Gatla v State of Queensland

Directive 13/20 Appointing a public service employee to a higher classification level position

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Underwood v State of Queensland [2021] QIRC 22

Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360

• [1] Mr Rakesh Kumar Gatla ('Mr Gatla') is permanently employed by the Queensland Police Service ('QPS') in the substantive position of Senior Deployment Officer, ICT Delivery (AO6).

• [2] Mr Gatla commenced engagement in the higher classification role of AO7 Principal Business Analysist (position number 4-957488) on 27 April 2019. The position was within the Frontline and Digital Division of the Public Safety Business Agency ('PSBA'). Mr Gatla is currently funded in the temporary position until 30 June 2023.

• [3] Prior to its disestablishment in June 2021, the PSBA provided corporate support to the portfolio agencies of the QPS, Queensland Fire and Emergency Services ('QFES') and Queensland Ambulance Service ('QAS').

• [4] On 25 February 2022, Mr Gatla emailed the QPS requesting a permanent appointment to the higher classification position ('the higher position') in accordance with Directive 13/20 Appointing a public service employee to a higher classification level position ('the directive'). On 18 March 2022 Ms Deborah Patterson, general manager of human resources at QPS denied the request citing 'genuine operational requirements'.[1]

• [5] Mr Gatla filed a Notice of Appeal on 7 April 2022, in which he seeks for the decision of Ms Deborah Patterson to be set aside and for a substituted decision appointing Mr Gatla to the higher position on a permanent basis.

• [6] Under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the role of the Commission is to review the decision appealed against.[2] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[3]

• [7] An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[4] but rather, it is a review of the decision and the decision-making process.[5] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[6]

• [8] The issue for my determination in the matter before me is whether the decision to refuse to convert Mr Gatla's employment to the higher classification position was fair and reasonable.[7]

What decisions can the Industrial Commissioner make?

• [9] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:

(b) for an appeal against a promotion decision - set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a Directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or

(c) for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

• [10] Section 149C of the Public Service Act 2008 (Qld) ('the PS Act') 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).

(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.

(4) If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating -

(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.

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.

5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:

(a) have been seconded to or assuming the duties and responsibilities of the higher classification level

(c) be eligible for appointment to the higher classification level having regard to the merit principle.

5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:

(a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and

(b) each subsequent year where the employee continues their engagement at the higher classification level in the same role

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 documented 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.

6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.

6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

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.

8.1 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.

• [12] The parties filed written submissions in accordance with a Directions Order dated 7 April 2022. The parties' submissions primarily concern the genuine operational requirements of the QPS.

• [13] Mr Gatla states in his appeal notice that his appointment has been extended in the higher position role four times.[8] He contends that lifecycle management (technology refresh) is an ongoing annual program of work required yearly to support the genuine operational requirements of the QPS, and that the role can no longer be considered as a temporary or short-term appointment pursuant to s 149C of the PS Act.

• [14] Mr Gatla also submits in his appeal notice that the reason listed for his refusal for conversion was that his position is temporary, which he submits is not a valid reason pursuant to the PS Act or the directive.

• [15] The email attached to Mr Gatla's appeal notice states:

Firstly, I would like to thank you for the contribution you are making to QPS in this role. Thank you, too, for your submission in relation to your request for appointment to the higher classification position of Principal Business Analyst, AO7, ICT Delivery (4-957488).

I have considered your request and my decision and response is based on consideration of the requirements of section 149C of the Public Service Act 2008 (PS Act), Directive 13/20 relating to appointing a public service employee to a higher classification level and your employment history, including any previous review decisions.

At this time, the genuine operational requirements of the agency do not support your permanent appointment to the role you are currently performing as the position is a temporary position with temporary funding allocated to it until 30/06/2022. You will continue to be engaged according to the terms of your existing higher duties arrangement until 30 June 2022 when the substantive incumbent is due to return to the role.

As your request has not been approved, and have you have been engaged in higher duties for two years continuous engagement in the same role at the higher classification level which commenced 26/06/2019, section 195(1)(j) of the PS Act provides there is an ability to appeal.

• [16] As an aside it is noted that the reference to a 'substantive incumbent' in the decision is an error. The position occupied by Mr Gatla is a temporary position that he has held since it was created in April 2019.

• [17] The QPS notes this is the second conversion request made by Mr Gatla, the first of which was lodged on 24 February 2021 ('the first request').

• [18] The first request was responded to on 15 March 2021, in which the QPS noted the following:

• On 7 September 2020 the State government announced the disestablishment of the PSBA and the repealing of the establishing legislation to ultimately occur from April 2021 and due to this staffing and positions were being reviewed for redistribution to the various agencies over the coming months;

• Whilst the conversions remained the ultimate responsibility of the PSBA until the legislation is repealed, these decisions are made in consultation with each PSBA, considering their unique operating environments; and

• Genuine operational requirements are associated with the disestablishment of the PSBA and subsequent redistribution of staff and funding for roles.

• [19] The disestablishment of the PSBA had specific effect upon the Frontline and Digital Division as positions and functions were temporarily retained and maintained by the QPS, with annual funding from each of the three portfolio agencies. The transition of Frontline and Digital staff was paused to enable the three agencies to identify the services to be brought in from the QPS.

• [20] The QPS notes during the pause on the review of functions and resources from the Frontline and Digital Division to be transitioned, the information technology services are being provided through a project activity program which obtains continuation approval on a yearly basis. The approval is contingent on the funds provided by the three portfolio agencies.

• [21] The QPS submits the role of Mr Gatla is involved with reviewing and refreshing equipment that is at the end of its life cycle, and therefore submits the role does not deliver day-to-day operational activities.

• [22] The QPS contends that the decision not to convert Mr Gatla was due to genuine operational requirements of the QPS. Specifically, the QPS submits that the role is temporary with funding reliant upon QAS and QFES which is allocated only until 30 June 2022 whilst transitional arrangements for ICT service delivery and staff are being coordinated.

• [23] The QPS notes each of the agencies is progressing through phase two of the transition as to which positions and services will be integrated into their agency. The QPS submits they are not in a position to pressure each agency to take positions as to whether they believe temporary roles may be converted to permanent roles.

• [24] Mr Gatla submits that the decision is unfair and unreasonable because:

• There is a continuing genuine operational need for someone to be employed in the role he is currently undertaking;

• He is eligible for appointment to the position pursuant to s 27 of the PS Act; and

• The decision notice provided by the QPS is inconsistent with the requirements under the PS Act and the Directive.

• [25] Mr Gatla submits that whilst administratively the position he is currently acting in is 'temporary on paper', there is a genuine operational need for his appointment at the higher classification level, because he has been engaged to perform higher duties for more than three years.

• [26] Mr Gatla believes the QPS has secured funding for his role to continue beyond his current end date. Mr Gatla contends there is an authentic need for the role he is in to be performed for the foreseeable future and thus submits that the QPS is 'utilising a fixed term temporary position to populate a role which could be carried out by a permanent employee'.[9]

• [27] Mr Gatla contends that the decision does not set out findings on material questions of fact or refer to evidence or other material on which the findings are based, and the decision does not adequately address the requirements of section 149C (a) to (d) of the PS Act.

• [28] Mr Gatla cites the decision of _Underwood v State of Queensland[10]_in which Power IC made the following comment in relation to project-based work:

[33] To deny an employee conversion because the inherent nature of their work is project based, rather than continuous, would be to unfairly deny employees working in project-based work access to the benefit of the Directive. There may well be circumstances in which permanent appointment of employees acting in a higher classification level position for a particular project would not be consistent with operational requirements. Clause 4.2 of the Directive clearly contemplates that temporary engagement may be appropriate in circumstances in which a project or purpose has a known end date. However, if the history of the employee's temporary engagement relates to continued projects, appointment to the higher level position should not be denied simply on the basis that a known end date exists in isolation from the broader circumstances of the Appellant's employment.

• [29] Mr Gatla contends that as he has been acting in his higher classification role for three years his role should no longer be considered temporary. He also submits that it is unfair and unreasonable for the QPS to rely on the position having an end date on paper, without having regard to whether the funding will likely be extended past that date.

• [30] Referencing the QPS' submission that his role does not perform day-to-day business activities, Mr Gatla submits this submission does not appear in clause 4.2 of the directive as a reason for utilising temporary employment.

• [31] Mr Gatla also cites the decision of Catterall v State of Queensland (Queensland Police Service)[11] ('Catterall') and notes the factual circumstances were similar, in that Mr Catterall (also an employee of the QPS) was denied higher duties conversion. Mr Gatla quotes the following paragraphs of Catterall in his submissions:[12]

[45] With regard to the brief submission about the 'role being reviewed', there is no information before me to suggest that the review is formal, has any terms of reference or intended date of completion. Certainly no documentation has been provided to me to support the contention that there is an ongoing review which may affect Mr Catterall's position. It seems that the role has been through some form of 'review' each year that it has existed and it has been found to be required in the following year. The fact that the role has continued throughout and beyond the disestablishment of the Public Safety Business Agency is a strong indication that the work Mr Catterall is performing forms part of the genuine operational requirements of the Department.

[46] The Respondent points to there being a lack of recurrent funding for the role. There has demonstrably been funding available for Mr Catterall's role in an ongoing way. Each time a submission has been made through the internal processes described by Mr Catterall, funding has been provided to enable the position to continue. The Directive does not require there to be recurrent funding or a funded vacant permanent position in order for appointment to the higher classification level to occur.

• [32] Mr Gatla says because the QPS has confirmed his current role has continued beyond the disestablishment of the PSBA, he is performing a role which forms part of the genuine operational requirements of the QPS. Mr Gatla also submits the QPS' submissions parallel the facts in Catterall.

• [33] The phase two transition mentioned in the submissions of the QPS are submitted to be ambiguous and do not provide clarity as to whether Mr Gatla's position will end on that date. Mr Gatla contends the QPS relies on submissions in relation to the phase two transitions in absence of supporting materials or timelines within which changes will occur which may impact his role.

• [34] As a general rule caution ought to be exercised by this Commission when making decisions to convert employees to permanent employment or to order appointment to a higher classification. The nature of these appeals and the manner in which they are ordinarily conducted is such that, despite submissions from the parties, it is often difficult to fully appreciate the operational setting in which the appeal is being determined. Care must be taken to ensure conversions and appointments do not produce unsustainable outcomes.

• [35] In some instances, a decision to refuse permanent appointment pursuant to s 149C of the PS Act will be readily understood where e.g., the position is already permanently occupied by an employee temporarily seconded elsewhere, or where funding is demonstrably tenuous or short term. Neither of those circumstances apply here.

• [36] Mr Gatla has meritoriously performed the role since April 2019. Despite funding being determined on an annual basis with no guarantee of continuation, in this matter the facts are that funding has been approved each year of Mr Gatla's appointment and was approved (yet again) after filing of this appeal for a fifth year. In my view this pattern of consistent renewal over five years undermines the QPS assertions of 'genuine operational requirements' precluding permanent appointment at the higher classification.

• [37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or the Directive. The phrase, as it appears in s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Morison), where Merrell DP stated:[13]

[37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38] The adjective 'genuine' relevantly means '... being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

• managing the department in a way that promotes the effective, efficient and appropriate management of public resources;

• planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

• [38] While I can understand the QPS' hesitancy to commit to permanent appointment in circumstances where a temporary position is funded annually, I would equally expect that hesitancy to abate as, year after year, the funding continues to be approved for the position, and that the position clearly continues to be required.

• [39] Mr Gatla relies on the decision of Catterall which he submits is synonymous with his own circumstances. I agree. In the circumstances I would adopt the observations of Pidgeon IC set out above.[14] Security of funding is not expressly identified as a basis to refuse an appointment sought pursuant to s 149C of the PS Act. I do not conclude that funding is an irrelevant consideration, but in circumstances where it has been continually renewed over a prolonged period, it becomes less compelling as a reason for refusal in my view.

• [40] Despite the need to exercise caution with such decisions, I find Mr Gatla's submissions make a compelling argument for his permanent appointment. It follows that I consider the decision to refuse it to be unfair and unreasonable.

1. The decision appealed against is set aside; and

1. Another decision is substituted that Mr Gatla is appointed to the position at the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld).

[1] Attachment to notice of appeal filed on 7 April 2022.

[2] Industrial Relations Act 2016 (Qld) s 562B.

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[4] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[6] Industrial Relations Act 2016 (Qld) s 562B(3).

[7] Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[8] On 29 June 2022 after submissions had been filed Mr Gatla advised his appointment had been extended for a fifth time (until 30 June 2023).

[9] Submissions of the appellant, paragraph 17.

[10] [2021] QIRC 22.

[11] [2021] QIRC 360.

[12] [2021] QIRC 360, [45]-[46].

[14]Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360, [45]-[46].