Act 2016, have allowed Ms Suffolk to start her appeal within a longer period, albeit a brief period of only two days. That is, I would not allow Ms Suffolk to start her appeal within a longer period, as it is an appeal which, because of the provisions of the PS Act to which I have referred, could not be made in any event.
During her submissions requesting me to allow her to start her appeal within a longer period, Ms Suffolk made a number of allegations about the process surrounding her request made pursuant to s 149C of the PS Act to be appointed to the higher classification position. Ms Suffolk spoke of the distress and intimidation she felt from the process and the anxiety she suffered in considering whether or not to appeal the decision. I have no doubt that distress and intimidation of which Ms Suffolk spoke was and is genuinely felt by her.
There are appropriate mechanisms which exist within the Department and also under the Industrial Relations Act 2016 for Ms Suffolk to pursue those allegations. I note that Ms Suffolk was today supported by her trade union, the Queensland Teachers Union of Employees. I also note that Ms Graham, who appeared for the Department, very fairly referred to the grievance mechanisms which exist within the Department for such allegations to be aired. It is up to Ms Suffolk if she wishes to pursue those avenues.
It may be there is a genuine operational need for the higher classification position of Guidance Officer, to which Ms Suffolk wants to be appointed, for the reasons given by her in her principal written submissions. I add that no submission was made by the Department that Ms Suffolk does not have the skills and experience to be permanently appointed to such a higher classified position. Indeed, that Ms Suffolk has such necessary skills and experience is borne out by her most recent temporary appointments.
However, even assuming that there is a genuine operational need for the higher classification position of Guidance Officer to which Ms Suffolk wants to be appointed, that is not a sufficient reason to allow Ms Suffolk a further period to start her appeal in circumstances where her appeal cannot be heard and determined in any event.
The appropriate order to make is to not allow Ms Suffolk a further period of time to start her appeal.
Order
I make the following order:
The Commission will not allow the Appellant a further period of time to start her appeal.
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