Davies v State of Queensland (Department of Education)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Davies v State of Queensland (Department of Education) [2023] QIRC 363
PARTIES:	Davies, Beth (Appellant) v State of Queensland (Department of Education) (Respondent)
CASE NO:	PSA/2023/222
PROCEEDING:	Public Sector Appeal – Transfer Decision
DELIVERED ON:	20 December 2023
MEMBER:	Pidgeon IC
HEARD AT:	On the papers
ORDER:	The decision appealed against is confirmed.
CATCHWORDS:	PUBLIC SECTOR – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a transfer decision – where the appellant is employed by the respondent as a Prep Teacher at Indooroopilly State School – where the appellant is the subject of a required transfer to Durack State School – where the appellant sought an internal review – where the internal review decision confirmed the required transfer – where the appellant says she objects to the transfer as she is anxious when driving – where the decision was fair and reasonable – decision confirmed
LEGISLATION AND INSTRUMENTS:	Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 161, 162 Teacher Transfer Guidelines

Reasons for Decision
Introduction

Ms Beth Davies (‘the Appellant’) is employed by the State of Queensland (Department of Education) (‘the Respondent’) as a Prep Teacher at Indooroopilly State School, where she has worked since February 2017.
Ms Davies appeals the decision of Ms Lisa Newbold, Director, Human Resources Business Partnering, Metropolitan North Region, Department of Education, dated 3 November 2023 to transfer Ms Davies from Indooroopilly State School to Durack State School with effect from 18 January 2024.
Ms Davies’ request for a review
Ms Davies was initially informed of the transfer on 8 September 2023. Ms Davies informally raised her concerns with the transfer on 14 September 2023 by way of correspondence to her Principal at Indooroopilly State School and a Senior Human Resources (‘HR’) consultant in the Region. The next day, on 15 September 2023, Ms Davies formally requested a review of the transfer by lodging a ‘Teacher Transfer Request for Review Required Transfer’ form with the Department of Education.
In her request, Ms Davies conveyed that she is concerned about the daily commute from her home in inner-city Brisbane where she lives with her family to Durack State School.[1] In particular, Ms Davies said that she lacks confidence driving beyond short distances from her home and has ‘concerns about long drives and changing lanes multiple times at high speeds’.
[1] I have determined not to specify the exact suburb where Ms Davies resides in these reasons for decision.
Ms Davies says that since becoming a teacher in 1996, she has worked in many schools including in Wales, Portugal and Sydney. She says that while she is not concerned about changing the location of her work, she describes a preference for working at a school close to her home ‘to prevent escalating [her] anxiety’.
Ms Davies explains that her husband drove to Durack State School from their home on a weekend and his experience ‘confirmed [her] concerns’ about the transfer.
She says that when seeking employment in Queensland seven years ago, Indooroopilly State School was a ‘perfect fit’ as it is a ten-minute drive from her home and allows her to arrive at work before 6:30 am. Ms Davies says this enables her to prepare for the day which is important to her teaching values.
In her request for review, Ms Davies also highlights that she has been transferred as a full-time teacher but she has been working part-time for the past two years as her husband travels regularly for work while she supports their children.
Ms Davies concludes with a request that she be ‘aligned’ with a school within a ten-minute drive of her home, namely Toowong State School. She reiterates her specialised year levels being Prep to Grade 2, with her recent teaching experience being with Prep classes.
The Teacher Transfer Review Panel met on 27 October 2023 and considered Ms Davies’ request for a review. Ms Davies was advised of the outcome of the review in Ms Newbold’s correspondence of 3 November 2023.
The decision letter
Ms Newbold begins her decision letter by confirming receipt of Ms Davies’ request for review. She reiterates that her request was reviewed by the Teacher Transfer Review Panel in a fair and impartial manner on 27 October 2023, with the panel comprising of the following individuals from the Metropolitan Region: Robyn Johansson (Chair), Principal HR Consultant; Bruce Buchanan, Principal HR Consultant; Brenda Lack, Manager Human Resources; and Julie Johnston, Manager Human Resources.
Ms Newbold says that she has accepted the panel’s recommendation to dismiss Ms Davies’ request for a review on the basis that the transfer is consistent with the Public Sector Act 2022 (Qld) s 161 and the Teacher Transfer Guidelines.
The decision-maker concludes by attaching a copy of the factors that the panel considered when making its determination and outlining Ms Davies’ appeal rights.
Attached to the decision letter is a document which explains that the determination was based on the following:
·The factors considered by the Department in identifying Ms Davies for transfer were consistent with the application of the guidelines. The proposed transfer is reasonable and recognises Ms Davies’ departmental employment history;
·The decision was not contingent on a comparative assessment of Ms Davies’ transfer history compared to other employees at her school. The guidelines contemplate a multiplicity of workforce management issues;
·The guidelines specify that it is reasonable to transfer a teacher to a school within a driving distance of up to 50 minutes from that teacher’s residence. The Department uses electronic trip planners such as Google Maps as a guide to determine driving time. The manner by which a teacher travels to their school location including any breaks in that journey is a matter for them and ‘not up to the department to resolve’.
·The panel reviewed the distance between Ms Davies’ residential address and Durack State School and considered the distance reasonable.
·Any continued flexible work arrangements would need to be negotiated with the Principal of Durack State School in accordance with the Flexible Work Arrangement procedure.
Ms Davies’ reasons for appeal
Ms Davies filed her appeal notice on 21 November 2023.
Ms Davies begins by explaining that she has worked at Indooroopilly State School with Prep classes for seven years, five of those years on a full-time basis and two years on a part-time basis (two days per week).
Ms Davies submits that she has followed the appeals procedure, informally spoke to her Principal and a Senior HR Consultant, and later lodged a request for review through the Department of Education as she was in the final few days of Term 3. Ms Davies says she was concerned that there was a 28-day period to request a review of the transfer and as the two-week school holidays were about to commence, there was little time to arrange for her case to be discussed at the Local Level – Stage One. She says that due to staff absences and other issues beyond her control, a meeting at the local level was unable to occur and her review was progressed to Regional Office.
Ultimately, Ms Davies reasons for appeal are as follows:
My main reasons for appealing was due to my anxiety when driving on the highway and on roads that I am unfamiliar. This is something that I have always suffered with and I cope by not driving on roads that make me feel anxious. I was hoping that when myself, the Principal and the Senior HR Consultant met, we could discuss alternative schools that I can travel to that are still considered non preferred schools. Durack State School was not the problem, only the drive to get there. I was and still am happy to travel to non preferred schools as long as I feel that I can drive to the school without feeling worried and anxious which in turn would affect my teaching.
…
For the past 10 weeks, the stress of this situation has totally consumed me. All I ask, is that I am given the opportunity to review options available to me as part of Stage One of the Appeals Process. I was not given this opportunity leaving me without a voice and in an unfair position compared to other teachers who have appealed their Transfer in 2023.
Appeal principles
Section 562B(3) of the Industrial Relations Act 2016 (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
Legislative framework
Sections 161 and 162 of the PS Act deal with the transfer of a public sector employee. Those sections provide:
161 Chief executive’s power to transfer or redeploy
(1)The chief executive of a public service entity (the first entity) may—
(a)transfer or redeploy a public service officer of the first entity within the first entity; or
(b)with the approval of the chief executive of another entity, transfer or redeploy a public service officer of the other entity to the first entity.
(2)However, a redeployment may be made only with the public service officer’s consent.
(3)A transfer or redeployment of a public service officer under this section—
(a)may involve a change in the location where the officer performs duties; and
(b)if the officer is employed on contract—has effect despite anything in the contract.
162 Consequence if public service officer refuses transfer
(1)If a public service officer is transferred under section 161, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive.
(2)If the public service officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive’s satisfaction, the chief executive may terminate the officer’s employment by signed notice given to the officer.
(3)If the public service officer establishes reasonable grounds to the chief executive’s satisfaction—

(a)the transfer is cancelled; and
(b)the refusal must not be used to prejudice the officer’s prospects for future promotion or advancement.

Respondent's submissions

The Respondent filed its submissions on 1 December 2023.
The transfer process
Firstly, the Respondent explains that the Department of Education has a scheme to manage the fair and equitable transfer of State school teachers within Queensland known as the Teacher Transfer Scheme. Transfers are made in accordance with the Teacher Transfer Guidelines.
Key features of the scheme include transfers initiated by the Department (‘Required Transfer’), transfers requested by employees (‘Requested Transfer’) and transfers based upon compassionate grounds (‘Compassionate Transfer’).
Ms Davies has been identified for a Required Transfer. The Respondent sets out the criteria for identifying teachers suitable for Required Transfer as follows:
(a)      breadth of teaching experience, including prior service in rural and remote locations or other high priority locations;
(b)      length of service in current location;
(c)      professional development activities undertaken in the last 5 years that either support the teacher in their current position or their longer-term career plans;
(d)      the need to create vacancies for teachers seeking to transfer following rural and remote service;

(e) temporary organisational circumstances that preclude the teacher from moving from their current location;

(f) personal circumstances that preclude a teacher from moving either from their current location or residence.[2]
[2] Teacher Transfer Guidelines, 5.

The Respondent says that Ms Davies was identified for a Required Transfer because:
a)       She has been employed at Indooroopilly State School for six or more years;
b)       She has only worked at one school since she was hired by the Department;
c)       She has not completed rural or remote teaching service with the Department.
The Respondent submits that Required Transfers are an important part of the Teacher Transfer Scheme. They allow the Department to accommodate fluctuations in student enrolments and teachers returning from rural service, as well as support teachers who present with acute medical and domestic circumstances.
Teachers are expected to comply with a Required Transfer unless they can establish that a reasonable ground exists for the transfer to not occur. The Department’s Guideline of the assessment of compassionate circumstances (‘Compassionate Circumstances Guidelines) list the circumstances which may be considered compassionate circumstances resulting in a transfer not occurring.
Importantly, the Respondent notes that a transfer placement to a school of up to 50 minutes driving time from a teacher’s place of residence is considered reasonable. This time is calculated according to the nearest trafficable route.
Nominations for a Required Transfer can occur at any time of the year, although are typically tied to a calendar year to minimise disruptions to schools. However, an alternative commencement date can be negotiated in exceptional circumstances. When sufficient workforce flexibilities cannot be achieved through transfers, relieving placements, internal staff appointments or other staffing arrangements, it is open to school leaders to work with their regional HR team to recommend teachers for transfer.
The Respondent’s submissions proceed to explain how Ms Davies’ transfer from Indooroopilly State School to Durack State School came to be.
Firstly, an email was sent to Ms Davies on 6 June 2023 which asked her to complete a survey to assist in identifying whether she could be transferred to another school which needed a teacher with her skills and experience. The Respondent says this was a preliminary step and did not mean that Ms Davies had been identified for transfer.
On 31 July 2023, Ms Davies received an email inviting her to nominate for an identified vacancy commencing in Semester 2, 2023. This would have the effect of removing her from the list of teachers identified for a Required Transfer and would allow Ms Davies to return to a school of her preference. Ms Davies did not take the opportunity to nominate for an identified vacancy.
On 8 September 2023, Ms Davies was informed of her transfer to Durack State School with effect from 18 January 2024.
As set out above from [3] to [10], Ms Davies raised concerns with the Required Transfer and eventually requested a review. The Teacher Transfer Review Panel reviewed the transfer and determined that the distance between Ms Davies’ residential address and Durack State School was reasonable. Ms Davies was informed of the outcome of the review in the 3 November 2023 decision letter which is subject of this appeal.
The Respondent notes that the drive from Ms Davies’ suburb to Durack State School (using roads other than the M5, a motorway) is typically 25 to 45 minutes, depending on traffic and time of departure. This is based on a route produced by Google Maps which assumes a 7:30 am departure time. The Respondent also notes that it is possible for Ms Davies to travel by public transport.
The Respondent says that the transfer decision is fair and reasonable
Ultimately, the Respondent says that the Required Transfer decision is fair and reasonable. Section 161 of the PS Act empowers the chief executive of a department to transfer or redeploy a public sector officer. Section 162 of the PS Act enables a public sector officer to refuse a transfer under s 161 if they can establish reasonable grounds.
The Respondent says that when considering the Transfer Guidelines and Compassionate Circumstances Guidelines, Ms Davies has not established a reasonable ground for refusing the transfer. The Respondent says that Ms Davies ‘has not established exceptional and compelling circumstances as to why she should not be transferred to Durack State School’. Ms Davies did not provide the decision-maker with evidence of a medical condition preventing her from transferring to Durack State School, nor did she provide evidence that the Required Transfer would impose unjustifiable hardship on her.
In terms of Ms Davies’ anxiety about driving, the Respondent says this is not an exceptional circumstance giving rise to compassionate circumstances. Again, the Respondent reiterates that the Transfer Guidelines recognise that travel up to 50 minutes from a teacher’s home (calculated on the nearest trafficable route) is reasonable.
The Compassionate Circumstances Guideline state that distance of travel to-and-from a teacher’s current school or location is not an exceptional or compelling circumstance provided travel time is of no more than 50 minutes.
Further, that a meeting between Ms Davies, her Principal and the Senior HR Consultant did not proceed due to the Senior HR Consultant’s absence does not make the Required Transfer decision unfair. Ms Davies took the opportunity to seek a formal review of the decision. In any case, even if the meeting had occurred, the Respondent says that Ms Davies would still have been required to raise her objection through a formal request for a review.
Overall, the Respondent says the decision to uphold the transfer decision was fair and reasonable. The onus was on Ms Davies to establish reasonable grounds to refuse the transfer or raise some other exceptional circumstances to meet the Department’s compassionate criteria.
In the Respondent’s view, Ms Davies’ anxiety about driving to Durack State School from her residence in inner-city Brisbane is not a reasonable basis for her to refuse the transfer. On that basis, the Respondent seeks that the Commission confirm the decision appealed against.
Ms Davies’ submissions
Failure to conduct a local meeting regarding her transfer as part of Stage One

Ms Davies reiterates that the failure to conduct a local level meeting between herself, her Principal and the Senior HR consultant renders the transfer unfair.

[46]Ms Davies disagrees with the Department’s submission that the lack of a local level meeting would not have changed the outcome of the transfer process. Ms Davies believes that if a local meeting had been held, ‘multiple discussions could have taken place over available schools at a closer location’. Ms Davies believes she could have been given advice and options to facilitate the transfer and says that this was not forthcoming. Ms Davies reiterates that she has no issue transferring to what she calls a ‘suitable school’ and that the omission of the Stage One meeting meant she was not given ‘a voice’ to discuss her situation. Ms Davies asks why there is a Stage One process at all if it has no impact on Stage Two.
Ms Davies’ length of service at Indooroopilly State School and previous teaching experience

Ms Davies refutes the Department’s assessment that she has been at Indooroopilly State School for six years. Ms Davies says that as she has not worked a full five years of combined full-time hours, so she should be exempt from the transfer process until 2025. Ms Davies seeks clarification as to whether the determination that she had worked at Indooroopilly was based on part-time or full-time hours of work.
Ms Davies totally disagrees that the criteria regarding breadth of teaching experience, including prior service in rural and remote locations or other high priority locations was considered and notes that she has taught in Wales, Portugal and New South Wales (‘NSW’).
The Teacher Transfer Scheme

Ms Davies seeks a copy of her original signed contract containing a reference to the ‘Teacher Transfer Scheme’.
Ms Davies states that the transfer scheme needs to be adjusted to accommodate the Queensland State Government’s promotion of Queensland as a State for families to move to from NSW and Victoria. Further, Ms Davies states that the Teacher Transfer Scheme discriminates against interstate and overseas migration for middle-aged, experienced teachers.
The Teacher Transfer Guideline’s reference to 50 minutes driving time
Ms Davies disagrees with the teacher transfer guideline regarding a 50-minute drive from one’s home as she says that advertised teaching roles do not state that a teacher requires a driver’s licence and that the travel time should be based on public transport. Ms Davies says that the public transport journey from her home to Durack State School is one and a half hours.
Ms Davies is willing to be transferred to suitable school
In an apparent acceptance that the Teacher Transfer Scheme applies to her despite her submission seeking a copy of her contract to check if there is a reference to the transfer scheme, Ms Davies agrees that Required Transfers are an important part of the Teacher Transfer Scheme and says that she has no issue transferring to another ‘suitable school’. Ms Davies is not sure why the Department of Education could not compile a list of schools which she could transfer to. Ms Davies says that she is ‘more than flexible to transfer any time of the year when a suitable vacancy arises’.
Ms Davies says that when she received the email asking her to complete the teacher transfer survey, she did so, stating the reasons why she should not be considered for a transfer.
Ms Davies says that she reviewed the email she was sent on 6 June 2023 inviting her to nominate for an identified vacancy. Ms Davies says that she did not nominate for one of those vacancies as the ‘excessive distances and roads to travel along would have totally increased [her] driving anxiety’.[3]
[3] Appellant’s submissions filed 8 December 2023, [12].
The Transfer Review Panel process
Ms Davies says she does not believe adequate information was provided to the Transfer Review Panel due to staff absences and a backlog of work. Ms Davies says it seems clear to her that the internal appeal application was rushed through the State’s internal appeal process due to time constraints and a large backlog of work. Ms Davies seeks the notes and recommendations of the Senior HR consultant and asks how much time was taken to review her appeal, whether the panel voted, and what the count of the vote was. Ms Davies notes that the panel consisted of four people and asks why there was not an odd number of panel members so that there could be a majority vote. Ms Davies asks for the minutes of the Teacher Review Panel and asks if she should apply for the minutes under the ‘Freedom of Information Act’.
Medical certificate dated 4 December 2023
Ms Davies attaches to her submissions a medical certificate from a General Practitioner dated 4 December 2023 advising that Ms Davies has ‘significant anxiety and panic associated with highway and motorway driving’. The General Practitioner notes that this is a longstanding issue which Ms Davies manages by avoiding motorways and highways. The General Practitioner believes the commute to drive to Durack State School, which she says Ms Davies has attempted, will pose a ‘nonjustifiable [sic] hardship’ on Ms Davies with ‘significant psychological suffering’.
Net zero emissions
Ms Davies says that the decision is not reasonable as it does not support the Federal Government’s international commitments to achieve net zero emissions by 2050. Ms Davies says the transfer ‘will create an additional 100 hrs of Co2 emissions being pumped into the atmosphere every year’.
Accumulated sick leave and unpaid work at home
In addition, Ms Davies says that she has accumulated 138 hours of sick leave over the last seven years. She says that on average, she arrives at school before 6.30 am every morning and that as part of her tax return, she logged over 200 hours of unpaid work at home in 2022 and 2023.
Impact of transfer process on Ms Davies’ health
Ms Davies says the ‘break down in this transfer process’ has affected her well-being in the form of headaches and anxiety.
Ms Davies provides feedback to the Department that during this stressful process, there has not been one single check-in call from HR or Health and Wellbeing regarding her situation.
Other matters
Other submissions are made regarding ongoing actions being undertaken to implement the transfer despite this appeal being on foot, including that Ms Davies believes she is being bullied by way of a request for her school laptop to be returned.
Respondent's submissions in reply
Appeal is by way of review
The Respondent says that a public sector appeal is by way of review and that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. The Respondent says that this involves a consideration of the information that was before the decision-maker at the time the decision was made.
The Respondent says that while Ms Davies has provided a medical certificate dated 4 December 2023, she did not previously submit any medical evidence when requesting a review of the decision to transfer her and that there was no medical evidence before the decision-maker when the decision was made.
The Respondent says that the medical certificate now provided does not make the decision to transfer Ms Davies to Durack State School unfair or unreasonable. The Respondent notes that there is a driveable route between Ms Davies’ home and Durack State School that does not involve highway or motorway driving.
Ms Davies’ response to the teacher transfer survey
The Respondent attaches Ms Davies’ response to the teacher transfer survey. The Respondent says it is notable that Ms Davies did not indicate any difficulty with driving in her response to the survey.
The Respondent notes that there was a question on the survey asking: ‘Is there any additional information you would like to share that may preclude you from being transferred from your current school to an alternative school within a reasonable travel distance (50 minutes) from your residential location?’. In response to that question, Ms Davies said:
My husband travels and stays away from home for work regularly and for up to a week each time. At the moment, I am able to get to work from [redacted] to Indooroopilly within six minutes and travel to my children’s school within a similar time when my husband is frequently away.
The Respondent says that Ms Davies first raised her concerns with driving after she was notified of the transfer.
Ms Davies had an opportunity to nominate for an identified vacancy
The Respondent notes Ms Davies’ submission that the absence of a Stage One review meant that she was denied the possibility of conversations about other alternative schools she would find suitable. However the Respondent says that on 31 July 2023, Ms Davies was invited to nominate for an identified vacancy commencing Semester 2, 2023, the effect of which would remove her from the list of teachers identified for a Required Transfer and give her the option of returning to a school of her preference. The Respondent says that Ms Davies had the opportunity to identify a listed school to transfer to that would have allowed her to manage her anxiety.
Ms Davies’ claim the Department is bullying her
The Respondent strenuously denies that it is bullying her to relocate while the appeal is on foot. The Respondent states that while the outcome of the appeal is not known and there is no stay in place, the Department is not prevented from undertaking any ‘business as usual steps’ at the end of the school year.
Consideration
A local meeting between Ms Davies, her Principal and the Senior HR consultant did not take place
I have considered the timelines and circumstances surrounding Ms Davies being notified of her transfer. While a local meeting may have provided an opportunity for Ms Davies to discuss her concerns and express her desire to be placed at another school within 10-minutes’ drive of her home, I cannot conclude that the meeting would have resulted in a different decision regarding the transfer. Ms Davies had an opportunity to reply to the teacher transfer survey and later had an opportunity to consider a range of schools to which she could have accepted an ‘early transfer’ to, thereby giving her more control to identify a school she deemed ‘suitable’. The process for seeking a review of a transfer decision has offered an opportunity for Ms Davies to express her concerns and have the decision reviewed by those with delegation and capacity to change the decision. That the local meeting did not take place does not serve to make the decision to transfer Ms Davies unfair or unreasonable.
I have also considered Ms Davies’ further reply submission[4] reiterating the timeframes for each ‘review action’ in the ‘Teacher Transfer Information Sheet – Reviews and Appeals’. While the process provides for Stage One – Local Action, Ms Davies states in her appeal notice that she was concerned there would not be time for the Stage One process to be undertaken within the timeframe and so went ahead and lodged a request for internal review. In her further reply submissions, Ms Davies says that she hoped that during the Stage One local conversation she would be advised of ‘exactly what medical certificates would have been needed for her appeal’. Ms Davies also notes that there is a long waiting time to have an appointment with a psychologist and that there is a financial cost to obtaining medical certificates.
[4] Appellant’s further submissions filed 8 December 2023.
However, Ms Davies had been on notice for some months that she had been identified for transfer. If at the time she was identified for transfer, Ms Davies always knew that she was unwilling to work in a school she did not deem suitable on the basis that she could not drive for more than ten minutes from her home because of a medical condition, it was open to Ms Davies to seek advice about her options and make an appointment to see a medical practitioner or psychologist.
The Stage One transfer process required that Ms Davies provide sufficient information to support resolution of her concerns at a local level. I have reviewed the information Ms Davies included in her email raising concern about the transfer. That email refers to Ms Davies’ lack of confidence in driving; preference to work within a ten-minute drive from her home in inner-city Brisbane; and mentioning that there are many state schools nearby to where she lives, including one which is around the corner from her house. Ms Davies does not refer to suffering from a medical condition or having any medical evidence to support her request.
Further to this, in the email Ms Davies sent to her Principal and the Regional Office staff member regarding her request for review, Ms Davies appears to anticipate that there may not be time to conduct Stage One of the process. Ms Davies states that ‘I will submit my Teacher Transfer Request for Review form via email to Gary Austen (if possible) as the school holidays have arrived and I am concerned about the 28 day deadline’. In the circumstances, I am satisfied that the Stage One meeting was unable to be convened and that it was reasonable for Ms Davies to secure her right to a review by lodging the Request for Review form and that it was reasonable for the Respondent to move to conduct the review based on her request.
The transfer process requires that for a Stage Two – Request for internal review, the teacher ‘is required to consider the grounds for review and relevant supporting documentation for the panel to consider’. As is canvassed elsewhere in these reasons, Ms Davies did not provide a medical certificate at this time. While I note Ms Davies’ submission that it takes a long time to get an appointment with a psychologist, I also note that Ms Davies did not indicate to the Review Panel that she was seeking an appointment with a psychologist or a General Practitioner and that she would provide that documentation when it was available. The visit to the General Practitioner and subsequent medical certificate only occurred in the context of this appeal. In any case, as I discuss elsewhere in these reasons, the task before me is to consider whether it was reasonable for the Respondent to decide, on the material it had available at the time, that Ms Davies’ had not provided reasonable grounds to refuse the transfer.
Ms Davies’ submissions regarding the Department identifying that she had worked at Indooroopilly for six years and that she had not worked at any other school while engaged with the Department of Education
It is unclear to me why Ms Davies is of the view that she should be exempt from transfer until 2025 on the basis that she has not worked a full five years of combined full-time hours. There is nothing in the Teacher Transfer Guidelines setting a specific period of time one may be in a school before being subject to a Required Transfer.
The Department’s Teacher Transfer Scheme applies to Ms Davies
While Ms Davies appears to assert that her original contract did not contain a reference to the Teacher Transfer Scheme, it is the case that all permanently appointed teachers are subject to both State Government legislation and the directives and policies of the Department of Education. That Ms Davies may not have been aware of the Teacher Transfer Scheme when she accepted permanent employment as a teacher at Indooroopilly State School does not render the transfer unfair or unreasonable.
The relevant legislation is set out above at [22]. Additionally, as stated in cl 4 of the Teacher Transfer Guidelines, ‘… Teachers employed by the department may be required to teach in any location in the state…’.
Ms Davies’ teaching service and experience outside of Queensland
I do not think the decision-maker was required to consider Ms Davies’ employment in overseas or interstate schools when considering the criteria used to identify teachers suitable for Required Transfers. I understand that Ms Davies feels the Teacher Transfer Scheme discriminates against middle-aged, experienced teachers who move to Queensland from interstate or overseas.[5] However, where Ms Davies has previously taught is a matter outside of the Department’s control. I am satisfied that Ms Davies’ length of service in her current location and that she has only ever worked in that location while employed by the Department of Education were sufficient considerations to identify her as suitable for a Required Transfer.
Ms Davies’ preference to work in a school within a ten-minute drive from her home
I understand that Ms Davies has a preference to work in a school within a ten-minute drive from her home and in her request for review, suggested that a suitable alternative is Toowong State School, which is within a 10-minute drive of her home. I am certain there are many people who would prefer such a short commute time and to avoid busy roads. However, the Teacher Review Panel and Ms Newbold are guided by the Teacher Transfer Guidelines as to what is a reasonable distance. On page seven of the Teacher Transfer Guidelines, reasonable travel time is stated to be ‘of up to 50 minutes driving time from a teachers’ place of residence’.
Ms Davies has made submissions regarding her concerns with changing lanes at high speeds. The medical certificate provided in this external appeal specifically refers to Ms Davies’ coping strategy of avoiding motorways and highways. I accept the Respondent’s that there are routes between Ms Davies’ residence in inner-city Brisbane and Durack that do not require motorway or highway driving at high speeds and fall within the 50-minute driving time. While this new information may be useful to Ms Davies if she is concerned that the only way to get from her home to Durack State School is via a motorway or highway, the decision of the Transfer Review Panel made at the time on the basis of the information available at the time was reasonable as it identified a journey that fell within the 50-minute guideline.
I note that in reply to the Respondent’s submission that there are alternate routes to Durack State School that do not require motorway or highway driving, Ms Davies states that one of the alternative routes suggested by the Respondent involves a ‘large, busy and fast roundabout’. At no point in her submissions until this point does Ms Davies identify roundabouts as contributing to what she considers an unacceptable route from her home to school. As the decision-maker was unaware of Ms Davies’ concern about negotiating roundabouts during her commute to school at the time the decision was made, it was open to the Respondent to make the decision to uphold the transfer on the grounds that it was to a school within 50 minutes of Ms Davies’ home.
I note Ms Davies’ submission that teachers are not required to have a driver’s licence to be appointed and therefore ‘reasonable travel time’ should be based on public transport times. The Department’s policy is a matter for it to consider and a teacher who found themselves without a licence and facing a lengthy commute on public transport may need to consider relocating their home to a place nearer to their work location. In any case, Ms Davies has a driver’s licence and currently drives to school.
A ‘suitable school’
Ms Davies’ submissions reiterate that she has no issue transferring to a ‘suitable school’ or a ‘suitable vacancy’. It seems to me that Ms Davies had an opportunity to circumvent the Required Transfer process when she was offered a list of identified schools. I understand that Ms Davies considered the list of schools and decided that none of them were reasonable as they are ‘a considerable distance’ from her home.[6] However, at this point she had some control over the matter, could choose the school from the list she felt most able to travel to, and begin preparations for the transition from working very close to her home to needing to drive a further distance each day. However, having declined that opportunity, Ms Davies found herself subject of the required transfer to Durack State School.
[6] I have reviewed that list of schools: Bracken Ridge State School (‘SS’), Brassall SS, Bundamba SS, Carole Park SS, Pallara SS, Redbank Plains SS, Ripley Central SS (New School – Opened 2023), Ripley Valley SS, Russell Island SS, Serviceton South SS, Seville Road SS, Silkstone SS, Tivoli SS, Woodlinks SS, Zillmere SS, Coominya SS, Fernbrook SS, Fernvale SS, Goodna SS, Grovely SS, Ipswich East SS, Kruger SS, Leichardt SS, Lowood SS, Special Schools including: Goodna, Western Suburbs, Ipswich West, Sunnybank, Kuraby and Claremont. I note that there are several schools on that list that are within 50-minutes drive of the suburb Ms Davies lives in. Additionally, a number of schools are in locations where there are train stations.
I understand that in the teacher transfer survey, Ms Davies stated that her current school was a good fit for her due to the six-minute commute, her husband’s work commitments and her caring responsibilities. Neither of these matters are set out in the Teacher Transfer Guidelines as considerations in identification and assessment of teachers for required transfer.
However, the Teacher Transfer Guidelines do address consideration of compassionate circumstances. This section of the Guideline may aide a consideration of whether Ms Davies had established reasonable grounds for refusing the transfer. I note that in the guidelines, ‘distance of travel to and from the school location’ appears under the heading ‘Circumstances not considered’. I also note that a further circumstance not considered is ‘medical applications that are not supported with documentation or evidence that substantiate compassionate circumstances in relation to work location’.

On this basis, the response Ms Davies provided to the transfer survey would not have precluded her from being identified for a required transfer. Further, the information she provided when making the formal request for a review of the transfer decision did no more than express a concern regarding travel time and a lack of confidence with driving and mention that her husband travels regularly for work and this is why she works part-time.
Ms Davies’ submissions regarding the Teacher Transfer Review Panel process
Ms Davies complains that adequate information may not have been provided to the Teacher Transfer Review Panel. However, the panel had Ms Davies’ request for review before them when making the decision.
There is no evidence that the decision was rushed by the panel, though I understand that in a large State-wide transfer system, there is a need for decisions to be made in a timely way to enable certainty for all involved.
I understand Ms Davies would like a copy of the minutes and to know whether a vote occurred and what the numbers were. However, what was required was that Ms Davies be provided with a letter setting out a statement of reasons for the decision of the panel. Ms Davies received a letter and an attached statement of reasons on 3 November 2023 and this is what was required.
The medical certificate
Ms Davies provided a medical certificate with her submissions in support of her appeal to this Commission.
My role in hearing this appeal is to consider whether the decision appealed against is fair and reasonable. In doing so, I am required to consider whether the decision was fair and reasonable at the time it was made and on the basis of the information available to the decision-maker (and in this case the panel) at the time the decision was made.
While I note the medical certificate, it was not available to the decision-maker at the time. The fact that the medical certificate is dated well after Ms Davies was advised of the transfer and had the transfer confirmed on review raises questions as to why Ms Davies did not seek to provide medical evidence earlier.
In any case, the medical certificate was not available to the decision-maker at the time and the fact that it has now been provided does not render the transfer decision not fair or reasonable.
Net Zero Emissions
Turning to Ms Davies’ argument that the transfer is not reasonable as it will cause additional hours of Co2 emissions to be pumped into the atmosphere every year, I do not find this submission at all persuasive and I note that the Respondent has made no submissions on this point.
The Teacher Transfer Guidelines do not require the Teacher Transfer Review Panel or any decision-maker to consider the Australian Government’s commitment to net zero emissions by 2050.
That Ms Davies’ additional driving time may create carbon emissions does not render the decision unreasonable.
Ms Davies’ accumulated sick leave and unpaid work at home
It is unclear how Ms Davies’ submissions regarding her accumulated sick leave and hours of work undertaken at home serve to make the decision unfair or unreasonable.
Ms Davies’ accumulated sick leave will remain in her accruals when she takes up her position at Durack State School and there is no disadvantage to her in this regard. Alternatively, if the submissions were aimed at demonstrating that she is a reliable employee of good health, I would observe that any school community she works in will benefit from these circumstances.
It is well known in society that many teachers undertake work outside of school in their own time both during the term and on holidays. Given Ms Davies is working two days a week, a tally of over 200 hours of work undertaken at home is extraordinary. However, if the submission was meant to demonstrate that Ms Davies is a hard worker, I again observe that Durack State School will be the beneficiary of her planning and preparation. If the submission was meant to suggest that she should be rewarded for her efforts by not being transferred, I would simply note that the Teacher Transfer Scheme is not a punitive or disciplinary system, nor should it be treated as a reward system.
Impact process on Ms Davies’ health
I understand that the transfer process can be a difficult time for teachers, students and school communities. While it was not a requirement for inclusion in the letter informing Ms Davies of the outcome of her request for review, it may have been helpful if Ms Newbold had included information about the Employee Assistance Program or the name of a contact person in the Department to answer any further questions Ms Davies may have about the transfer. However, the omission of such information does not make the decision unfair or unreasonable. That the process has had an impact on Ms Davies’ health is unfortunate but does not render the decision not fair or reasonable.
Other matters
The matters Ms Davies raises about bullying are outside of the scope of this appeal and can be pursued through other avenues and I note the Respondent’s strong denial of any such allegation. However, the foundation of the bullying allegation is that Ms Davies claims the school has moved ahead to conduct an ‘exit interview’ and request Ms Davies’ school laptop and is bullying her ‘out the door’. To this end, I note that the Teacher Transfer information sheet states, ‘Please note that the original transfer decision remains in effect during the review and appeals process, unless it is a geographic location requiring a change of residence (i.e. transfer expenses are involved).’ Additionally, as the directions I issued in this matter were set out to ensure a decision on Ms Davies’ appeal could be heard in the earlier part of the school holidays and provide Ms Davies and the schools involved with some certainty prior to the commencement of the 2024 school year, I did not place a stay on the transfer.
Conclusion
I have reviewed the letter and the statement of reasons provided to Ms Davies. The letter sets out the process of review, the members of the Teacher Transfer Review Panel and the information considered by the panel, being all information provided by Ms Davies. Ms Newbold informs Ms Davies that Ms Newbold accepts the panel’s recommendation to dismiss the review. Ms Newbold attaches a statement of reasons which states that the Teacher Transfer Guidelines have been complied with; that a range of matters are taken into account in making a required transfer; the way the 50-minute travel time is calculated to comply with the guidelines and that the distance between Ms Davies’ home and Durack State School is considered reasonable. While the statement of reasons indicates that Ms Davies will have to negotiate with her new school if she wants to continue her Flexible Work Arrangement, I am satisfied that this matter has already been addressed between Durack State School and Ms Davies.
While Ms Davies states in her final reply submissions that all she is ‘asking for is that the process can be re-set due to stage 1 being “skipped”’ due to staff shortages and sickness, I have determined above that on the balance of probabilities, a Stage One meeting would not have resolved the matter. In any case, Ms Davies initiated Stage Two of the process by way of lodging a request for review of transfer and as stated above, I find this was a reasonable thing for her to do and it was reasonable for the Respondent to conduct the review upon Ms Davies’ request. I do not find Ms Davies has been disadvantaged as a result of there being no Stage One meeting as she retained the right to a Stage Two review, and subsequently this external review.
The decision of 3 November 2023 informing Ms Davies that her review of transfer was dismissed and confirming the transfer to Durack State School was fair and reasonable.
Order
1.The decision appealed against is confirmed.

[2023] QIRC 363

20 December 2023