Green v State of Queensland (Queensland Fire and Emergency Service)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION PARTIES:	Green v State of Queensland (Queensland Fire and Emergency Service) [2021] QIRC 150 Green, Leslie (Appellant) v State of Queensland (Queensland Fire and Emergency Service) (Respondent)
CASE NO:	PSA/2021/39
PROCEEDING:	Public Service Appeal – Decision made under a Directive
DELIVERED ON:	5 May 2021
HEARD AT: MEMBER:	On the papers Pidgeon IC
OUTCOME:	See paragraph 42.
CATCHWORDS: LEGISLATION:	PUBLIC SERVICE APPEAL - Appeal against a decision under a directive - whether the appellant was entitled to relocation expenses - where there are varied policies Industrial Relations Act 2016 Public Service Act 2008 Individual Employee Grievance Directive 11/20

Reasons for Decision

Background and Reasons for Appeal

Leslie Green is employed by the State of Queensland (Queensland Fire and Emergency Service) (QFES) as Station Officer since Bowen in January 2020. Prior to this, Mr Green was employed as a firefighter and lived in Adelaide.
Mr Green says that during a teleconference on 18 December 2019, prior to accepting the offer of employment, he asked whether he would be able to claim any relocation expenses if he were appointed to the position. He said that he was advised by the QFES representative that he could apply, and that the representative would seek confirmation 'from state'.
Mr Green said that he was left with the impression that he could claim relocation expenses, and this was a relevant factor in his decision to take the job, and to move his family to Far North Queensland.
Mr Green says that in February 2020, he was advised over the phone by HR Officer Lisa Mitchell that he was entitled to 'reasonable relocation expenses', because the position had been 'hard to fill'. Ms Mitchell directed Mr Green to fill out an application form.
According to Mr Green, he worked with Inspector Warren Stubberfield to ensure he had all the relevant details of the claim to put together for approval, including the exact kilometres travelled, the route taken, the reason for taking this route (primarily avoiding bushfires), exact meal costs and relevant bank statements. Mr Green says that he spent many weeks collecting the information required to be submitted with his claim. The claim was submitted on 26 April 2020.[1]
[1] Attachment 5 to Appeal Notice: Application for Relocation Conditions and Expenses.
It is Mr Green's understanding that the claim was endorsed by the Director of Regional Operations on 5 May 2020. Mr Green says that it appears it was then re-assessed by the Assistant Commissioner of the Northern Region, Steve Barber around 31 July 2020.
On 31 July 2020,[2] Mr Green was advised by his Inspector that his claim was now 'not supported'. Mr Green says he was not supplied with any reasons for the decision, nor was he advised of any avenues to appeal. Mr Green says that he requested more information from Acting Commissioner Barber but received no response.
[2] Attachment 1: Copy of email.
Following this, Mr Green contacted his union and a dispute was raised with AC Barber on 28 August 2020. The dispute resolution procedure contained in the Agreement was followed.[3]
[3] Queensland Fire and Emergency Services Certified Agreement 2019
On 15 September 2020, the union wrote to Deputy Commissioner Mark Roche to escalate the dispute.
On 22 September 2020, Deputy Commissioner Roche wrote to the union and stated:
…
As you have advised, State Officer Green commenced work with Queensland Fire and Emergency Services (QFES) through lateral entry from an interstate fire service, under the conditions of Standing Order SO-Q-BM-3.27 – Employment of Station Officers with External Fire Agencies.
Under 'Obligations', SO-Q-BM-3.27 clearly states that the successful Station Officer must meet all relocation costs.
Furthermore, the Operations Business Management Rule OBM3,11 Awareness of Relocation Conditions and Expenses, which you reference in support of Station Officer Green's eligibility, states that for new employees, eligibility must be discussed and approved by the Director-General prior to relocation…with written approval gained from the delegated authority prior to relocation.
It must be pointed out that any approval of relocation reimbursements is discretionary and not guaranteed under either SO-Q-BM-3.27 and OMB3.11. As such, my decision regarding Station Officer Green's relocation expenses still stands.
…
On 24 September 2020 the union wrote to Commissioner Greg Leach to escalate the dispute. That letter pointed out the inconsistency between SO-Q-BM-3.27 and OBM 3.11 & OBM3.10.1. The letter said that the advice given to Mr Green at his interview, prior to appointment, was consistent with OBM3.10.1.
The decision to reject Mr Green's relocation expenses claim was confirmed by Commissioner Leach on 9 October 2020. That letter said, in part:
I have been informed Mr Green applied for the position with QFES under the Standing Order SO-Q-BM-3.27 – Employment of Station Officer with External Fire Agencies. The original advertised position notification advised applicants to obtain a copy of the Standing Order to understand the process via lateral entry into QFES. I note within the employment conditions under the obligations of the Station Officer it does state 'are to meet all relocation costs'.
In your correspondence you reference Business Rules OBM3.11 and D3.11 relating to awareness and coordinating relocation conditions and expenses. The advertised position did not reference either iteration of OBM3.11 or D3.10.1, however, if either version of these business rules were accessed/reviewed prior to accepting the position, the new employee would need to apply for approval in writing by the delegated authority prior to relocation. I have been advised Mr Green discussed reimbursement of relocation expenses with Northern Region personnel, however no formal written approval was sought by the delegated authority prior to him commencing his employment.
I have reviewed all of the documentation and correspondence relating to Mr Green's claim and I concur with Deputy Commissioner Roche's determination. I have asked Northern Region to review their processes to ensure in future any external Station Officers commencing via a lateral entry are aware of their obligations relating to relocation expenses.
In accordance with QFES policy and the Individual Employee Grievances Directive, Mr Green, commenced an internal review application on 17 November 2020.[4] As at the time of lodging this Appeal on 15 January 2021, Mr Green had not received a decision from QFES regarding the internal review request.
[4] Unmarked first attachment to appeal notice: Request for Internal Review Form.
Mr Green says he understands that the payment of relocation expenses for new employees is at the discretion of the Commissioner (or their delegate). Mr Green says that this discretion was initially exercised in his favour, and then, without explanation, the decision was reversed to his detriment.
Mr Green says that QFES's decision has had a significant adverse affect on his financial situation and that from December 2019 until July 2020, he was under the impression that the costs associated with his family's move to Bowen would be reimbursed (in full or in part). As this has not occurred, Mr Green says he has suffered significant and unexpected financial loss.
Mr Green believes that the manner in which the Commissioner and other delegates exercised their discretion in his case was unfair and unjustified. He seeks an order to reverse the decision of the Commissioner regarding his claim for 'reasonable relocation expenses' and reimbursement of the relocation expenses he incurred, as set out in his claim dated 26 April 2020.
What decision can the IRC member make?
In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:

(a) confirm the decision appealed against; or
…
(b) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant QFES policies

The parties' submissions and the correspondence relevant to the appeal refer to a number of relevant policies and documents:
·Standing Order: Employment of Station Officers from External Fire Agencies (SO-Q-BM-3.27. This document states that Station Officers appointed from external fire agencies must meet all relocation costs. (the Standing Order)
·Business Rule: Awareness of Relocation Conditions and Expenses (OBM3.11) states that 'for new employees, eligibility for relocation expenses must be discussed and approved by the Director-General prior to relocation, and payment is subject to the employee producing documentary evidence (i.e. receipts, itemised statements, quotes and certification). The payment of relocation expenses does not apply to employees appointed to base grade firefighter positions.'
·Business Rule: Coordinate Awareness of Relocation Conditions and Expenses (D3.10.1) which states that 'new permanent employees shall only be eligible for relocation assistance, where approve by the Director-General. Under the heading 'How I Do It', the rule says 'Requests for assistance with relocation expenses must be approved in writing by the delegated authority prior to relocation using Form OBM 032 – Application for Relocation Conditions and Expenses.
QFES Submissions

QFES notes s 195(2) of the PS Act which provides that "a person can not appeal against, or in an appeal call in question in any way, a decision that decides the policy, strategy, nature, scope, resourcing or direction of the public service or a department".
QFES attaches the employment offer letter to Mr Green dated 25 November 2019 and says that the letter is silent as to relocation expenses.
The Standing Order denotes that Station Officer obligations include "meet all relocation costs".[5]
[5] Page 3 of 7 of SO-Q-BM-3.27 attached to Respondent submissions 1 February 2021.
OBM3.11, speaks to eligible employees if transferred and states that eligibility for relocation expenses must be discussed with written approval gained from the delegated authority (i.e. Assistant Commissioner per HR delegations instrument) prior to relocation.
QFES says that page two of that document sets out arrangements for new employees with Director-General and Commissioner delegations referenced, noting that for processing of applications, employees are required to gain approval for relocation expenses prior to relocation. Page three of this document makes reference to a requirement to obtain three quotations to be forward to the Assistant Commissioner.
QFES submits that on the information to hand, there is no evidence of policy compliance with either quotes supplied or any written authorised promise of relocations expenses included in the offer of employment, preceding the take-up of duty and completion of relocation arrangements in the practical sense by Mr Green.
Mr Green's submissions in reply
Mr Green s 195(2) of the PS Act does not apply as the appeal does not relate to a decision about the policy, strategy, nature, scope, resourcing or direction by QFES. The appeal is against a decision made under the Individual Employee Grievance Directive 11/20 regarding reimbursement of transfer expenses.
Mr Green submits that the Respondent submissions above at [22]-[23] highlights inconsistencies in their own employer policies regarding relocation expenses. The Standing Order states that an applicant will meet all relocation costs however, the relevant QFES policies relating to relocation expenses, OBM3.11 and D3.10.1 explicitly stated that new employees are eligible to claim relocation expenses at the discretion of the Commissioner.
D3.10.1 that allows a new employee to claim relocation expenses at the discretion of the Commissioner should be preferred, as it is supported by OBM 3.11, and is the most recent of the published policies (2014, as opposed to 2010 and 2008). It is also worth noting that D3.10.1 lists where an employee is or is not entitled to relocation expenses. The exclusion contained in the Standing Order was not carried over into this newer policy regarding transfer expenses.
The advice given to Mr Green at his interview prior to appointment was consistent with D3.10.1 and that Mr Green made his application for relocation expenses in accordance with directions and assistance provided to him by his senior officer, Inspector Warren Stubberfield.
With regard to the submissions on the QFES decision:
·        The Respondent suggests that their decision is based on non-compliance with the policy, however the specific policy the respondent refers to is unclear;
·        it is relevant to note that Mr Green did not have access to the Respondent's policy database prior to commencing his position of Station Officer. He could not reasonably have known that he was required by one of the policies to seek formal approval for relocation expenses prior to accepting the offer;
·        it is also relevant to note that Mr Green relied on the advice of his regional HR Officer, Lisa Mitchell, who told him in February 2020 that he was entitled to 'reasonable relocation expenses' because he position had been 'hard to fill'; and
·        if the decision is based on a fault with the quotes supplied to evidence the claim, the Applicant requests that Mr Green be advised of the policy he ought to follow, and be given an opportunity to resubmit his claim.
Consideration of submissions
It does not appear to be in dispute that Mr Green was told, prior to accepting an offer of employment, that he would be able to apply for relocation expenses. I can see no reason why Mr Green should have doubted the advice of the QFES human resources staff member he spoke to.
Following that conversation, it does not appear that anyone contacted Mr Green to tell him about the process to apply for relocation expenses to be approved prior to relocating.
Mr Green initiated the conversation about relocation expenses and I have no reason to doubt that he took the capacity to apply for relocation expenses into account when deciding to accept the offer of employment. The way the Mr Green went about compiling the information he was told was required to make application once he took up his position indicates to me that had Mr Green been told the process to apply prior to appointment, he would have done so with attention to the detail of what was required of him. It would be in his interests to have done so.
Once appointed, Mr Green again inquired about the process. He was again told that he would be able to apply to have his relocation expenses reimbursed. In fact, on that occasion it appears that Mr Green was directed to a form that he would be required to fill in.
At this stage, having expended the money, it is reasonable to assume that Mr Green and his family were basing some of their household expenditure decisions on the advice that reasonable expenses would be able to be claimed.
Mr Green had further reason to believe that he was eligible to claim expenses when Inspector Stubberfield supported him to complete his application.
While the advertisement and the Standing Order refer to the Officer 'meeting all relocation costs', it appears that in practice, the people Mr Green was dealing with were acting on the basis of one of the Business Rules. The most recently published of these affords the Director-General discretion to allow relocation assistance.
The information under the 'How I Do It' section also has the potential to be confusing. The first sentence in this section says 'requests for assistance with relocation expenses must be approved in writing by the delegated authority prior to relocation using Form OBM 032 – Application for Relocation Conditions and Expenses'. The second last sentence of the section says 'Unless exceptional circumstances exist, the delegated authority will only approve the payment of claims if submitted within 12 months from the date the expenses were incurred.' Under the heading 'Processing Applications' the third paragraph says 'Upon arrival at the new centre, all claims for relocation expenses should be made to the receiving Assistant Commissioner or delegated authority as soon as possible. A limit of twelve months applies to claims…'. This would appear to mean that the prior approval authority can be granted without the detailed claim for expenses being submitted.
The form Mr Green filled in says in fine print at the bottom "for new employees, approval must be sought from the Director-General prior to relocation. For further information refer to HR delegations manual".
Mr Green was not directed by anyone to seek approval from the Director-General prior to relocation. The Respondent relies on the Standing Order which states that Mr Green must cover his own costs, but then appears to rely on the Business Rule which states that the approval should have been sought prior to his relocation.
The last item of correspondence in the dispute was the decision of Commissioner Leach. In this letter he upholds Deputy Commissioner Roche's decision. The letter states that the Commissioner has asked Northern Region to review their processes to ensure that in future any external Station Officers commencing via a lateral entry are aware of their obligations relating to relocation expenses. While this is a welcome intervention and should serve to ensure the current situation does not happen again, this is of little use to Mr Green who appears to have relied upon information given to him by his prospective and then current employer.
I note that the approval of relocation reimbursements is discretionary and not guaranteed. This means that even if Mr Green had made application at the outset and prior to accepting the role or commencing his relocation, he may have had all or some of his claim not approved. However, I do not find that it was fair for the decision maker/s to make the decision on the basis of the content of the Standing Order and non-compliance with the Business Rule when Mr Green was relying on advice provided to him and that he had no reason to question.
I am setting aside the decision of Commissioner Leach dated 9 October 2020 upholding the decision of Deputy Commissioner Roche to not approve relocation expenses for Mr Green. I order that a copy of this decision be provided to QFES and that Mr Green's application for relocation costs dated 26 April 2020 be reconsidered as though it had been submitted with the benefit of proper advice being provided by the Northern Region about the process and that reasonable relocation costs be determined and paid to Mr Green.

[2021] QIRC 150

5 May 2021