Hair v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Hair v State of Queensland (Queensland Health) [2021] QIRC 422
PARTIES:	Hair, Jennifer (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2021/365
PROCEEDING:	Public Service Appeal – Fair Treatment Appeal
DELIVERED ON:	10 December 2021
MEMBER: HEARD AT:	Pidgeon IC On the papers
OUTCOME: CATCHWORDS:	The decision appealed against is confirmed. PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - appeal against a fair treatment decision - where the appellant requested a flexible working arrangement to enable remote work from interstate - where the employer denied the request on the basis of face-to-face contact being a requirement of the position - whether the decision was fair and reasonable.
LEGISLATION:	Industrial Relations Act 2016, s 562B, s 562C Public Service Act 2008, s 194 Individual employee grievances Directive 11/20

Reasons for Decision

Background

Ms Hair (the Appellant) is employed by the State of Queensland (Queensland Health), (the Respondent) as Human Resources Advisor and acting Workplace Relations advisor at the West Moreton Hinterland Hospital and Health Service (West Moreton Health/WMH).
Ms Hair says that the team in which she provides human resources services are based in Goodna, Gailes, Gatton, Ipswich, Wacol and Borallon, and include multiple secured mental health facilities, correctional centres and youth-based detention centres.
On 7 January 2020, Ms Bain, Manager, Human Resources, approved a flexible working arrangement in which Ms Hair was working remotely for one day per week in addition to undertaking compressed hours working full-time over four days per week.
On 26 March 2020, Ms Hair commenced working remotely on a full-time basis whilst undertaking the role of acting Workplace Relations Advisor.
On 22 February 2021, Ms Hair returned to her substantive role of Human Resources Advisor in a part-time capacity working 45.6 hours per fortnight in addition to working concurrently as acting Workplace Relations Advisor for 30.4 hours per fortnight.
Ms Hair says that since 26 March 2020, she has worked wholly remotely, except for approximately three days where she attended the workplace.
On 10 June 2021, Ms Trayling, Human Resource Business Partner completed a performance review with Ms Hair in which she advised her that she exceeded or met all leadership standards.
Ms Hair says that during that performance review, she raised how important it was for her to continue working remotely and that at no stage did Ms Trayling raise any issues about working remotely.
On 21 September 2021 Ms Hair submitted a request for flexible working arrangements (FWA) to work remotely from New South Wales, as her partner was starting a job and they wished to relocate. Ms Hair requested that she be able to continue to work remotely on a full-time basis and compressed hours working 4 days per week. Ms Hair also requested, in addition to the existing arrangements, that is that she be able to work between both Queensland and New South Wales (NSW).[1]
[1] Appeal notice filed 15 October 2021.

The decision being appealed

In a detailed email response dated 11 October 2021 from Ms Bain, Ms Hair's request was denied following consideration of a range of matters including: the principle of flexibility, nature of work and location of work.
Ms Bain's letter identified that the initial flexible arrangements were largely a response to the 'urgent need to limit the number of people in the workplace due to a public health emergency'. Ms Bain said that while that initial pressure has eased and some degree of working remotely has been retained, 'it is reasonable to anticipate that the business will welcome us back and we will once again be able to spend more time alongside clients in the workplace'.
Reference was made to work being undertaken by Taresa Rosten on 'Future Ways of Working' and Ms Bain said that she thinks that 'work will help articulate some principles of flexibility including some reasonable parameters around remote working'.
Ms Bain acknowledged that it is possible for Ms Hair to complete many of her obligations remotely and that there are a range of work tasks, including attending meetings and in some cases delivering training, which can be done effectively in online environments. However, Ms Bain identified some elements of the HR Advisor role which she believes 'would be very difficult to do remotely'. Such elements included; in-person attendance on interview panels; providing in-person assistance to clients to assist with coaching; preparing managers to do performance management, give performance feedback and assist with facilitated discussions.
Ms Bain said that while Ms Hair's current client group might be comfortable with the bulk of this work happening online, it is possible the client group may change in the future.
While acknowledging Ms Hair's suggestion that she could spend one week a month in Brisbane, this would not account for matters 'which in our world, can be unpredictable and occur with very short notice'.
With regard to the Acting AO6 Senior Workplace Relations Advisor role, Ms Bain acknowledged that many of these obligations can also be met remotely. However, Ms Bain said that there are occasions where attendance in person would be required on short notice i.e. representation here at the Commission or interviewing subject officers or witnesses. While Ms Hair had offered to fly up to Brisbane on short notice, Ms Bain said that travel time could mean she would not have sufficient time to prepare and that back up for a colleague in the event of illness would be limited. Ms Bain said that if Ms Hair were working remotely from NSW, it would fall to her colleagues to cover requirements where in-person attendance was required on short notice.
With reference to the impact on the team, Ms Bain noted that 'the spread of duties will not be fairly distributed amongst the team, potentially creating inequity'. Ms Bain also said that as the in-person parts of the role are often greater in terms of emotional contribution, she was concerned that this has the potential to create an imbalance within the team.
Noting that Ms Hair's request was to work 'fully remotely' from New South Wales with negotiation of travel to Queensland for face-to-face contact; Ms Bain said that providing a workers' compensation insurance policy would not be a major barrier.
However, Ms Bain did identify some barriers. These included that at the time of making the decision, the majority of NSW is classified a COVID-19 hotspot and travel, if approved, would require a mandatory 14 day hotel quarantine. This would mean that any in-person requirement would need a notice period of at least 14 days. Ms Bain notes that she thinks it would be very difficult to demonstrate to the Chief Health Officer's satisfaction that Ms Hair is an 'essential worker' for purposes of accessing different requirements. Ms Bain said that it was unknown when changes would be made and whether they might be reinstated in the future.
In concluding her decision, Ms Bain said
My considerations
I appreciate that your request is based upon your desire to relocate to New South Wales to enable you to move interstate with your partner. On a personal note, I am very happy for you and for your new relationship. I can certainly understand that you would want to be with your partner as he progresses his career.
In the context of growing vaccination rates in Queensland and New South Wales, it is possible that interstate travel will become easier. If this does occur, it is possible that mandatory 14-day quarantine will not be required. However, even without that requirement, it would still be very difficult for you to adequately respond to a request for in-person support in a timely way. And, as you know, a request for attendance at a QIRC hearing will usually occur at very short notice, meaning that you would be unlikely to be able to support your colleagues by sharing that requirement of the Workplace Relations role. Similarly, it is not unreasonable to anticipate that your client would, on occasion, request your attendance in person and with short notice to assist on an interview panel, provide coaching/guidance to a line manager, resolve a conflict, or facilitate a discussion. I am unable to envision a sustainable model which would allow you to commute from New South Wales on short notice to fulfil the expectations of your substantive role
My decision
For the reasons outlined above, I am unable to support your request for a remote working arrangement from New South Wales. I have given consideration to the reason for your request and to the potential impact on you for this request to be declined. On balance however I am of the view that it is not possible to implement your request while also maintaining equity and fairness for the rest of the team.
As you know, HR policy C5 provides employees with the opportunity for review. You may wish to escalate your request to Taresa for fresh consideration and response; or, you may lodge a complaint; or, you may lodge an appeal with the QIRC.
I want to assure you that I have given this a lot I thought; I haven't taken this decision lightly. I am mindful of the precedent which would be set, not only for our team but for the whole organisation and more widely for QH. Our roles have such a strong emphasis on coaching line managers and uplifting their capabilities, and sometimes this just needs the in-person touch. Taking everything into account, I can't see a way that I can support your request.
In deciding this appeal I am considering whether it was fair and reasonable for Ms Bain to deny Ms Hair's request for FWA.
Is the Appellant entitled to appeal? Respondent submits 'appeal not competent'
Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
The appeal notice was filed with the Industrial Registry on 15 October 2021 within 21 days of the decision being received on 11 October 2021. I am satisfied that the Appellant has lodged the appeal within time.

WMH submits that the Commission should decline to hear the appeal for failure to comply with the procedures contained in the Individual employee grievances Directive 11/20. WMH says that the Commission may decide that it will only hear an appeal under s 194(1)(eb) of the PS Act if the commission is satisfied that the employee has used the procedures required to be used including the individual employee grievance directive.
WMH says that it is not in dispute that the Policy provides that an employee may lodge an appeal directly to the Commission[2] but submits that 'given the technical human resources and employee relations positions she occupies, Ms Hair is well acquainted with the relevant procedures but made no attempt to engage with the decision maker or the Health Service about the decision.
[2] Cl 5.
Ms Hair says that the decision did not suggest she was required to follow an alternate process and the decision letter provided her with three options, one of which was to appeal to the Commission. Ms Hair also notes that the FWA Policy states that an appeal to the Commission is a valid option and does not explicitly state that a complaints process or review by the delegate's supervisor is required prior to lodging an appeal.
I have considered the submissions of the parties on this matter and I have decided that Ms Hair's appeal is 'competent'. It is curious that WMH would request that the Commission not hear the appeal when an appeal to the Commission was clearly communicated to Ms Hair as one of the options open to her if she was unhappy with the decision.

Appeal Principles

Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".

Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision of 11 October 2021 was fair and reasonable.
In deciding this appeal, s 562C(1) of the 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.
Grounds of Appeal
Ms Hair includes detailed submissions with her appeal notice. I have read all of these submissions and note that they are largely summarised and reflected in the points listed under the heading 'Why the decision is unfair and unreasonable':
a.       Ms Bain has not considered the principles outlined in the FWA Policy and the FWA Guideline, specifically by considering the application on its own merits.
b.       Ms Bain has been unable to formulate reasonable grounds as to why the arrangement would not be successful and has based this instead on hypothetical issues that have not occurred in the last 18 months, if not longer.
c.       Ms Bain has not worked with me to find solutions that best meet work, team and personal needs, which considering Ms Trayling was not involved in the process would suggest that she has not been able to provide her commentary on how it would work best with the team. I am concerned that Ms Prince may also not have been part of providing information noting that she would have been able to articulate the role that I have undertaken since 22 February 2021, as the Workplace Relations Advisor. Had Ms Bain engaged with me further in relation to this I could have explored further options with her such as including a 6-month trial period, or a different frequency of working - for example two weeks in Queensland for every 4 weeks in NSW, or one month per quarter in Queensland.
d.       Ms Bain has not considered that I have been able to perform both roles successfully and to a high standard working remotely and to date no concerns have been raised with me by Ms Bain, Ms Prince, Ms Trayling, other team members or my client group.
e.       Ms Bain has not considered the significant impact that this will have on my personal relationship, noting my partner who works in the Army, has been posted to Sydney temporarily. I do not believe that Ms Bain has considered how the West Moreton Health region, which contains of one of the largest Defence Force bases, can support me in what will already be challenging circumstances for me both in a personal and work environment following the posting of my partner who is employed by the Army.
f.        Ms Bain has not considered alternative options and instead declined the request without due consideration around the key principles. Ms Bain has not offered any alternatives around what may suit the business despite me acknowledging to Ms Bain that I am aware that flexibility will be key in this arrangement and I demonstrated my willingness to negotiate timeframes.
Ms Hair seeks a decision allowing a trial of her requested FWA to occur for a period of 12 months, with a six month review mark.

Department submissions
Background

By way of background, WMH says that in March 2020, the entire Human Resources team entered temporary full-time remote working arrangements in response to the Public Health Directions implemented to limit the number of employees in workplaces during the early stages of the COVID-19 pandemic.

Ms Hair's application

WMH notes that the substantive change requested by Ms Hair in her application of 21 September 2021 was that she be located in New South Wales rather than in Queensland. WMH says that the application initially provided no commitment with respect to regularity or frequency regarding the extent to which she would be in Queensland.

Considerations for request for flexible working arrangements

Clause 2.1 of the QH Flexible working arrangements Human Resources Policy[3] (the Policy) sets out the relevant considerations in deciding whether to approve a request for flexible working arrangements, which are to be decided on a:
(a) Case-by-case basis using a team approach that considers fairness, diversity and inclusion, the guiding principles and legislative and operational requirements.
[3] Perusal of the policy suggests that the clause referred to here is cl 2.1 of Attachment 1 to Policy C5.
The Policy is to be read in conjunction with the Guideline, Clause 5.1 which sets out the relevant criteria to be applied when assessing requests:
(a)      Each request should be given due consideration on a case-by-case basis, with a starting position of curiosity and exploration about how we can make this work;
(b)      Take a strategic approach to flexible working arrangements by identifying the benefits to the work unit; and
(c)      The focus of the decision should be on potential outputs, outcomes and performance, rather than time spent in the workplace.
With regard to the decision maker's approach to cl 2.1 (see [32]), WMH submits that it supports flexibility in the workplace. WMH is required to consider the effects of the request on Ms Hair's current client base, any future client base she would be expected to service in line with her position and the equitable division of service within the team.
The flexible arrangement which led to Ms Hair working remotely on a full-time basis arose in response to the COVID-19 pandemic and applied to the whole team. The team is now looking to 'find the optimal blend of remote and in person working'.
An expectation across the team is that meaningful support will be provided to clients and this can include being available to attend workplaces in person.
The crux of the WMH submissions and the decision is the unviability of Ms Hair's request to live and work in NSW in an environment where the provision of service is being 'rebalanced' as discussed at [35]. WMH submits that it is sympathetic to Ms Hair's personal circumstances and is committed to finding a solution that balances the personal benefits to Ms Hair of working remotely and the operational requirements of the WMH.[4]
[4] Respondent submissions 2 November [34].
Allowing Ms Hair to work as per her request would set a precedent which cannot be accommodated in a fair and equitable manner across the team in which she works and 'would inevitably increase the workload of others'.
WMH lists key accountabilities contained in the human resources advisory role descriptions which it says are consistent with an ability to present and provide face to face interpersonal support and assistance to client groups.[5] WMH says that the key accountabilities of the role require delivery of 'hands-on support' and maintenance of networks and support structures which may not be optimally achieved through tele-commuting from New South Wales.
[5] Respondent submissions 2 November [25], Complex case management relating to matters such as workplace investigations, industrial matters and performance management; HR advisory and consultancy services; building and sustaining partnerships with stakeholders and facilitating working relationships which improve internal capability and HR outcomes; coaching leaders and providing advice and guidance; and learning and contributing to the development of HR initiatives.
Benefits to the work unit
WMH submits that it recognises the benefits of flexible working arrangements for both employees and the Health Service and that WMH is committed to allowing and enabling flexible work arrangements that do not prohibit the employee from fulfilling their role.

WMH submits that it is difficult to see how Ms Hair could be based in NSW and fulfil the key accountabilities of her role in the context of the WMH model of service delivery when considering the importance of interpersonal connection across teams and with clients. This position is exacerbated by the COVID-19 border and travel restrictions which are unpredictable.
Outputs, outcomes and performance
WMH says that Ms Hair is a valued and experienced employee and that her performance is not in question. It is necessary that Ms Hair be available to travel to and meet clients within the remit of WMH. It is not possible to provide the optimal level of support to clients in an effective, timely and efficient manner if Ms Hair is based in NSW.
WMH says that while Ms Hair has not provided a significant amount of face-to-face support and advice in the last two years, it remains a requirement of human resource advisory roles to do so. It is not disputed that during the time that the impacts of COVID-19 were experienced, Ms Hair successfully telecommuted to a certain extent.
Ms Hair's request is not that she telecommute from a location which is a reasonable distance from her ordinary place of work, such that she could attend her ordinary place of work, at a short notice if required.
It is not practical for WMH to agree a specified number of times per month in which Ms Hair would travel from New South Wales to West Moreton region where it is impossible to predict when a critical incident requiring a human resources or employee relations response might arise.
WMH says that generally, it is a matter for the State, as an employer, subject to any applicable law or industrial instrument, to determine how its employees perform the duties of their positions.
WMH submits that Ms Bain expressly considered the benefits of flexible working and the nature of the work performed by Ms Hair when making her decision and that this is evidenced by the Outcome email. WMH submits that the decision was fair and reasonable and justified by the operational requirements of the Health Service and Ms Hair's role requirements.
Ms Hair's further submissions
I have read and considered all of Ms Hair's submissions, even if they are not mentioned here.
Ms Hair submits that on 8 October 2021, she advised Ms Bain that she would be 'willing to consider working one week in Qld per month and that I would be more flexible if required'. Ms Hair says that Ms Bain did not enquire further as to how flexible this could be and did not expand on any alternative options that could be implemented.
Ms Hair says that there have been no ongoing consultation processes in relation to client group changes and that Ms Bain's decision has been based on a hypothetical basis.
Ms Hair says that prior to COVID-19 she was working remotely 25% of the time. Ms Hair attaches documents demonstrating that the team has now moved and says that remote working arrangements were not only because of COVID-19 but also because of relocation of services due to 'master planning'. Ms Hair says that she is not aware if a return to the office has been raised with any other individuals who also work completely remotely.
Ms Hair questions the Respondent's assertion that working in an office environment would foster a team environment when the new office does not enable the whole team to be attend the workplace.
Ms Hair says that no documentation has been provided to support the 'alleged rebalancing of remote and in-person working' and says that there has not been an issue with her performing the role remotely for 19 months. Further, Ms Hair says that WMH has not demonstrated how they believe the request is unviable.
Ms Hair says that no concerns have been raised by client groups that they have not been provided with 'meaningful support' during the 19 months she has worked remotely.
Ms Hair says that her request was not considered on a 'case by case' basis and that WMH has demonstrated that the decision was made with a focus on the potential for a precedent to be set. Ms Hair says that this contradicts the FWA policy and guideline and that what may be approved now, may not be approved for another party.
Ms Hair has consulted with her colleagues as to whether they were consulted about her request and says that there is no evidence that such consultation occurred.
Ms Hair says that her role description is silent on the manner in which the key accountabilities of her role are to be undertaken. Ms Hair says that whilst working full-time remotely, she has completed client engagement through phone, email and Teams and this has allowed prompt and effective service which her client group has been receptive of.
With regard to WMH's submission that short notice, in-person support may be required, Ms Hair says that this is not reflective of the work environment. Ms Hair says that in the last 19 months she has not been required to attend in-person and that there has not been an inequitable distribution of workload across the team.
Ms Hair says that during her conversation with Ms Bain on 8 October 2021, Ms Hair indicated her willingness to be flexible and to return to Queensland outside of the week that she indicated she would be willing to be in Queensland. Ms Hair says that at this stage there are approximately 40 flights per day from Sydney to Brisbane which means that it is feasible that she could be in Brisbane within a short period of time.
Ms Hair says that a 'critical incident' of the type described as requiring urgent in-person attendance is likely to involve the Director level or higher involvement within the organisation and would not be her responsibility.
Ms Hair says that unpredictable border and travel restrictions should be given limited weight given it is uncertain how long these conditions will continue to be imposed.
Respondent's further submissions
In weighing up the relevant considerations, it is necessary and appropriate for the decision maker to contemplate whether approving the request may cause an imbalance of workload or set expectations in the team that others should also be able to access similar arrangements.
Ms Bain consulted with the relevant leads within the Human Resources team prior to making the decision. It is not current practice, nor necessary or appropriate for Ms Bain to consult with all team members about Ms Hair's request specifically. Nor is it proper or necessary to undertaken focussed consultation with Ms Hair's colleagues or client groups.
Impact of the COVID-19 response
In recent months, the Human Resources team of WMH has expressed a need to connect in person more frequently, both as a team and with client groups. Feedback from client groups indicates that they value in person support and guidance being provided from time to time.
In January 2021, WMH undertook a confidential online survey of client groups focusing on how the Human Resources team can best support and engage with them. The results were consistent in that client groups want face-to-face contact with members of the Human Resources team. Other feedback received from the survey indicates client groups find it stressful when urgent support is required and the HR contact is at home; and being present in the workplace allows effective communication and for HR Advisors to fully appreciate culture and climate.[6]
[6] Respondent submissions filed 23 November 2021, [14]-[15].
WMH submits that while support was 'delivered differently' during the COVID-19 response, that was an extraordinary situation. Following a shift towards client groups returning to in person working, the Human Resources team is expected to return to a model of service delivery making face-to-face assistance available on an as-needed basis.
WMH says that it has a demonstrated history of supporting flexible arrangements which balance the benefits of remote working with the need to engage with each other an clients in person on a regular basis.
WMH agrees that available desk space and seating has been reduced but says that the reduction in desk allocation does not prevent the People and Culture team from attending the workplace in person on a regular basis and that it is not asking team members to be present 100 percent of the time.
WMH maintains that it would be impracticable to agree to any HR team member being interstate for the majority of their employment. While WMH is eager to find a solution suitable to both Ms Hair and the Health Service, working from Queensland one weekend a month will not be sufficient for Ms Hair to respond to the needs of her client base, including in emergent situations.
Further submissions in reply from Ms Hair
On 2 December 2021, Ms Hair provided further submissions in reply to further information raised in the Respondent's submissions.
Consultation with team

Ms Hair says that it is difficult to her to provide a response to the submission that WMH consulted with the relevant leads within the Human Resources team prior to making the decision as the 'relevant leads' have not been divulged and no documentation of the consultation has been provided.
Ms Hair is concerned that Ms Trayling, HR Business Partner may have contributed to the decision made despite removing herself from the process.[7]
[7] Previous submissions addressed interactions between Ms Trayling and Ms Hair that led to Ms Trayling removing herself from the decision making process.
Ms Hair says that WMH have provided no documentation to support the claims made about feedback from client groups and while WMH says that the information was gathered in January 2021, no action has been taken to implement this feedback into the team.
Ms Hair submits that there is no information to confirm that the feedback relates directly to her client group or whether the information may have been skewed to larger workplaces. Ms Hair says that her client group is spread across WMH and 'does not have the same expectation levels around face to face communication'.

Consideration

As outlined above, my task is to consider whether the decision of Ms Bain was fair and reasonable. For the reasons which follow, I have decided that it was.
FWA Policy (C5)

It is not in dispute that the policy clearly supports flexible work options. The Policy references the legislation which clearly states that an employee may request flexible working arrangements that change 'the place where the employee works'.[8]
[8] Cl 2 refers to Industrial Relations Act 2016, s 27.
Cl 2 relevantly states:
Flexible working options are to be considered in an equitable manner for the whole work unit. Client service and patient care is not to be compromised as a result of flexible working arrangements.
Cl 3 of the Policy provides that
The approving delegate may approve a request in its entirety, in part, subject to specific conditions or decline the request.

Cl 3 also says that a decision to refuse a request is to be made only on reasonable grounds and communicated to the employee in writing. The decision must provide the reason for the refusal.
For completeness, I note that Ms Hair received Ms Bain's decision in writing and that decision provided detailed reasons for the refusal.
Consideration of the request
Cl 2.1 of Attachment 1 to the Policy addresses consideration of the request. Consideration of the request is to be on a case-by-case basis using a team approach that considers fairness, diversity and inclusion, the guiding principles, and legislative and operational requirements.
Cl 2.1 also provides that the delegate must be able to demonstrate they worked with the employee and the larger team to find solutions that best meet work, team and personal needs. Further, the delegate must be as fair and equitable as possible while managing the operational requirements of the work unit and ensuring appropriate performance.

Context

I note Ms Hair's submissions that she was working under a flexible working arrangement prior to the 100 percent remote working arrangements put in place during the pandemic. I also note that under those previous working arrangements, Ms Hair was working compressed hours over a four day week, was working remotely for one of those days and was not situated in New South Wales.

The application involves working remotely 100 percent of the time and being located interstate. It is unclear where Ms Hair intends to move, but her submissions refer to flights from Sydney to Brisbane. So I am assuming Ms Hair is relocating either to Sydney or a place closer to Sydney than other commercial airports.
At the time of Ms Hair's application, the WMH workforce, like many others, was in a process of transitioning out of the COVID-19 working arrangements and as Ms Bain put it in the decision 'it is reasonable to anticipate that the business will welcome us back and we will once again be able to spend more time alongside out clients in the workplace'.
I understand Ms Hair's submission that the decision should not be made based on a 'future state'. However, the submissions before me make it reasonably clear that there will be a transition from the remote working arrangements that have been in place during COVID-19 and I do not think it is unreasonable for the Respondent to take this into account when considering applications involving employees working remotely for the majority of the time.
From an operational perspective, I find nothing unusual or unreasonable about the WMH submission at [35], that following a period of remote working arrangements applying to the whole team, the team was moving to 'find the optimal blend of remote and in person working'. The decision letter makes reference to focused work being done on ways of working that will inform flexible work approaches and 'reasonable parameters around remote working'.
At the time that Ms Bain was considering Ms Hair's application, travel from New South Wales to Queensland required approval and mandatory 14 day hotel quarantine.
So essentially, one of the 'givens' of Ms Hair's request was that the result of approving her request would be that WMH would have an employee relations advisor who would be working remotely and if required to be in the workplace in person, would need to fly to Brisbane and complete quarantine.
Even in a situation where quarantine was not required and there are up to 40 flights a day available, Ms Hair would require some notice regarding a requirement to have her attend a workplace in person. Ms Bain took this into account in her decision and expressed a reasonable concern that it would be difficult for Ms Hair to provide in-person support in a timely manner.
It is important to keep the above in mind when assessing the reasonableness of Ms Bain's decision. In my view, it supports Ms Bain's assessment that approving the request would be unviable from a practical and operational perspective. I understand that Ms Hair had raised the possibility of working in Brisbane for one week of the month or organising transport on short notice at her own cost.[9] However, even in that circumstance, at the time the decision was made, such an arrangement would actually have required Ms Hair to be in Brisbane for two weeks prior to the one week of working in the office and cannot have realistically provided her with the personal outcome she was seeking through her application.
[9] Appeal notice filed 15 October 2021, [14].
Nature of the role and work undertaken by Ms Hair and the team
I note that Ms Hair submits that there is nothing in her role description mandating that the key accountabilities of the role must be undertaken face-to-face. Further, Ms Hair says that she has successfully fulfilled the key accountabilities of the role while working remotely over the last 19 months.
I have no doubt that Ms Hair, her colleagues and many public servants across the state have successfully fulfilled their roles in a range of flexible circumstances in response to COVID-19. However, it is not unreasonable for an employer to determine the operational requirements for delivery of key accountabilities. While an employee may prefer to work in a particular way, this needs to be balanced with the operational requirements of the employer.
The role description for a Human Resources Advisor makes reference to complex case management (end-to-end case management relating to matters including but not limited to grievance/dispute resolution, workplace investigations, industrial matters, and performance management).
Ms Bain's letter acknowledges that many of Ms Hair's obligations can be completed remotely. However, it also sets an expectation regarding the availability of human resources advisors to 'make themselves available for in-person assistance to their clients'.
Clause 2.1 of the Guideline sets out a non-exhaustive list of flexible work options and provides a description for each. With regarding to Telecommuting, the description says

Telecommuting means working away from the usual or designated work centre, often at home. It can be for short periods or part of a long-term arrangement, and can occur on set days or arranged as the work demands. All the equipment and resources needed to do the job saftey should be accessible.
Telecommuting may not be practical if the job requires:

· Face-to-face contact with customers, clients or team members
…..

Even if the submissions of the Respondent regarding the outcome of the survey undertaken with clients regarding delivery of services were not taken into account, it is clear that there will be times when the most appropriate, productive or preferred way of providing human resources advice and support will be face-to-face. The remote working approach taken as a result of the COVID-19 pandemic may have demonstrated that human resources support can be provided remotely, however it does not follow that employers should not seek to return to some balance of the provision of face-to-face and remote provision of services.
In the case of WMH, the provision of human resources advice is likely to be to workplaces where some employees have continued to attend in person throughout the pandemic due to the nature of their work. It is not unreasonable for WMH to seek to return some of those human resources services to an in-person model.
I note the submissions of the parties regarding the new workplace seating arrangements. It appears that arrangements are in place to consult with employees and ensure that desk space is available to employees when they are in the office. I understand from the submissions that flexible working arrangements apply to a number of employees and that some team members are not in the workplace 100% of the time. I am unable to comment on the capacity for the team to be together at once in-person as I do not know what arrangements are made to facilitate this.

[100]I find it was fair and reasonable for Ms Bain to determine that, despite the way work has been undertaken during the COVID-19 pandemic, there are a range of aspects of the role that are likely to require in-person attendance.
Delegate must be as fair and equitable as possible
[101]While each application must be considered on a case-by-case basis, it was not unreasonable for Ms Bain to consider the implications of approving a 100% remote working arrangement for an employee located in another state and far removed from the geographical location of both the office and the clients.
[102]Ms Bain envisages occasions when in-person attendance from the team will be required at short notice. While Ms Hair says that such occasions have not arisen over the past 19 months, I do not think it is fanciful or outlandish for Ms Bain to expect that there will be times when Ms Hair's clients may require her in-person attendance. It was reasonable for Ms Bain to consider that if Ms Hair was unable to attend to such requirements at short notice, it would be necessary for another member of the team to do so and that this may result in other members of the team taking on additional workload.

[103]Further to this, it seems reasonable for Ms Bain to hold a concern that 'in-person components of the role are often greater in terms of emotional contribution' and that a lack of ability to share this work equitably may create an imbalance.
[104]I note Ms Hair's submission that Ms Bain did not undertake consultation with team members and clients regarding Ms Hair's application. I accept the Respondent's submission that this was not a requirement for undertaking a consideration of the application. With regard to Ms Hair's concerns regarding the involvement of Ms Trayling in the decision making, there is no evidence before me that Ms Bain's decision was made on reliance of any one member of the team. As Ms Hair notes in her final submissions, the Respondent submits that any interactions between Ms Hair and Ms Trayling had no bearing on the decision.
[105]If it is accepted that the employer has an expectation that human resources staff are able to provide in-person support, sometimes at short notice, it would be difficult to envisage a scenario where other employees could also have an application for 100% remote work from a location far removed from WMH approved. While it is fair for Ms Hair's application to be considered on a case-by-case basis, it is also reasonable for Ms Bain to consider the broader implications of approving the request.
Ms Hair's Grounds of Appeal
[106]For the reasons given above, I am satisfied that Ms Bain's decision demonstrates that the principles outlined in the Flexible Working Arrangements policy and guideline were taken into account. Therefore, Ms Hair's first ground of appeal is not made out.
[107]I am further satisfied that Ms Bain's decision articulates reasonable grounds for refusing the application. The decision took into account the way that work had been undertaken over the past 18 months, the emerging needs of the employer and the practicalities of the proposed arrangement. Therefore, Ms Hair's second ground of appeal is not made out.
[108]It seems to me that Ms Bain did talk with Ms Hair to attempt to find a solution (and is still committed to doing so) but reached the conclusion that an arrangement involving Ms Hair living in New South Wales was not viable at the time. Ms Bain had to consider the application before her, and if other solutions raised in discussion did not address the fundamental issue of Ms Hair's location and availability to attend the office in person, it was not possible for the application to be partially approved or approved with conditions. The policy guideline envisages that not all types of flexible work will be suitable for all roles or work environments.[10] Ms Hair's third ground of appeal is not made out.
[10] Guideline for Flexible working arrangements cl 2.
[109]Ms Bain's decision and the submissions of the Respondent clearly acknowledge that Ms Hair has performed the roles successfully and to a high standard while working remotely. Ms Hair's performance was not in question or cited as a reason for refusing the application. Therefore, Ms Hair's fourth ground of appeal is not made out.
[110]Ms Bain's decision acknowledges the personal impact that refusal of the request will have on Ms Hair. Ms Bain explained that she had given the decision a lot of thought and had not taken it lightly. While I understand that the outcome of Ms Hair's request was not the one she was hoping for, there is no evidence before me to demonstrate that her personal circumstances were not taken into account. Ms Hair's fifth ground of appeal is not made out.
[111]Ms Hair's final ground of appeal is that Ms Bain has not considered alternative options and declined the request without consideration around the key principles. It seems to me that in circumstances where Ms Hair will be living in the vicinity of Sydney and Ms Bain had determined that Ms Hair's role involves both face-to-face and the capacity to be present in person as short notice; it was reasonable for Ms Bain to consider that she was 'unable to envision a sustainable model which would allow you to commute from New South Wales on short notice to fulfil the expectations of her substantive role'. There is an extent to which proposing alternatives becomes impractical when 14 days notice of the need for attendance in person was/is a current requirement due to border restrictions. I note that while this application was declined, the submissions of the Respondent demonstrate a willingness to try and find an option that will suit both Ms Hair and the organisation. Ms Hair's sixth ground of appeal is not made out.
[112]For the foregoing reasons, the decision of Ms Bain refusing Ms Hair's flexible work request is confirmed.

[2021] QIRC 422

10 December 2021