Carey v State of Queensland (Parliamentary Service)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Carey v State of Queensland (Parliamentary Service) [2023] QIRC 173
PARTIES:	Carey, Colette (Applicant) v State of Queensland (Parliamentary Service) (Respondent)
CASE NO.:	TD/2020/121
PROCEEDING:	Application for reinstatement
HEARING DATES: DELIVERED ON:	2, 3 and 4 March 2022 13 June 2023
DATES OF FINAL WRITTEN SUBMISSIONS:	Respondent's written submissions filed on 11 April 2022 and Applicant's written submissions filed on 28 April 2022
MEMBER: HEARD AT:	Merrell DP Brisbane
ORDER:	*Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application is dismissed.*
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – Applicant employed in the Queensland Parliamentary Service as a Research Officer in the Parliamentary Library – Applicant retrenched – Applicant applied for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 contending her dismissal was harsh, unjust or unreasonable – Applicant was redeployed to the position of Research Officer – Applicant contended this was a specialist role for which she did not have the experience and she was not given the training or sufficient time to be able to perform the requirements of that role – Applicant also contended that redeployment was not properly considered prior to her retrenchment – whether Applicant's dismissal was harsh, unjust or unreasonable – Applicant's dismissal was unfair because it was unjust – Applicant's reinstatement or re-employment impracticable – no compensation ordered
LEGISLATION:	Industrial Relations Act 2016, s 316, s 317, s 319, s 320, s 321 and s 322 Parliamentary Service Act 1988, s 20, s 26AA and s 40 Queensland Parliamentary Service Award – State 2015, sch 3
CASES:	Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041
APPEARANCES:	The Applicant in person with Mr J. Moyney as a support person. Mr A. Fraser of Counsel instructed by Mr M. Green of Crown Law for the Respondent.

Reasons for Decision

Introduction

Ms Colette Carey was employed in the Parliamentary Service in the position of Research Officer, classification PO3 ('the Research Officer position'), within the Research and Information Services, Parliamentary Library. Ms Carey's employer was the State of Queensland.
Ms Carey's employment history in the Parliamentary Service is:
·on 26 September 2016, Ms Carey was employed in the position of Committee Support Officer, classification AO3;[1]
·on 27 March 2017, Ms Carey was appointed to the position of Senior Parliamentary Officer (Papers and Research), classification AO6;[2] and
·on 22 July 2019, Ms Carey was redeployed to the Research Officer position in the Parliamentary Library.[3]
[1] Ms Carey's written submissions filed on 28 April 2022 ('Ms Carey's submissions'), para. 3(a).
[2] Ms Carey's submissions, para. 3(b).
[3] Ms Carey's submissions, para. 3(c).
By letter dated 17 December 2020 from Mr Craig Atkinson, Director of Corporate Services and Electorate Office Liaison, Ms Carey was informed that he had decided to approve her retrenchment from the Parliamentary Service effective as from close of business on 18 December 2020.[4]
[4] Exhibit 10, pages 679-681 of the Hearing Bundle.
By application filed on 24 December 2020, Ms Carey applied for reinstatement contending that her dismissal was harsh, unjust or unreasonable. The remedy Ms Carey seeks is reinstatement or re-employment and an order for lost remuneration between the date of dismissal and the date of reinstatement or re-employment.
Ms Carey contends her dismissal was harsh, unjust or unreasonable for five reasons, namely:
·she was dismissed due to her performance in the Research Officer position;[5]
·she was deployed to the Research Officer position on 22 July 2019, and that while she had general research experience, she was not a specialist researcher and it was not reasonable to expect her to improve her skills and knowledge to such a specialist standard within a short period of time;[6]
·she had always understood the Research Officer position to be permanent, however, she was told by Ms Janet Prowse, Director, Library and Information Services, that she was backfilling in the position for an employee on maternity leave and was then advised by Mr Peter Morris, Human Resources Manager, and by Mr Atkinson, that her deployment was permanent;[7]
·on 17 December 2020, when she was informed of her retrenchment, she was advised that whilst there was work to be done in the Library, there was no funding for a position to carry out that work;[8] and
·the Parliamentary Service was required, by virtue of Directive 04/18 – Early Retirement, Redundancy and Retrenchment, to consider all alternative positions to which she may be redeployed before retrenchment; and there were other positions in electorate offices of Members of the Legislative Assembly that became available after the October 2020 State election, for which she was not considered, in addition to two positions within the Parliamentary Service, namely, a classification AO3 position in Human Resources and another in the Committees' Office, for which she could have been considered.[9]
[5] Ms Carey's statement of facts and contentions filed on 17 March 2021 ('Ms Carey's contentions'), para. 3.
[6] Ms Carey's contentions, para. 10.
[7] Ms Carey's contentions, para. 13.
[8] Ms Carey's contentions, para. 14.
[9] Ms Carey's contentions, para. 15.
The Parliamentary Service contends that:
·Ms Carey's employment was terminated because the Parliamentary Service no longer had an available suitable position for her in which to perform, in circumstances where:
-        she failed to meet the requirements of the position to which she was redeployed in July 2019, namely, the Research Officer position; and
-        the Parliamentary Service was unable to identify any other suitable vacant positions to which Ms Carey could be deployed;
·Ms Carey was afforded natural justice in respect of the decision to dismiss her in that:
-        she was afforded natural justice throughout the Performance Improvement Plan ('PIP') conducted in relation to her performance as a Research Officer;
-        the Parliamentary Service also sought Ms Carey's views in relation to all suitable vacant positions and afforded Ms Carey the opportunity to respond in writing to the options being considered by the Parliamentary Service in respect of her future employment after the conclusion of the PIP, including the proposal to dismiss her; and
-        her responses were carefully considered;
·in circumstances where the Parliamentary Service no longer had an available suitable position in which Ms Carey could perform, the decision to terminate her employment was appropriate and proportionate; and
·Ms Carey has been compensated for the loss of her employment, including the provision of a severance payment of approximately 20 weeks' pay.[10]
[10] The statement of facts and contentions of the State of Queensland (Parliamentary Service) filed on 9 April 2021, para. 2.
The questions for my determination are:
·was Ms Carey's dismissal, effective 18 December 2020, harsh, unjust or unreasonable within the meaning of s 320 of the Industrial Relations Act 2016 ('the IR Act'); and, if so
·what remedy, in all the circumstances, may and should be provided to Ms Carey under either s 321 or s 322 of the IR Act.
For the reasons that follow, Ms Carey's dismissal was unjust, but no order should be made under either s 321 or s 322 of the IR Act.

The Industrial Relations Act 2016

Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.

Section 320 of the IR Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
·whether the employee was notified of the reason for dismissal;
·whether the dismissal related to the operational requirements of the employer's undertaking, establishment or service or the employee's conduct, capacity or performance;
·if the dismissal related to the employee's conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance or whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
·any other matters the Commission considers relevant.

In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[11]
[11] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (President Hall).
Was Ms Carey's dismissal harsh, unjust or unreasonable?
Both parties made detailed final written submissions.
I will consider Ms Carey's application by reference to the discrete issues she addressed in her final submissions.
Ms Carey's submission that her redeployment to the Parliamentary Library in the Research Officer position was done without proper regard to her skills and where she was not given sufficient induction, training or time to meet the research standard required
Ms Carey's submissions
On 22 July 2019, after a disputed disciplinary hearing, Ms Carey was deployed by Mr Neil Laurie, the Clerk of the Parliament, from the position of Senior Parliamentary Officer (Papers and Research), classification AO6, to the Research Officer position in the Parliamentary Library. Ms Carey then referred to Mr Laurie's evidence‑in‑chief and evidence in cross-examination that she had demonstrated the ability to research and write, that the work that she had produced was of good quality and that he believed she would be able to discharge the types of duties required of a researcher in the Parliamentary Library.[12]
[12] Ms Carey's submissions, para. 4.
Ms Carey then submitted that despite the '… seemingly appropriate redeployment' of her to the position of Research Officer, the management of the Parliamentary Library were not happy to have her because she had been '… parachuted in' without consultation and not in accordance with the applicable recruitment standards.[13]
[13] Ms Carey's submissions, para. 6.
Ms Carey then submitted:
8. Recruitment requirements and standards
It is the Applicant's submission that an employer must take some responsibility for ensuring that an employee has sufficient skills and experience to discharge the duties of the role for which they are employed. In failing to do so, the Respondent put the Applicant in an invidious position and created a situation where the Applicant faced challenges beyond her level of knowledge and expertise, resulting in the Applicant struggling to meet the employer's requirements and ultimately resulting in the Applicant being placed on a Performance Improvement Plan.
Ms Carey further submitted, by reference to the 'Work level description' for a position classified at PO3 as contained in the Queensland Parliamentary Service Award – State 2015 ('the Award'),[14] she should have been offered additional training, as distinct from on-the-job reviews of briefs prepared by her.[15]
[14] This part of the Queensland Parliamentary Service Award – State 2015, (Exhibit 15, page 66 of the Hearing Bundle) relevantly provides:
Work level description
This level usually requires professional expertise in one or more areas of a discipline. Detailed knowledge of standard professional tasks are required with scope existing for exercising initiative in the application of established work practices and procedures.
At this level some supervisory responsibility of subordinate staff may be required. The degree of supervision is variable depending on the assignment or project.
Employees will be required to progressively obtain greater specialised knowledge through postgraduate qualifications or postgraduate developmental experience through attendance at specialist seminars and achieve higher level of outcomes under reducing professional direction.
[15] Ms Carey's submissions, para. 9.
Having regard to the evidence given in cross-examination by Ms Robyn Moore, Director of Research and Information at the Parliamentary Library,[16] Ms Carey submitted that Ms Moore could not identify what type of training was available or helpful to her (Ms Carey).[17] In this regard, Ms Carey submitted:
11. Ms Moore's evidence substantiates the Applicant's contention that the Library specifies certain qualifications or levels of qualification that are required to do the job and that there is an expectation that researchers will have that level of qualification and ability.
[16] T 2-90, ll 5-11.
[17] Ms Carey's submissions, para. 10.
Ms Carey also submitted that:
·at no time in the recruitment process, for any of the positions she held with the Parliamentary Service, did she claim to have specialist research skills;
·rather, she had wide and lengthy experience in administrative roles which included elements of research, but research was not the main focus of her previous employment; and
·having regard to the 'Work level description' for a position classified at PO3 under sch 3 of the Award, it was unreasonable '… to put an employee in a position for which they are not qualified and then to dismiss them for not having reached the required standard, especially where a specialism is concerned.'[18]
[18] Ms Carey's submissions, paras. 13-14.
In respect of the induction and training she received for the Research Officer position, Ms Carey submitted that:
·Ms Sandie Pruim, Senior Research Officer, Parliamentary Library, stated in her evidence that all new researchers receive a fairly extensive induction;
·an extensive induction was not provided to her;
·Ms Moore stated in her evidence that Ms Carey's induction period was approximately one (1) hour, which contrasts with the experience of other new researchers, for example, Ms Angela Setterlund, Research Officer, Parliamentary Library, who estimated her eventual induction period to have taken a much longer period, stretching to days;
·she (Ms Carey) was never given front desk training and she was not trained on the incoming request inbox, despite other 'new' researchers receiving training in respect of those aspects of the role; and
·there was a clear difference in the approach to her training that directly related to her future prospects in the Library Service in that, for whatever reason, the Library Service did not intend to invest the same time and effort in her training as was afforded other new researchers.[19]
[19] Ms Carey's submissions, paras. 15-16.
In terms of the length of time she was given before the PIP was implemented, Ms Carey submitted that there was a disconnect between Mr Laurie's estimation of her research expertise and the Parliamentary Library's recruitment standards, which resulted in her being placed in a role which she could not satisfactorily fulfil without additional training or being given sufficient time to gain on-the-job experience to meet the Library's 'blue‑chip' standard.[20]
[20] Ms Carey's submissions, para. 12.
The Parliamentary Service's submissions
The Parliamentary Service submitted that:
·Ms Carey was, as at the time of commencing in the Research Officer position, suitable for that role having regard to the position description for the Research Officer position and to her background and experience as set out in her application for the position of Senior Parliamentary Officer (Papers and Research), classification (AO6);
·Ms Carey's background and experience included:
-        that she had been a solicitor, admitted in Ireland in 1999 and in England and Wales in 2009;
-        her 'Skills, Experience and Attributes Summary' included:
§excellent interpersonal, written, verbal and listening communication skill;
§well-developed time management and issue-prioritisation skills;
§common-sense approach to problem-solving and conflict resolution;
§empathic personality, measured and calm approach to difficulties/challenges; and
§proficient in MS Office suite and use of industry-specific software packages;
-        she had been a Committee Executive of the Law Society of Ireland, stating that her experience included:
§briefing committees on progress of domestic Bills, new legislation and court rules, Green/White papers, European Union legislation and emerging issues affecting the legal profession, legal practice and the justice system generally;
§drafting and editing submissions to government and court rules committees;
§drafting and editing practice advisories, committee webpage, gazette, e‑Zine content and other publications; and
§undertaking research for committees, as and when required;
·the evidence of Mr Laurie, who made the decision to redeploy Ms Carey to the Research Officer position in the Parliamentary Library, was that:
-        Ms Carey had undertaken research work for him in her role of Senior Parliamentary Officer (Papers and Research), her work had been of good quality, albeit that it had taken longer than anticipated; and
-        he considered Ms Carey was appropriate for the Research Officer position having regard to:
§the matters to which he referred on page 10 in his letter to Ms Carey dated 10 April 2019, advising her of her redeployment to the Research Officer position; and
§from his own experience, in that he knew Ms Carey could research and write, and, that the sorts of inquiries that came into the Parliamentary Library were of the nature that Ms Carey would be able to discharge; and

·when Ms Carey commenced the Research Officer position role on 22 July 2019, she:
-        received an induction when she started, which included being shown the Library's Quality Guidelines and being given sample research briefs;
-        commenced with the 'common' and 'easy' research briefs; and
-        was directed to raise queries that she had with senior research officers, the senior research librarian or Ms Moore.[21]

Was the redeployment of Ms Carey to the Research Officer position in the Parliamentary Library appropriate and reasonable?
[21] The written submissions of the State of Queensland (Parliamentary Service) filed on 11 April 2022 ('the Parliamentary Service's submissions'), paras. 8-11.

In short, the Research Officer position, to which Ms Carey was redeployed, primarily involved her drafting written responses to specific requests or briefs for information made by Members of the Legislative Assembly to the Parliamentary Library.[22]
[22] Exhibit 13, page 144 of the Hearing Bundle, last dot point.
Exhibit 22 was Ms Carey's application for the position of Senior Parliamentary Officer (Papers and Research), classification AO6, being a position to which she was appointed on 27 March 2017. Attached to Ms Carey's application was her resumé.
In addition to particularising that Ms Carey was admitted as a Solicitor in Ireland in 1995, and in England and Wales in 2009, Ms Carey's resumé also relevantly provided:
LAW SOCIETY OF IRELAND • Dublin, Ireland
Project Executive - Regulation of Practice Directorate
January - May 2015
·   Produced position paper on practitioner non-compliance with disciplinary findings and research paper on international best practice regarding publication of disciplinary findings
·   Lead role in ongoing project to update publicly-searchable disciplinary records database
·   Produced scoping document on introduction in Ireland of EU Directive on electronic ID cards for European lawyers.
…
LAW SOCIETY OF IRELAND • Dublin, Ireland
Committee Executive - Policy, Communications & Members' Services Dept.
February 1997 to 31 December 2012
·        Executive and secretariat support to Civil Litigation, Criminal Law and Taxation Committees (arranging meetings, drafting agendas, minutes and follow-up correspondence, progressing/monitoring agenda issues and committee initiatives, organising seminars, venues, travel/accommodation)
·        Managed the day to day business of the committees (responding verbally and in writing to a range of enquiries, issues and requests from practitioners and others; liaising with various professional bodies, government departments/agencies, NGOs and other stakeholders; records management; control of committee budgets)
·        Briefed committees on progress of domestic Bills, new legislation and court rules, Green/White papers, EU legislation and emerging issues affecting the legal profession/legal practice/the justice system generally
·        Drafted/edited submissions to government and court rules committees
·        Drafted/edited practice advisories, committee webpage/Gazette/e-Zine content and other publications
·        Undertook research for committees, as and when required

· Responsible for maintenance of Criminal Legal Aid Solicitor Panel.[23]
[23] Exhibit 22, pages 106-107 of the Hearing Bundle.

In cross-examination, Ms Carey admitted that her role with the Law Society of Ireland involved her:
·briefing committees on the progress of domestic bills and new legislation;
·undertaking research for committees of that Society;

·monitoring, analysing and briefing committees on proposed and enacted legislation, new case law and trending legal practice issues and justice generally; and
·conducting ongoing research and continual monitoring of the Irish equivalent to Hansard.[24]

[24] T 1-41, l 40 to T 1-42, l 6.

Ms Carey also agreed that:
·in her resumé, she stated that she was proficient in the MS Office suites;
·by the time she came to apply for the position of Senior Parliamentary Officer, she had demonstrated:
- high quality research and analysis skills, including experience with a wide range of contemporary information retrieval and delivery tools; and
- high level written and oral communication, negotiation and client liaison skills; and
·she had knowledge or the ability to acquire knowledge of the principles and working of the Parliament.[25]
[25] T 1-42, ll 8-30.
Ms Carey further agreed that in her role as Senior Parliamentary Officer (Papers and Research), Mr Laurie had given her some research tasks which she agreed she had completed satisfactorily.[26]
[26] T 1-42, ll 32-45.
As Clerk of the Parliament, Mr Laurie is the Chief Executive Officer of the Parliamentary Service.[27] Exhibit 13 was a letter dated 10 April 2019 Mr Laurie sent to Ms Carey in which he advised Ms Carey of her liability to disciplinary action and the penalty he was proposing to impose against her, namely, that Ms Carey be redeployed from the position of Senior Parliamentary Officer (Papers and Research) to the Research Officer position in the Parliamentary Library and a reduction in salary.[28]
[27] Parliamentary Service Act 1988 s 20(1).
[28] Exhibit 13, page 138 of the Hearing Bundle.
Mr Laurie attached the position description for the Research Officer position which set out the following selection criteria:
Professional Qualifications
A tertiary qualification in an appropriate discipline, such as law, political studies, public policy, environmental studies, economics/statistics, history etc., together with graduate or postgraduate qualifications is essential.
Experience, Skills, Knowledge and Abilities
1.       Demonstrated high quality research and analysis skills, including experience with a wide range of contemporary information retrieval and delivery tools
2.       Demonstrated high level written and oral communication, negotiation and client liaison skills
3.       Demonstrated ability to work individually and as a team member in an innovative and dynamic work environment, develop professional networks and commit to ongoing personal and professional development
4.       Sound project management skills including problem solving skill and the ability to meet deadlines under pressure
5.       Knowledge of or the ability to acquire knowledge of the principles and workings of Parliament and modern executive government with extensive general knowledge and in depth knowledge of specific subject areas.[29]
[29] Exhibit 13, page 147 of the Hearing Bundle.
Ms Carey's subsequent appeal against Mr Laurie's decision, to the Speaker of the Legislative Assembly, the Honourable Curtis Pitt, was successful only in respect of the proposed reduction in salary. Ms Carey's redeployment to the Parliamentary Library remained on foot.[30]
[30] Exhibit 37, page 174 of the Hearing Bundle.
Mr Laurie's evidence-in-chief was that he felt the Parliamentary Library was an appropriate place to send Ms Carey because of her skills, and that he knew, from his own experience, that Ms Carey could research and write and that the sorts of inquiries that come into the Parliamentary Library were of the nature that he thought she would be able to discharge.[31]
[31] T 2-42, ll 14-19.
In cross-examination, when it was put to Mr Laurie about whether he considered how the Library '… would react when they realised that they were not getting a specialist researcher', and if the Library would have a problem because Ms Carey '… didn't have any formal qualifications in research', he stated:

·he was of the understanding from Ms Carey's resumé that she had qualifications in law, he had known other people that had qualifications in law and were engaged in the Library, and he did not see that as being an impediment or an issue;

·he certainly did not anticipate that there was going to be a backlash against her; and

·he thought that if Ms Carey held a qualification such as law, she would have the ability to research and write and she had demonstrated to him that she could research and write.[32]
[32] T 2-47, ll 13-32.

I cannot accept Ms Carey's submission that her redeployment to the Research Officer position in the Parliamentary Library was undertaken without proper regard to her skills and experience.
In applying for the position of Senior Parliamentary Officer (Papers and Research), Ms Carey set out her qualifications and experience for that position which included that:
·she had been admitted as a solicitor in Ireland, and in England and Wales; and
·she had some professional research experience when working for the Law Society of Ireland.
Having regard to Ms Carey's qualifications and experience as referred to above and to her evidence given in cross-examination about her research experience, and having regard to the selection criteria for the Research Officer position in the Parliamentary Library, there was nothing inappropriate or unreasonable in the redeployment of Ms Carey to that position.
While I generally accept Mr Laurie's evidence that if Ms Carey had a professional qualification in law (proven by her admission as a solicitor), she would have the ability to research and write, what persuades me that her redeployment to the Research Officer position was appropriate and reasonable, was also Ms Carey's admitted research experience with the Law Society of Ireland and then in the position of Senior Parliamentary Officer (Papers and Research). While that research experience would not be exactly the same as required of her in the Research Officer position in the Parliamentary Library, the skills Ms Carey obviously developed from that kind of work would, at a foundational level, be applicable in the Research Officer position.
Ms Carey referred to Mr Laurie's evidence in cross-examination that he did not anticipate that there was going to be a backlash against her. Ms Carey submitted that that statement by Mr Laurie, rather than positing a situation where there might be backlash against her, was an indication that after the redeployment took place '… an unanticipated backlash against the Applicant did actually occur.'[33]
[33] Ms Carey's submissions, para. 7.
I cannot accept that submission. The transcript of that part of the cross‑examination of Mr Laurie reveals:
APPLICANT: Did you consider how the library would react when they realised that they were not getting a specialist researcher?---Well, what I would say to that is I’m quite familiar with the people that have occupied roles within the committee – within the library over many years, and they included people - they include people that may come straight from university with a degree of - of a particular nature. What the library tends to try and do, from my understanding, and has been for a long time, is that they try and have a group of people that have got various skills. So they may - they try to have a balance of people that have got skills in economics and qualifications in economics, qualifications in law, qualifications in other disciplines. So I was of the understanding from your CV that you had qualifications in law. I’ve known other people that have had qualifications in law that were engaged in the library, so I did not see that as being an impediment or an issue. I certainly - I didn’t anticipate that there was going to be a backlash against you, no.[34]
[34] T 2-47, ll 13-25.
As I understood Mr Laurie's evidence, it was clear that he was not, in giving the last part of his answer, admitting that there had been a backlash against Ms Carey after her redeployment to the Parliamentary Library. Mr Laurie was responding to the question put to him, namely, whether or not he considered how the Parliamentary Library would react to Ms Carey's redeployment to it.
Ms Carey also contended that there may be some confusion over whether her redeployment to the position of Research Officer was temporary or permanent. This contention was primarily based upon a comment made by Ms Prowse to Ms Carey that Ms Carey was backfilling for an employee on maternity leave. Ms Prowse's evidence in cross-examination was that she told Ms Carey that she had been placed against the maternity backfill, the person was returning in February 2022, the Library had not been provided any supplementary funding, and there was a vacancy.[35] Ms Prowse said she did not know what Mr Laurie had told her (Ms Carey) about the redeployment.[36]
[35] T 2-101, ll 7-13.
[36] T 2-101, ll 25-32.
However, as the Parliamentary Service submitted, Mr Laurie's letter to Ms Carey dated 10 April 2019, advising Ms Carey of her redeployment, was clear that it was a permanent placement. Ms Carey's evidence in cross-examination was that Mr Morris informed her that her redeployment to the Parliamentary Library was permanent.[37]
[37] T 1-87, ll 10-11.
The evidence satisfies me that Ms Carey's redeployment to the Parliamentary Library was permanent.
Was the induction given to Ms Carey in the Research Officer position appropriate and reasonable?
The person who inducted Ms Carey, when she first reported to the Parliamentary Library on 22 July 2019, was Ms Moore.[38]
[38] T 2-53, ll 26-27.
Ms Carey's evidence-in-chief was that her induction consisted of her being given a style guide, being told about the work of the Parliamentary Library and then being given her first brief. Ms Carey stated that she did not consider that to be an extensive induction.[39]
[39] T 1-26, ll 19-22.
Ms Setterlund, a Research Officer at the Parliamentary Library Service and who was called by Ms Carey, stated in her evidence-in-chief that the induction she received, after returning to the office after working from home for three months due to the Pandemic, was that it probably took a week.[40] However, in cross-examination, Ms Setterlund stated that it was hard to say if the induction took a week because it was informal and she spent a week familiarising herself with databases '… and how to do things.'[41]
[40] T 1-110, ll 23-29.
[41] T 1-112, ll 37-43.
Ms Setterlund also agreed that she did her initial induction, before working from home due to the Pandemic:
·in person with Ms Moore and that it went for half a day during which Ms Moore, amongst other things, gave Ms Setterlund an induction folder that had manuals, a style guide and policies;[42] and
·after that, she had a few hours learning from another staff member about '… TIMS'[43] (which was the database of past research briefs completed by all Research Officers).[44]
[42] T 1-112, l 45 to T 1-113, l 9.
[43] T 1-113, ll 16-23.
[44] T 1-46, ll 1-4.
Ms Setterlund then agreed her induction did not go for a week.[45]
[45] T 1-113, ll 25-26.
Ms Moore made file notes of her induction of Ms Carey which became Exhibit 38. Ms Moore did state that the purpose of making a file note was so she had a record of what happened that day and, because Ms Carey's appointment to the Parliamentary Library was considered unusual, '… we were very careful about documenting how we went about these. We did not know Ms Carey's background at this point.'[46] Ms Moore stated that her file note was an accurate record of what occurred.[47]
[46] T 2-53, ll 37-40.
[47] T 2-54, l 12.
Ms Moore's file note covers 22, 23, 26 and 29 July 2019. The file note reveals that:
·on 22 July 2019:
-        Ms Moore conducted the induction of Ms Carey by:
§taking Ms Carey through the usual induction materials in the Research and Information Service Induction folder, including Quality Guidelines, the Style Guide for Research Requests, sample briefs, the Guide to Library services and alerts, the Code of Conduct and various other documents such as a Member list, organisational chart and sitting days;
§introducing Ms Carey to the Research and Information Service staff;
§asking Ms Carey to read through the documents along with the research request procedure; and
-        later in the day, Ms Pruim gave Ms Carey a Grants Request together with a sample Grants Request Brief;
·on 23 July 2019:
-        another staff member provided Ms Carey with TIMs training in respect of the catalogues, being training in the Parliamentary Library management system; and
-        later Ms Carey sent Ms Pruim her Grants Brief for review; and
·on 26 July 2019, Ms Pruim reported to Ms Moore that Ms Carey's Grants brief needed a lot of editing and it was not responding to the questions asked by the client, in response to which Ms Moore asked Ms Pruim to send her review back to Ms Carey and offer to discuss it with her.[48]
[48] Exhibit 38, page 178 of the Hearing Bundle.
In cross-examination, Ms Pruim, while not specifically remembering the Grants Request she gave to Ms Carey, agreed that would have happened '… in the early process.'[49]
[49] T 2-16, ll 40-43.
Ms Moore's file note also records that on 29 July 2019, Mr Laurie asked Ms Moore how Ms Carey was going. Ms Moore recorded her response, namely:

I told him:
·        New staff get a lot of induction when they start.
·        We were giving Colette the same induction as every new staff member is given.
·        The Library is very client focussed and each Brief has to be responsive to the needs of the client.
·        We had given Colette a grants request which are the most simple of requests that we do and often started new staff with that sort of request.
·        She was given a template and a previous example grants Brief.
·        Her Brief was not responsive to the client.
·        Sandy has reviewed Colette's Brief and will discuss it with her. I will speak with Colette once she has done a few requests.
·        It was early days and we are taking Colette gently as we do with all new staff.[50]

[50] Exhibit 38, page 178 of the Court Bundle.

Ms Carey was cross-examined about Ms Moore's version of events of how she (Ms Moore) and Ms Pruim were involved in her (Ms Carey's) induction. Ms Carey predominately agreed with Ms Moore's version of events.[51]
[51] T 1-44, l 11 to T 1-45, l 37.
As a general proposition, an induction is a general introduction to a workplace and to an employee's position.
In my view, the induction provided by Ms Moore was reasonable. Ms Carey was given an induction folder, containing those documents referred to in the first dot point of paragraph [50] of these reasons and was introduced to the Research and Information Service staff.
Ms Carey was then asked to read the documents, along with the research request procedure. Later, Ms Pruim gave Ms Carey a Grants Request together with a sample Grants Request Brief. Ms Pruim states that such a request was the simplest request that the Parliamentary Library could get from Members of the Legislative Assembly because there was a template and a process of how to answer.[52]
[52] T 2-16, ll 28-38.
The next day there was some training on the Parliamentary Library management system and Ms Carey gave Ms Pruim her work on the Grants request.
In my view, by making allowances for the Pandemic, the induction provided to Ms Carey was not substantially dissimilar to that given to Ms Setterlund. Objectively, the induction given by Ms Moore to Ms Carey, having regard to Ms Carey's Research Officer position, was reasonable because it covered the basics of her workplace and her position.
Further, Ms Carey's work in the position commenced with a basic Grants Request from which she could learn.
Was the training given to Ms Carey in the Research Officer position appropriate and reasonable?
Ms Carey's evidence was that:
·she had a meeting with Ms Moore and Ms Prowse and explained to them that she had no formal training in research;
·she felt that she was being given insufficient time to gain the level of professional expertise required because Ms Prowse had said to her that they operated at a blue‑chip standard;
·it was unreasonable to expect someone who had no formal training to suddenly come up to a blue-chip standard and it was not fair to put her into a specialist position, as a non-specialist, and to be expected to suddenly become a specialist;
·her first meeting in relation to her performance occurred after twenty working days;
·there was no offer of any formal training or any courses she could undertake and she did not know what training would or might be available; and
·her training consisted of being given a first brief and the rest of the time she was doing on-the-job training in producing briefs, so there was no period where she was learning how to do something, in that the briefs had to be done to reach a deadline.[53]
[53] T 1-9, l 12 to T 1-11, l 2 and T 1-26, ll 22-36.
Ms Carey also gave the following evidence-in-chief:
In addition, one of the things that the managers had said, you know, was to ask questions and to - if I had any issues, to either go to them or some other officer, which I did. Now, one of the themes I noticed coming through in the contentions by QPS, or of QPS, was that I didn’t seek assistance. I will not necessarily go to a senior research librarian, such as, say, Sandie Pruim, who would review my briefs, but there were other people working around me who, actually, I think, had more experience than Ms Pruim and I would often go to those people and say - one person in particular, “What would you do in this situation?” or, “Where would you go if you were trying to find a source in relation to that?” or if I couldn’t find something in the style guide - we had style guides, as well, which were held up to be the, kind of, Bible of how you were to set out things, how citations were to be written, that sort of thing, but I found that there were differences between reviewers. If you did something one way for one reviewer, they might think it was okay, and if you did it the same way for another reviewer, they might reverse it.
…
APPLICANT: So I did seek assistance. I might not always have gone just to Ms Pruim or another senior researcher, Helen Roselyn, because sometimes people are – they’re busy with their own stuff, and it’s obvious, you can see that they’re rushing to get something done or whatever, so it’s a natural thing to just go to somebody else, and it’s also a natural thing to go to someone who’s a near neighbour and, you know, it’s, kind of, like sticking your head over the fence and saying, “What would you do about that?” and so I certainly don’t agree that I didn’t seek assistance and, as I say, there was this problem which has been recognised by Mr Atkinson, who was the decision-maker in this final case – in this final PIP situation, that the review of briefs is subjective...[54]
[54] T 1-12, l 41 to T 1-13, l 36.
Ms Moore was cross-examined by Ms Carey about the issue of training. Ms Moore was asked, given the periods of time over which she (Ms Carey) had made no improvement in her work, whether Ms Moore ever suggested or offered any further course of training or any other activity that Ms Carey could undertake to assist her such as a structured course or structured activity.[55]
[55] T 2-90, ll 1-5.
Ms Moore's response was that:

·the training Ms Carey received was the reviewing of Ms Carey's work and the talking through the issues with her;
·she could not think of a course that would have helped her; and
·the Parliamentary Library was supporting Ms Carey to do the work that was given to her.[56]

[56] T 2-90, ll 5-14.

For the reasons given earlier, my view was that the redeployment of Ms Carey to the Parliamentary Library was reasonable.
It is the case that the requests for information or briefs, given to Research Officers in the Parliamentary Library, involves work of a unique kind, namely, conducting research in respect of requests for information made by Members of the Legislative Assembly.
Apart from the training provided to a person in an undergraduate or postgraduate degree in respect of legal research and writing, I accept Ms Moore's evidence that it is difficult to think of formal training that could be provided to Ms Carey. In reality, the only training that could be provided to Ms Carey, in respect of the unique work she was required and expected to perform as a Research Officer in the Parliamentary Library, was on‑the‑job training.
Ms Carey agreed that the general work process for her, in the Research Officer position, was:
·Research Officers were allocated research requests or briefs by Senior Research Officers, the Senior Research Librarian or Ms Moore;
·in responding to those requests, it was the role of the Research Officer to research and author a research brief;
·once the Research Officer did that, it was then submitted to the Senior Research Officer, the Senior Research Librarian or to Ms Moore for review;
·once the brief was reviewed, it was then returned back to the Research Officer for finalisation and provision to the client; and
·as part of the reviewed brief being provided back to the Research Officer that did the work, the Research Officer was generally given feedback on the draft that was provided.[57]
[57] T 1-45, ll 11-28.
Ms Carey did not dispute that:
·she was to, or was able to, go and seek assistance from other more experienced staff in the Parliamentary Library if she needed such assistance in the performance of her work;[58] and
·once she submitted a draft of the work she produced, she regularly received feedback on that work, being feedback from Ms Moore or Ms Pruim.[59]
[58] T 1-45, ll 8-9 and T 1-52, ll 37-45.
[59] T 1-45, l 20 to T 1-57, l 41.
On the evidence, my view is that:
·Ms Carey received on-the-job training in the form of the review of her work undertaken by other more senior officers employed in the Parliamentary Library; and
·the general work process for Ms Carey, in the Research Officer position, was that the reviews of the draft of the work she produced was a constant feature of her work.
Because of the nature of the place in which Ms Carey worked - the Library of the Queensland Parliament - and because of the work required of her in her position, namely, to respond to requests for information from Members of the Legislative Assembly, it was obvious that there would be deadlines set for Ms Carey to produce research work. Having said that, it seems to me that given the nature of Ms Carey's position, the on‑the‑job training provided, and the deadlines required, went hand-in-hand.
For these reasons I am not persuaded that the on-the-job training provided to Ms Carey was inappropriate or unreasonable. Furthermore, for the reasons I have given above, I am not persuaded that there was any unfairness to Ms Carey because Ms Moore could not identify any formal structured training that could have been provided to Ms Carey.
Having regard to the evidence of Ms Moore, my assessment is that the only training that could be provided to Ms Carey, in respect of the Research Officer position she held in the Parliamentary Library, was that provided to her on the job, namely, the review of the drafts of the research work she produced by the senior officers of the Parliamentary Library.
Was the time given to Ms Carey, to learn on the job, appropriate and reasonable?
Ms Carey's evidence-in-chief was that:
·having regard to the content of the 'Work level description' for a position classified PO3 as set out in the Award, she could not believe that she could garner the amount of knowledge, as expressed in the description, in a short space of time;[60] and
·there was no period of time where she could try something out for herself and learn how to do something, rather, it was something that had to be done to reach a deadline.[61]
[60] T 1-10, ll 7-28.
[61] T 1-26, ll 23-25.
In cross-examination, Ms Carey was taken through a number of the briefs she had been given and to the specific feedback discussions between her and Ms Moore and Ms Prowse about those briefs, which occurred between 22 July 2019 and 9 October 2019.[62]
[62] T 1-45, l 30 to T 1-58, l 9.
It is fair to say that when the specifics of these feedback sessions - the particular issues raised about the drafts Ms Carey produced - were put to her in cross‑examination, Ms Carey, in many cases, did not recall what was discussed.

For example, Ms Carey was asked about a brief she received on 27 September 2019 about the Cross River Rail Project. Ms Carey agreed that the task required a comparison of the composition of the make-up of different boards of organisations and that three days after receiving the request, she provided her draft[63] to Ms Moore.[64] However, when Ms Carey was cross-examined about the suggestions Ms Moore made to her about the appropriate way to display the material researched by her, Ms Carey, even when the draft research brief with the tracked changes was put to her in cross-examination, could not remember the specific suggestions that were made to her about displaying the relevant material.[65]
[63] Which was an 8 page document, Exhibit 12, pages 303-310 of the Hearing Bundle.
[64] T 1-55, ll 22-31.
[65] T 1-55, l 30 to T 1-57, l 27.
Ms Moore gave evidence about the feedback discussions she had with Ms Carey about the drafts which were produced by Ms Carey between 26 July 2019 and 11 October 2019. Ms Moore gave very detailed evidence about feedback meetings she had with Ms Carey and about what she discussed with Ms Carey in terms of the drafts which were produced by her.[66]
[66] T 2-56, l 6 to T 2-67, l 29.
In relation to these meetings, where Ms Carey's evidence is at odds with Ms Moore's, I prefer the evidence of Ms Moore. This is because Ms Moore took file notes of the discussions and, when giving her evidence about these meetings, had a reasonably clear memory of what was discussed.
In my view, the evidence of the feedback with which Ms Carey was provided over that time proves that the feedback given to her was constructive and objective. In my view, there was nothing objectively onerous about the feedback Ms Carey was receiving.
Again, using the example of the Cross River Rail Project brief, Ms Moore's evidence was:
Now, do you remember - what do you remember about the feedback - - -?---Oh, the composition of boards.
- - - you gave to Ms Carey about this work?---Yeah. Yes. This was a table that had about nine headings. Yes. And then my comments about - I suggested it could be done in a table because I thought it was, kind of, easier to present and for the client to understand but, unfortunately, Ms Carey’s table was too long. In the end, she went away from the - she showed me the table with nine headings, which I said was just way too complicated and I thought the boards should be separated into separate tables and then I’ve made some comments there that Colette’s table, once she came back to me was too long because two columns only, had one row of information. It was very confusing. Included all the boards instead of separating them out. Paraphrased when cutting and pasting actual words when - you know, sometimes you’ve got to put the section in. You can’t paraphrase and [indistinct] - and keep the meaning and it contained inaccurate information, which I’ve noted here in my diary note.
And is that a reference to superseded legislation that you referred to?---Yes, that’s right. This - this was an issue with Ms Carey’s work all along. We found that she would either refer to as made legislation on the Parliamentary Counsel website or the PDF version of the legislation which, of course, was often not current either. You really need to go to the current version. All of - because of the nature of the work we do and the questions we’re asked, it’s generally not about historical legislation in that sense. It’s about what the current legislation is and, particularly - so these were the sorts of questions we were giving her.[67]
[67] T 2-65, l 37 to T 2-66, l 14.
The PIP, in relation to Ms Carey, was implemented on 24 January 2020.[68]
[68] Exhibit 27, pages 209-211 of the Hearing Bundle.
In my view, given the nature of the feedback that Ms Carey was receiving in the course of the work she was doing in the position of Research Officer in the Parliamentary Library between July 2019 and late 2019, that period of time was an appropriate and reasonable time for Ms Carey to be able to learn the requirements of her position and to be able to demonstrate that she could meet the requirements of her position.
Ms Carey's submission that it was unfair she was not given access to the repository of completed briefs
Ms Carey submitted that:
·she requested access to the repository of completed briefs on numerous occasions as she felt it would be a very useful tool in assisting her to develop her knowledge of the breadth of formats, content and layout that had been approved in previous briefs;
·Ms Moore stated in evidence that a decision had been made, early on, that she (Ms Carey) would not be given access to the repository of previous briefs;
·other new researchers gave evidence that they were given such access on the day they started work in the Library;
·the denial of such access to her was based on the view that she did not have the same technological skills as other new researchers, but given that the Library management had no knowledge of her skills or background when she commenced in the Library, '… it is extremely odd' that a decision to deny access was made from her first day and continued for the entire period of her employment in the Library;
·her supposed lack of technological skills was only raised at the hearing of the matter, despite the reason for the denial of access to the repository having been raised by her on numerous occasions beforehand and no answer was forthcoming;
·if such a lack of technological skills were the real cause of the denial of access, management could and should have provided the necessary training to overcome the deficit rather than denying her access to such a useful resource; and
·Ms Moore stated that none of the other researchers go browsing the previous briefs, but of the four researchers called by her, one former researcher could not remember whether she browsed the repository or not and the other three testified that they browsed the repository and found it a helpful and useful resource which shows the disadvantage she suffered in not having such access.[69]
[69] Ms Carey's submissions, paras. 17-18.
The Parliamentary Service's submissions
The Parliamentary Service submitted that the evidence of Ms Pruim and Ms Moore was to the effect that Ms Carey did not require access to the repository of completed briefs to be able to perform the requirements of her position as Research Officer.[70]
[70] The Parliamentary Service's submissions, para. 43.
Was the failure to give Ms Carey access to the repository of completed briefs unreasonable?
Ms Carey's evidence was that:
·there were other people who started after her in the Library, who had access to the repository of completed briefs of all Research Officers (referred to as TIMS);
·she asked to have access to that because she felt it would be good to measure her work against a new researcher in the same position as herself because she felt that would give her a measure of how far off the mark her own briefs were, but Ms Prowse told her that would be inappropriate.[71]
[71] T 1-11, ll 19-47.
The evidence of Ms Katherine Webber, who was called by Ms Carey and was formerly employed as a Research Officer at the Parliamentary Library, was that she was trained to sit on the front desk and she could recall accessing the repository of completed briefs only two or three times.[72]
[72] T 1-105, ll 35-39.
Ms Suzanne Campbell, who was called by Ms Carey and is currently a Research Librarian employed in the Parliamentary Library, stated that it was helpful to have access to previous briefs but it depended upon how old the previous brief was because it may be out of date.[73]
[73] T 1-108, ll 1-8.
Ms Setterlund gave evidence that she was given access to the repository of completed briefs on the same day she started and stated that it was helpful because she could use it to search for briefs that had already been completed on a topic.[74]
[74] T 1-110, l 41 to T 1-111, l 2.
Mr James Gilchrist, presently a Committee Research Officer, who worked as a Library Researcher between June 2015 and February 2016, and then between September 2020 and March 2021, seemed to state that he was given access to previous briefs the second time he worked in the Parliamentary Library and found they were a useful source of information.[75]
[75] T 2-2, ll 32-36 and T 2-3, ll 7-13.
Ms Pruim's evidence-in-chief was that Research Officers could browse the repository but it was not particularly helpful because it was hard to search, it was hard to find things because it is not user-friendly and that she did not know how many other researchers actually used it because that was generally her job to find things and give it to them.[76]
[76] T 2-6, ll 6-12.
However, in cross-examination[77] and re-examination,[78] Ms Pruim stated that it was not essential that a researcher in the position of Ms Carey have access to the repository for the same reasons she gave in her evidence-in-chief. In fact, in re-examination Ms Pruim stated:
[I]t’s actually better for the researchers if I find them for them and give them the briefs we’ve done before, also with some guidance as to, you know, whether you can just take what’s in here or whether you need to go and do more research or - you know, so that’s a far better use of the time and resources of the Parliamentary Library than having researchers going into those repository of previous briefs.[79]
[77] T 2-17, ll 20-32.
[78] T 2-29, l 46 to T 2-30, l 8.
[79] T 2-30, ll 3-8.
Ms Moore's evidence-in-chief was:
·Ms Carey was not given access to the repository of completed briefs at the commencement of her position as Research Officer because she did not know anything about Ms Carey’s background or how confident she would be in using it;[80] and
·a Research Officer did not need access to that database to be able to do their job because most Research Officers were not going into it day-to-day because when a request is allocated to a Researcher, either the Senior Research Officer, Senior Research Librarian or her would look for other requests and, if they think something similar has been done in the past, they will send it to the Research Officer.[81]
[80] T 2-55, ll 27-28 and ll 45-47.
[81] T 2-55, ll 30-37.
In cross-examination, Ms Moore agreed that Ms Carey was not given access to TIMs but said that was because it was noticed that Ms Carey had difficulty with the technology, it was quite difficult to retrieve things from TIMs and it was thought it was easier Ms Carey, like others, to be given '… what we think are relevant briefs to answer the requests that you might have … because we’re very mindful that our time - our deadlines are very tight in most cases and, therefore, we will try to put people on the right track as soon as we can.'[82]
It was not unreasonable or unfair that Ms Carey was not given access to the repository of completed briefs by all Researchers
[82] T 2-82, l 38 to T 2-83, l 10.
While it seemed to be the case that some persons who worked in the Parliamentary Library were given access to the repository of all previous briefs, I cannot form the view that the decision made by Ms Moore not to give Ms Carey unilateral access to the repository was unreasonable or unfair to Ms Carey.
The evidence of Ms Pruim and Ms Moore was to the effect that when a brief was given to Ms Carey, or any Research Officer to conduct research, a more senior member of the Parliamentary Library would search for a similar brief in the repository and provide that to the Research Officer. Indeed, when Ms Carey was cross-examined about this, she accepted that Ms Moore had said that to her. In this regard the transcript records:
And I suggest to you then after you’d been there for around a week on the 30^th of July 2019, Ms Moore had a conversation with you and she asked how you were getting on with the reviewing of a grants request you’d been given and a new research request you’d been given. So she was checking in with you about work you were undertaking?---Yes, I think she did. Yes.
And she said to you that you should ask her questions and let her know what you needed assistance with?---Yes.
And you asked if you needed training to be able to access the database of past research briefs?---Yes.
Now, that - is that sometimes called TIMS?---Yes.
And, in fact, Robyn told you not to worry about having access to TIMS, or the past research briefs, because they, as in she and the senior staff, would be giving you direction about what you needed for the research request?---Yes.
And, in fact, she – Ms Moore told you that they didn’t want you to get lost in the wilderness with the past research briefs?---Yes, I think she used words to that effect.[83]
[83] T 1-45, l 39 to T 1-46, l 11.
It is not the case that Ms Carey is claiming that she was not provided any assistance by the senior officers of the Parliamentary Library in respect of the provision of previous, similar briefs sourced from TIMs.
Ms Carey may have had an argument if, in respect of briefs given to her, the senior members of the Parliamentary Library did not provide to her previous similar or related briefs sourced from TIMs, but provided that assistance to other Research Officers. Ms Carey did not state that in fact occurred.
Ms Carey's complaint was that she did not have unilateral access to TIMS (the repository). I cannot form the view that this was unfair or unreasonable towards Ms Carey for the reasons given by Ms Moore and Ms Pruim.
Ms Carey's submission that her submitted briefs were not as bad as made out by her management
Ms Carey's submissions
Ms Carey submitted that:
·one of the issues raised by the management of the Parliamentary Library was the extent of the work that was required to be done when her briefs were being reviewed;
·it was stated that the feedback was much more extensive than was required in respect of any other researcher, but two researchers called by her testified that they received extensive feedback;
·her briefs were not as bad as they were made out to be in comparison with briefs prepared by other researchers;
·she made every effort to reduce the time spent in review and suggested that where a reviewer wanted the order of dates listed in a brief to be changed, the reviewer could send the brief back to her so that she could make the necessary changes, thereby saving the time of a senior officer, but this suggestion was not acted upon and complaints regarding review times continued, which reflected badly on the her when there was an option available to reduce the review time for some briefs;
·while she had previous research experience, that experience was only one aspect of the roles she held, other than the time spent full-time on research for the Clerk; and
·as to the work carried out for Mr Laurie, he stated in correspondence that her work was of a good standard, which was at odds with the views expressed by the Library management, and it would be reasonable to assume that if Mr Laurie felt her work was of a good standard:
- she would not have lost her ability to produce such a standard on transferring to the Library; and
- the standard of work would be at least somewhere '… near the blue‑chip standard required by the Library, albeit that further experience or training would be required to achieve the blue-chip standard.'[84]
[84] Ms Carey's submissions, paras. 19-22.
The Parliamentary Service's submissions

Mr Atkinson subsequently:
·found that Ms Carey failed to meet the requirements of her position as evidenced in the PIP documentation;
·stated that she could have been found to be in breach of s 40(1)(a) of the Parliamentary Service Act 1988;
·stated he was not satisfied that disciplinary action was warranted (for the reasons he gave); and
·stated that her position in the Library was not tenable and, following him asking Ms Carey to respond about her proposed retrenchment, involuntarily retrenched Ms Carey.[134]
[134] Exhibit 7, pages 672-673 of the Hearing Bundle.
Mr Atkinson's reason for determining that Ms Carey's position in the Library was not tenable clearly concerned her work performance and her inability to complete the PIP.[135]
[135] Exhibit 7, page 672 of the Hearing Bundle, the third to fifth paragraphs and page 673, the fifth to seventh paragraphs.
On this evidence, the only reason Mr Atkinson found Ms Carey's position in the Library was not tenable was because of her performance in her position of Research Officer.
I cannot see how Ms Carey's retrenchment under the Redundancy Policy could be valid when:
·there is no evidence her Research Officer position was redundant within the meaning of the Redundancy Policy; and
·the real motivating reason behind Ms Carey's retrenchment was the determination by Mr Atkinson that Ms Carey's position in the Parliamentary Library was not tenable because of her work performance.
It was unjust for the Parliamentary Service to find that Ms Carey could not meet the requirements of her position, to then find that disciplinary action could have been taken against her but did not take that action, and to then use the negative finding about her work performance to conclude that her '… ongoing employment as a Research Officer in the Parliamentary Library is not tenable.'[136]
[136] Exhibit 7, page 673 of the Hearing Bundle.
The unjustness was manifest because the substantive matter about which Ms Carey was then asked to respond (by Mr Atkinson's second letter dated 9 December 2020) was not her work performance, but the inability of the Parliamentary Service to redeploy her since June 2020 and why, as a consequence, she should not be retrenched.
From Mr Morris' evidence that I have emphasised above, it seems that the Parliamentary Service was trying to help Ms Carey as best as it could in difficult circumstances. But that intention has resulted in an unjust outcome for Ms Carey. Ms Carey's Research Officer position was not redundant. The real reason for Ms Carey's dismissal was her work performance. Ms Carey was not given a practical opportunity to respond as to why she should not be dismissed for that reason.
The two processes of disciplinary action and dealing with the genuine redundancy of a position are mutually exclusive. They deal with two distinct issues that affect an employer and an employee. They cannot be conflated.
In practical terms, the unjustness for Ms Carey arises because she was not given an opportunity to respond to why she should not be dismissed because of her work performance in the Research Officer position.
I find that the real reason for Ms Carey's dismissal related to her performance.
If the dismissal related to Ms Carey's conduct, capacity or performance, whether she had been warned about the conduct, capacity or performance or whether Ms Carey was given an opportunity to respond to the claim about the conduct, capacity or performance?
For the reasons given in paragraphs [155]-[174]:
·while on the face of it, Ms Carey's dismissal was not related to her performance, for the reasons I have given above, in substance, her dismissal was related to her performance; and
·Ms Carey was not given a practical opportunity to respond to the negative decision made about her work performance before her dismissal.
For these reasons, Ms Carey's dismissal was unjust.
Any other matters the Commission considers relevant
There are no other matters I consider relevant.

Conclusion

For the reasons I have given, Ms Carey's dismissal was unfair because it was unjust.
What remedy, in all the circumstances, may and should be provided to Ms Carey under either s 321 or s 322 of the IR Act?
The IR Act confers discretion on the Commission to order:
·the reinstatement of an employee who has been unfairly dismissed;[137] or
·the re-employment of an employee who has been unfairly dismissed where reinstatement would be impracticable;[138] or
·that the employer pay the employee an amount of compensation decided by the Commission if the Commission considers reinstatement or re-employment would be impracticable.[139]
[137] Industrial Relations Act 2016 s 321(1) and (2).
[138] Industrial Relations Act 2016 s 321(3).
[139] Industrial Relations Act 2016 s 322(1).
Ms Carey submitted that she should be reinstated, re-employed or have compensation awarded to her because:
·she made every effort to meet the requirements of the Research Officer position;
·it was unfair to place her in that position which will take her time to come up to the standard required but then not give her that time and not give her one-to-one assistance and structured training; and
·it was harsh to dismiss her given her age and her now blemished work record will mean she will have difficulty obtaining further employment.[140]
[140] Ms Carey's submissions, paras. 1 and 34-38.
The Parliamentary Service submitted that Ms Carey's reinstatement would be impracticable and her re-employment inappropriate because:
·Ms Carey had significant performance issues in the role as outlined in the PIP process and she has not been employed by the Respondent for approximately 16 months; and
·there is no current vacancy to which the Applicant would be suited.[141]
[141] The Parliamentary Service's submissions, para. 47.
In White v State of Queensland (Central Queensland Hospital and Health Service),[142] O'Connor DP relevantly stated:
[89] Whilst I accept that it may be inconvenient or difficult for the respondent to reinstate the applicant, it is nevertheless, in my view, not impracticable for them to do so. In Auto Logistics Pty Ltd v Kovacs de Jersey P considered the meaning of word "impracticable". His Honour concluded:
"That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible."

[142] [2017] QIRC 041.

In my view, Ms Carey's reinstatement is impracticable. Ms Carey, in her meeting with Mr Atkinson and Mr Morris on 5 June 2020, accepted that she was not suited for the Research Officer role.[143]

[143] T 1-86, ll 1-10.

Mr Morris' evidence was that, other than the Committee Support Officer position, classification AO3, which was refused by Ms Carey in June 2020, there were no other vacancies to which Ms Carey could reasonably be redeployed.[144] Exhibit 65 was a list of vacant positions in the Parliamentary Service as at March 2022. Of that list, Mr Morris' evidence was that Ms Carey was suitable to be redeployed to the position Committee Support Officer, classification AO3. Mr Morris said that, other than positions on that list that rule themselves out, such as a Senior Executive position, Network Engineer or the IT positions, he would have to give consideration as to whether Ms Carey could be deployed to them.[145] In cross-examination, Ms Carey referred Mr Morris to the vacant position of Assistant Committee Secretary, classification AO6 in Exhibit 65. Ms Carey referred to the fact that the position was mentioned in Mr Laurie's letter to her dated 10 April 2019.[146] Mr Morris agreed it was the same position.[147] However, in that letter, Mr Laurie stated that he would support Ms Carey to act in that position '… subject to your satisfactory performance in the new role' (of Research Officer) '… when your Annual Review arises in April 2020.'[148]
[144] T 3-10, l 43 to T 3-14, l 2 and T 3-25, ll 1-46.
[145] T 3-25, ll 32-46.
[146] Exhibit 13.
[147] T 3-27, ll 12-31.
[148] Exhibit 13, page 138 of the Hearing Bundle.
On a consideration of all the evidence, I assess Ms Carey's re-employment to be impracticable. There are four reasons for this.
First, it is not in dispute that Ms Carey has been the subject of two PIPs since the date of her appointment to the Parliamentary Service. The first PIP was in respect of her position of Senior Parliamentary Officer, classification AO6.[149] The second PIP was in respect of the Research Officer position in the Library, classification PO3.
[149] Exhibit 13, pages 129-130 of the Hearing Bundle.
Secondly, by his letter dated 10 April 2019, Mr Laurie took disciplinary action against Ms Carey in respect of her position of Senior Parliamentary Officer, classification AO6 which resulted in her redeployment to the Research Officer position in the Library.
Thirdly, Mr Atkinson, by his first letter to Ms Carey dated 9 December 2020, found that Ms Carey failed to meet the requirements of the Research Officer position in the Library. On the evidence before me, this conclusion was open to Mr Atkinson.
Fourthly, this history is evidence that proves that Ms Carey has significant difficulty in meeting the requirements of the positions to which she has been appointed at the classifications of AO6 and PO3.
It may have been that Ms Carey could have been successfully redeployed to the Committee Support Officer position, classification AO3. However, Ms Carey did not accept that offer of redeployment for the reasons she gave in June 2020. It would be impracticable to order that Ms Carey be re-employed to that position in those circumstances.
Having regard to the inability of Ms Carey to meet the requirements of the most recent positions she has held within the Parliamentary Service, following the two PIPs implemented in respect of her and the two disciplinary proceedings commenced against her, my opinion is that it is impracticable to re-employ Ms Carey. This history proves that Ms Carey cannot meet the requirements of the positions to which she has most recently been appointed. It would be impracticable to require the parties to, once again, attempt a successful employment relationship having regard to that history.
Section 322 of the IR Act provides:

322 Remedies-compensation
(1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.

(2) The commission must not award an amount of compensation that is more than-
(a) if the employee was employed under an industrial instrument-the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or
(b) if the employee was not employed under an industrial instrument-the lesser of the wages under paragraph (a) and an amount equal to half the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.

(3)The commission must take into account any amount paid to the employee by the employer on the dismissal.
(4) This section does not limit the commission’s power to make an interim or interlocutory order.

Ms Carey made no detailed submissions about compensation.
The Parliamentary Service submitted that no compensation ought to be ordered because:
·Ms Carey had continued in the role of Research Officer for a period of around six months after the letter of 9 June 2020 [Exhibit 2] which advised her that her continuing in the position of Research Officer in the Parliamentary Library or completing a further PIP process were not considered to be viable options during which Mr Morris continued to monitor for suitable alternative positions;
·Ms Carey was provided with a substantial payment of $35,088.53 on the termination of her employment, which equates to almost 5 months of wages in circumstances where the maximum award would be a lump sum equivalent to six months' salary, which in Ms Carey's case would be approximately $44,577.00;

·to the extent that it was found that there was any deficiency in the process by which Ms Carey's employment ceased, the payment already made is equivalent to almost five months of employment which would have been more than the likely period for any further show cause process that may have resulted in the termination of the Ms Carey's employment to be conducted; and
·the Parliamentary Service had also continued Ms Carey's employment for a further six months after it determined she was not suitable for the Research Officer position.[150]

[150] The Parliamentary Service's submissions, para. 58(b).

The assessment of compensation in a matter such as this is carried out on a principled basis.
I should assess Ms Carey's loss from her unfair dismissal.
Ms Carey was employed in the Parliamentary Service from 26 September 2016 to 18 December 2020. I assess, however, that Ms Carey would not have stayed employed beyond the date of her dismissal, effective 18 December 2020. This is because, given the PIP in respect of her position of Research Officer, if Ms Carey had been disciplined as a result of her failure to meet the requirements of that position, and she had been asked to show cause why she should not have been dismissed for that reason, I reasonably assess that she would have been fairly dismissed by the Parliamentary Service at about the same time.
On that basis, her loss would be is less than what she has received from the State of Queensland as a result of her dismissal.
For this reason, I will not make an order for the payment of compensation.
The circumstances of this case are unique. The result in this case is unique. For these reasons, this decision is not a precedent as to an alternative way a State system employer can dismiss an employee where the employee is liable to be dismissed due to established performance reasons.

Conclusion

For the reasons I have given, Ms Carey's dismissal was unjust.
However, for the reasons I have also given, I will not make an order reinstating or re‑employing Ms Carey and I will not make an order that an amount of compensation be paid to Ms Carey.
Order
I make the following order:
Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application is dismissed.

[2023] QIRC 173

13 June 2023