Worker disputes transfer decision after returning from holiday leave

What rights do employees have when their role changes while they're away?

Worker disputes transfer decision after returning from holiday leave

The Queensland Industrial Relations Commission (QIRC) recently dealt with an enforcement application regarding a QHRC (Queensland Human Rights Commission) conciliation agreement.

The case started when a worker filed an application in the Industrial Court of Queensland seeking to enforce clause 6(e) of the agreement against her employer, the State of Queensland's Department of Children, Youth Justice and Multicultural Affairs.

The worker argued that her employer breached the agreement by transferring her during her recreational leave period. She sought several orders, including returning to her previous role and compensation for hurt, humiliation, and career interruption.

The case examined whether the transfer constituted a breach of the conciliation agreement, which had been reached following the worker's complaint about alleged reprisal action after a Public Interest Disclosure.

Understanding workplace transfer agreements

The dispute had its roots in April 2021, when the worker lodged a complaint with the QHRC alleging reprisal action by her employer and several employees following her Public Interest Disclosure.

After mediation, the parties reached a conciliation agreement in March 2022. Under Section 164 of the Anti-Discrimination Act 1991 (Queensland), such agreements become enforceable as tribunal orders once filed.

The agreement included several key provisions. Clause 6(e) confirmed the worker's status as a permanent full-time employee with the Youth Justice Policy Strategy and Legislative team.

It also specified that she would continue in her current employment regardless of whether her position was classified as 'attached' or 'unattached', subject to standard public service employment terms. The agreement further provided that she would be assigned a recurrent position once an appropriate vacancy became available.

While the worker was on approved recreational leave during the 2022-2023 Christmas and New Year period, she was transferred from her AO5 Project Officer role to an AO5 Program Officer position in Court and Regional Operations Practice Support (CROPS). This transfer became the focal point of the dispute.

Transfer communication process examined

The senior executive director provided key evidence about the transfer circumstances, stating: "I am not aware of [the worker] being offered a substantively vacant recurrent role in the CROPS Role, nor am I aware of any representation to this effect being made as this was not a possibility."

The project manager who discussed the transfer with the worker testified about the conversation: "Youth Justice Services would cover the funding to enable [the worker] to accept the CROPS Role, as there was an opportunity for ongoing work in that role."

The project manager confirmed that at no time during this conversation did she indicate the role was an 'attached' position or a substantively vacant position.

The Commission noted: "Whilst [the worker] contended that her acceptance of the transfer was obtained on a 'false pretext', the evidence before the Commission does not support that contention."

The requirements of transferring staff

Section 161 of the Public Sector Act 2022 played a central role in the Commission's deliberations. This section empowers department heads to transfer staff within their organisation, with redeployment requiring the worker's consent.

Under cross-examination, the worker confirmed her employment conditions remained stable throughout the transfer: "Now, since you've moved to CROPS you're still a permanent public servant... You're still full time... You're still an AO5... You're still paid the same?" The worker answered affirmatively to all these questions.

The evidence showed that despite the transfer, the worker's permanent status, classification level, and salary remained unchanged. The project manager testified that the transfer was offered to provide the worker with ongoing work and greater stability.

Dispute in the worker’s transfer

The Commission found several significant factors affecting the case. First, they determined the worker couldn't return to her previous role because "the leadership team comprising the Detailed Business Case - Infrastructure and PGB Secretariat Portfolio Management where [the worker] was prior to the CROPS role, has been discontinued and the lead responsibilities passed to the Department of State Development."

The Commission examined whether any substantively vacant positions had become available since the agreement was signed.

The evidence showed that while a temporary fixed-term position was advertised, it wasn't a recurrent position as specified in the agreement. The worker did not apply for this position.

The Commission concluded: "There is no evidence of a breach of any of the terms of the QHRC Conciliation Agreement. Further, there is no evidence to support the request for non-financial or financial remedies."

The application was dismissed, with the Commission finding the transfer was conducted within standard public service employment terms and no breach of the conciliation agreement had occurred.