Hennessy v State of Queensland (Queensland Health)
[2014] QIRC 200
•3 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hennessy v State of Queensland (Queensland Health) [2014] QIRC 200 |
PARTIES: | Hennessy, Gregory v State of Queensland (Queensland Health) |
CASE NO: | HP/2013/28 |
PROCEEDING: | Action on industrial dispute |
DELIVERED ON: | 3 December 2014 |
HEARING DATE: | 10 December 2013 |
MEMBER: | Industrial Commissioner Black |
ORDERS: | 1. Applicant reclassified to HP4 2. Date of effect to be 1 August 2012 |
CATCHWORDS: | INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Employees engaged as health practitioners - Job descriptions, Roles and responsibilities evaluated against new work level statements - Appeal process unsuccessful - Evidence |
| CASES: | Industrial Relations Act 1999, s 230 |
| APPEARANCES: | Mr G. Butler for the applicant |
Decision
Gregory Hennessey filed a Notice of Industrial Dispute on 1 August 2012 in relation to his employment as a Diagnostic Radiographer, Robina Hospital, Queensland Health. As the dispute was unable to be conciliated it was referred to arbitration.
The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1) established a new classification structure for employees of Queensland Health (QH) engaged as Health Practitioners. The process for implementing the new classification structure was set out in Clause 18 of HPEB1. Phase 1 of the process allowed direct translation of employees who met certain criteria. Mr Hennessy translated from Professional Officer Level 2 (PO2.4) to Health Practitioner Level 3.2 (HP3).
Phase 2 of the process allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements. According to the evidence of Mr Hamilton, the Phase 2 process involved five procedural steps intended to assess the relative work value of each application from an individual, intra-disciplinary, and an inter-disciplinary perspective. The five steps alluded to are summarised in the following terms:
Step 1 - Standardised data set - receipt of Work Unit Proposals (WUP) including Employee Initiated Applications (EIA).
Step 2 - Work Level evaluation (WLE) of individual position conducted by a HP discipline specific WLE 'Panel' (WLEP). Includes consideration of any EIA.
Step 3 - Intra-disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (WLET).
Step 4 -Inter-Disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (IDR), this group consisted of members from WLEP & WLET.
Step 5 - HPIBB Oversight, including the subsequently developed Oversight Sub Group (OSG).
The WUP relevant to Mr Hennessy was developed by the Director of Medical Imaging, Mr John Andersen. Prior to the conclusion of his work Mr Andersen had interviewed all the radiological staff employed by QH in the Gold Coast district. During his interview with Mr Hennessy, Mr Andersen advised him that it was his view that Mr Hennessy's position should be aligned at the HP3 level. The WUP was submitted in May 2008. At the time he was graded, Mr Hennessy was not aware of the classification allocated to his co-workers. On or about 27 August 2008, when he became aware that he had been classified at a different level to that given his co-workers, he lodged an EIA. Mr Hennessy's EIA was evaluated by a Work Level Evaluation Panel (WLEP) who declined to increase his classification level to HP4.
Applicant's Submissions
Mr Hennessy maintained that errors in the development of the work unit proposal led to errors at the WLEP stage which were not subsequently corrected in other stages of the reclassification process. The WLEP classified Mr Hennessy at the HP3 level rather than the HP4 level which was the grade allocated to his relevant co-workers. He argued that there was no legitimate basis upon which his duties, roles and responsibilities could be distinguished from other specified radiographers who were classified at the HP4 level. The principal error in the process occurred in the development of his Work Unit Proposal when his duties, roles and responsibilities were evaluated at 1 September 2007 in lieu of 30 May 2008. In his written submissions Mr Hennessy addressed the error in the following terms:
"10. The cutoff date for determining the role undertaken, the individual's contribution and eligibility was extended from 7 September 2007 out to 30 May 2008. Mr Andersen mistakenly applied the 7 September date rather than 30 May 2008 as the cutoff and eligibility date in relation to the Applicant and the new recruits from the United Kingdom (Transcript pgs 46, 53, 77).
…
41. The evidence of the Applicant and Mr. Andersen confirms that error has occurred in relation to the WLEP evaluation of the Applicants Role Description and EIA. The primary error is that the WLEP was provided with incorrect information as to the Applicant's skills knowledge, training and work performance and has incorporated that error in its determination and recommendation to the WLET. The error has not been corrected and the Applicant's classification continues to reflect the error.
42. Contrary the information taken into account by the WLEP, the Applicant was at the time of the evaluation and prior to it acknowledged and accepted as a multi modality radiographer performing both skilled and routine general radiography and CT procedures.
43. Contrary the advice provided to the WLEP the Applicant, at the time of the evaluation had completed his CT training and was working alongside three other employees proposed to be reclassified to the HP 4 level. Two of these employees had commenced and completed their CT training after the Applicant and one had commenced participation in the on call roster arrangement after the Applicant.
44. Despite the erroneous information provided to the WLEP the error was not corrected and as consequence the Applicant has been treated in a way which is inconsistent with the proposed outcomes of HPEB1 and its processes."
In asserting that his duties, roles and responsibilities could not be distinguished from other specified radiographers, Mr Hennessy explained his position in the following terms (Notice of Industrial Dispute dated 1 August 2012 – paragraph 4):
"Mr Andersen did not work at Robina Hospital and was not aware that my colleagues and I all performed exactly the same work, provided exactly the same service, participated in the same duty areas of rostering and undertook the same after hours emergency recall responsibilities for general x-ray, operating theatre and CT imaging modalities with no exceptions. When I eventually raise this matter with Mr Andersen he initially suggested that there was a difference in work routines and skill sets. On evidence provided he subsequently reconsidered this matter and agreed with me that there had been an error. This was also confirmed by my immediate manager at Robina Hospital, the Assistant Director Medical Imaging Mr Brad Job."
QH Submissions
QH opposed Mr Hennessy's reclassification on the basis that it was not warranted on an objective evaluation of the relevant work level statements, and that errors in the process sufficient to justify a reclassification have not been able to be demonstrated. In response to particular submissions advanced by Mr Hennessy, QH submitted that:
· The consultation requirements for the WUP were fulfilled by Mr Andersen when developing the proposal in accordance with clause 7 of Schedule 5 within HPEB1;
· The hospital was not required to disclose the classification of other workers to Mr Hennessy. There is no such obligation within HPEB1 and the overriding consideration is about an evaluation of Mr Hennessy's individual roles, duties and responsibilities;
· The evidence and submissions did not support a finding that an error had occurred in the development of the work unit proposal or in the lines of enquiry opened by the WLEP;
· The function of the Appeal Panel was to determine whether an individual was correctly classified not to make comparisons between the appellant and other workers;
· The power and jurisdiction of the Commission are confined to the determination of a reclassification dispute at the end of the reclassification process.
In terms of jurisdiction, QH relied on the decision of a Full Bench of the Commission in Dr John Parke and State of Queensland (Queensland Health)[1] whereby the Full Bench at paragraph [18] stated:
"It follows, therefore, that the Commission's powers are confined to correct any error in the reclassification process that may have occurred in the agreed reclassification process. In saying that, any applicant that has referred a classification dispute to the Commission must be able to demonstrate that an error has occurred in the process."
[1] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision type="1">
QH submitted that the party referring a dispute to the Commission does not gain access to a de novo assessment and that the entitlement of the dispute notifier is to have the agreement processes properly performed not to rely on any new sphere of assessment outside of the provisions in HPEB1.
Review Steps
The WLEP evaluation of Mr Andersen's WUP and Mr Hennesy's EIA was concluded on 11 November 2008. Attachment DGH2 to Exhibit 11 provides that EIA's are to be considered at the same time and as part of the same process as the consideration of the associated WUP. The purpose of the Work Level Evaluation (WLE) is to "assess the level of the proposed role description against the Work Level Statements (WLS) and determine the appropriate classification level." Part of the evaluation methodology of the Work Level Evaluation Panels (WLEP) is to "understand and consider the accountabilities of the role relative to other roles" and "to ensure comparability and relativity with other HP positions in the work unit at the same classification level." If the WLEP requires clarification or further information in order to verify specified factors including the "relationship of the role with other roles with the work unit proposal", the WLEP is encouraged to make enquiries or seek an interview with the work unit manager.
The WLET Inter-Discipline review of Mr Hennessy's classification was completed on 6 August 2009. The role of the Work Level Evaluation Teams (WLET) is to ensure that the evaluation process has been consistently applied and to monitor relativities and ensure consistency across disciplines and professions, Departments/Units and Districts. In the end result the WLET must either endorse or not endorse the WLEP evaluation record.
No significant information was recorded on the WLET evaluation record which is in the evidence as Attachment DGH4 TO Exhibit 11. The minutes of a WLET Review committee of 14 August 2009 are in the evidence as Attachment DGH5 to Exhibit 11. Comments included on page 3 of the minutes read as follows: "WLET notes an anomaly that a higher proportion of 4's and 5's at Gold Coast compared to similar size and larger hospitals". While the comments may infer that grading of Gold Coast hospitals' personnel may have been relatively generous and that more staff were classified at HP4 than had occurred in other districts, Mr Hennessy's proposed reclassification cannot be denied on the these considerations.
Under Clause 19 of HPEB1 an individual employee who disagrees with the recommended classification level arising from their Work Level Evaluation (WLE) may lodge an appeal which is to be heard by an Appeal Panel. The Appeal Assessment Process is explained in Attachment DGH1 to Exhibit 11. The explanation includes the statement that "unless the appeal panel makes a majority opinion that the original work level evaluation outcome was not commensurate with responsibilities and accountabilities of your position it will not recommend a higher classification level". Hence the outcome being reviewed by the Appeal Panel is the WLEP outcome.
Mr Hennessy lodged his appeal pursuant to clause 19 of HPEB1 on 16 December 2009. The documentation associated with this appeal is in the evidence as Exhibit 5. The Appeal Panel decision was given on 23 November 2011. The Appeal Review Statement is in the evidence as Attachment GPB6 to Exhibit 10. The Review Statement discloses that while the Panel found that while Mr Hennessy met some elements of the work level statements HP4-3 and HP4-21, he did not meet any of the other relevant HP4 descriptors. In the circumstances neither the WLEP, WLET, nor the Appeal Panel supported Mr Hennessy's claim that he should be classified at HP4.
Reasoning
Mr Hennessy alleged that there was a significant error in the WLEP evaluation including that the evaluation was concluded on the basis that he had not commenced CT Training and was therefore not competent in the CT modality. The WLEP Evaluation Record (DGH7 of Exhibit 11) included the following comment about Mr Hennessy's application:
· "Had not commenced CT Training when the process had commenced level of skill is routine";
· "Skills and accountabilities are at the same level as other staff at Robina Hospital";
· "The incumbent is not meeting the work level statements required at HP4".
It was a factor therefore in the WLEP conclusion that Mr Hennessy was not competent in the CT modality. The exclusion of this modality from Mr Hennessy's skill set is significant for two reasons. Firstly, multi-modal competency may be a factor that could differentiate between the HP3 and HP4 levels. Secondly, competency in the CT modality was a pre-requisite to participation in both the emergency and on-call rosters. Participation in the emergency roster and the on-call team adds dimensions which are also relevant to a determination to be made about classification level. These dimensions include exposure to non-routine tasks and non-routine decision making, working independently, and working without direct supervision.
The use of the word "routine" in the WLEP evaluation is significant in the differentiation between levels. Schedule 4 to HPEB1 states that clinical positions at HP3 demonstrate "at least a competent level of professional knowledge and skill, through to those that are able to independently undertake routine clinical practice". Further duties undertaken independently at HP3 are "generally of a routine nature, with more complex clinical decisions and problem solving made under the clinical practice supervision or professional guidance of a more experienced practitioner." The work level statements in the evidence as Attachment DGH1 to Exhibit 11 state that the HP Level 3 applies to "competent professionals performing routine clinical practice duties" but who may undertake complex clinical duties under supervision. A clinical professional at the HP4 Level is described as an "advanced practitioner working substantively on complex clinical case work and operating with a significant degree of independence, without the need for direct clinical practice supervision. "
Mr Brown at T1-68 acknowledged that a particular radiographer may be graded HP3 because the only modality that they were competent in was X-ray. Having made the acknowledgment however he also said that radiographers with multiple modalities may be also ranked HP3. It appeared that Mr Brown acknowledged that the number of modalities may be a point of difference. At T1-45 Mr Anderson gave evidence to the effect that one of the differentiating factors between HP3 and HP4 would be experience or competency in more than one modality. It was also his evidence that competency in the CT modality was a pre-requisite to participation in the on-call team.
While I accept Mr Brown's evidence that competence in more than one modality does not mean a radiographer will qualify for a HP4 classification, the evidence supports a conclusion that competence in additional modalities and inclusion in the on-call roster would be relevant factors to be considered in the reclassification process. It is in this context that Mr Andersen's evidence becomes significant in that there is a basis to conclude that when he assessed Mr Hennessy he was acting on a belief that the cut-off date for the purposes of evaluation of the work being performed was 1 September 2007. The relevance of this evidence is that as at 1 September 2007, while Mr Hennessy may have commenced training in the CT modality, his training had not been completed and he had not achieved competency. In this regard Mr Andersen gave the following evidence at T1-45:
"… Greg was doing CT training at the Gold Coast Hospital before he went down to Robina and had not at that stage been put onto the on-call team. From memory, to get fully – to be classified as competent you had to be able to participate on the on-call team. Then Greg went to Robina, received further training and participated on the on-call roster at Robina."
In terms of the cut-over date, it was Mr Andersen's recollection that while he had conducted interviews with radiographers in May 2008, the cut-off date for the evaluation of the role, duties and responsibilities was 1 September 2007: His evidence on the subject was given at T1-46:
"So to that extent they were equivalent?---That – if I can just go back to the previous thing at Gold Coast Hospital, before Greg went to Robina Hospital, I had to vary that information from that hospital with Robina Hospital, because it was work being performed at 1 September 2007 and we did the interviews in May 2008. So by 2008 there would've been a training group of people on-call for that stage.
Yeah. But the 1 September 2007 date was subsequently pushed out, wasn't it?---I can't remember that, to tell you the truth.
The cut-off date for HP phase 2 was May 2008, wasn't it?---That's when the
interviews were."
Mr Hamilton's evidence about the cut-off date was recorded at T1-74/5. He said that while the work to be evaluated was the work being done up until 30 May 2008, the original cut-off date was 1 September 2007 and that it was always the intent that this date be adhered to and this is what was advised. However human nature being what it was, delays were experienced and it was accepted that the cut-off date to be enforced would be 30 May 2008.
"Right. Thank you. Now, final question in relation to that, in relation role
descriptions, there was a cut off date and in relation to role descriptions and
evaluations, there was a cut off date, wasn't there?---The work unit proposals were to be received by close of business 30th of May 2008.
And it was the work they were doing up until that time that was to be
evaluated?---That is correct.
Not the work was being undertaken at 1 September 2007?---That's a good point. The certified agreement’s dated the 1st of September 2008. The request for the data collection step one, Commissioner, was issued in March and the issue – this very question came up a number of times and considering the line managers and employees were discussing issues up until 30th of May 2008, we could not exclude what they were doing on 30th of May 2008. The intent was 1st of September '07, but the reality is we were still collecting data until the 30th of May 2008. Human behaviour being what it is.
So you're accepting that the cut off day was the May '08?---30th of May 2008, that was when the applications had to be in. Human behaviour between the line managers and staff, we couldn't police – the intent was – we always advised 1st of September '08 – '07, a correction and that was the intent. "
An inference could reasonably be drawn from the evidence of Mr Hamilton and Mr Andersen that there may have been, at least in the early stages of the process, some confusion over what date should be used when assessing roles, duties and responsibilities. Further the application of the earlier date explains the comments included in the WLEP Evaluation Record (DGH7 of Exhibit 11) that Mr Hennessy "Had not commenced CT Training when the process had commenced level of skill is routine".
In my view a balance of probabilities finding can be entered to the effect that the assessment of Mr Hennessy's role, responsibilities and duties was completed in respect to his service with QH prior to 1 September 2007. This outcome meant that when a decision was made by Mr Andersen and the WLEP on the classification to be allocated to Mr Hennessy, such decision excluded factors for consideration which must be considered as significant and which, if included in the assessment, may have resulted in a grading of HP4.
Queensland Health submitted that, consistent with clause 19.7 of HPEB1, the appeal process was about an evaluation of the employees' duties, roles and responsibilities and did not involve an activity wherein appellant's justified the claimed remedy by comparing themselves with someone else. However Clause 19.11(b) of HPEB1 implies that the methodology employed by the Appeal Panel must "comply with the guiding principles of Phase 2". The guiding principles include the proposition at clause 4.4 of Schedule 5 that "the reclassification process will be applied consistently to ensure equitable outcomes for all Districts and Health Practitioner disciplines or groups". Further the WLEP evaluation methodology required the WLEP to consider the accountabilities of the role relative to other roles.
It follows that neither the work of the WLEP nor the Appeal Panel was to be conducted in a vacuum and that equitable outcomes were important. Such a conclusion is reinforced by a Health Practitioner Communique which was in the evidence as Attachment DGH6 to Exhibit 11. The communique included the following paragraph:
"It is imperative for the workforce, Queensland Health, Queensland Government, unions and every health practitioner that the principle of comparable remuneration for comparable work is adhered to. If we do not get this right, the workforce will be disenfranchised. We cannot have a situation where two employees doing identical or very similar roles are remunerated at different levels."
While I am not able, on the evidence adduced in the proceedings, to arrive at a conclusion about whether Mr Hennessy's duties, roles and responsibilities as at 30 May 2008 justified a classification of HP4, the evidence does sustain a conclusion that his duties, roles and responsibilities could not be differentiated from other radiographers who translated across in Phase 1 to HP3 and who were subsequently evaluated at HP4. In the absence of an error in the process, this consideration alone could not be relied on to secure the reclassification sought. But when viewed in conjunction with an error in the process these factors support acceptance of Mr Hennessy's claim that he be reclassified to HP4.
Conclusion
Findings:
(i)The evidence supports a finding that Mr Hennessy was undertaking the same duties, roles and responsibilities as other relevant HP3 classified employees who were reclassified at HP4 by the WLEP;
(ii)No evidence was led in the proceedings either establishing that Mr Hennessy's duties, role and responsibilities were to be differentiated from the other relevant HP3's who were graded HP4 in the classification process, or contesting Mr Hennessy's evidence that no such differentiation could be made;
(iii)The evaluation of Mr Hennessy's duties, roles and responsibilities was erroneously undertaken as at 30 September 2007 rather than as at 30 May 2008;
(iv)This outcome resulted in the WUP and WLEP stages of the process excluding significant factors from its consideration of Mr Hennessy's WLE.
The fact that the alleged error was perpetrated at the WLEP stage of the reclassification process does not preclude the possibility that an error is ultimately made at the Appeal Panel stage. The Appeal Panel was required to review the evaluation made by the WLEP. Unless there is evidence establishing that the Appeal Panel was cognizant of the fact that the wrong cut-off date had been applied and that significant information had been excluded from consideration by the WLEP, it follows that the Appeal Panel has also acted on factually incomplete and erroneous information. Consequently the error also manifests itself at the Appeal Panel stage of the process.
It is open to me to refer the dispute back to QH for reconsideration. However Mr Hennessy has been agitating for a change in his classification since 2008 and I am satisfied that the correct course is to resolve his dispute by directing that he be reclassified from HP3 to HP4 with effect, to the extent practicable, from 1 August 2012 which was the date that he notified his dispute to the Industrial Registrar.
I order accordingly.
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