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The Queensland Department of Justice was criticised by a commission for the way it rejected a temporary contract employee’s conversion to a permanent position.
David Jenkins, a senior legal officer with the Office of the Director of Public Prosecutions (ODPP) in Cairns, was successful in his challenge of the Department of Justice’s refusal to upgrade his temporary employment contract to a permanent position.
The department refused the conversion in July on “suitability” grounds, alleging Jenkins had included flawed recommendations on charges in indictment, shown poor work quality that required significant redrafting, and a failure to follow directions.
Having reviewed several of the matters where Jenkins’ performance was allegedly an issue, the Queensland Industrial Relations Commission’s Roslyn McLennan concluded it was not “fair and reasonable” for the conversion to be refused.
McLennan also dismissed the department’s suggestion that the conversion refusal was due to “genuine operational requirements”.
The commission took particular issue with the “omission of some mandatory elements” in the July decision letter, the result being that information was kept from Jenkins “that he was entitled to, and fairly required, in order to assess whether to appeal” and grounds to do so.
“While in this case, Jenkins has determined to file an appeal that I will uphold, other employees faced with such scant information may have made a different decision,” McLennan said.
In his submissions, Jenkins said he was not given “actual notice” of any alleged performance issues and any discussion about them came after the department’s decision not to convert his employment.
Further, by the time of the conversion decision, Jenkins’ temporary employment contract had been extended eight times.
“The supposed performance issues going to suitability were either of such a low level that they didn’t trigger genuine management action and the department is now seeking to conflate matters to reverse-engineer a basis for non-conversion, or the department blindly extended a person ‘unsuitable for the position of senior legal officer’ eight times,” Jenkins told the commission.
One of the alleged performance issues relied on by the department concerned correspondence with a defence solicitor regarding a plea, which Jenkins had sent to the Crown prosecutor within 15 minutes, with an alleged recommendation that it should be accepted.
The department alleged it was “clear” Jenkins did not read or adequately review the submission. He also did not seek the complainant’s views, which was “contrary to a level of understanding and diligence that would be expected”, the department claimed.
However, McLennan said Jenkins’ alleged acceptance was to the last line of the defence solicitor’s email, which asked for consent to an adjournment to enable further time for negotiations.
This was an example of “poor communication” or “cross wires” between the two, and was not “management action”, McLennan said.
Jenkins’ contract was extended two weeks after these events and would go on to be extended three more times, which “clearly indicates that if there were any performance concerns, they were by the time of the contract extension considered ‘resolved’”.
The department’s July decision was set aside, and Jenkins’ employment status was converted to permanent.
The case: Jenkins v State of Queensland (Department of Justice) [2025] QIRC 237.
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
