Gapsa v State of Queensland (Department of Transport and Main Roads)
[2015] QIRC 61
•7 April 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gapsa v State of Queensland (Department of Transport and Main Roads) [2015] QIRC 061 |
PARTIES: | Gapsa, Stephen v State of Queensland (Department of Transport and Main Roads) |
CASE NO: | TD/2013/51 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 7 April 2015 |
HEARING DATES: | 23 to 26 September 2014 |
MEMBER: | Industrial Commissioner Thompson |
ORDER: | The Application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment ‑ Dismissal ‑ Witness Evidence ‑ Downsizing of Public Service - Directive No. 06/12 Employees Requiring Placement - Directive No. 04/12 Early retirement, redundancy and retrenchment - Designation as an Employee Requiring Placement - Public Service Commission Appeals - Registration with the Public Service Commission - Review Report - Process undertaken correctly - Failure of Applicant to genuinely participate in process - Review Report reasonably undertaken - Proposal of retrenchment compliant - Procedural fairness - Decision to retrench not harsh, unjust or unreasonable nor for an invalid reason - Application dismissed. |
| CASES: | Industrial Relations Act 1999, ss 72, 73, 74, 77, 78, 79, 320, 331 Byrne v Australia Airlines Ltd (1995) 185 CLR 410 Bostick (Australia) Pty Ltd v Gorgevski [1992] FCA 209 Bropho v Western Australia (1990) 171 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35 |
| APPEARANCES: | Mr J. Dwyer of Counsel, instructed by Sciacca's Lawyers Pty Ltd for the Applicant. Mr M. Healy of Counsel, instructed by Crown Law, for the Respondent. |
Decision (No. 2)
Background
On 2 July 2013 Stephen Gapsa (Gapsa) lodged with the Industrial Registrar an application for reinstatement with the Department of Transport and Main Roads (TMR). The termination which took effect on 11 July 2013 was said to be harsh, unjust and unreasonable.
Applicant
Gapsa
Gapsa was at the time of the termination of his employment a Principal Advisor, Strategic Policy in the Policy and Planning Branch of TMR having held positions in a number of Queensland Government departments and was the holder of the following qualifications:
· Bachelor of Business (Management);
· Bachelor of Commerce (Honours); and
· Graduate Certificate in Policy Analysis.
Gapsa gave evidence in relation to his lodgement of a Public Interest Disclosure (PID) on 4 April 2012 to the Director of TMR (Michael Caltabiano) concerning workplace culture issues that had been raised previously with the General Manager of Strategic Policy Joshua Hannan (Hannan) in February 2012. The issues raised included Hannan's lack of compliance with the:
"TMR Managing Employee Complaints Policy, TMR Managing Employee Complaints ‑ Local Management Procedure ‑ and Public Service Commission Directive No. 08/10: Managing Employee Complaints."
He was subsequently interviewed on three separate occasions by the TMR Ethical Standards Unit (ESU) in interviews spanning approximately eight hours in duration. On or around 31 May 2013 he was said to have been informed that a brief was to be forwarded to the (then) Crime and Misconduct Commission (CMC).
Gapsa had concerns around delays in processing his PIDs and being afforded protections against reprisals within TMR in his actions of disclosing wrong doing.
On 30 July 2013 he was advised by correspondence that investigations into the allegations of official misconduct against various TMR staff as disclosed by Gapsa had been completed and that all allegations were unsubstantiated.
Gapsa requested on 12 August 2013 an internal review of the investigation report but as he was no longer an employee of TMR he had no right to an internal review.
On 23 August 2012 he submitted his Curriculum Vitae with responses to three capabilities and written references in a "closed merit selection" process for an advertised position in Policy and Planning.
Correspondence was received by Gapsa on 11 September 2012 under the signature of Mark Cridland (Cridland) informing him his position with TMR was no longer required and he was to be designated an Employee Requiring Placement (ERP). The correspondence offered the option of accepting a voluntary redundancy as an alternative to becoming an ERP. It was Gapsa's understanding that only 21 employees in TMR became ERPs and at 30 June 2013 he was the only ERP to be retrenched.
Advice in the form of an email informed Gapsa that Hannan had supported Cridland's decision to identify him as a surplus staff member. As a result of being declared surplus he made a further PID alleging the decision by Hannan was a reprisal to his earlier PID which had named Hannan as the subject officer.
He then sought an internal review of the decision to make his position surplus in correspondence sent to the Director‑General of TMR (dated 24 September 2012) which was responded to on 26 November 2012.
A Public Service Commission (PSC) appeal was initiated by Gapsa in respect of the closed merit selection process by which he had been selected as surplus with the appeal decision released on 21 December 2012. According to Gapsa the effect of the Appeal's Officer's decision was that from January 2013 he was removed from his ERP standing and subject to Directive No. 06/12 and was not offered any placements with TMR or the Queensland Public Service despite there being at least no less than six temporary placements for Policy Advisors at AO7 level in his own division alone at the time. It was his evidence there were vastly more positions across the public sector of both a temporary and permanent status which he was not offered.
On 12 February 2013 he was contacted by telephone and advised as he was again surplus he would be offered a voluntary redundancy however the contact, Ryan Huelin (Huelin) was either unable or not prepared to answer questions about the statutory authority used by TMR to declare him surplus. On the same day there was correspondence from Cridland inviting him to accept a voluntary redundancy with the letter notably not providing information on appeal rights. He was subsequently advised the following day that s 25 of the Public Service Act 2008 could be used for closed merit selection process.
By default he became an ERP for a second time and was assigned to Kate Norsgaard (Norsgaard) for the purposes of liaising about placements with her role being to identify suitable positions to which he might apply.
On 12 April 2013 Norsgaard advised of a suitable role which started as a permanent role but reverted to a temporary position. After expressing an interest he was advised by Norsgaard on 19 April 2013 the role was withdrawn by TMR although Gapsa believed as late as June 2013 both the permanent and temporary positions were still available. Contrary to Directive No. 06/12 between 27 February 2013 and 11 June 2013 he was not offered meaningful duties to perform albeit for a small planning task assigned to him after he had made a complaint.
In response to the second ERP he lodged a further PSC appeal in respect of his position being declared surplus by TMR using a closed merit process. A decision was handed down on 15 May 2013. The next day TMR signed the ERP Review Report seeking his retrenchment without any consultation in relation to adverse comments that had been made in that Report.
The PSC endorsed on 20 May 2013 the ERP Review Report with a caveat that he not be retrenched from the Public Service until his last referral had been exhausted. On 23 May 2013 Cridland sent him a show cause letter seeking a response on why he should not be retrenched which he ultimately replied to on 6 June 2013 in which he identified errors, omissions, and factual errors in the ERP Review Report.
Cridland held a meeting with him on 11 June 2013 where he was provided with his retrenchment letter (effective immediately) but at the meeting Cridland refused to address the questions he had raised in the show cause response. The following day TMR withdrew him from suitability assessments for two roles for which he had applied.
In the period between 27 February 2013 and 11 June 2013 he was conscious of a number of temporary positions at AO7 level for which he was suitable that were filled by non‑ERP internal employees including seven positions in his own division. He had expressed at the time, his concerns to Norsgaard and Judith Wood (Wood) that there had been a direct contravention of Directive No. 06/12.
Gapsa identified a number of positions for which he had unsuccessfully applied in the relevant time period:
"i. TMR ‑ Enterprise Architect (10 April 2013) ‑ not interviewed ‑ unsuccessful;
ii. Principal Advisor ‑ (Road System Policy) (11 April 2013) ‑ TMR withdrew my application;
iii. Queensland Health ‑ Principle Policy Officer (7 May 2013) ‑ interviewed ‑ unsuccessful;
iv. Qld Government Office of the Coordinator‑General ‑ Principal Police Officer (9 May 2013) ‑ unsuccessful;
v. Queensland Health ‑ Principal Planning Officer (13 May 2013) ‑ not interviewed ‑ unsuccessful;
vi. TMR ‑ Senior Legislation Officer (28 May 2013) ‑ TMR deemed me unsuitable;
vii. Principal Project Officer (x3) (29 May 2013) ‑ told unsuitable;
viii. Principal Advisor ‑ Operational Governance (6 June 2013) ‑ TMR withdrew my application;
ix. Principal Advisor (Austroads) (7 June 2013) ‑ TMR withdrew my application."
Issue was taken with the position of Wood in the ERP Review Report that he had failed to participate in the ERP process and that his qualifications were too specialised for it to be likely he would gain a placement. Wood had failed to record his efforts and both she and Norsgaard had failed to consider him for a range of temporary positions available.
His retrenchment was unjustified and due to his PID was for an invalid reason.
Post‑termination he had remained unemployed between June 2013 and January 2014 finding employment in February 2014 as a temporary full‑time employee with the Department of National Parks, Recreation, Sport and Racing.
Gapsa filed a second affidavit in reply [Exhibit 3] in which he noted a number of the TMR witnesses had identified he had not registered with the PSC upon being declared an ERP which was in part relied upon to justify the early review of his ERP status and his retrenchment. Acknowledging a delay in registering with the PSC the evidence was that there was a number of reasons that included:
· he did not believe registration especially enhanced his prospects of placement; and
· he had lodged an external review application against the decision to declare him an ERP.
At no time did he communicate to Wood or Norsgaard a refusal to register with the PSC but had communicated the reason for not registering being due to waiting for an outcome of the external review. By the time he had registered on 9 May 2013 Wood's decision to review his ERP status had been made and she was progressing towards his termination.
Gapsa refuted claims he was uncooperative with the ERP process relying on multiple emails (SG2) exchanged between himself, Norsgaard and Wood which was evidence of cooperation and of seeking their assistance. It was fair to say he did not consider himself suitable for some of the roles suggested by Norsgaard and it was his consideration that was best placed to determine suitability having regard for his experience and expectations. There were criticisms of Wood's failure to consult with him in terms of the policy relating to the review of his ERP status.
On his PIDs, it was his evidence that he had been dealt with prejudicially as a result of those making decisions about his redundancy being aware of his PIDs and their actions amounted to reprisals against him. He rejected the various denials regarding their lack of knowledge of his PIDs at the relevant time. Cridland was fully aware of his PID before deciding to terminate him as it had been included in the show cause response (dated 6 June 2013) provided prior to the decision to terminate him.
Under cross‑examination Gapsa conceded that at the very least for 10.5 weeks out of 17 weeks as an ERP he was unregistered with the PSC for suitability assessment and that Norsgaard had between 28 February 2013 and 10 May 2013 referred him to positions outside TMR and encouraged him to register with the PSC [Transcript p. 1‑35]. Gapsa had failed to respond to an email from Norsgaard in relation to three potential principal policy positions [Transcript p. 1‑36]. In the 17 week period he gave evidence of applying for positions on SmartJobs and went through a merit selection process [Transcript p. 1‑48].
On the referral by Norsgaard to four separate positions he conceded he had replied "Three of the roles that you identified I found unsuitable as I have no relevant experience" going on to say "The Principal Planning Officer in System Policy sounds interesting but unfortunately there's no contact details or person listed on the position description" [Transcript p. 1‑42].
On his responsibilities in respect of Directive No. 06/12 Gapsa acknowledged:
· there was a joint responsibility with TMR to seek placement in a substantive role;
· work cooperative with TMR to secure new placements;
· joint responsibility to ensure he registers with the PSC which was mandatory;
· mandatory to nominate three role categories in which he had the most skill and experience; and
· attach a résumé and advice on referees [Transcript p. 1‑43].
Gapsa conceded he had not met those obligations until 10 May 2013 [Transcript p. 1‑43].
On the four roles suggested by Norsgaard previously he gave evidence that a more fulsome response on the unsuitability for the three positions would "possibly" have assisted her to forward more appropriate roles [Transcript p. 1‑44]. Gapsa acknowledged that in the period 28 February 2013 to 9 May 2013 (a 10.5 week period) Norsgaard had advised of 12 positions one of which was withdrawn by TMR [Transcript p. 1‑48]. Of the 12 roles four were advised by him as unsuitable and in the case of five roles he simply did not respond at all [Transcript p. 1‑51]. Gapsa conceded his failure to register with the PSC had prevented further assessment of his suitability for certain roles [Transcript p. 1‑54]. He denied accusation of ignoring his case manager (Norsgaard) as she endeavoured to find him a role [Transcript p. 1‑56].
Gapsa evidenced he had not as such refused to register with the PSC it was that he just had not registered [Transcript p. 1‑60] and that on several occasions Norsgaard had informed him about the process for registering with the PSC [Transcript p. 1‑61].
It was accepted that Norsgaard had provided advice of the PSC's position that an appeal does not suspend or stay or defer an ERP status however there was no PSC document provided to support that position [Transcript p. 1‑63]. He accepted that Norsgaard and Wood were concerned to place him into a permanent role and in total he was referred to 20 roles before his retrenchment [Transcript p. 1‑66].
Between February 2013 and June 2013 Gapsa accepted he had discussed the ERP process with a follow employee William Wyatte (Wyatte) on a regular basis and that until 3 May 2013 Wyatte also had not registered with the PSC [Transcript p. 2‑3]. He agreed that Wyatte had shown him a letter from Cridland (dated 3 May 2013) which advised that due to his unwillingness to participate appropriately in the ERP process he was proposing to retrench him. Gapsa denied that once becoming aware of this it was the reason he registered with the PSC on 9 May 2013 and if it was not for Wyatte's proposed retrenchment he would not have registered at all [Transcript p. 2‑5].
From the time of registration with the PSC until his retrenchment on 11 June 2013 he recalled he had undergone three suitability assessments [Transcript p. 2‑11]. On 9 May 2013 he had expressed an interest in a Principal Policy Officer role for which he was advised on 23 May 2013 he was unsuitable for the role [Transcript p. 2‑13]. There was evidence of Gapsa having been unsuitable for at least one other position in the same period of time [Transcript p. 2‑15].
There was considerable questioning around a document (SG5) attached to Gapsa's affidavit in reply with regards to origin and author of the said document and whether it had been applicable at certain periods in the ERP process [Transcript p. 2‑20].
Note: A further period of cross‑examination occurred following re‑examination of Gapsa and the concession granted to Counsel for Gapsa to lead further evidence. An email was sent from Norsgaard on 19 April 2013 regarding four potential job matches with Queensland Health of which Gapsa had disposed of three of the applications on the basis of no relevant experience. Gapsa refused to accept a proposition that he would have been suitable to undertake the positions he had declined [Transcript p. 2‑42].
On 27 August 2014 Gapsa commenced work with Queensland Health and he accepted he was not now adopting a position that he was floundering or unable to cope at Queensland Health [Transcript p. 2‑43]. He had made an assumption in April 2013 that the Queensland Health positions offered may have exposed him to blood, and he had an aversion to blood hence he expressed the view he was unsuitable [Transcript p. 2‑44]. He denied his refusal was "a convenient assumption so that [he] could continue down the path of not registering and not cooperating with the department to obtain a permanent placement" [Transcript p. 2‑45].
In re‑examination Gapsa recalled there was a period in February/March 2013 where Norsgaard was absent on leave and during that period no‑one conducted her duties on his behalf. In respect of looking for employment it was his evidence that he checked the SmartJobs website "quite frequently", usually several times a week. He was able to apply for jobs on the SmartJobs site without having registered with the PSC if they had not been filled. In the period between February and June 2013 he was never notified of temporary roles for which he may have been suitable.
Further evidence‑in‑chief of Gapsa went to his employment with Queensland Health as an AO7 Principal Policy Officer undertaking a review of the Transplantation and Anatomy Act 1979 which he commenced on 27 August 2014.
TMR
TMR called evidence from five witnesses in the proceedings:
· Cridland;
· Hannan;
· Norsgaard;
· Wood; and
· Kurt Marsden (Marsden).
Cridland
In the period relevant to this application Cridland was the Deputy Director‑General (Policy Planning and Investment) TMR with the role holding delegation for his Division to make decisions during organisational change in 2012 through to 2013.
He described the main driver for the organisational change as relating to the fiscal repair task with which the (then new) Government had tasked the agencies. Implementation of the task included:
· reduction in full‑time equivalent (FTE) numbers;
· savings in capital expenditure and projects; and
· savings in operating budget.
In September 2012 there was a process put in place whereby current employees were matched against new FTE numbers within a very tight timeframe. There were a variety of different processes used by the General Managers to determine which current employees were the best fit for the remaining roles in the structure. In some cases where there were equal roles and employees they were directly matched to the remaining roles however when there were too many employees a number of FTE positions were declared surplus.
In the case of Gapsa the Acting General Manager in his Branch, Amanda Yeates (Yeates), was required to undergo the assessment process and being relatively new to the area was not directly aware of staff member's performance. It was his understanding she undertook a closed selection process for assessment of the AO7 policy positions.
Prior to the outcome of the process reaching him there had been involvement in various forms from Huelin and Hannan in addition to Yeates. Due to the tight timeframes involved in the process he reviewed the report (alone) and agreed with the recommendations of Yeates and subsequently approved the report. Cridland did not agree with Gapsa's statement that Hannan had "supported" the making of the decision. An email had been sent to Gapsa on 13 September 2012 that stated:
"Mark Cridland was the decision maker. He was supported by Ryan Huelin, Amanda Yeates and Josh Hannan."
The only involvement of Hannan during the process was the completion of the Verification of Capability Assessment Report.
The decision of Cridland did not specifically identify Gapsa as surplus rather the purpose of the process was to identify the successful candidates in the process. In the Branch there were 13 available AO7 positions for which there were 21 applicants leaving eight employees declared surplus.
On 11 September 2012 Gapsa was advised of the Closed at Level Selection process and his designation as an ERP. He was given the following options:
· a redundancy package; or
· transfer and/or redeployment opportunities.
Cridland recalled Gapsa had not responded to the correspondence and was therefore considered to having elected to pursue the transfer or redeployment opportunities.
Gapsa appealed the review process to the Director‑General of TMR through an internal review process and also lodged a PSC appeal. The Acting Director‑General (at the time) on 26 November 2012 advised Gapsa of the decision on the internal review which found the process conducted was fair and reasonable and provided him with the Addendum to the Closed at Level Selection Report.
On 20 December 2012 Appeals Officer G.K. Fisher released a decision in relation to an appeal by another employee where she found that a part of the Closed at Level Selection Review process was invalid. The following directions were issued to TMR:
"i. That the two assessors, Ms Yeates and Mr Huelin, disregard the Verification of Capability Statements and instead undertake appropriate referee checks to confirm the validity of the Closed at Level Selection Report in respect of all of the successful appointees and any of the eight (8) employees who remain in employment and who were unsuccessful in gaining an AO‑7 position in the Policy and Planning Branch of the Agency.
ii. On completion of the referee checks the Closed at Level Selection Report is to be confirmed or amended and submitted to Mr Cridland for approval."
On 21 December 2012 Appeals Officer G.K. Fisher released a decision in relation to Gapsa's appeal in which reference was made to the previously mentioned directions issued to TMR which were pertinent for Gapsa as well.
In the period between 11 September 2012 and the handing down of the Appeals Officer's decision his evidence was that Gapsa had not pursued any transfer and/or redeployment opportunities which prompted him to send correspondence (dated 14 December 2012) to Gapsa requesting that he register with the PSC's central placement database in order to participate in placement efforts.
In accordance with the directions of the Appeals Officer the Verification Capability Assessment Report prepared by Hannan was disregarded and referee checks were undertaken. Upon receiving the Closed at Level Selection Report that had been confirmed by Yeates and Huelin it was approved by Cridland. Once again Gapsa had not been identified for a matching AO7 position.
Correspondence was forwarded to Gapsa on 12 February 2013 advising he had been designated an ERP and he was again advised of the two options open to him plus the requirement to register in a central placement pool where efforts would be made to identify transfer opportunities for him across the public sector. The correspondence (MC‑13) included the following passage:
"The Department of Transport and Main Roads will work with you and try and secure a new substantive role for you, however, if you have not been placed into a new role up to four months after your registration as an employee requiring placement, a formal review will occur to determine whether or not it is appropriate to continue these transfer efforts. A review may be initiated at an earlier time if reasonable placement efforts have been undertaken and/or a transfer opportunity for you is unlikely to occur as a result of your specialised skill or location."
The claim by Gapsa that he had not been advised of his appeal rights was refuted on the basis of him being provided with a copy of Directive No. 06/12: Employees Requiring Placement which had a link regarding appeals. Additionally he was provided on 13 February 2013 with the Appeal Directive No. 19/10. Gapsa had prior to 12 February 2013 appealed the previous decision to declare him an ERP.
Cridland following the second designation of Gapsa as an ERP wanted every opportunity persued to find Gapsa a suitable permanent position which included providing information about opportunities even though he had not registered with the PSC.
A further appeal to the PSC was lodged by Gapsa against the decision of 13 February 2013 to designate him as an ERP. In a decision released on 15 May 2015 the Appeals Officer found the process followed by TMR to be fair and reasonable as was the TMR decision as it related to Gapsa.
In or around April/May 2013 he recalled discussions around ERPs, one of whom was Gapsa, who were not participating in TMR's efforts to find them transfer opportunities and who had continually failed to work co‑operatively with his case manager. At that time he had not registered with the PSC which had significantly frustrated the ability to find him another suitable position. He was unable to be considered for numerous suitable external roles due to this failure.
Taking into account Gapsa's conduct Wood initiated a review in mid‑May 2013 to determine whether continuing efforts to secure a permanent placement for him remained appropriate. On completion of the report he carefully read through the content and was satisfied by evidence in the report the decision to issue Gapsa with a retrenchment notice had been made. Cridland indicated his reasoning for accepting Wood's recommendation:
"The department has made multiple attempts to assist Stephen to participate appropriately in the ERP process over several months in 2013. Stephen has not been willing to participate as required in Directive 6/12 ‑ Employees Requiring Placement…Therefore it is not appropriate to continue placement efforts".
In particular he had regard for the fact Gapsa had refused to centrally register as required by the Directive, was not participating actively which led to consideration of the likelihood of TMR locating him another position as limited. He noted also that he had declined a number of positions either as unsuitable or he did not want them.
Advice on the decision was given to Gapsa on 23 May 2013 with him given 10 days to respond to the proposal. The correspondence noted his recent registration on the PSC central register and of him having expressed an interest as a Principal Policy Officer position in the Department of State Development Infrastructure and Planning. If he was able to secure the position prior to the proposed retrenchment date the notice would be withdrawn.
Gapsa responded on 6 June 2013 raising at that time a number of matters which were all considered however the decision to retrench remained. In response to the relevant matters raised by Gapsa they were addressed as follows:
· "Consultation:I made it clear to Mr Gapsa that my letter of 23 May 2013 was not a decision letter. For that reason, there was no obligation for me or Ms Wood to consult with Mr Gapsa prior to issuing that letter. Mr Gapsa's opportunity to respond to the proposal to retrench him was his 6 June 2013 response.
· ERP date: In my letter, I noted that Mr Gapsa was designated as an ERP on 12 February 2013, in accordance with cl 6.2(b) of the Directive. As a designated ERP, he was provided with the options of a redundancy package or pursuing transfer opportunities.
· Reasonable placement efforts: Mr Gapsa submitted that he had indicated that he wished to be transferred to a suitable permanent role, and that he considered he had undertaken reasonable placement efforts."
Cridland, in his letter, addressed the information Gapsa had provided in his response to the Employee Requiring Placement Review Report about each of the job referrals to Gapsa that he been listed in that report. Cridland concluded that he was satisfied that despite his demonstrated unwillingness to participate in the ERP process reasonable placement efforts had been undertaken.
· "Specialised skills: Mr Gapsa submitted that he considered his skills were highly transferrable, and discussed his qualifications and referees reports received. I advised that Mr Gapsa's failure to complete the PSC registration in a timely way may have impacted on his chances of being successfully transferred to another role. By this, I meant that this may have impacted on Mr Gapsa's chances of being transferred to another role that required Mr Gapsa's skill set.
I also note that in relation to 'Reasonable placement efforts', I had noted the numerous instances where Mr Gapsa himself had stated to Ms Norsgaard that potentially suitable roles did not match his qualifications or experience."
The letter was delivered to Gapsa personally with the retrenchment effective immediately with four weeks' pay in lieu of notice.
There had been no lack of effort on behalf of TMR to encourage and support him to participate in the process and in the end it had been his own failure to participate in the ERP process that had disadvantaged him.
On the allegation that the decision to terminate Gapsa was influenced by his status as a Public Interest Discloser that was simply not true with the decision to terminate based on the reasons previously stated. He acknowledged involvement in a complaint matter in 2012 that involved Gapsa and another employee however in that matter he had not made an adverse finding in relation to anyone and having considered the report determined no further action be taken.
Under cross‑examination Cridland agreed that the appeal by Gapsa in respect of the first designation as an ERP required TMR to basically go back to the start and correct defects in the process [Transcript p. 2‑50]. On the non‑response by Gapsa to the 13 February 2013 ERP choice it was Cridland's evidence that if there was no response in 14 days it was accepted the person would be designated as an ERP [Transcript p. 2‑51]. He accepted that the lodgement of an appeal against the 13 February 2013 decision could be seen as not agreeing with the designation [Transcript p. 2‑52]. Gapsa was the only departmental employee identified as surplus that was involuntarily made redundant [Transcript p. 2‑55]. Cridland did not have direct management of Gapsa whilst he was an ERP but did receive information about his non‑participation in efforts to secure a transfer or re‑deployment [Transcript p. 2‑57].
On the recommendation to terminate Gapsa's employment there was "lots of activities" leading up to the point where he signed off as the decision‑maker after he had satisfied himself that the [Review] document represented the events over a period of time [Transcript p. 2‑59]. He had carefully considered the content of the report and relied upon no other information [Transcript p. 2‑60]. The Review document had been to the PSC prior to Cridland's consideration [Transcript p. 2‑61]. On advice given to Gapsa regarding his retrenchment, Cridland was unable to explain why reference to the PSC supporting the recommendation of the retrenchment had been redacted from the version attached to his own affidavit in these proceedings [Transcript p. 2‑62].
On registering as an ERP with the PSC it was accepted by Cridland it sounded reasonable that in search of other employment that not being registered with the PSC meant he would have to go through a merit process as opposed to a suitability assessment [Transcript p. 2‑68]. He had no knowledge of whether Gapsa was ever warned in respect of not registering with the PSC [Transcript p. 2‑69]. Cridland had "relied heavily" on Wood's description of Gapsa's failure to register with the PSC in her summation of the review recommendation [Transcript p. 2‑71]. On the unwillingness of Gapsa to participate in the ERP procedure as outlined in Wood's review, Cridland did not speak to Wood, Norsgaard or Gapsa about "these things" [Transcript p. 2‑73].
When questioned regarding a chain of emails between Gapsa and Norsgaard in March 2013 around certain positions Cridland agreed there was nothing to show Gapsa was obstructive or not participating [Transcript p. 2‑74]. Still on the emails, it was Cridland's evidence:
"Yes. I think I've answered that question a few times to say that if it is ‑ not knowing the details of that position, if it was external to the department and he hadn't registered, expressing an interest is not really genuine participation or willing participation because you can't be considered for it". [Transcript p. 2‑76]
Cridland accepted "on the face of it" Gapsa's explanation for not registering with the PSC as "his reason" [Transcript p. 2‑83], but at the time of considering Wood's review he had no recall of being aware of that explanation [Transcript p. 2‑84].
A question put to Cridland was that he would not have proceeded with Gapsa's termination if he had been offered an explanation of Gapsa's conduct in March 2013 and the emails about his participation brought the following response:
"No, I don't agree. He'd had two periods of over three months where he could participate, as many thousands of people across the sector had to choose. He has a reason here why he chose not to, but that was his choice. In my view that doesn't stop the clock, the fact that he's appealing. It's for others to decide ultimately, but it's my view that it doesn't stop the clock." [Transcript p. 2‑84]
Cridland did not accept the content of the emails he had been taken to in cross‑examination indicated the facts were entirely inconsistent with the conclusions reached by Wood in her report [Transcript p. 2‑85]. On refusing a request from Gapsa to meet (dated 27 May 2013) Cridland had done so on the basis he was waiting for a response to the show cause (regarding the retrenchment) in writing [Transcript p. 2‑86].
In re‑examination Cridland's evidence was that the two occasions in which Gapsa had chosen not to register with the PSC was a key factor in his mind when making the decision to terminate his employment. He recalled being informed at times around Gapsa's progress whilst an ERP. Both ERP processes involving Gapsa were materially the same, covered by the same Directive. Gapsa's inaction to register with the PSC according to Cridland meant he had not met his obligations under the Directive. The failure to register on each occasions was said to be "a telling factor for me about his genuineness about participating, yes".
Hannan
Hannan in September 2012 was the Acting Executive Director, Strategic Policy as a result of the Strategic Policy Division merging with the Integrated Transport Planning Division to become the Policy and Planning Division.
In his affidavit he provided the following responses to a number of matters contained in the affidavits tendered by Gapsa in these proceedings.
December 2011 ‑ change in direct supervision of Gapsa
He agreed that on 20 December 2011 he called a meeting with Gapsa and one of his colleagues (Wyatte) where he advised he would become responsible for their supervision. He took this action as it was his belief the relationship between Gapsa, Wyatte and the then Acting Director, Robyn Davies (Davies) was rapidly declining and in the short‑term the relationship was becoming unsustainable.
There had been complaints from Davies about alleged conduct of Gapsa and Wyatte that was the subject of an external investigation.
February 2012 ‑ interactions with Gapsa about various complaints
Hannan did not recall prompting Gapsa to meet with Trevor Chippendale (Chippendale) of the ESU in relation to "issues relating to the Strategic Policy Division". In the period from 22 December 2011 until February 2012 when Gapsa was on leave Hannan recalled having spoken to Chippendale on how to handle complaints about Gapsa's conduct in mid‑December 2011. As a relatively new Acting General Manager he believed the most appropriate action at the time was to obtain expert advice as to his responsibilities in relation to those complaints.
Chippendale subsequently advised he would take over the process of those complaints with Cridland appointed the decision‑maker. Hannan no longer had responsibility for those complaints.
Complaint by Gapsa on behalf of another employee, Joanne Czajkowski (Czajkowski)
He agreed that on 10 February 2012 Gapsa had made a complaint to him that Czajkowski had been inappropriately admonished for having a conversation in Polish with Gapsa in the workplace. Hannan sought advice from Legal Services on how to manage the complaint and as Gapsa's direct supervisor it would be a conflict of interest for him to be the decision‑maker in relation to the complaint therefore he appointed another person to undertake the complaint as the decision‑maker.
Subsequently the appointed person withdrew as Czajkowski was in his team which required Hannan to appoint another person. Hannan understood that the complaint had been investigated and determined in a satisfactory manner, resolved without further action being warranted.
On the assertion that he had converted Gapsa's concern to a complaint without his consent he did not recall whether he had independently ascertained at the time how to treat Gapsa's initial approach but stated he was in his rights by applying reasonable management action to a complaint, received in writing suggesting racism or bullying in the workplace.
Complaint by Gapsa about Davies
Hannan stated that on 17 February 2012 Gapsa emailed him regarding complaints about the behaviour of Davies. He had received a similar email on 21 December 2011 which he did not regard as a formal complaint and resolved the issue by taking over the supervision of Gapsa. As a result of the second complaint he began an investigation of the matters raised in the complaint advising Gapsa on 21 March 2012 that the matters raised had been resolved and no further action should be taken. In undertaking the investigation he did not interview Gapsa because he believed he had sufficient information from his (Gapsa's) detailed emails and from meetings held with Gapsa and others between 20 December 2011 and 8 February 2012.
He was aware that Gapsa had made a complaint about his handling of his complaint and he was subsequently interviewed on 14 November 2012 as part of an external investigation.
Complaint about closed selection process
Apart from being aware of a complaint made by Gapsa he had no recall of any other detail surrounding the handling and investigation of the complaint although he was interviewed on 20 February 2013 as part of the investigation.
August and September 2012 ‑ Reform process and allegation of reprisal
In late 2012 Hannan presented to the Portfolio Budget Review Committee about a future vision for the policy group in the context of the new Government's Directive which included an appropriate resourcing and workload model for full‑time position needs. Following the presentation a formal decision was made by a committee on a staffing and FTE model based upon the future type of work for the Branch. The process was not directed towards keeping or getting rid of particular employees.
Recommendations about recruitment in the Policy and Planning Branch were made by Yeates to the ultimate decision‑maker (Cridland) with the role of Hannan being to prepare a Verification of Capability Assessment Report. Yeates had provided him with a draft of a Closed at Level Selection prepared by her which outlined her assessments of the CVs provided with him being required to verify the statements in relation to the 13 employees she had recommended for the 13 remaining AO7 positions. Gapsa was not one of the recommended employees therefore his assessment did not involve any consideration or verification of any matters relating to him.
Gapsa was named as a surplus employee on 11 September 2012 and whilst it was Hannan's job to inform each surplus employee of the decision he had no recall of the conversation with him. Hannan refuted the suggestion he had supported the decision‑making process of Cridland by making recommendations to him and had no recall of Cridland having asked him directly about any of the candidates in question. He denied the allegation that Gapsa's declaration as a surplus employee was a reprisal action by him. He was not a decision‑maker at the time in relation to declaring staff at surplus and he had not expressed any views to either of the relevant decision‑makers.
The initial declaration of Gapsa as a surplus employee was subsequently overturned with a new process occurring in January 2013 of which Hannan had no involvement.
February to June 2013 ‑ meaningful work
His recollection was the main impediment to providing Gapsa with "meaningful duties" was that he had debated vigorously with many people about the unlawfulness of being declared surplus under the Act. On occasions when attempts were made to allocate work to Gapsa he made a point of debating the merits of such work. On 19 November 2012 he was forwarded an email from Gapsa which stated:
"I seek to ensure that any work allocated to me is commensurate with my tertiary qualifications, work experience, skills, abilities and aptitudes."
Under cross‑examination Hannan denied that Gapsa whilst under his supervision was "somewhat isolated" in his workplace from the rest of the people in his unit [Transcript p. 3‑3]. He was unaware when Gapsa was officially declared a person requiring placement but accepted he was aware it was sometime in September 2012 and that Gapsa had challenged that decision [Transcript p. 3‑5]. Hannan whilst unable to give specific details of providing Gapsa with meaningful work did not accept the proposition he had "failed to provide such work" [Transcript p. 3‑6]. The email of 19 November 2012, he acknowledged Gapsa had included the following commentary also:
"You have not allocated me any work related duties for a number of months.
I have requested on a number of occasions to have involvement in the Draft Queensland Transport Plan 2012 ‑ 2022, given my directly relevant pervious work on performance measures for the Queensland transport system."
Hannan accepted Gapsa was identifying a job he could have been doing [Transcript p. 3‑10].
Hannan did not accept he had failed to comply with the Directive regarding Gapsa's participation in the ERP process [Transcript p. 3‑11].
In re‑examination Hannan indicated that at 19 November 2012 there was very limited work available in the strategic policy agenda [Transcript p. 3‑13].
Norsgaard
Norsgaard is a Human Resources Advisor with TMR who in September 2012 was an Acting Principal Advisor, Office of the General Manager, Human Resources and Governance Branch. In September 2012 there was a large‑scale restructure in every Branch of the Department which included the reduction of a number of FTE positions. The reduction of surplus took the form of:
· accepting a redundancy ‑ which most did; or
· electing to peruse transfer and/or redeployment.
Norsgaard was assigned as case manager for Gapsa and four other employees.
Responsibilities as case manager and registration as ERP
As Gapsa's case manager she was required to assist him in identifying and applying for transfer opportunities in accordance with Directive No. 06/12. ERPs could be considered for both internal and external transfer opportunities however to be considered for external vacancies ERPs were required to register with the PSC. A case manager would not be provided with any information about suitable external vacant positions for an employee who was not registered with the PSC.
In 2013 the PSC process changed and case managers were provided with information about all available external vacancies even if an ERP had not registered with the PSC. If an unregistered employee expressed an interest in a position they would not however be able to undergo a suitability assessment.
September 2012 ‑ Designation as surplus and employee requiring placement
Gapsa had been designated as an ERP in September 2012 and on 5 October 2012 in an email he advised he was appealing the decision and requested he not be registered as an ERP. On 17 October 2012 after a series of discussions with Wood and Chippendale she advised Gapsa that his ERP registration could not be deferred whilst a review of the surplus decision was being conducted. Norsgaard continued to engage with Gapsa through to 22 December 2012 regarding his registration as an ERP and with the PSC. On 25 October 2012 Gapsa was advised of an employee assistance program however at no time did he take up that opportunity.
In January 2013 she became aware that Gapsa and another employee's designation as ERPs had been found to be invalid. Prior to the appeal decision Gapsa had not registered as an ERP or with the PSC and was not provided with any information about job vacancies external to TMR for that reason and nor had any position been available within TMR.
February 2013 ‑ Designation as surplus and employee requiring placement
On 12 February 2013 she was advised Gapsa had again been designated as surplus and he had been requested to advise the Department within 14 days of his decision to accept a redundancy or become an ERP. On 27 February 2013 by email Gapsa was informed by Di Gregoria (Gregoria) because he had not advised of his decision he was considered to have elected to pursue transfer or redeployment.
[100]Prior to taking leave Norsgaard via email had again informed Gapsa of the ERP and PSC registration noting there were three external roles available that could potentially be a "great fit" for Gapsa. Role descriptions were attached and he was reminded of the need to undertake PSC registration.
On her return from leave she noted Gapsa had not replied to her email (28 February 2012) at which time she emailed him to inquire whether he had completed the PSC register process and if he was interested in the previously referred roles. She was continually aware of her case manager responsibilities to strongly encourage the ERPs to register with the PSC because of the benefit of a suitability assessment as opposed to a merit based selection process. Gapsa responded on 20 March 2013 to advise he had appealed the decision to declare him an ERP going on to state:
"I seek not to be further treated unfairly or unreasonably by TMR, to register me for an ERP process, while I have an unresolved appeal and several Public Interest Disclosure investigations underway."
Advice was given to Gapsa on 29 March 2013 that whilst his appeal was being considered she would continue to refer available roles to him and hoped he would register as an ERP. At the same time she attached a referral for an internal role for his consideration and requested advice as to whether he would consider roles lower than his substantive position. On 27 March 2013 Gapsa advised the role was not one that interested him.
On 4 April 2013 Gapsa inquired if as an ERP he could be considered for a role at the AO8 classification and whilst that was not possible he was encouraged to apply as the position seemed a good match for his skills. Norsgaard on 11 April 2013 emailed Gapsa regarding a position with an external agency again bringing to his attention the need to register with the PSC.
Principal Advisor (Road System Policy)
[103]Norsgaard detailed her involvement in seeking to assist Gapsa in obtaining the above‑mentioned position within TMR. It was thought initially it was to be a permanent role however once Norsgaard became aware it was only a temporary role for up to 12 months she contacted Gapsa who expressed an interest in the role despite its temporary nature. The following day Gapsa emailed her with his disappointment that the role was not permanent going on to state:
"I hope any future roles that you forward for my consideration do not have a change of their status once I've expressed an interest or submitted my Curriculum Vitae for a suitability assessment".
The Branch decided not to fill the temporary role.
Gapsa was advised on 19 April 2013 of the decision not to fill the position and was given information relating to four new permanent external positions with Queensland Health and again reminded that for external roles he would need to complete his PSC registration. Norsgaard had further exchanges with Gapsa from which she concluded he was dwelling on the temporary role that no longer existed and was concentrating on temporary roles within the Department that involved backfilling positions at his own substantive level. This concerned her as the implications were he could still be retrenched by TMR and he would lose his tenure in the Public Service.
Continuing role referrals to Gapsa
[105]Norsgaard assisted Gapsa with referrals for:
· AO7 Principal Advisor (Systems Support Services Division) ‑ 26 April 2013; and
· Principal Policy Officer ‑ Office of Co‑ordinator‑General ‑ 9 May 2013.
It was on 9 May 2013 that Gapsa finally advised he was attempting to register with the PSC.
[106]There were issues around a referee report compiled by Hannan to which Gapsa had taken exception and it appeared to her that Gapsa "was telling Mr Hannan what he should write in the referee report". There were further exchanges around Gapsa's pursuit of the Principal Policy Officer position at Office of Co‑ordinator General and of his participation in an interview in the form of a suitability assessment.
On 21 May 2013 she advised Gapsa of her leave arrangements and requested Wood in her absence to provide him with any suitable referrals. On her return she noted Gapsa had emailed Wood about an AO6 Senior Legislation Officer role which was the first time he had shown any interest in a role below his substantive role.
Employee Requiring Placement Review Report
[108]In mid‑May 2013 she was advised that Wood was preparing an ERP Review Report in relation to Gapsa pursuant to clause 6.6(b) of the Directive which allowed for an earlier review if it was considered:
· reasonable placement efforts had been undertaken; and
· employee unlikely to be placed as a result of their specialised skill set or location.
Norsgaard was required to provide input regarding placement efforts undertaken in relation to Gapsa.
On 29 May 2013 Gapsa emailed her about the AO6 role that Wood was now handling. Norsgaard on 31 May 2013 contacted the PSC regarding the outcome of the assessment for the role as she was continuing efforts to have him placed prior to his proposed retrenchment. She worked with Gapsa about a further role with TMR after he was found to be unsuitable for the AO6 role. In that time period there were other roles referred to or sought by Gapsa that included:
· Principal Advisor ‑ AO7 (Austroads)(Temporary);
· Principal Investigator ‑ AO7 ‑ Queensland College of Teachers; and
· Principal Advisor ‑ AO7 (Operational Governance and Risk) Department of Community Safety.
Gapsa withdrew from the Principal Investigator role due to the skills required for the job.
On 11 June 2013 Wood emailed to advise Gapsa's suitability assessment for the AO6 role was unsuccessful and he would be advised later that day of Cridland's decision to retrench him. On that day she received advice Gapsa had been assessed unsuitable for an AO7 Principal Policy Officer role with the Department of State Development, Infrastructure and Planning. Norsgaard had a conversation with Gapsa on 13 June 2013 where Gapsa raised concerns about the involvement of Wood and Hannan in the process. In the case of Hannan it was her view his involvement did not have any effect on suitability assessments undertaken by Gapsa.
Gapsa's participation in placement efforts
Norsgaard was of the opinion prior to registering with the PSC on 10 May 2013 his participation in the ERP process was poor and he had not tried "very hard" particularly considering the number of referrals he potentially could have applied for during that period. In the two and a‑half months it took him to register with the PSC he missed out on numerous opportunities that she thought were good matches. Registering with the PSC was a relatively simple process and she could find no reasonable explanation why an ERP would not register if they genuinely wished to find placement.
Norsgaard did not accept Gapsa's evidence about lack of referrals as she had in the period 27 February 2013 to 10 May 2013 sent numerous referrals to which Gapsa advised that he considered the roles were not suitable although he had not participated in suitability assessments for those positions.
In the period 28 February 2013 to 26 April 2013 she forwarded Gapsa a number of external vacancies and one internal vacancy for permanent positions as follows:
· Principal Policy Officer (Policy, Planning and Resourcing Division) ‑ Queensland Health ‑ 28 February 2013;
· Principal Policy Officer (Strategic Policy/Policy and Legislation Programming) ‑ Department of State Development, Infrastructure and Planning ‑ 28 February 2013;
· Principal Policy Officer (Right to Information) ‑ Queensland Health ‑ 28 February 2013;
· Principal Advisor (Project Management) Policy Planning Investment ‑ TMR ‑ 26 March 2013;
· Principal Policy Officer (Regulatory Instruments Unit, Policy and Planning Branch, System Policy and Performance Division) ‑ Queensland Health ‑ 11 April 2013;
· Principal Policy Officer (Integrated Planning Unit, Policy and Planning Branch, System Policy and Performance Division) ‑ Queensland Health ‑ 19 April 2013;
· Principal Policy and Planning Officer (Health Service and Clinical Innovation) ‑ Queensland Health (three roles) ‑ 19 April 2013; and
· Principal Advisor (Portfolio Management and Investment Unit, Health Infrastructure Branch) ‑ Queensland Health ‑ 26 April 2013.
[114]Norsgaard gave evidence relating to Gapsa's failure and reasons for not securing roles that included:
· Enterprise Architect ‑ TMR;
· Principal Advisor (Road System Policy) ‑ TMR;
· Principal Policy Officer ‑ Queensland Health;
· Principal Policy Officer ‑ Office of the Co‑ordinator‑General;
· Principal Planning Officer ‑ Queensland Health;
· Senior Legislation Officer ‑ TMR;
· Principal Project Officer (x3) ‑ department unidentified;
· Principal Advisor (Operational Governance) ‑ Department of Community Safety; and
· Principal Advisor (Austroads).
[115]Whilst initially she thought Gapsa's skill and qualifications in addition to his experience at the AO7 level would have him well placed to be transferred at level once she had the opportunity to read suitability assessment reports for three roles for which he had been assessed, her opinion on his prospects changed. Gapsa it seemed had been unable to communicate with others which was a minimum requirement and would not have been able to meet the requirements for the roles even with training.
[116]Norsgaard revealed the outcomes of the suitability assessment reports were not incorporated into the Earl\y Review Report as they were released after the Report was finalised.
[117]Gapsa's status as a Public Interest Discloser was only known to her as a consequence of being advised by him when he had been trying to stop her efforts in assisting him as an ERP. The PID was not an issue as she sought to assist him finding a placement and she had no knowledge whatsoever of the subject matter of his disclosure nor was she involved in the decision to retrench him in any event.
Under cross‑examination it was Norsgaard's evidence she was assigned as Gapsa's case manager in October 2012 and remained until the end of employment with there being some period of absences due to annual and sick leave [Transcript p. 3‑15]. In her absence which was for a week and a couple of days in March 2013 Wood had acted as his case manager. Also for a short absence in May 2013 the same applied [Transcript p. 3‑16]. The failure of Gapsa to register with the PSC made it impossible for him to be assessed against the roles he was being referred [Transcript p. 3‑17]. It was conceded that the Directive placed responsibility jointly on the parties to process the registration with the PSC [Transcript p. 3‑19]. Gapsa was first designated as an ERP in September 2012 and due to certain technical deficiencies basically restarted the process in February 2013 with Norsgaard being assigned as his case manager [Transcript p. 3‑22]. Norsgaard conceded that an email to Gapsa (responding to his decision not to register with the PSC whilst his appeal was on foot) essentially was until his appeal was resolved he remained surplus and she would continue to do her job as his case manager [Transcript p. 3‑25].
On Gapsa not having registered with the PSC and his email of 20 March 2013 in which he stated "Therefore, to be clear, I'm unable to complete the process for the Public Service Commission's register until I am adequately satisfied that TMR has made or obtained a lawful decision in relation to declaring me surplus", Norsgaard did not believe her description of him having "refused" to register was "inaccurate" when read in the entirety of her affidavit [Transcript p. 3‑29]. In terms of roles referred to him whilst unregistered the evidence was "With most of the roles I referred he engaged with me. Some I did not get responses" [Transcript p. 3‑29]. Whilst unregistered with the PSC she continued to send roles in the hope it would interest him in the registering [Transcript p. 3‑32].
[120]On 6.5(b) of the Directive:
"The registration process must be jointly undertaken by the employee requiring placement and their case manager".
Norsgaard had decided to force somebody's hand in registering would not have been conducive to a working relationship with him over the next couple of months and to find them a job [Transcript p. 3‑33].
[121]Norsgaard acknowledged she had not sought to direct Gapsa to register with the PSC however she understood he had a "quite good grasp" of the Directive and its requirements and he would often quote clauses of the Directive [Transcript p. 3‑34]. The Directive according to Norsgaard's recall did not give an indication that a failure to register with the PSC would attract disciplinary action [Transcript p. 3‑36]. There were two other employees declared as ERPs who initially refused to register with the PSC and who upon registering were placed relatively quickly [Transcript p. 3‑37]. The registration process could take up to an hour (maximum) [Transcript p. 3‑38]. A suitability assessment was considered a little less rigorous than a merit based selection [Transcript p. 3‑40].
[122]If an ERP had not registered with the PSC was to apply for a position advertised on SmartJobs in an external department, Norsgaard's evidence was they would not be excluded from consideration for the job [Transcript p. 3‑41]. It was possible to verify a person was an ERP without simply relying upon PSC registration [Transcript p. 3‑42]. Norsgaard accepted the following proposition:
"There is a very fine and almost impossible to distinguish advantage that comes from registering with the PSC, if you're looking for a job outside your department as an ERP." [Transcript p. 3‑43].
Whilst there was little consequence not being registered with the PSC for internal roles Norsgaard did not accept that was the case for placement outside the department [Transcript p. 3‑43].
[123]Considering the number of roles offered to Gapsa he would have had a very good chance of permanent placement if he had shown enough interest or followed through in the roles where he displayed a genuine interest [Transcript p. 3‑45]. Norsgaard believed there was an urgency in placing him as soon as possible.
[124]Norsgaard accepted that the Directive did not impose a mandatory deadline of four months for an ERP to find placement and was aware that some ERPs had their status extended beyond the four months [Transcript p. 3‑47]. Norsgaard agreed the Directive allowed for a review to be conducted under four months if the Department and the PSC considers that reasonable placement efforts had been undertaken and it was unlikely placement or transfer would occur due to an employees specialised skill set or location [Transcript p. 3‑550. On her contribution to the ERP Review Report for Gapsa she had inputted her information before the report had been populated [Transcript p. 3‑57].
[125]In the time she managed Gapsa, the only contact had been via phone or email [Transcript p. 3‑60]. There had been email advice in terms of his qualifications and appreciation for her efforts on his behalf and a request to target areas that related to his qualifications and experience [Transcript p. 3‑61]. In late March and April 2013 Norsgaard gave evidence that Gapsa was engaging in the process and brought to her attention a position he was interested in [Transcript p. 3‑63]. She disputed that because he had expressed an interest in a position that did necessarily reflected full participation in the process [Transcript p. 3‑65]. There was a position available on or about 11 April 2013 that once informed Gapsa responded very quickly and it was a role she considered would have been good for him. Gapsa had engaged enthusiastically however the job was withdrawn [Transcript p. 3‑70]. Despite Gapsa's interest she did not resile from her position which questioned whether he was genuinely seeking to be placed [Transcript p. 3‑71]. She did not believe it was her role to force him to participate in the process or to harass him. It was not until very late in the process that he had fully participated [Transcript p. 3‑71]. On his registration with the PSC his interest in the process seemed to increase [Transcript p. 3‑75].
[126]At the time of Gapsa's increased interest in applying for positions it was, according to Norsgaard, as a result of Wyatte facing the prospect of redundancy [Transcript p. 3‑76]. On the requirement of the Directive to put forward not only permanent roles but also temporary roles, there was an approach by the Department to focus on permanent placement opportunities [Transcript p. 3‑79]. During the period in question there had been no temporary positions referred to her [Transcript p. 3‑80]. Having read suitability reports for positions in which Gapsa was unsuccessful, she formed the view Gapsa was unlikely to be placed in the Public Service however those reports were only received on the day of his retrenchment and that information was not used for anything [Transcript p. 3‑84].
[127]In re‑examination Norsgaard's evidence was that at no time was she ever Gapsa's manager or supervisor and was never informed she had the authority to take any disciplinary action against him. During her time as an ERP case manager there was never a request to be able to undergo a merit selection instead of a suitability assessment for an external role. For persons undertaking a suitability assessment for a role there is an advantage in that the suitability assessment has a lower threshold than merit selection.
Wood
[128]During the relevant period Wood was the Acting Director (Human Resource Management) Human Resources and Governance Branch ‑ TMR which included a role for supervising the ERP process. The ERP team supported case managers to encourage the accessing of the program that provided free and intensive support with job placement services, interviews and application training.
[129]Wood gave evidence of the organisational changes that occurred which required a reduction of FTEs and of the processes relied upon to match the then current employees to the remaining number of FTE positions. In all TMR were required to reduce its workforce by 1,342 permanent employees with the vast majority declared surplus deciding to accept voluntary redundancies with only 21 TMR employees electing to seek transfer opportunities. Gapsa as surplus to requirements initially in September 2013 did not take the extremely important step of registering with the PSC. Norsgaard advised she had been verbally told by Gapsa he would not be registering as an ERP until an appeal relating to the Closed at Level Selection process had been determined. Gapsa also lodged an internal complaint to the Director‑General about the decision to declare him surplus.
[130]Wood had encouraged Gapsa to co‑operate with Norsgaard and pursue placement and advised him of support arrangements available to ERPs. On 17 December 2012 Wood responded to an email from Gapsa which advised Cridland had been verbally updated on Norsgaard's effort to have him engage in the ERP process and of their concerns he was missing opportunities for placement. Responding to a further email from Gapsa on 17 December 2012 she raised his non‑registration with the PSC and whether the team could use his résumé to register him with the PSC. There was no response to the email. The appeal by Gapsa led to the overturning of the September 2012 ERP decision for him and in relation to certain employees TMR was required to undertake certain additional steps in order to finalise the previous matching process.
In February 2013 following referee checks Gapsa was again not matched to an ongoing position within the structure and therefore declared an ERP under the Directive. Advice of the decision was given to Gapsa on 12 February 2013 and he was given two weeks to decide which option he would pursue in accordance with the Directive. Gapsa did not advise of his decision and was therefore considered to have elected to pursue transfer and/or redeployment.
[132]Norsgaard continued to be assigned as his case manager and continued her attempts to liaise with Gapsa about registering with the PSC central register. Up until 12 February 2013 TMR was not fully privy to the full list of whole of government vacancies and only had received such vacancy referrals after the PSC had identified a potential match. There was a new process that commenced on 13 February 2013 which still required the registration of ERPs and the departments were still required to provide details of all vacancies. The difference in terms of the PSC was they would send a list of all vacancies to each department on a weekly basis and the agency's ERP team would consider the potential of a match. TMR attempted to maximise opportunities to be matched to a vacancy by referring many vacancies to ERPs through their case managers.
[133]Despite Gapsa not registering with the PSC the ERP team continued to provide information to him regarding potential jobs that included positions of:
· Principal Advisor roles;
· Principal Planning Officer roles; and
· Principal Policy Officer.
The failure to register with the PSC for a number of months meant that he missed out on numerous opportunities.
It was not until late April 2013 that they received Gapsa's work history and preferences to assist with identifying potential roles. This information would normally have been provided as part of the registration process which he had not undertaken at the time. Back in December 2012 a request had been made to Gapsa in regards to obtaining his résumé and he had never responded to that request.
[135]Wood was not generally involved in the case manager role but had stepped in whilst Norsgaard was absent on leave.
Wood gave evidence on the Principal Advisor (Road Safety Policy) position that Gapsa expressed an interest in April 2013. Due to an administrative error by local Branch HR staff it was not a permanent position as first identified and was in fact a temporary backfilling role which was subsequently withdrawn. It had been the case manager's position in any event to focus on permanent roles rather than temporary roles because ERP status reviews could still occur until an employee was in a permanent placement. On 9 May 2013 Wood forwarded the following email to Gapsa:
"I've looked into the two examples you've given me about where temporary backfilling has been given to AO7 colleagues within your Branch.
I can confirm that in both instances, assignments have related to temporary backfill in roles that have substantive holders. In one case, the substantive owner of the position was seconded to another agency, and in the second, the substantive holder of the position was assigned to a different role within the Branch, again temporarily.
I've had conversations with ERP case managers including Kate Norsgaard ‑ not in relation to you specifically ‑ but about the referral of temporary versus permanent placement opportunities to people who require placement.
A temporary engagement is not where I want case managers to focus their efforts. Reviews will still occur of an ERPs status until they are permanently placed and as you know, reviews can result in retrenchment if the delegate does not consider that continued efforts will result in a permanent placement.
I also mentioned to you on the phone that the PSC has advised me of a very high success rate in permanently placing ERPs and while it may have taken more than one suitability opportunity to find the right fit and for an ERP to be assessed as suitable, the great majority are eventually placed.
I hope this email addresses your question about why TMR isn't referring temporary backfilling assignments to ERPs."
[137]Wood took seriously her role supporting case managers to assist ERPs and out of a total of 21 ERPs at TMR, 19 were placed in State Government roles.
[138]On the matter of providing meaningful work as stipulated in the Directive, it was TMR's position that there should be a balance between time for job searching and giving ERPS meaningful work which resulted in ERPs not being assigned to short, medium or long‑term temporary relief roles backfilling positions. In the case of short backfilling roles they were often arranged by local HR teams to cover periods of leave with no visibility to ERP case managers.
In early May 2013 after discussions with persons in Corporate HR about Gapsa's ERP status and in light of the fact that:
· the Department had undertaken numerous placement efforts in relation to Gapsa;
· Norsgaard's continuing advice about Gapsa having taken no steps to register; and
· Gapsa's lack of co‑operative participation with the Department to try and secure new placements which was not in accordance with the requirements of clause 6.4(a)(i) of the Directive.
[140]The Directive at clause 6.4(a)(i) allows for an early review to be initiated if the Department considers "reasonable placement efforts have been undertaken" and/or "a transfer opportunity for the employee is unlikely to occur as a result of the employee's specialised skill set or location". The outcome of such a review may include retrenchment.
[141]As Gapsa had not worked co‑operatively with TMR to secure new placements for a period of around three months, Wood proceeded to undertake a documentary review of placement efforts TMR had undertaken for the purposes of preparing a report for the consideration of Cridland. Liaising occurred with the ERP team including Norsgaard and on 16 May 2013 she finalised the ERP Review Report which included a recommendation that Gapsa be retrenched.
[142]In the report Wood listed information regarding the placement efforts of Norsgaard and included the following commentary:
"Since becoming an ERP on 12 February, Stephen has received intensive support from his Case Manager, Kate Norsgaard. Ten vacancies in three agencies have been referred and the department has unsuccessfully attempted to facilitate placement into these. It is my view that ten attempts over a period of three months represents reasonable efforts."
[143]Wood acknowledged that in the course of undertaking the Review Report she had not consulted with Gapsa nor was she required to. In any event Gapsa was later provided with procedural fairness and the opportunity to respond to the Report in the retrenchment show cause process. She refuted claims by Gapsa of having "misrepresented" his willingness to participate in the ERP process with all her comments based upon documentary evidence. Further in terms of his unwillingness she formed an opinion that silence on his part indicated an unwillingness to participate in suitability assessments.
[144]In a review of positions to which Gapsa said he had applied or expressed an interest she found he had in some cases taken no steps to apply for the roles. These roles included:
· Emergency Architect ‑ TMR;
· Principal Policy Officer ‑ Queensland Health; and
· Principal Planning Officer ‑ Queensland Health.
Of the claim by Gapsa relating to placements gazetted between 11 January 2013 and 31 May 2013 in the Queensland Government Gazettes (QGG) where he considered he would have been suitable for "at least eleven roles", Wood having reviewed the claim formed the view that:
· Extract ‑ 11 January 2013 ‑ Gapsa was not an ERP at the time;
· Extract ‑ 15 March 2013 ‑ Gapsa could not be considered for external roles as not registered with the PSC;
· Extract ‑ 12 April 2013 ‑ not registered with PSC;
· Extract ‑ 10 May 2013 ‑ not considered as only registered with PSC on 9 May 2013;
· Extract ‑ 17 May 2013 ‑ not registered with PSC on date of appointment of role 22 April 2013;
· Extract ‑ 24 May 2013 ‑ was listed for clearance on 30 January 2013 ‑ Gapsa not an ERP at the time; and
· Extract ‑ 31 May 2013 ‑ Gapsa not registered with PSC ‑ date of appointment of the role ‑ 16 April 2013.
[146]There were further extracts from the QGG identified by Gapsa where he claimed there were "at least five roles" for which he would have been suitable. On examination of those roles it was Wood's evidence that was not the case.
[147]On the claim by Gapsa there was "no basis whatsoever" for Wood to have concluded that his qualifications or skills were overly specialised she had relied following reasoning in her preparation of the ERP Review Report:
· the numerous times that Gapsa had advised Norsgaard that roles, which Wood had thought would be a great fit for his skills and experience were, in his view, not a match for his skills, experience and qualifications; and
· the fact that Gapsa did not test, for these numerous opportunities, where he might have been suitable in suitability assessments.
Therefore she considered Gapsa had indicated that his "policy skills" and experience were not easily transferable to other roles and as such quite specialised. They were apparently not suitable for the following roles:
· Principal Policy Officer (Policy, Planning and Resourcing Division) ‑ Queensland Health;
· Principal Policy Officer (Strategic Policy/Policy and Legislation Programming) ‑ Department of State Development, Infrastructure and Planning;
· Principal Policy Officer (Right to Information) ‑ Queensland Health;
· Principal Advisor (Project Management) Policy Planning Investment ‑ TMR;
· Principal Policy Officer (Regulatory Instruments Unit, Policy and Planning Branch, System Policy and Performance Division) ‑ Queensland Health;
· Principal Policy Officer (Integrated Planning Unit, Policy and Planning Branch, System Policy and Performance Division) ‑ Queensland Health;
· Principal Policy and Planning Officer (Health Service and Clinical Innovation) ‑ Queensland Health (three roles); and
· Principal Advisor (Portfolio Management and Investment Unit, Health Infrastructure Branch) ‑ Queensland Health.
On completion of the ERP Review Report on 16 May 2013 Wood contacted Marsden the Executive Director, Workforce Strategy PSC to discuss the Report as required by clause 6.6(b) of the Directive. On 21 May 2013 the PSC provided the signed ERP Review Report for Gapsa to the EMP team by email. The version provided to Cridland and subsequently Gapsa had the comments of Marsden redacted.
On 23 May 2013 whilst acting as case manager for Gapsa (Norsgaard on leave) he emailed her to inquire about "any other suitable roles that are available". Wood advised there were no suitable roles available but on review of the next list of vacancies would let him know about any new roles.
On 28 May 2013 Gapsa emailed Wood about an AO6 Senior Legislation Officer role and of his willingness to be considered for re‑employment opportunities down to the AO6 level "with salary maintenance for one year". On the following day Gapsa agreed to her contacting the PSC to advise of his interest in the position. The ERP process for this position had already been undertaken by the time Gapsa expressed an interest nevertheless the Branch agreed to a recommendation from Wood to halt the selection process to consider the late expression of interest by him. On 7 June 2013 Wood received advice Gapsa was found unsuitable for the position.
[151]In the same time period Norsgaard assisted Gapsa by arranging suitability assessments for him in two other roles. On 11 June 2013 Gapsa was retrenched meaning he was no longer an ERP and was withdrawn from the suitability process. From her own observations she was aware Norsgaard had put significant effort into getting Gapsa to register with the PSC and participate in placement efforts.
The allegation from Gapsa that his status as a Public Interest Discloser "was known to and directly influenced those making the decision to terminate his employment" was denied by Wood who prior to 11 September 2012 had no previous awareness of Gapsa. She recalled a discussion with an employee in Gapsa's local area where a suggestion was made because of some previous complaint process it may be best his ERP case manager was from outside his own Branch. Norsgaard was chosen from outside his area and she was a person who would be able to act objectively as she had no previous involvement with Gapsa.
[153]The fact that Gapsa had made a PID had no influence, direct or otherwise, on her review of the placement efforts undertaken by TMR or her recommendation that he be retrenched.
[154]Gapsa was made genuinely surplus as part of the restructure process and his declaration as an ERP was fair and reasonable.
[155]Under cross‑examination Wood acknowledged the Directive set out an obligation on the Department to register ERP employees with the PSC as soon as practicable but did not stipulate a specific timeframe [Transcript p. 4‑5]. A failure to co‑operate or participate in that process does not relate to any disciplinary action [Transcript p. 4‑6]. Wood in March 2013 became aware of Gapsa's position of not being able to complete the PSC registration until he was adequately satisfied that TMR's decision to make him surplus at which time she made sure he was informed that his surplus status applied [Transcript p. 4‑10]. Gapsa was never given a formal direction to register with the PSC or disciplined for not doing so [Transcript p. 4‑12].
On 14 December 2012 (prior to the finalisation of the PSC Appeal) Cridland forwarded correspondence to Gapsa in which he advised:
· he had received an update from his ERP Case Manager (Norsgaard) which advised he had not submitted the information necessary, or submitted the online form, to formally register as an ERP with the PSC;
· to maximise his opportunities to secure an alternate role with the Public Service it was important that he register with the PSC; and
· Norsgaard would contact him shortly in order to finalise the PSC registration process.
In the course of the 11 September 2012 ERP process at no time did Gapsa seek to formally register as an ERP with the PSC.
On 12 February 2013 Gapsa was advised in correspondence from Cridland that as a result of workplace change his position was no longer required and TMR had been unable to identify a suitable, alternative, permanent role to facilitate his immediate placement. Further advice was given that TMR had complied with the directions of Appeals Officer G.K. Fisher of 21 December 2012.
The correspondence replicated the content of that of 11 September 2012 with regards to the options open to Gapsa under Directive No. 06/12 and included (as an attachment) the form requiring advice from the ERP as to which of the options he wished to pursue.
Gapsa generated correspondence to Huelin on 12 February 2013 where he raised a number of issues with regards to his designation as an ERP and in particular:
· sought supply of all relevant information pertaining to his designation as an ERP; and
· addressed failure to provide information in the correspondence in relation to appeal rights available to him.
[305]Gapsa requested that Cridland's letter be re‑issued with appropriate appeal rights stated within otherwise the lawfulness of Cridland's decision was in serious question.
[306]A response on behalf of Huelin was forwarded to Gapsa the following day in which his attention was drawn to Directive No. 06/12 which had been attached to Cridland's letter and provided information on appeal rights:
"8 Appeals
8.1 The provisions of the directive relating to appeals applies."
Gapsa lodged a further Notice of Appeal with the Industrial Registry Services on 1 March 2013 relating to the decision to designate him as an ERP on 12 February 2013.
Appeals Officer G.K. Fisher released a decision on 15 May 2013 stating at page 4 of the decision:
"Having considered the material relevant to the discrete issues in this appeal, I have reached the view that the process followed by the Agency as a consequence of the directions issued was fair and reasonable and the Agency's decision was fair and reasonable.
In the circumstances I dismiss the appeal. The decision made by the Agency is confirmed."
Designation as an ERP ‑ 12 February 2013
As mentioned previously the decision of TMR to designate Gapsa as an ERP on 12 February 2013 was the subject of an appeal to the PSC which was rejected and the decision regards to Gapsa's ERP status confirmed.
Gapsa was required to advise TMR of his decision to either accept an offer of voluntary redundancy which would have seen his employment cease on 8 March 2013 or decline the voluntary redundancy offer and pursue transfer opportunities. Gapsa provided no response to the options within the prescribed timeframe with TMR applying the default mechanism of Gapsa having elected to pursue transfer opportunities.
[311]The Directive No. 06/12 required a person designated as an ERP to register with the PSC pursuant to clause 6.5(a) and (b):
"(a) Subject to section 6.5(c)(i), a department is to register their employees requiring placement on the central placement register, as soon as practical after the employee has been deemed an employee requiring placement and has declined a voluntary redundancy.
(b) Registration will occur in the form prescribed by the Commission Chief Executive. The registration process must be jointly undertaken by the employee requiring placement and their case manager."
It was not of contention that registration with the PSC allowed an ERP to seek placement across the Public Sector by means of a suitability assessment rather than through a process of meritorious selection which by all accounts the former was the less arduous of the two options.
Gapsa despite numerous approaches from his Case Manager in the period from 28 February 2013 until 9 May 2013 made no effort to undertake such registration, relying on the premise of his appeal to the PSC not having been finalised that he was effectively granted a stay from having to register. The position of Gapsa was disingenuous to say the least as he had been advised on numerous occasions that a stay option was not available.
On 10 May 2013 Gapsa finally met his obligations and registered with the PSC which incidentally coincided with the decision to retrench his colleague (Wyatte) who similarly had chosen the path of non‑registration with the PSC. The registration by Gapsa laid bare his reliance on the outstanding PSC appeal finalisation as that decision was not handed down until 15 May 2013, a period of five days after his registration was effected.
[314]The failure to have registered with the PSC for the period in question undoubtedly impeded the efforts to have him placed in the Public Service (outside TMR) and was in the view of the Commission not the actions of a person who was genuinely using their best endeavours to be placed into a permanent position at that time. The assertion that TMR should have implemented a disciplinary process against Gapsa for his refusal to register whilst an option available to them was wisely ignored in the circumstances of the pressures already upon a person whose position had been declared surplus and was facing an uncertain future.
In the period between 28 February 2013 and 26 April 2013 Gapsa was the recipient of a number of external vacancies and an internal vacancy referrals (see paragraph 113 of this decision) however was unable to be placed into a permanent role.
Wood who had briefly acted as Case Manager for Gapsa (in Norsgaard's absences) gave evidence of not receiving from Gapsa his work history and preferences until late April 2013 despite a request for a résumé from Gapsa in December 2012.
[317]The refusal or failure of Gapsa to provide such information which incidentally would have been available to his Case Managers had he registered with the PSC in the view of the Commission was a further hindrance in him obtaining placement and a sign of non‑participation in the process.
In early May 2013 Wood decided that in accordance with Directive No. 06/12, 6.6(a) and (b):
"(a) Where an employee has been an employee requiring placement for four (4) months, their department, together with PSC, will conduct a review to determine whether continuing efforts to secure a permanent placement for the employee remains appropriate. Where the review determines that reasonable placement efforts have been undertaken and it is not appropriate to continue these efforts, the retrenchment provisions of the directive relating to early retirement, retrenchment and redundancy will apply.
(c) A department, in conjunction with PSC, may initiate a review at an earlier time if it considers reasonable placement efforts have been undertaken and/or a transfer opportunity for the employee is unlikely to occur as a result of the employee’s specialised skill set or location."
[319]The reasons relied upon by Wood for her decision included:
· the Department had undertaken numerous placement efforts in relation to Gapsa;
· Norsgaard's continuing advice about Gapsa having taken no steps to register; and
· Gapsa's lack of co‑operative participation with the Department to try and secure new placements which was not in accordance with the requirements of clause 6.4(a)(i) of the Directive.
[320]The Commission concludes the decision of Wood, who had consulted with Corporate HR regarding Gapsa's ERP status, was a decision reasonably available to her pursuant to clause 6.6(b) of the Directive and was in no way a decision that could be judged as harsh, unjust or unreasonable, particularly when Gapsa's lack of co‑operation in the process was taken into account.
The Review Report was signed off by Wood on 16 May 2013 and included references to eight referrals to Gapsa between 28 February 2013 and 9 May 2013 in which he had:
· on four occasions failed to respond to the referral indicating an unwillingness to participate in a suitability assessment;
· on two occasions did not want to be considered for the vacancy as he believed he would not be a suitable match for the position;
· for one of the vacancies (referred 19 April 2013) Gapsa advised the role may have fitted with his experience, skills and qualifications however he did not register as required until 10 May 2013 when the vacancy was no longer available; and
· undertook a suitability assessment for a vacancy referred on 9 May 2013.
[322]Out of the eight referrals he had by his own decision made no effort in respect of seven of the eight vacancies.
[323]The Review Report contained references to Gapsa's non‑participation and specialist capabilities:
"Non‑participation: Stephen's failure to register and accordingly his unwillingness to participate have prevented his chance of placement. Through frequent advice from his case manager, Stephen was aware that his continued failure to register and lack of participation in placement attempts was impeding TMR's efforts to transfer him to a permanent role. It is noted that at time of review Stephen has indicated an interest in the most recent vacancy referral, and should he subsequently fully participate in a suitability assessment for this role, is successful in this assessment, and accepts an offer of permanent placement, this would need to be considered by the decision ‑maker prior to finalising a determination whether to proceed with any proposal to retrench.
Specialised capabilities: There were six referrals which Stephen acknowledged and about which he provided feedback to his case manager. For four of these six, he confirmed his skills were not suited to the vacancy. It is acknowledged that Stephen's capacity to transfer his skills to these roles was not tested as he did not participate in the suitability assessment, however it is likely that Stephen's specialist AO7 level policy skills limit his ability to be easily transferred into other roles."
[324]Wood as the reviewer formed the view that ten attempts to place Gapsa over a period of three months represented reasonable efforts and at the conclusion of the review made the following recommendations:
"In my view, reasonable placement efforts have been undertaken and continuing efforts to secure a permanent placement are unlikely to be successful due to Stephen's specialised skills. For these reasons, I propose the delegate considers the retrenchment of Stephen Gapsa.
I also recommend that should Stephen participate in an assessment which results in an offer of permanent placement and he accepts the offer, prior to the proposed retrenchment date, his retrenchment would be withdrawn."
[325]The Commission having concluded the decision of Wood to undertake an early review was reasonable further concludes that the recommendations contained within that Review Report were able to be reasonably made based upon the material subject to Wood's consideration.
[326]Upon completion of the Review Report, Wood forwarded it to Marsden at the PSC who gave evidence in the proceedings of agreeing that TMR had undertaken reasonable placement efforts and that transfer opportunities were unlikely to succeed due to Gapsa's specialised skills set. He had supported the recommendation of retrenchment.
[327]The Commission notes that in Cridland's affidavit (MC18) there was a copy of the Review Report that contained what appeared to be a handwritten notation from Marsden however in cross‑examination his evidence was that those were comments he had asked to be inserted on his own behalf. A further issue regarding the Review Report was that the copy provided by Gapsa (SC13) had the PSC comments and Marsden's name removed.
[328]Nevertheless putting aside those discrepancies on the basis of the evidence‑in‑chief of Marsden in the proceedings I find that the Review Report forwarded to the decision‑maker (Cridland) had been reviewed by the PSC through Marsden and the recommendations had been concurred with by the PSC.
Cridland informed Gapsa on 23 May 2013 that an early review had been conducted in consultation with the PSC and he had determined that reasonable placement efforts had been undertaken and it was not appropriate to continue with those efforts.
[330]The advice contained the following reasons relied upon by Cridland in reaching his decision:
· "Since being declared an Employee Requiring Placement (ERP) on 12 February 2013, you were unwilling to participate appropriately and be registered on the PSC central database, and therefore you were not able to be considered for external vacancies at your level. This limited the assistance the department could offer you in being referred and placed in a suitable role.
· The department has demonstrated a willingness and desire to provide you with all potential AO7 transfer opportunities as soon as it became aware of them.
· The department's ERP team and your ERP case manager attempted to motivate you to register on the PSC central database by sending eight referrals to you, one of which comprised three separate vacancies.
· You failed to respond to four of these referrals which indicates to me an unwillingness on your part to participate in the suitability assessment process.
· You advised your ERP case manager that your skills were not suitable for two of these referrals (involving four vacant positions).
· I am of the view that due to your specialised policy advisory skills, the reasonable likelihood of suitable roles becoming available at the AO7 level is limited.
· I am advised your ERP case manager also communicated with you about the redeployment and salary maintenance option, however you chose not to explore any suitable redeployment opportunities."
[331]In accordance with Directive No. 11/12 ‑ Early retirement, redundancy and retrenchment, it was proposed Gapsa be retrenched on the basis of his position becoming redundant and the decision to cease efforts to secure permanent placement. Gapsa was provided with ten working days from receipt of the correspondence to respond to the proposed retrenchment, providing any reasons why he thought in the circumstances the proposal was unreasonable.
On 6 June 2013 Gapsa provided a detailed response (28 pages) to Cridland in terms of his proposed retrenchment and the ceasing of efforts to secure him a permanent placement. The response was particularly critical of the ERP Review Report which was said to "contain a number of factual errors, omissions and misrepresented my efforts to seek appropriate transfer opportunities in accordance with Directive 06/12". He expressed concerns regarding the continued action of TMR to fill temporary vacancies without offering such vacancies to him.
Gapsa provided significant responses with regards to the placement opportunities for the period between 28 February 2013 and 9 May 2013 in which he challenged the material relied upon by Wood in the undertaking of the Review Report.
[334]On the Review Report in reference to "Reasonable placement efforts have been undertaken" it was clear that TMR had not undertaken reasonable placement efforts as claimed and they had failed to comply with mandatory sections of Directive No. 06/12, in particular 6.4(a)(ii), 6.5(f)(vi) and 7.1.
[335]The report had also failed to acknowledge a request for a suitability assessment for the role of Principal Advisor (RRS) and failed to record TMR activities undertaken to support his placement as an ERP.
[336]In relation to the "specialist skills" ground he denied he had ever characterised himself as possessing specialist policy advisory skills nor had he communicated such a statement to Wood or Norsgaard. The evidence is supportive of him having strong claims for transferable skills to roles including:
· Policy and Planning;
· Research Management;
· Project Management;
· HR and Industrial Relations; and
· Auditing and Compliance.
[337]The response addressed other issues under the heading of "Exceptional Circumstances ‑ Stephen Gapsa" which included references to the public interest disclosures.
[338]In conclusion the response identified 11 of what was described as "facts of the matter" and he sought to continue to pursue transfer opportunities.
Upon consideration of Gapsa's response, correspondence under the signature of Cridland was "delivered by hand" to Gapsa on 11 June 2013 providing comments under the headings of:
· Consultation;
· Date you were designated an ERP;
· Reasonable placement efforts;
· Conclusion on reasonable placement efforts;
· Specialised skills ‑ SA Gapsa broad‑based transferable skills; and
· Exceptional circumstances.
[340]Cridland then informed Gapsa that:
"As a result of my decision, your employment with the department is ceased immediately. In lieu of service, you will be paid four weeks' notice period as required under the Queensland Public Service Award ‑ State 2012."
[341]The decision making procedures relied upon by Cridland following the receipt of the Review Report were in the view of the Commission fair and proper in the circumstances in that:
· Cridland had properly reviewed the report noting the PSC support for Wood's recommendations;
· Cridland had provided written advice to Gapsa which contained the reasons relied upon in reaching his decision;
· Gapsa was given an opportunity to respond to the proposed retrenchment within ten working days from receipt of the correspondence; and
· the response upon receipt was considered by Cridland prior to the decision to implement the recommendation that his employment was to cease on the basis of retrenchment effective 11 June 2013.
[342]As a consequence of Cridland's actions I find that the decision to retrench Gapsa afforded him procedural fairness and was compliant with the relevant Directives applicable at the relevant time.
Period following Gapsa's registration with the PSC 10 May 2013 to 11 June 2013
[343]The evidence before the proceedings demonstrated an increased level of participation by Gapsa in seeking permanent placement. In the time period in question he undertook a number of suitability assessments which unfortunately for Gapsa did not result in an offer of placement.
[344]In the view of the Commission should he have approached the task of seeking placement (as required under Directive No. 06/12) with the same robust vigour from the time of his designation as an ERP in all probability it is more likely than not his prospects of success would have been greatly enhanced. In the case of Gapsa it was all "too little too late".
Jones v Dunkel
[345]TMR in submissions indicated it was appropriate for the Commission to make a finding, inferentially or otherwise, of a Jones v Dunkel[12] inference regarding the withdrawal of an affidavit of Wyatte that had connotations regarding the eventual registration by Gapsa with the PSC on 9 May 2013.
[12] Jones v Dunkel [1959] HCA 8
[346]I have decided not to make such inference although such an inference could reasonably be considered in the circumstances.
The evidence before the proceedings relating to Gapsa's refusal or failure to register with the PSC, the reasons for this and the timing of his eventual registration would suggest the TMR decision to propose the retrenchment of Wyatte was in all probabilities a factor at some level in Gapsa's PSC registration on or around 9 May 2013.
TMR ‑ ERPs
[348]Following the implementation of workplace change process TMR were left with 21 employees who had selected the option of pursuing transfer options rather than that of a voluntary redundancy. Only Gapsa and Wyatte had failed in the initial stages to register with the PSC pursuant to Directive No. 06/12. The evidence of Wood was that 19 out of 21 ERPs (including Wyatte) were placed in State Government roles, one in the private sector with only Gapsa failing to secure placement in the Public Service.
[349]The relevance of the placements of the ERPs other than Gapsa in the view of the Commission is at the worst, limited to confirm that the case management performance across TMR could justifiably be seen as having been highly successful and effective.
Findings
[350]On consideration of the evidence, material and submissions before the proceedings subject to the requisite standard of proof the Commission finds:
· the process relied upon by TMR as it related to Gapsa's designation as an ERP from 12 February 2013 was undertaken correctly with adherence to the relevant industrial instruments in operation at the relevant time;
· Gapsa in the period 28 February 2013 until 9 May 2013 had failed to genuinely participate with TMR in accordance with the requirements of clause 6.4(a)(i) of Directive No. 06/12 in an effort to secure permanent placement in the Queensland Public Service;
· the Employee Requiring Placement Review Report undertaken by TMR pursuant to Directive No. 06/12, clause 6.6(a) and (b) was reasonably undertaken and the recommendations contained within were able to be reasonably made on the basis of the material available at the relevant time;
· that the actions of Cridland in reaching the decision to propose retrenchment of Gapsa on 23 May 2013 and all subsequent actions associated with the proposal and ultimate retrenchment were compliant with the relevant Directives and afforded Gapsa at all times procedural fairness; and
· the decision to retrench Gapsa effective from 11 June 2013 in the circumstances was not harsh, unjust or unreasonable nor was his termination for an invalid reason.
[351]The application for reinstatement is rejected.
[352]I order accordingly.
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