The Public Service Act 2008 (Qld) s 120 provides that a public servant who has been seconded from their substantive position to a higher position can apply to be permanently appointed to that higher job. 

Ms Dyson had been acting at a higher level as an OIC at the Roma Street Ambulance Station for at least 1 year as required by s 120 (in fact she’d been doing the job for 4.5 years (see [29]). She applied for a permanent appointment to that position. The Ambulance Service declined the request on the basis of the ‘the genuine operational requirements of the agency’ ([1]-[4]).

Ms Dyson appealed against that decision in Dyson v State of Queensland (Queensland Health) [2024] QIRC 61 (07 March 2024). The role of the Industrial Relations Commission was to review the decision made, not to make its own judgment on the merits of the application ([6]).  At [7] Commissioner Power said:

The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination is whether the decision by Mr Hill to deny conversion of the Appellant’s employment to permanent was fair and reasonable in all of the circumstances.

To answer that question the Commission had to look at the reasons given by the decision maker, Mr Hill. Ms Dyson argued that the reason given for the refusal to appoint her was that the QAS was going to, but had not yet, introduced a new process to recruit frontline managerial staff. She argued that whatever plans QAS may have that did not diminish her statutory right to seek appointment now (see [13]-[16]).

Before the Commission the QAS sought to rely on reasons other than those communicated to Ms Dyson when they refused the application. In short they argued that the substantive position holder would be returning to the position and the position was not, therefore vacant.  At [17] the QAS accepted:

… that there were deficiencies in its correspondence to the Appellant, specifically in respect of its advice as to the genuine operational requirements that prevented the Appellant from being appoint to the position.

The QAS now seeks to outline those genuine operational requirements in these submissions.

Remembering that the role of the Commission was to review the decision of Mr Hill, not to decide whether Ms Dyson should or should not be appointed, Commissioner Power said (at [42]):

The difficulty with considering the ‘genuine operational requirements’ relied upon by the decision maker in this matter to deny conversion to permanency in the higher classification role is that the reasons given in the decision are entirely different to those outlined in the Respondent’s submissions.

At [45]-[46] Commissioner Power said:

The decision clearly stated that the reason the Appellant was not permanently appointed to the higher classification position was due to the adoption of the FMR [Frontline Management Recruitment] process. As the role in which the Appellant was temporarily placed was one of the regional frontline manager roles, it was determined that permanent appointment would be facilitated through the FMR process ‘for the foreseeable future.’

The adoption of a new recruitment process is not a genuine operational requirement that may be relied upon to deny conversion to a permanent higher duties position in circumstances where the employee otherwise satisfies the statutory criteria. Section 120 of the Act and the Directive are intended to facilitate conversion for employees who have been temporarily employed at a higher classification. The adoption of a new process may allow recruitment to particular positions to operate alongside the conversion process, but it is not a replacement for the conversion process. To deny conversion on the basis of the development of an agency recruitment process is contrary to the purpose of the relevant statutory instruments and cannot reasonably be considered a genuine operational requirement preventing conversion.

QAS argued that having now set out the operational reasons for the refusal there was little value in referring the matter back for further decision ([47]). The Commissioner disagreed. She said (at [48]-[52]):

The decision cannot be accepted as having set out relevant findings based on evidence if those findings were not in fact the reasons for the decision. The decision did not contain enough information, or it appears the correct information, for the Appellant to understand why the decision had been made to deny her appointment to the permanent position.

It is clear from the Respondent’s submissions that an entirely different reason existed for the decision to not convert the Appellant’s appointment. The Respondent’s submission was that the Appellant was not converted because the substantive position was held by Mr Lehane who was currently working in a higher duties role elsewhere in the QAS.

The position of the substantive position holder and the likelihood of his return were not mentioned in the decision. The only reference to the return of the substantive position holder to the role occurred in the Respondent’s submissions.

As noted by the Respondents, the refusal to convert an employee to a role in which there is an employee permanently employed and who is intending on returning to the role has generally been considered a genuine operational requirement that may prevent conversion of a temporary employee to that higher duties position. This is of course a general proposition that is dependent on the particular circumstances of each matter. The difficulty in this matter is that the return of the incumbent employee was not the reason provided to the Appellant. The Appellant should have been provided with the genuine reason that the conversion was denied.

The role of the Commission in public sector appeals is to determine if the decision made was fair and reasonable. It is not possible to conclude that the decision was fair and reasonable in this matter where the decision does not in fact convey the actual reason for the decision.

And at [53]:

… submissions [by QAS] cannot cure a decision that was made on the basis of reasons that were unfair and unreasonable. It is not in my view reasonable that entirely different reasons be relied upon in submissions to those which were provided to the Appellant at first instance. Where a written decision was provided, the Appellant was entitled to know the genuine reason that the conversion of her employment to the higher duties position was denied.

The Commission ordered that Ms Dyson’s application be returned to QAS to be reconsidered.

Discussion

This may be considered a limited victory. Ms Dyson won here because the reasons given by QAS were inconsistent with the Act. The fact that QAS is going to embark on a new recruitment process was no reason not to consider an application, that Ms Dyson was eligible to make, on its merits. But one might infer that when it is returned to QAS they are going to make the same decision – not to appoint her to the position that she has been acting in – but for the reasons given in the Commission.  There may be future challenges to that decision, particular given the discussion of whether the incumbent OIC will in fact ever return to that position (see [30]) but that will be for another day.

As it is it reminds decision makers of the need to understand and be clear about the basis of their decisions and to communicate that decision, lest they be set aside for procedural errors regardless of the merits of the decision (and see, also, Covid directions to QAS and QPS employees held to be unlawful (February 27, 2024)).  My philosophy is ‘say what you mean; and mean what you say’.  In this case the decision maker, at least according to the submissions, did not ‘say what they meant’ if they gave the wrong reasons; and they and QAS did not ‘mean what they said’ when they turned up to the Commission to say that the reasons given were not the real reason for the decision.  The process from first decision to now seems to represent an unsatisfactory outcome for everyone.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.