Crowhurst v State of Queensland (Queensland Health)

[2014] QIRC 145

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Crowhurst v State of Queensland (Queensland
Health) [2014] QIRC 145
PARTIES:	Crowhurst, James
(Applicant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO:	HP/2013/29
PROCEEDING:	Action on industrial dispute
DELIVERED ON:	10 September 2014
HEARING DATE:	9 December 2013
MEMBER:	Industrial Commissioner Black
ORDERS :	1. The respondent is requested to provide

further information

2.     Final decision to issue following receipt of

information

CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Employees engaged as health practitioners - Job descriptions, roles and responsibilities evaluated against new work level statements - Appeal process unsuccessful - Evidence
CASES:	Industrial Relations Act 1999, s 230
Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) (HP/2013/7) - Decision - Dr John Parke v State of Queensland (Queensland Health) (HP/2013/16) - Decision [18]. Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision Newtown Keith v State of Queensland (Queensland
Health) (HP2013/35)- Decision -
APPEARANCES:	Mr G. Butler for James Crowhurst, the Applicant. Mr K. Ryalls for the State of Queensland (Queensland Health), the Respondent.
Decision

[1]     The applicant, James Crowhurst, filed a Notice of Industrial Dispute on 30 April 2012 concerning the classification of his position as Radiographer Assistant Director Cardiology MI, HP5, Metro North Health District, The Prince Charles Hospital, Queensland Health (QH). Mr Crowhurst contends that his position should have been classified at the HP6 level rather than HP5.

[2]      As the dispute failed to settle at the conciliation stage, it was referred to arbitration. All health practitioner (HP) disputes that were referred to arbitration were given new HP case numbers to specifically identify the health practitioner who disputed their classification level.

[3]      The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1) established a new classification structure for employees of QH engaged as Health Practitioners. The process for implementing the new classification structure was set out in Clause 18 of HPEB1. Phase 1 allowed direct translation of employees who met certain criteria. Prior to the process Mr Crowhurst held the PO5 position of Director of Cardiac Radiography. Under phase 1 he translated from this position to Health Practitioner Level 5.

[4]      Phase 2 allowed employees covered by HPEB1 to have their job descriptions and roles and responsibilities evaluated against new work level statements. The Queensland Health evidence was that the HP Phase II evaluation process involved the following five steps:

	Step 1 -	Standardised data set - receipt of Work Unit Proposals
(WUP)
	Step 2 -	Work Level evaluation (WLE) of individual position
conducted by a HP discipline specific WLE 'Panel'
(WLEP).
	Step 3 -	Intra-disciplinary Relativity/Consistency Review
conducted by a multi-disciplinary WLE 'Team'
members(WLET).
	Step 4 -	Inter-Disciplinary Relativity/Consistency Review
conducted by a multi-disciplinary WLE 'Team'
members (IDR), this group consisted of members from
WLEP & WLET.
	Step 5 -	HPIBB Oversight, including the subsequently
developed Oversight Sub Group (OSG).

[5]      A new role description (RD) using a HP6 role description template was developed for Mr Crowhurst's position by his departmental Directors. The RD and a Work Unit Proposal were submitted in May 2008. Mr Crowhurst's position was evaluated

by the WLEP at HP6 and a title of "Consultant Senior Radiographer – Cardiac

Angiography" proposed. However in November 2009 Mr Crowhurst was advised by the WLET that the decision had been moderated and the role was evaluated as HP5. Mr Crowhurst elected to appeal this decision. However the Appeal Panel informed Mr Crowhust in April 2011 that his appeal had been unsuccessful.

[6]      In evaluating the work level statements (WLS) under the categories of "scope & nature of level"; "knowledge, skills & expertise"; and "accountability", the Panel concluded that in each of the categories "the duties or accountabilities could not be matched to work level statements at the nominated level". The Appeal Review Statement also included the following additional comment:

"The appeal panel found: The duties or accountabilities could not be matched to work level statements at the nominated level. The appellant is clearly a high level HP5 but the evidence provided does not substantiate claims across the 3 criteria for the HP6."

[7]     It was Mr Crowhurst's submission that his classification at the HP6 level is demonstrated and evidenced through the original role description developed by his manager, his appeal documents, material in the evidence as JC10 to Exhibit 2, and the support expressed by the Chief Executive of Metro North Health Region, Professor McNeil, and the Director of Medical Imaging at Prince Charles Hospital, Terry Hayes.

[8]      In the matter of Shillig[1], Commissioner Fisher defined the approach to be adopted in the following terms:

[1]

"On arbitration, the Commission's powers are confined to correcting any error

that may have occurred in the agreed reclassification process and it is

2

incumbent on the Applicant to demonstrate the error. In my view the

practical application of the decision of the Full Bench in Dr John Parke AND

3

State of Queensland (Queensland Health) ('Parke') is consideration of the Appeal Panel Statement and the decision of the Director-General or their delegate. The onus rests with the Applicant to show how or where the Appeal Panel and/or the Director-General or their delegate fell into error."

[9]      A similiar conclusion was recorded by a Full Bench in the matter of Newton v State

4

of Queensland (Queensland Health) :

"[17] In our view, given the nature of the task undertaken by the Appeal Panel

to consider whether the Work Level Evaluation of all the employee’s duties,

roles and responsibilities should result in the employee’s position being
reclassified we consider that the role of the Commission is to determine
whether the Appeal Panel erred.

[18] Thus, in order for the applicant to succeed in arbitral proceedings before a single Member of the Commission, the applicant must demonstrate, that the Appeal Panel erred. The Commission is not concerned with anything that occurred prior to the appeal process.

[10]   Answering the question whether the appeal panel has fallen into error can involve considerations such as whether the decision of the appeal panel was not reasonably open to it on the information before it, whether the appeal panel overlooked or failed to take into account material which it should have considered, whether the appeal process involved procedural flaws, and, particularly relevant to this matter, whether the appeal process was conducted in accordance with the framework laid down, including the terms of HPEB1.

1. It is in this context that Mr Crowhurst’s grounds for appeal are to be evaluated. The

principal grounds canvassed in the notice of industrial dispute and submissions
extended to the following matters:

	The WLET erred in not adopting the WLEP evaluation of the role at HP6;
	The Appeal Panel failed to consider the detailed submissions and supporting material provided to it and failed to seek further information from Mr Crowhurst;
	The appeals process, including the constitution of the appeals panel, was not completed in a manner consistent with HPEB 1;
	The Appeal Panel erred in that it did not recognise the expert consultant status of Mr Crowhurst in circumstances where there was more than ample material before the appeal panel to justify such an outcome;
	The Appeal Panel failed to take into account Mr Crowhurst’s
management responsibilities;
	The reasons for decision of the appeal panel are inadequate and the disclosed reasons did not demonstrate that any assessment was conducted against each of the work level statement descriptors;
	A classification level of HP5 gives rise to serious inequity and anomaly.

WLEP Evaluation

[12]   The applicant submitted that the specific role description and classification level approved by Mr Crowhurst's manager and the WLEP, were erroneously rejected and downgraded by the WLET and others. In so deciding it was argued that the WLET incorrectly applied the work level statements applicable to a HP6 position. The difficulty for the applicant in respect to this line of argument is that primarily it alleges errors on the part of the WLET. On the authority provided by the Full Bench decision in Newton, the question to be answered is whether the Appeal Panel erred. My task does not extend to a review of the WLET decision making process. Therefore the applicant cannot sustain his appeal by reference to this ground.

Failure to Consider Material

[13]    The applicant submitted that, in arriving at the decision that it did, the appeal panel must have failed to consider all the information before it. Further, if the appeal panel was uncertain about matters, it should have sought further information from Mr Crowhurst. Mr Brown's evidence at paragraph 63 of his affidavit was that the appeal panel had before it "all relevant material regarding Mr Crowhurst's duties, roles and responsibilities and any additional material and submissions entered by Mr Crowhurst."

[14]   There is no obligation on the appeal panel to seek additional information. It is a matter for their discretion. Therefore there is no apparent error in the exercise of discretion by the appeal panel not to seek further information. Further while the applicant suggested that the appeal panel should have sought further information, it did not describe or provide particulars of the information that may have been sought. Further the applicant was not able to establish that all the relevant information was not before the appeal panel. It was the applicant's responsibility to include all relevant information in its appeal papers. There was no suggestion that the applicant omitted relevant information and Mr Brown's testimony was that the appeal panel had all relevant material before it. There is no basis therefore to conclude that relevant material has been omitted or that the appeal panel should have sought further information from Mr Crowhurst.

Non-Compliance with HPEB1

[15]   The applicant submitted that the appeals process was not completed in a manner consistent with HPEB 1. The inconsistency arose because, following the certification of HPEB1, the parties to the certified agreement made a number of changes to the process. The applicant submitted that these changes were unauthorised and led to the application of different appeal processes or procedures which were seen to constitute an error relevant to the determination of the current application. In this regard the following changes to HPEB1 made after the certification of the agreement were said to be relevant:

	The addition of new evaluation steps and an extra work level evaluation team;
	the application of additional guidelines and the redefinition or expansion of work level statements;
	The addition of further layers of oversight including the OSG;
	Modification to the appeals process set out in clause 19 of HPEB1;

[16]   It was submitted that the effect of the stated changes to the appeal process was to make it more difficult for appellants like Mr Crowhurst to succeed in his appeal to the Appeals Panel. It was said that the changes created a more restricted right of appeal, particularly a right to appeal against outcomes at an individual profession or district or unit level. The changes also meant that the appeal panel no longer needed to be chaired by an independent chair, no evidence of membership of the appeal panel needed to be provided, and no proper record of meetings needed to be kept leading to a failure to record findings in the appropriate form, and a failure to consider or demonstrate consideration of the various work level statements.

[17]    The submission that the appeal panel was not correctly constituted or that the appeal process was flawed in the areas mentioned above has not been sustained. No evidence has been led establishing that the Appeal Panel was not constituted in accordance with Clause 19(6) of HPEB1. Further, clause 19 does not impose any requirement on the Appeal Panel to provide any detailed explanation for its conclusions nor to keep records in any particular form. While Clause 19.11 requires that summaries of the outcomes of appeals are to be reported to the HPIBB Group, this requirement does not extend to the notification of appeal outcomes to appellants.

[18]    The applicant submitted that the appeal panel should have evaluated Mr Crowhurst's appeal against the work level statements included in HPEB1, not a version of the statements developed after certification (notwithstanding that the appellant was provided with the expanded work level statements and guidelines before his appeal was lodged). It was also submitted that the creation of the OSG as an additional layer of oversight was not sanctioned by HPEB1.

[19]   Similar assertions about errors in the appeal process arising from non-compliance with HPEB 1 have recently been dealt with by a Full Bench in the matter of Newton v State of Queensland (Queensland Health). The submissions before the Full Bench, and in the proceedings before me, put forward the case that following the certification of HPEB1, additional processes were developed and implemented by the parties to the certified agreement which were contrary to the terms of HPEB1 and which contributed to the development of errors in the reclassification process.

[20]   The Full Bench went on to consider and determine whether errors in the appeal process occurred as a result of the following matters:

	Whether the Appeal Panel was properly constituted;
	Whether the creation of the HP Oversight Sub Group was permitted;
	Whether HPEB1 permitted the application of additional guidelines and the redefinition of the Work Level Statements used in the Appeal Process; and
	Whether the process employed by the appeal panel was flawed; and
	Whether the creation of two WLET's was permitted by HPEB1

[21]   The proposition that the appeal panel was bound to have evaluated Mr Crowhurst's appeal against the work level statements included in HPEB1, not a version of the statements developed after certification, was rejected by the Full Bench in Newton:

"[26]We note that all HPs had access to this material in preparing their appeals and as such, they would not have been disadvantaged in preparing their appeal. However, the central theme of the applicant's submissions to the Full Bench is whether such an approach is permitted by HPEB1.

[27]As we discuss under the heading of "Have the terms of HPEB1 been varied?", it was open to the parties to consider the interpretation and implementation of the HP classification structure during the life of the agreement. It follows that the parties are permitted to develop clarifying material designed to assist those concerned with applying for review, appealing outcomes or those charged with the responsibility for making recommendations or decisions in carrying out their respective roles."

[22]    It was Mr Brown's evidence at paragraphs 62 to 64 of his statement that the appeals panel was constituted in accordance with clause 19.6 and sections 6.4 and 6.5 of Schedule 5 of HPEB1. He said that the appeals panel was provided with all relevant material regarding Mr Crowhurst's duties, roles and responsibilities and any additional material and submissions entered by Mr Crowhurst. The panel acted pursuant to clauses 19.7 and 19.10 of the HPEB1.

[23]    Having regard to the evidence in the proceedings before me I am unable to conclude that the use of additional guidance materials or modified statements prejudiced Mr Crowhurst's appeal. Nor do I accept, and the Full Bench did not accept, that HPEBI prohibited the parties from developing "clarifying material designed to assist those concerned with applying for review, appealing outcomes or those charged with the responsibility for making recommendations or decisions in carrying out their respective roles".

[24]   The applicant also submitted that the appeal process was flawed arising from the involvement of the OSG. Firstly there was no provision for the OSG in HPEB1. Secondly the participation of the OSG in the appeal process has caused confusion and may have contributed to an error on the part of the Appeal Panel. The applicant said the confusion arises from an examination of the WLET record (Attachment JC- 5 to Exhibit 2) which shows the participation of the OSG members in the process, but does not record what decision the OSG arrived at. Mr Brown, who was a member of the OSG, said in his evidence at T1-58 that the OSG would have recommended a level but he agreed that if it had done so, the recommendation was not recorded on the document. The omission of a record of the OSG view assumed additional significance in the submission of the applicant because of what it considered to be a failure by the WLET to clearly record the decision that it had arrived at. In this regard the record of finding of the WLET was expressed as "WLET 8/10 agree at least HP5, no LOE to support a higher level outcome". The applicant took the view that this expression did not constitute a conclusive statement to the effect that WLET had decided to rank Mr Crowhurst at HP5.

[25]    It was Mr Hamilton's evidence that Mr Crowhurst's application was reviewed by the OSG on 8 September 2009, and that at the 8 October 2009 WLET HP6-8 meeting the OSG provided verbal clarification of their evaluation. The proposed grading was checked by the WLET HP6-8 group to ensure relativity and consistency with evaluation outcomes that had been previously assessment. Mr Hamilton said the

final outcome was recorded in the "Inter-discipline Review Notes – Thursday 8

October 2009" which were in the evidence as Attachment DGH4 to Exhibit 6. The relevant entry on page 5 of the notes stated "Agreed at HP5. No LOE to support a higher level outcome".

[26]    I do not share the applicant's view that the WLET failed to record in any definitive manner whether it had endorsed or not endorsed the WLEP outcome of HP6. While the expression "at least HP5" connotes unnecessary vagueness, I believe that the following words capture with sufficient clarity a conclusion that a HP6 ranking was not justified. Nor do I think that the involvement of the OSG was harmful to Mr

Crowhurst’s prospects or was prejudicial to his interests in the process of evaluation

of his classification level.

[27]   The second matter raised concerned whether the involvement of the OSG had invalidated the appeal process given that the formation of the OSG had not been sanctioned by HPEB1. The Full Bench in Newton answered the same question as follows:

"[35] The establishment of the OSG was not, as submitted by the applicant, inconsistent with or contrary to HPEB1. Its creation was specifically contemplated by cl 14.8, which provides: 'Where appropriate, sub-groups of the HPIBB will be established with the agreement of the parties. ' Clause 14.9 further provides: 'The structure and role of the HPIBB Group and the sub- groups cannot be amended unless agreed by the parties'."

[28]    I endorse the response of the Full Bench. I do not consider that the establishment of the OSG was inconsistent with the scheme set out in HPEB1, nor do I consider that the applicant was able to establish that the activities of the OSG contributed to an error in the Appeal Panel's evaluation of Mr Crowhurst's appeal.

Expert Status

[29]    A matter in contention in the proceedings was whether Mr Crowhurst was rated HP6 by the Appeal Panel against work level statement descriptors which were relevant to his standing as a health professional. The applicant in effect argued that the Appeal Panel ignored the weight of evidence in not rating Mr Crowhurst at HP6 in the specified areas. Examples of relevant descriptors are set out below:

	HP6-2: State wide recognition for an expert level of knowledge, skills, experience, and clinical leadership;
	HP6-3: Perform in a consultant capacity, providing clinical expertise and utilising expert command of specialised techniques;
	HP6-8: Demonstrates expert level of knowledge, clinical skills, problem solving skills and experience of complex contemporary clinical practice standards and is recognised for this expertise as a resource for state-wide clinical advice and consultation;
	HP6-11: Demonstrates a contribution to research and knowledge in given discipline through publication in peer reviewed journals;
	HP6-19: Exhibits leadership and advocacy in the development of professional competence in the given clinical area on a state-wide basis;
	HP6-20: Exhibits leadership and advocacy in the development of professional competence in the given clinical area on a state-wide basis;
	HP6-21: Professional clinical practice supervision and education of staff and students and provides expert training and guidance to advanced level clinicians.

[30]    The applicant submitted that he had extensive and expert level skills and knowledge recognised both in Australia and internationally. The applicant was and continues to be recognised as a state-wide expert and participates appropriately in clinical, project and similar activities including conferences, forums and major projects. He said that his expert level clinical judgment has been relied on in a number of important projects including:

	Planning and implementation activities associated with cardiac cath lab services of the Sunshine Coast University Hospital;
	Planning activities relating to cardiac services to be provided by the new Queensland Children's Hospital;
	Involvement in the planning and building of the first fully integrated Hybrid Operating Theatre in Australia.

[31]   The applicant said that these projects also provide evidence of expert level skills being used on a state-wide basis. He also said that he is often asked to speak at meetings and conferences. He has presented many papers at national radiography conferences and some international conferences. He has written many research papers. He is writing a thesis on advanced cardiac angiography techniques. He is leading research collaborations with Siemens Healthcare. Further the applicant is the only Queensland representative on a national panel considering the establishment of a post graduate program in angiography. Finally the appellant relied on a performance assessment conducted on 27 August 2010 where the following feedback was provided:

"Commendable clinical & management of the area. You have demonstrated clinical expertise at a hospital and state level through your involvement with various professional groups. You are also to be congratulated for your academic and research presentations with regard to pioneering cardiac

interventional techniques … "

[32]   Queensland Health however contested the applicant's claims and submitted that Mr Crowhurst's participation in the Angio Working Party was not evidence of state wide expertise. QH said that this group was formed and run by the Institute of Radiography and was not directly related to Mr Crowhurst's role. Further, while Mr Crowhurst attended conferences or forums, his attendance should be correctly treated as part of professional development leave as opposed to a circumstance where attendance was directed or required by QH, and the participation was treated as paid time, not as professional development leave.

[33]   The evidence established that the Angio Working Party comprised a national panel constituted or formed by the Institute of Radiography. The State Angio Group represented a group formed at the initiative of Mr Crowhurst and comprised the head of angiography units in metropolitan hospitals. The evidence established that Mr Crowhurst's attendance at meetings or conferences was funded by either paid time or through professional development leave. When preparing a conference extract Mr Crowhurst said that some work was done at home and some at work. He added that all his research activities were necessarily completed at work and in work time.

[34]   It was Mr Brown's evidence at T1-58 that the WLET evaluation record indicated that the OSG recommendation to the WLET was to the effect that Mr Crowhurst had a consultant level of knowledge and skills. It followed that while it was possible that the WLET may have concluded that Mr Crowhurst was at HP6 Level when his role, duties and responsibilities were assessed against certain work level statements, on the holistic view an overall rating of HP5 was more appropriate. The implication in this evidence is that the Appeal Panel's decision did not necessarily amount to a rejection of Mr Crowhurst's claim of expert status. This conclusion appeared to be consistent with the comments recorded in the Appeal Review Statement which stated inter alia that the "appellant is clearly a high level HP5 but the evidence provided does not substantiate claims across the 3 criteria for the HP6 level".

[35]    On the information available to me, Mr Crowhurst's expert status may not have been in contention at the Appeal Panel stage. It was for other reasons that he did not secure a HP6 classification level. In the circumstances this issue is not a determining factor in the application before me.

Failure to Consider Management Responsibilities

[36]    The applicant asserted that the Appeal Panel erred in not assessing his achievements by reference to job characteristics relating to people and resource management. These achievements were set out in the "Appellant's Statement of Evidence" which was included in Exhibit 3 and referred to in paragraph 13 of his affidavit. In his affidavit he said that he was responsible for the education, training and ongoing support and supervision of radiography staff. He said this involved the supervision of up to 14 staff. He said that he was responsible for the performance management of these staff which included two staff members who were also classified at HP5. However QH submitted that Mr Crowhurst's operational management responsibilities were limited in that the Director of Medical Imaging was ultimately responsible for leave authorisations and disciplinary issues. Mr Crowhurst's evidence at T1-21 is set out below:

"And the line manger would – would then, correct me if I’m wrong, ultimately

sign off on any disciplinary issues that may be taken in relation to that sick
leave?---They probably would. I have an example of a disciplinary issue in my
appeal documentation that I undertook with a staff member that was working

in my area.

Okay?---But generally something of that serious nature would be – would be

dealt with in conjunction with the director.

Okay?---But certainly if there were any miss – minor things that – I don’t

know, an issue of conflict between two work colleagues or particularly given

the multidisciplinary nature of the department that I work on I would certainly

be the person responsible [indistinct] for resolving those – those conflict

issues."

[37]   At paragraphs 47 and 48 of his affidavit Mr Brown said that all appellants were required to meet the Work Level Statements in the three different job characteristics of "Scope and Nature of Level", "Knowledge, Skills and Expertise", and "Accountability." He said however that a fourth section dealing with people and resources was considered in the evaluations of managers and directors who had direct budget responsibility and direct accountability for the work unit's human resources. In this regard the applicant pressed the argument that the Appeals Panel erred in not evaluating Mr Crowhurst against his people and resources responsibilities.

[38]    In his evidence at T1-66 Mr Brown stated that there are a lot of managers out there

that, although they manage people, don’t have financial and HR delegation for them.
It’s usually the next person up......". Further at T1-67 Mr Brown gave the following

evidence: 

"And are you able to comment on how that sort of criteria would apply to Mr

Crowhurst?---I don’t – I don’t have a copy of his role description right now, but I would make the assumption that that would tend to sit with the director – the director of radiography. So it’s normally your director of radiography, director of pharmacy, director of occupational therapy that would hold the –

that would get the position occupancy report from your payroll and would also

hold your cost centres to allocate various fundings to those cost centres and

ultimately be responsible to the executive director for their costs – for their

underspend or overspend."

[39]   As I understood it, the management responsibilities in question were assessed having regard to particular work level statements contained in the management stream of health professional roles. In this regard the guidelines for the management stream included the following work level statements:

"HP6-29: including responsibility for facilitating staff development, performance appraisal and other general people management issues.

HP6-31:  Accountable for the administration, direction and control of the asset management and financial management of one or more cost centres."

[40]   While Mr Crowhurst discharged certain management responsibilities, the evidence does not support a finding that his responsibilities or duties would have justified a HP6 rating for the relevant work level descriptors. Therefore while the Appeal Panel did not specifically refer to management responsibilities in the Appeal Review

Statement, these matters would not have enhanced Mr Crowhurst’s prospects of

securing the HP6 classification level, and as such are not determinative.

No Adequate Reasons

[41]   The applicant's submission that the Appeal Panel had erred tended to derive, in a number of aspects, from speculation driven by the brevity of the reasons given. Because there was no detailed explanation for why Mr Crowhurst failed in his appeal, the tendency was to assert that the Appeal Panel had not fully considered the matter and most likely had overlooked important elements of the material put forward by Mr Crowhurst.

[42]   The fact that detailed reasons were not provided was not unexpected given the magnitude of the reclassification task being undertaken. Further, the terms of HPEB1 did not require the Appeal Panel to provide reasons for its decisions. A review of clause 19 of HPEB1 discloses that the ultimate responsibility of the Appeal Panel is to make a recommendation regarding the correct classification level. Further clause 19.11 requires "summaries of outcomes of appeals" to be reported to the HPIBB Group, an indication that the focus was on the outcome or the recommendation, not the reasoning behind it.

[43]   While the appellant may have doubts and misgivings, it has not provided the Commission with any evidence that that Appeal Panel failed to consider the detailed submissions and supporting material provided to it. Having regard to clause 19 of HPEB1, I do not consider that the brevity of reasons should give rise to a prima

facie conclusion that the applicant’s submissions and accompanying material were

not afforded full consideration, or that the Appeal Panel was not fully conversant
with the case being argued.

Inequity

[44]    The applicant argued that his allocation of a HP5 grade gave rise to serious inequity and anomaly. In terms of the Phase II evaluation process, the central purpose of the WLET was to prevent such outcomes and to ensure equity and consistency across not only Mr Crowhurst's discipline but all relevant disciplines. The purpose of the WLET is set out in clause 9.2 of Schedule 5 to HPEB1 which states:

"9.2 The Work Level Evaluation Team will then review the recommendations of the Work Level Evaluation Panels to monitor relativities and ensure consistency across disciplines and professions, Departments/Units and Districts."

[45]   Mr Crowhurst said that he reported to both the Director of Medical Imaging Services and the Director of Cardiology. He also said at paragraph 20 of his affidavit (Exhibit 2) that his position is responsible for the largest portfolio of angiographic equipment in Queensland and the largest number of staff in any like department in Queensland. At T1-23 in the evidence Mr Crowhurst testified to the effect that he supervised two HP5 radiographers, one who is responsible for the hybrid theatre while the other works in the cardiac catheter lab. area. It was Mr

Crowhurst’s conclusion that when his classification level was compared to the level

given to other similiar classifications it can be seen that the appeal process had given rise to a serious inequity. This evidence was included in paragraph 30 of Mr Crowhurst's affidavit (Exhibit 2) where he stated:

" ... There is now a serious inequity surrounding my current working conditions. To my knowledge, I am the only 'Assistant Director' in the Medical Imaging Department not to be reclassified to the HP6 level. I am the only 'Area senior' in the Cardiac Investigations unit not to be reclassified to the HP6 level. Subsequently advertised positions in cardiac science have been at the HP6 level."

[46]   Queensland Health correctly submitted that the Appeal Panel process did not involve an activity wherein appellant's justified the claimed remedy by comparing themselves with someone else. The process was about the individual employee putting forward their case for a higher classification taking into account their job description, role and responsibilities. This approach is consistent with clause 19.7 of HPEB1 which states that the appeal panel has "the power to consider whether the Work Level Evaluation of all the employee's duties, roles and responsibilities should result in the employee's position being reclassified".

[47]    However Clause 19.11(b) of HPEB1 implies that the methodology employed by the Appeal Panel must "comply with the guiding principles of Phase 2". The guiding principles include the proposition at clause 4.4 of Schedule 5 that "the reclassification process will be applied consistently to ensure equitable outcomes for all Districts and Health Practitioner disciplines or groups". In this regard it was Mr Brown's evidence at T1-58 that the equivalent roles to that held by Mr Crowhurst in other hospitals in the state had been assessed in every instance at the HP5 Level. The effect of this evidence was, from QH's perspective, that equity within the discipline had been achieved. There are however other measures of equity eg equitable outcomes across districts or groups. I presume in this regard that the concept of equity across districts or groups may include inter-discipline considerations. If so, Mr Crowhurst's only surviving avenue of appeal would involve a consideration of equity within his work group or across the relevant district.

[48]    Distilled into practical terms relevant to the facts and circumstances of this particular case, this means that Mr Crowhurst would need to successfully prosecute an argument to the effect that the pre-eminent status of Prince Charles Hospital may differentiate his role and justify a classification level higher than that given to comparable roles in other major hospitals, or successfully prosecute an argument that a classification level of HP6 was justified by the fact that all other consultants in the medical imaging area of Prince Charles Hospital were graded HP6. In terms of equity considerations I am not convinced that a case can be made out in the former instance. I have no reason to believe that the deliberations of WLET and the Appeal Panel would not have reflected these considerations. In the second instance however there was a significant conflict in the evidence which precludes me from arriving at a conclusion.

[49]   In paragraph 35 of his affidavit Mr Hamilton distinguished between the levels proposed by the work unit and the levels finally endorsed by the Director General. The effect of his evidence was to compare, for Mr Crowhurst's work unit, the classification levels recommended by the WLEP with the classification levels that finally resulted after the WLET and Appeal Panel phase. The comparison is set out in the following table:

Position	WUP Level	Final Level
Director and Business Manager	HP7	HP7
Deputy Director	HP6	HP6
Assistant Director	HP6	HP5
Consultant Senior (2)	HP7	HP6
Consultants (6)	HP6	HP5

[50]   However in cross examination at T1-99 onwards, Mr Hamilton was questioned about a Work Unit Organisational Chart for the Medical Imaging Department of Prince Charles Hospital which was included in attachment JC4 to Exhibit 2. The chart proposed five Consultant Senior positions viz Consultant Senior CT, Consultant Senior Cardiac Radiography (Mr Crowhurst), Consultant Senior MRI, Consultant Senior Ultrasound, and a Consultant Senior Nuclear Medicine. The submission was that all the positions proposed were ultimately adopted and given a level of HP6 except for Mr Crowhurst. This submission was then contrasted with Mr Hamilton's evidence which was to the effect that all of the six consultant positions that were proposed at the HP6 level were moderated to a HP5 level.

[51]    If the facts as asserted to exist by the applicant are correct, two possibilities emerge. One is that the different classification rating given to Mr Crowhurst was an intended consequence of the classification process. That is, the classification process always envisaged that health professionals at the same or similar level prior to the process might end up at different levels after the process. The second possibility is that inconsistencies have occurred in the appeal process leading to anomalies which may require correction.

Conclusion

[52]    The principal function of the Appeal Panel is to determine the correct classification level of the position being evaluated. This determination is arrived at by considering the Work Level Evaluation of all of the relevant employee's duties, roles and responsibilities. However the Panel's work is not conducted entirely in a vacuum and the Panel in its approach is expected to act consistently and to be cognisant of the guiding principles associated with the phase 2 process, including the desirability of delivering equitable outcomes for all Districts and Health Practitioner disciplines or groups.

[53]   In this regard the Appeal Panel had the advantage of reviewing a considerable number of appeal documents and had the advantage of oversight. That is, it had the information and knowledge to look across the spectrum of appeal circumstances with a view to maintaining consistency and equity in its outcomes. These are advantages which the Commission does not hold and given that the Commission is limited to determining the application on the evidence and submissions before it, it is very difficult to respond to the arguments in question unless it is fully informed of all the relevant facts and circumstances.

[54]   In this matter the parties did endeavour to provide the relevant information, but in the process a dispute emerged over the correct position. While proof of the applicant's version of events does not necessarily lead to the grant of his application, I think that it is desirable that doubts about the validity of outcomes and theories of unfairness should not be allowed to linger and would be best resolved. Consequently, prior to issuing a final decision, I have determined that QH should review the relevant organisational chart or charts and any related information in question and inform me in writing prior to 30 September 2014 whether it accepts that the information provided by, or on behalf of, the applicant is correct. This request relates to paragraphs 45, 48, 49, 50, and 51 of this decision.

[55]   If the applicant's information is correct or partially correct, QH is asked to advise whether, having regard to all the information, it considers that Mr Crowhurst's classification at HP5 constitutes an anomaly or inequity which should be corrected, or whether it believes that the HP5 classification level decided by the Appeals Panel represents a correct and intended consequence of the reclassification process. If QH considers the applicant's information to be incorrect it is asked to provide the Commission with information validating that position.

[56]   The applicant should be provided with a copy of any material forwarded to the Commission in accordance with the request contained in the previous paragraph. The applicant is also given the opportunity to furnish the Commission and QH with a brief response to the information provided. Following receipt of the material the Commission will issue its final decision.

[57] Order accordingly.

Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland

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