Palomino v State of Queensland

Whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing.

Whether you are eligible for appointment having regard to the merit principle.

If any requirements of the Award and Certified Agreement (referred to above) need to be complied with in relation to making the decision.

The relevant genuine operational requirements of the department.

The reasons provided for in the previous decisions made were taken to have been made (referred to above) during your continuous employment.

Part 2 of the Human Rights Act 2019 (HR Act).

Ms Newbold then gave her reasons for decision. Namely:

Although the matters referred to above have been satisfied, I consider that it is not appropriate to offer to convert your employment basis to employment to permanent, having regard to the genuine operational requirements of the department. Specifically:

The temporary nature of your temporary fixed employment is the result of a temporary vacancy arising from an existing employee being absent from the role for a known period. The existing employee is absent from the role to perform another role requiring replacement until the date of their expected return. As an existing employee is substantially engaged in the role with an expected return date of 17 April 2021, a genuine operational requirement exists not to offer to convert your employment basis to employment to permanent.

The relevant provisions of the Public Service Act 2008 and of the Directive. Section 149B(5) and (6) of the PS Act relevantly provide:

(5) In making the decision, (a) section 149A (2) and (3) applies to the department's chief executive and

(b) the department's chief executive must have regard to the reasons for each decision previously made or taken to have been made under this section or section 149A in relation to the person, during the person's period of continuous employment.

(6) If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating; A, the reasons for the decision and; B the total period for which the person has been continuously employed in the department, and; (c) for a fixed-term temporary employee, how many times the person's employment as a fixed-term temporary employee or casual employee has been extended and; D each decision previously made or taken to have been made under this section or section 149A in relation to the person during the person's period of continuous employment.

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if, (a), the department's chief executive considers (i) there is a continuing need for someone to be employed in the person's role or a role that is substantially the same as the person's role, (ii) the person is eligible for appointment having regard to the merit principle and; (b) any requirements of an industrial instrument are complied with in relation to the decision.

(3) if the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employer, tenure or a public service officer, unless it is not viable or appropriate to do so, having regard to the genuine operation requirements of the department.

8.4 Notice of a decision not to convert a person's employment must comply with section 149A(4) for applications under section 149, or section 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must; 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.

Mr Palomino's submissions. Mr Palomino raises one issue as to why he says the decision was not fair and reasonable. In his written submissions, Mr Palomino submits that the decision was unfair and unreasonable as the decision maker erred by not considering whether there were roles which were substantially the same that he could be converted into in accordance with the obligation of the chief executive of the Department, pursuant to section 149A(2)(a)(i) and section 149B(5) of the PS Act.

In particular, Mr Palomino submits that, first, there was a failure to comply with section 27B of the Acts Interpretation Act, in that the decision maker has not provided any findings of fact or evidence in relation to any process undertaken with respect to the consideration of roles that were substantially the same which he could perform and whether there is a continuing need for someone to be employed in those roles.

And, secondly, the decision maker merely stated that genuine operational reasons existed to not permanently appoint him on the basis that he was essentially back-filling an incumbent employee about to return to the role which, by reference to the decision of Industrial Commissioner Dwyer in Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53 was clearly insufficient to comply with the statutory obligations the decision maker was required to address.

In his written submissions, Mr Palomino summarised his case this way:

18. I submit that the failure of the decision maker to consider whether there is a continuing need for me to be employed in a role which is substantially the same is not only a failure to meet statutory obligations as per the PS Act, at s149A(2)(a)(i) but may have materially changed the outcome of the review.

Mr Palomino, in his written submissions, further submitted that, firstly, he had received information from another employee of the Department which indicated to him there was a high vacancy rate of 7.28 per cent, or 62 full-time equivalent vacant roles across the Information Technology Branch of the Department such that:

There is likely a role which is substantially the same, with a continuing need for a person to perform that I could be converted to and I should have been considered for one of those roles.

And, secondly, there were two permanent AO3 and AO4 Information Technology Service Centre Consultant roles, which I will refer to as the AO3 and AO4 roles, which had been advertised in February 2021, which were:

Substantially the same to my role and demonstrably had a continuing need.

And in respect of which he asked an employee in the Employment Review Team of the Department to consider as part of his review.

As a consequence, Mr Palomino contended he had been disadvantaged from the review by the decision maker failing to consider a mandatory criterion as required by section 149A(2)(a)(i) of the PS Act and clause 8.1 of the Directive; namely, whether there is a continuing need for someone to be employed in a role that is substantially the same as his role.

Today, Mr Palomino submitted, firstly, in response to the Department's written submissions, there was no evidence the Department considered the AO3 and AO4 roles as part of his review; secondly, it was not reasonable for the recruitment process for the AO3 and AO4 roles to be finalised, given the impending review of his temporary employment status. Thirdly, in conducting the review of his employment status, the Department should have considered roles in addition to those that had been approved and advertised externally. Fourthly, he is aware of 62 full-time equivalent vacancies across the Information Technology Branch of the Department which are positions sitting vacant and not being advertised. And, fifthly, those vacancies should be considered by the Department for the conversion of long-term temporary employees pursuant to section 149B of the PS Act, and that consideration should have been given to whether he should have been employed in such a vacancy that was substantially the same as his role.

The relief sought by Mr Palomino is that his employment status:

Be converted to permanent in a role that is substantially the same within the Department of Education.

It seems to be the case that whilst Mr Palomino was aware he could have applied for the AO3 and AO4 roles, he did not, and that the recruitment and selection process for those roles has been finalised.

The Department's submissions. The Department stated in written submissions that, first, the decision does not specifically describe the process of considering vacant positions; however, it does state that consideration was given to whether there is a continuing need for someone to be employed in:

A role that is substantially the same as the role you are performing.

Secondly, Mr Palomino requested his employment be reviewed on 18 February 2021, which was prior to his anniversary date of 26 February 2021. Thirdly, Mr Palomino contacted an employee in the Employment Review Team in the Department soon after his request for his temporary employment status to be reviewed, where there was a discussion about the AO3 and AO4 roles. Fourthly, as the recruitment process had commenced and applications closed for the AO3 and AO4 roles prior to Mr Palomino's two-year anniversary date on 26 February 2021, it was reasonable, having regard to the genuine operation requirements of the Department, including the effective, efficient and appropriate management of public resources, for that recruitment process to be finalised. And, fifthly, Mr Palomino did not apply for either of those positions.

In written submissions, the Department went on to submit that, first, the Employment Review Team confirmed with the "Talent Unit" that no Information Technology vacancies were advertised during the review period on Mr Palomino's employment, namely 26 February 2021 to 30 March 2021, and as such, "No specifics were included in the decision letter". Secondly, the information supplied by the, "Talent Unit" shows the AO3 and AO4 roles were the only two advertised Information Technology jobs during the extended period, 18 February 2021 to 30 March 2021.

Thirdly, it understands that information should have been included in the decision, however, that does not remove the fact the decision considered roles that are substantially the same as the role Mr Palomino was performing. And finally, Mr Palomino's current work unit, Business Systems Maintenance, stated that there were no vacancies currently available, which was provided to the Employment Review Team on 2 March 2021. Today, the Department submitted that, firstly, the only information before the decision maker was that in the 28 days after 26 February 2021, the only two vacancies were the AO3 and AO4 roles.

Secondly, the advice provided by the Digital Solutions Business unit to the Employment Review Team for the purposes of Mr Palomino's review was that set out in attachment E to its submissions, which included that there was no substantially vacant role available in that business unit. And thirdly, in relation to the 62 full-time equivalent vacancies referred to by Mr Palomino, the information from which that submission came does not confirm that there are actual vacant positions, but rather, represents 7.8 per cent of unused budget, brought about my savings required by the State Government.

Notwithstanding the above, exhibit 2 was an email generated within the Department early this morning, which seemed to indicate that there were at least two vacant AO4 positions within the Information and Technology Branch Directorate of the Department. The order sought by the Department is that the decision be confirmed. In submissions in reply, Mr Palomino submitted that exhibit 2 confirms that no AO3 roles were considered as part of his review, and that having regard to exhibit 2, it was problematic that the Department only yesterday considered other, potential vacancies as part of his review.

The decision was not fair and reasonable. In Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53, Industrial Commissioner Dwyer relevantly held that - omitting the citations:

[35] Section 149A(4)(a) and section 149B(6)(a) require the chief executive to give the person a notice stating the reasons for the decision. Section 27B of the AI Act and Cl 8.4 of the Directive prescribe what such reasons must address. The decision in this instance fails to meet this standard in my view. I would, for example, expect that a decision of this nature would not simply refer to, "genuine operational requirements", without some degree of particulars relevant to Ms Power.

[36] Further, even while the reference to the, "return of an incumbent" might adequately address the particulars as to why Ms Power's current role is not ongoing, a broad reference to, "all potential roles have been considered" is insufficient, in my view, to explain the apparent absence of a role substantially the same.

[37] In my view, the decision needed to refer to evidence relied upon to support this conclusion. This would be include, eg, details of other roles considered and why some might have been rejected. It must be sufficient to inform Ms Power why the decision was made.

I respectfully agree with these statements by Industrial Commissioner Dwyer. Furthermore, it terms of the adequacy of reasons for decision, I refer to the comments I made in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 at paragraphs 48 and 49, namely, that first, the adequacy of reasons of an administrative decision maker, is to be tested by reference to the nature of the task, which the decision maker had to undertake, in that the more significant the decision, the clearer the reasons should be.

Secondly, while it is not necessary that the decision maker deal with every matter which may have been raised, it is enough that the findings and reasons deal with the substantial issues upon which the decision turned, such that the person aggrieved by the decision can understand why the decision went against him or her. And thirdly, the decision maker is to set out his or her understanding of the relevant law, any findings of fact upon which his or her conclusions depend, especially if those facts have been in dispute, and the reasoning processes which led him or her to those conclusions; all of which should be done in clear and unambiguous language, and not in vague generalities or the formal language of legislation.

In my view, the decision to not comply with the requirements of section 27B of the Acts Interpretation Act, as required by clause 8.4 of the Directive, and did not comply with the other principles or the adequacy of reasons of administrative decision makers I have referred to above, in respect of the consideration by the decision maker as to whether there was a role that was substantially the same as Mr Palomino's role. It is not sufficient for decision makers, as occurred in the present case, to merely state that the decision maker has taken into consideration, "Whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing".

In my view, decision makers must, where the matter of the availability of a role that is substantially the same as the employee's role is being considered, and a decision is made about that matter, set out the findings on material questions of fact, and refer to the evidence or other material in which those findings were based. Further, in my view, in giving reasons for the decision, as required by section 149B(6)(a) of the PS Act, the findings and reasons of that decision must deal with the substantial issues

upon which the decision turned, so that the person aggrieved by the decision can understand why the decision went against him or her.

In addition, such a decision should not be expressed in vague generalities, or the formal language of legislation. The latter is what has occurred in the present case, in relation to the decision makers consideration of whether there was a role that was substantially the same as Mr Palomino's role, in my view, Mr Palomino was entitled to a decision that met all the above requirements. Furthermore, having regard to exhibit 2, it seems to be the case that there were vacant positions, to which a consideration should have been given, and which appear not to have been considered in conducting the review of Mr Palomino's employment status.

While submissions were made today about why such vacancies were not substantially the same as Mr Palomino's present role, in my view, those matters should properly be considered by the chief executive, or more practically, the chief executive's delegate, as required by section 149B(5) of the PS Act. During the hearing, I raised my concerns about the above issues concerning the adequacy of the decision maker's reasons, and the issues around the vacancies referred to in exhibit 2 with Mr Jager, the representative of the Department. I also raised the issue of if I was minded to set the decision aside, and return the matter to the decision maker to conduct a fresh review, whether the Department would be prepared to extend Mr Palomino's temporary employment, so that a fresh review could be conducted by the Department in accordance with the provisions of section 149B(5) of the PS Act, and in accordance with the Directive. To its credit, the Department has agreed to extend Mr Palomino's employment to next Friday, on the basis that it can conduct a fresh review during that period of time. No doubt to ensure that procedural fairness is afforded to Mr Palomino, the decision maker would take into account any submissions made by Mr Palomino, or made on his behalf, during that period in which the fresh review is to take place.

In my view, the decision was not fair and reasonable because there was no adequate explanation of why no offer was made to Mr Palomino to convert his employment on the basis of the unavailability of a role that was substantially the same as his. Furthermore, the decision was not fair and reasonable because, having regard to the evidence led today, there seemed to be other positions in respect of which consideration should have been given, but were not, in conducting Mr Palomino's review.

Having regard to the Department's preparedness to extend Mr Palomino's employment to next Friday to enable a fresh review of his temporary employment status to be conducted, the appropriate decision to make, pursuant to section 562C, subsection (1), paragraph C of the Industrial Relations Act 2016, is to set the decision aside, to return the matter to the decision maker with a copy of the decision on appeal, and to direct that the decision maker conduct a fresh review of Mr Palomino's employment status by 5 pm, Friday 23 May 2021.

I make the following order, pursuant to section 562C, subsection (1), paragraph C of the Industrial Relations Act 2016.

(b) The matter is returned to the decision maker with a copy of this decision on appeal.

(i) Conduct a fresh review of the appellant's employment status no later than 5 pm, on Friday 23 April 2021, in accordance with section 149B of the Public Service Act 2008. And,

(ii) upon completion of the fresh review of the appellant's employment status, issue a notice in compliance with section 149B(6), and clause 8.4 of Directive 09/20 Fixed term temporarily employment.

HIS HONOUR: Okay. I will revoke the previous order and make the following order. Pursuant to section 562C(1)(c) of the Industrial Relations Act 2016:

(b) the matter is returned to the decision maker with a copy of this decision on appeal. And,

(i) Conduct a fresh review of the appellant's employment status no later than 4 pm, on Friday 23 April 2021, in accordance with section 149B of the Public Service Act 2008. And,

(ii) upon completion of the fresh review of the appellant's employment status, issue a notice in compliance with section 149B(6), and clause 8.4 of Directive 09/20 Fixed term temporarily employment.