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Internal Employee Recruitment – My boss rejected my request to fill a higher position I’ve been relieving – What options do I have?

In Scott v State of Queensland, the Queensland Industrial Relations Commission ruled in favour of a government employee who’d been rejected for an internal role. Since the appointment was not done in accordance with the Public Service Act 2008 (‘PSA’), it was not deemed fair and reasonable.  

This case highlights the importance of employers following the necessary conversion protocols for internal staff movements. Furthermore, it also emphasizes the principle that in cases concerning conflicting specific and general legislative provisions, specific provisions will prevail.  

FACTS 

Tanya Scott (the appellant) was a permanent State of Queensland employee (the respondent) working at Queensland Shared Services (‘QSS’).   

Since 3 April 2018, she had been acting in a higher role as a Payroll Officer. 

On 22 September 2020, the appellant submitted a request to be permanently appointed to the Payroll Officer position under s149C(3) of the PSA.  

The request was denied (‘the decision’) and in a letter dated 20 October 2020, it was outlined that the position had been permanently filled by an alternative employee (“Employee X”).  

On 9 November 2020, Ms Scott appealed the decision.  

ARGUMENTS  

Both parties submitted that different sections of the PSA applied. The question arose as to which section of the PSA, whether s149C or the combined effect of ss119 and 121, would prevail.  

APPELLANTS ARGUMENT  

Ms Scott’s position was that the Chief Executive’s obligations under s149C of the PSA should prevail. She argued that in appointing Employee X, the Chief Executive utilized a discretionary power under cl 6.9 of Directive 12/20 Recruitment and Selection to exempt the Payroll Officer role from advertising. Since the decision was made after her appointment request, the Chief Executive took into account an irrelevant consideration that was not required by the PSA or Directive 13/20 in responding to her appointment request: whether another employee could be appointed to the role.  

She argued that this made the decision unfair, and that the Chief Executive had unfairly used their discretionary power to appoint public service officers on tenure in the Chief Executive’s department (ss191 and 121 of the PSA) to circumvent their s149C obligations to consider her request in light of the department’s genuine operational requirements. 

RESPONDENTS ARGUMENT 

The Department submitted that when reading ss 119 and 121 of the PSA together, this “provide[s] the authority for a chief executive of a department to appoint a public service officer on tenure in the chief executive’s department.” They outlined that limited advertising did in fact occur within QSS for the Payroll Officer position 12 months prior, with order of merit lists also compiled.  

The Chief Executive approved on 29 September 2020 a request dated 5 May 2020 from Human Resources to use the lists to fill vacancies within QSS, with thte Chief Executive’s delegate not having given consideration to Ms Scott’s request at the time. Human Resources, on the same day, hired the most meritorious individual from the merit lists.  

The Department further argued they had 28 days from the date of receipt to decide Ms Scott’s request, with genuine operational requirements of the Department often not remaining static during such a timeframe. The appointment of Employee X to the Payroll Officer position changed these genuine operational requirements significantly, meaning it was not within the Department’s operational needs to have had Ms Scott also in the role. They also stated that no provision applied that would force the Department to decide a conversion request before hiring a permanent employee in accordance with the PSA and Directive 12/20.  

ISSUES  

  1. Which section of PSA was applicable in the circumstances? 
  1. Did the delegate of the Chief Executive have the power to appoint Employee X to the position? 
  1. Was the decision of the Deputy Director-General not to convert Ms Scott fair and reasonable? 

DECISION  

Applicable PSA Section  

Judge Merrell commenced his decision by outlining the principle that where a conflict resides within a single Act between a general and specific provision, the specific provision would prevail.  

  • Regarding s149C(4), the Member outlined that its purpose was to give the Chief Executive power to appoint an eligible employee to the higher position where they have been acting – after an employee has made the requisite request, the Chief Executive has considered the employee’s request within the relevant time period and after the Chief Executive has considered the Department’s genuine operational requirements. 
  • Regarding the combined effect of ss119(1) and 121(2), he outlined its effect was to enable the Chief Executive powers to meet its s98(1) obligations, including managing the department in a way that “promotes the effective, efficient and appropriate management of public resources.” (1)  

Merrell DP found an irreconcilable conflict of duties between the broader ss119(1) and 121(2) provisions and the specific s149C(4) provision within the PSA. He outlined that the conflict was to be resolved by the specific s149C obligations of the Chief Executive, after being enlivened by the conversion request from an eligible employee, prevailing over the general powers of appointment under ss119(1) and 121(2). 

Rejecting the Department’s argument that no inconsistency arose to completely nullify s149C’s operation, the member reasoned that this argument would lead to Chief Executives/delegates avoiding their mandatory duty under s149C(4) to decide conversion requests by appointing another person in the role and claiming the operational requirements did not warrant the conversion, meaning s149C(4) would be deprived of its specific purpose. 

The Department’s submission, that no inconsistency arises because Parliament does not intend to contradict itself, was not accepted by Deputy President Merrell, stating that this principles refers to conflicts across different statutes rather than a single statute. 

Fair and Reasonable? 

The Member outlined that the Chief Executive’s delegate lacked the power to appoint Employee X to the position as s149C applied in this circumstance. This is because Ms Scott had, prior to the appointment of Employee X, lawfully made the request under s149C(3) and the request had to be decided without an alternative appointment to the position. The Department had previously conceded that if s119 and 121 were unavailable to the Chief Executive to appoint Employee X, the genuine operational requirements of the Department might not provide a suitable reason for their rejection of Ms Scott’s request.  

Since the Chief Executive’s delegate lacked the requisite power to appoint Employee X, it was not fair or reasonable to deny Ms Scott’s request based upon it not aligning with genuine operational requirements – especially since it was Employee X’s appointment grounding the refusal. 

FINAL OUTCOME  

As the decision was deemed unfair and unreasonable,  Deputy President Merrell, under s562C(1)(c) of the Industrial Relations Act 2016 (Qld), set aside the decision, substituting in his own decision that Ms Scott be appointed to the Payroll Officer position. 

NEED EMPLOYMENT ADVICE? We can help! 

If you are navigating employment concerns or issues, our Brisbane Employment Lawyers can assist you. 

Call (07 3252 0011) or emailone of our Business Development Officers (General Enquiry) now to . 

This article was written by Jackson Litzow & Prini Avia   

FOOTNOTES 

  1. Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126 [51]. PSA s 98(1). 

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