Perrott v State of Queensland

[40] Similarly, on the basis of Directive 10/10, it was also correct to determine that the Appellant's sick leave entitlement from the Northern Territory could be transferred at the point where the Appellant became a permanent employee of the Queensland Public Service.

[41] The advice provided in response to the Appellant's request on 10 July 2024 was therefore accurate.

[42] I do not accept the Appellant's submission that the decision in 2024 to recognise her transfer entitlement following her permanent appointment was an admission of error. At the time of the first request of review, the Respondent correctly advised that there was no transfer entitlement, and at the time of the second request for review, the Respondent correctly identified that the transfer entitlement had arisen upon the appointment to a permanent position. The Respondent appropriately paid arrears to the Appellant for unpaid sick or sick family leave prior to the Appellant's resignation.

[43] The premise of the Appellant's claim appears to be that the transfer of her entitlement should have automatically occurred at the time in which her employment was made permanent. That would presume that the Respondent had an ongoing onus to make enquiries as to whether an employee had potentially transferrable leave entitlements throughout their employment. There is no evidence of a statutory obligation indicating an ongoing obligation on the Respondent to monitor potential entitlements to transfer of leave balances.

[44] The Appellant suffered no financial loss as a consequence of the transfer of sick leave entitlements not occurring until after her inquiry was made on 10 July 2024, with the payment of $975.70 gross covering unpaid sick or sick family leave taken after the Appellant became a permanent employee.

[45] I am satisfied that the decision maker's determination in relation to Concern 1 was fair and reasonable.

[46] As part of the consideration of Concern 2 the decision outlined the following:

Within your Internal Review Request, you have stated that if your sick leave balance had been correctly transferred at the time of your permanent appointment in October 2019, that you would not have made the subsequent decision to separate from the department. I further understand that this decision to separate from the department, and remaining so separated for a period of greater than twelve (12) months, had resulting implications for the consideration of your sick leave.

Presumably, if the absence of sick leave was a determining factor in your decision to separate from the department, I consider it may have been prudent for you to request a review in order to provide certainty of your leave balances prior to resigning.

[47] The decision proceeded to outline the decision maker's understanding that the Appellant's resignation from the department was due to a promotional position that she had sought and obtained at Djarragun College. The decision maker determined that in the absence of contemporaneous evidence to suggest that the Appellant's sick leave balance was a determining factor in her separation, the Local Action Decision was fair and reasonable.

[48] The decision maker also determined that the absence of some two years and two months between the Appellant's separation and return to the Department was 'well outside' the maximum 12 months that can be considered for the purposes of crediting leave.

I am thus of the view that there would be no reasonable expectation for [the Appellant] to have any service recognised on [her] resumption with the department in January 2023. Further, there is no provision in Directive 12/18 that could permit a retrospective recognition of service following a break in service of greater than 12 months.

I further note that there is no provision for sick leave to be paid out to an employee on cessation with the department. Sick leave can only be accessed in line with the provisions of the Sick Leave (Directive 09/24) and Industrial Relations Act 2016 (IR Act). As such, given the restorative actions of Payroll Services detailed above, there is no outstanding leave entitlement.

[50] It is not in dispute that the Appellant had a break in service from 23 November 2020 to 18 January 2023. This break was greater than 12 months and, in accordance with the Directives 10/10 and 12/18, prior service cannot be recognised. It was fair and reasonable for the decision maker to determine that there was no capacity to retrospectively recognise service in circumstances whether the Appellant had been absent outside the maximum 12 month period.

[51] I understand the Appellant's contention that she was not able to make an informed decision about her employment options as her sick leave entitlement had not been transferred at the time of her resignation. I agree with the decision maker's view that it would have been prudent to seek a review of leave balances if the issue of leave entitlements was a determining factor in such a decision.

[52] The Appellant understandably submits that her sick leave balance accrued over many years of hard work. However, it was the responsibility of the Appellant to make appropriate enquiries as to the circumstances in which such leave balances may be transferred. Any reading of the Directive in place at the time would have informed the Appellant that such a transfer could occur when she obtained a permanent appointment. The Appellant's failure to request that her leave be transferred at this point at which she became a permanent employee, whilst regrettable, is not the fault of the Respondent. There is no requirement that the Respondent proactively seek information about possible leave entitlements that may have accrued elsewhere.

[53] The Appellant asserts that she may have made a different decision about taking private sector employment had her sick leave entitlements been transferred at the point at which she became a permanent employee. That may well be the case, however, it was for the Appellant to make appropriate enquiries as to her leave transfer entitlements to inform herself prior to her resignation.

[54] In practical terms, even if the Appellant had requested that her Northern Territory sick leave entitlement be transferred upon commencement of permanent employment and such a transfer had occurred, that leave balance could not be transferred to her current employment due to her break in service. There is no mechanism to allow for recognition of service and transfer of entitlements following a break in service of more than 12 months. The Appellant would be in the same situation today regardless of whether the transfer of entitlements had occurred in 2019.

[55] I am satisfied that the decision in relation to Concern 2 is fair and reasonable.

[56] The decision maker considered the Appellant's human rights and determined that the Local Action Decision was fair and reasonable. The decision outlined the relevant issues and provided adequate reasons for the decision. There is nothing before the Commission to indicate that the decision was anything other than fair and reasonable.

[57] The Appellant made submissions regarding her personal circumstances requiring access to leave. I note the Respondent's submission that the Appellant has access to paid DFV leave in accordance with Directive 03/20 which provides leave for attending medical, legal, police or counselling appointments, attending court and other legal processing, and organising alternative accommodation, care, or education arrangements. The Appellant may wish to make enquiries as to the process governing access to such leave.

[58] After considering all of the circumstances of this matter, I am satisfied that the decision was fair and reasonable.

[1] Industrial Relations Act 2016 (Qld) ('IR Act'), s 562B(2).

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

[3] Goodall v State of Queensland [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act.

[10] In accordance with the PS Act, (n 1), s 129.