McCormick v Queensland Health - [2014] QIRC 190

No judgment structure available for this case.

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McCormick v Queensland Health [2014] QIRC 190

PARTIES:

McCormick, Ellen

(Applicant)

v

Queensland Health

(Respondent)

CASE NO:

HP/2013/15

PROCEEDING:

Arbitration of Industrial Dispute

DELIVERED ON:

20 November 2014

HEARING DATES:

12 November 2013

27 November 2013 (Applicant Submissions)
3 January 2014 (Respondent Submissions)
3 February 2014 (Submissions in Reply)

MEMBER:

Deputy President Swan

ORDERS :

1.	The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - ACTION ON INDUSTRIAL
DISPUTE - Classification of position -

CASES:

Industrial Relations Act 1999, s 230

Newton Keith v State of Queensland (Queensland

Health) (HP/2013/35) - Decision -

Hamlyn Tina v State of Queensland (Queensland
Health) (HP/2013/20) - Decision -

APPEARANCES:

Mr G. Butler for Ellen McCormick, the Applicant.
Mr K. Ryalls for Queensland Health, the
Respondent.

Decision

[1] This matter relates to a dispute between Ms McCormick and Queensland Health. The dispute centres upon the recommendations made by the Work Level Evaluation Team (WLET) and the Appeal Panel made in accordance with Clause 19.12 of the
Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007
(HPEB1) relating to Ms McCormick's claim.
[2] The following acronyms are used in this decision:

 HP - Health Practitioner
 HPEB1 - Health Practitioners (Queensland Health) Certified
Agreement (No. 1) 2007
 JEMS - Job Evaluation Management System
 WLEP - Work Level Evaluation Panel
 WLET - Work Level Evaluation Team
 LOE - Lines of Enquiry

Framework under which the matter is to be determined by the Commission
[3] In August 2014, a Full Bench of the Commission in the matter of Newton v State of
1

Queensland (Queensland Health stated:
"[17] In our view, given the nature of the task undertaken by the Appeal Panel to consider whether the Work Level Evaluation of all the employee's duties, roles and responsibilities should result in the employee's position being reclassified we consider that the role of the Commission is to determine whether the Appeal Panel erred.
[18] Thus, in order for the applicant to succeed in arbitral proceedings
before a single Member of the Commission, the applicant must demonstrate, that the Appeal Panel erred. The Commission is not
concerned with anything that occurred prior to the appeal process."

[4]       The matter before the Commission does not represent a de novo assessment by the Commission.
Work Background of Ms McCormick
[5]     Ms McCormick is employed as a radiographer/sonographer and cardiac sonographer at HP4 level. Ms McCormick works primarily in obstetrics and gynaecology.
[6]    During Phase 1 in the reclassification process (refer HPEB1 clauses 18-19 and HPEB2 clauses 18-24), Ms McCormick translated from Professional Officer Level 4 (PO4) to Health Practitioner Level 4 (HP4) within HPEB1.
The Outcome Sought by Ms McCormick
[7]     Ms McCormick seeks to be classified as a Specialist Sonographer at the HP5 level within the relevant Certified Agreement.

Other issues raised by Advocate for Ms McCormick

[8] In the matter of Hamlyn v State of Queensland (Queensland Health[2] [HP/2013/20] Industrial Commissioner Black stated;
[2] Hamlyn Tina v State of Queensland (Queensland Health) (HP/2013/20) - Decision -
"The Health Practitioners (Queensland Health) Certified Agreement (No 1)
2007 (HPEB1) established a new classification structure for employees of QH engaged as Health Practitioners. The process for implementing the new classification structure was set out in Clause 18 of HPEB1'
Phase 1 allowed direct translation of employees who met certain criteria.
Phase 11 allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statement. The Queensland Health evidence was ha the HP Phase 11 evaluation process involved the following five steps:

Step 1 - Standardised data set - receipt of Work Unit Proposals
(WUP).
Step 2 - Work Level evaluation (WLE) of individual position
conducted by a HP discipline specific WLE 'Panel' (WLET)
Step 3 - Intra-disciplinary Relativity/Consistency Review conducted
by a multi-disciplinary WLE 'Team' members (WLTE).
Step 4 - Intra-Disciplinary Relativity/Consistency Review conducted by multi-disciplinary WLE 'Team' members, this group consisted of members from WLEP & WLET.
Step 5 - HPIBB Oversight, including the subsequently developed
Oversight Sub Group (OSG)."

[9]     I respectfully accept that commentary as appropriately providing an overview of the steps taken during this evaluation process.

History of progression of this Claim through the WLEP, WLET and Appeal
Body
WLEP
[10]  Ms McCormick says her immediate manager, other senior staff at Redland Hospital and WLEP recognised that the work duties she performed are at the HP5 level. Notwithstanding that, she has retained her HP4 level after the completion of the reclassification process.
[11]  After Ms McCormick's immediate manager submitted her Work Unit Proposal (advising that the work performed by her was at the HP5 level), WLEP was in agreement that a range of HP5 criteria had been met by her in the performance of her duties. These included:

 "HP5-2 Demonstrates a specialist level of knowledge, skills,
experience and clinical leadership;
 HP5-5 Contributes to the development of professional competence
in their given area;
 HP5-14 Demonstrates specialist knowledge of a specialist level
clinical skills;



HP5-16

Demonstrates recognized expertise knowledge and skills obtained through significant professional development activities, post graduate education or formal qualifications;



HP5-17

Utilises evidence-based practice to apply knowledge and skills that facilitate novel, complex critical discipline specify or multidisciplinary clinical decisions with minimal clinical practice supervision; and
 HP5-35 Provides high level specialist clinical advice within specific
expertise to …".

[Commission Note - There was no requirement in HPEB1 for the recommendation of WLEP to be implemented. The recommendation being implemented in relation to the classification of an employee is that of WLET.]
WLET
[12]   The recommendation made by WLEP that Ms McCormick should be classified at the HP5 level was not accepted by WLET.
[13]  Ms McCormick states that the decision to not implement the WLEP decision was based upon an incorrect and inappropriate finding by WLET.
[14]  The WLET decision, rejecting Ms McCormick's claim to be employed at the HP5 level, was made on 10 September 2009 and states that:
"The role description stipulates this position requires specialist level knowledge and skills. There is no evidence to support this claim (i.e. LOE). The position uses high level independent judgement and decision making and plans, initiates and evaluates independent judgement and decision making and plans, initiates and evaluates improvement activities. There are no operational or professional management accountabilities associated with the role. Therefore in the absence of further evidence the WLET support a recommendation of HP4."
[15]  After the WLET process was undertaken, the matter was reviewed by the Appeal Review body. The detail of the Appeal Review Panel is outlined hereunder where it has upheld the WLET decision.
APPEAL REVIEW STATEMENT
[16]  The Appeal Review Statement showed that Ms McCormick did meet the following HP5 criteria:

 HP5-2 Specialist level of knowledge, skills, experience and clinical
leadership;
 HP5-5 Contributes to the development of professional competence;
 HP5-14 Demonstrates specialist knowledge and specialist level
clinical skills.
[17]   Specifically, the Appeal Review Statement showed that Ms McCormick did not meet the following criteria:



HP5-16

Demonstrates recognized expertise knowledge and skills obtained through significant professional development activities, post graduate education or formal qualifications. [Note - "The Applicant failed to provide evidence."]



HP5-17

Utilises evidence based practice to apply knowledge and skills that facilitate novel complex discipline specific clinical decisions with minimal clinical practice supervision.
[Note - "The Applicant failed to provide evidence."]



H5-18/19 Applies high level evidence and judgement in advising senior professional management on leading quality service improvement activities.
[Note - "The Applicant failed to provide evidence."]



HP5-20

Utilised knowledge and skills in contributing to formal research and developing knowledge base of the professional discipline.
[Note - "The Applicant failed to provide evidence."]
 HP5-32 Accountable for providing independent high level specialist
clinician services.
[Note - "The Applicant failed to provide evidence."]
 HP5-34 Leads change through service wide quality and service
improvement and the development of better practice.
[Note – "The Applicant failed to provide evidence."]

The panel commented:
"Overall, after assessing the evidence provided the panel agreed:
the Appellant failed to provide evidence to substantiate claims of HP5. The
Panel agreed the evidence provided was a HP4 level."
Outstanding criteria not mentioned were met at the HP4 level.
Additional Panel Comments
"Overall, after assessing the evidence provided the panel agreed:
The appellant failed to provide evidence to substantiate claims of HP5.
Holistically, the panel agreed the evidence provided was a HP4 level."

Errors identified by the Applicant as identified in WLET decision
[17] Errors identified by the Appellant are listed hereunder:

 The WLET record for Ms McCormick incorrectly identified her as being
at a HP3 level [T 1-57]. Ms McCormick was working at the HP4 level.

[Commission View - While the documentation initially did show this, it is clearly an oversight as all other documentation refers to Ms McCormick currently being employed at the HP4 level. While this is a particular error, it was not one which infected the determination ultimately made.]



That WLET and the Appeal Panel had failed to recognise her specialist qualifications and that the work performed by her was of a specialist nature. Ms McCormick explained that at the PO4 level (which was previously held by her) before entering the HP stream at HP4 level, reference had been made to "Professional specialists at this level would undertake work with significant scope and or complexity and or undertake professional duties of an innovative, novel, and or critical nature without professional direction".

[Commission View - Queensland Health has submitted that Ms McCormick's complaint centres more upon her translation from the PO4 level to the HP4 level rather than what occurred after that event. In light of the submissions made, that is a fair comment. Notwithstanding that, the general thrust of Ms McCormick's argument relates to the classification level of HP5, sought and not attained.

Mr Brown, whose evidence on this point is accepted, stated that there has been an acknowledgement of the skills acquired by Ms McCormick throughout the process, but many of those attributes were not deemed to be at a HP5 level, or even in the event that they might have been, there was no supporting evidence from Ms McCormick to satisfy the HP5 criteria.

Mr Brown stated that the diploma formal qualifications held by Ms McCormick were the minimum requirement for her to practise as a sonographer. The Continuing Professional Development (CPD) courses are a requirement for a sonographer and a certain number of those courses must be undertaken throughout a year. The nuchal translucency accreditation was not required by her position at the hospital. There has also been an acknowledgement that Ms McCormick has undertaken some professional development courses/activities.
I have not found this to be an error on the part of WLET.]



Ms McCormick said she could not understand, if that were the case and she had not provided sufficient evidence to support her claim, why WLET did not seek further information from her, which she says she could have readily provided.
[Commission View - Section 19.9 of HPEB1 states:

"The Appeal Panel may seek further information from the party/ies to the Appeal if required". The Appeal Panel did not do this and there was no obligation on its part to do so. This does not represent an error on WLET's part.]



It is submitted that the statement made by WLET in refusing her application was erroneous in the following respect. There were no Work Level Statements for HP5 that required "operational or professional accountabilities for a clinical HP5" [Evidence of Mr Hamilton - T1 - 85, 87].
[Commission View - Mr Hamilton's evidence which is accepted on this
point is that;
"If you had said Ms McCormick's job was an operational manager
as - even though it was predominantly clinical - there's nothing stopping the panel identifying a management work level statement. It could have had a research role, that's perfectly fine - an educator role. There was no - you, know, you could only use any of the work level statements. So all that that statement was doing was saying the original document didn't indicate to the reviewer operational management nor any professional management
responsibilities assigned" [T1-89]].



The role description was developed and approved by Ms McCormick's line manager and represented an accurate reflection of her role - it included and recognised her additional "nuchal translucency accreditation". These were additional LOE's, but WLET had not queried Ms McCormick or her line manager further as to the accuracy of her role description.

[Commission View - The evidence of Ms McCormick was that this particular qualification was not required in her workplace as the Hospital did not provide that service. This does not represent an error. WLET was not under any obligation to request further information on this point.]



"High level judgement" was a requirement of the HP5 Knowledge Skills and Expertise. Ms McCormick said that attribute was also a requirement of HP4 Work Level Statements. Ms McCormick states that the reference to "high level independent and decision making and plans, initiates and evaluates improvement activities" in no way detracted from or justified a change to Ms McCormick's proposed HP5 level.

[Commission View - Ms McCormick had identified her particular knowledge skills and expertise in her Role Description and these were acknowledged during the various processes. However the fact that WLEP did not see these as sufficient to classify Ms McCormick at a HP5 level does not constitute an error in the reclassification process.]



A JEMS evaluation of the Radiographer/Sonographers at Redcliffe/Caboolture Hospitals was conducted in 2007 and confirmed the Specialist nature of the role at the PO4 level and the "general recognition through various Queensland Health facilities of sonography at the Specialist PO4 level".

It was duly noted that Ms McCormick held certification on the Australian Sonographer Accreditation Registry (ASAR) as both an accredited specialist sonographer and cardiac sonographer.
In the HP Classification Structure, the definition of "Specialist" is as
follows:
"Specialist refers to a Health Practitioner who has acquired
through high level education or experience, a level of knowledge and skill set that is recognised as being comprehensive in a highly specific area. Their expertise is likely to be utilised on a District or Service Area level. The term specialist may, in some specific instances also refer to a Health Practitioner who is certified by an
accrediting body".

[Commission View - It was not denied that Ms McCormick had a specialist level of knowledge, skill, experience and clinical leadership but, when considered in conjunction with the range of criteria applicable at a HP5 level, Ms McCormick had failed to provide evidence sufficient for elevation to a HP5 level. The fact that sufficient evidence was not supplied by Ms McCormick does not constitute an error in the process.]

Considerations
[18]   There is concern that there have been insufficient reasons proffered by the Appeal Panel in its final report. This may lead an unsuccessful Applicant to be concerned that insufficient attention and consideration has been given to their claim.
[19]   The process adopted did not require lengthy reasons from the Appeal Panel when issuing decisions. The overall focus was on the recommendation made by the Appeal Panel. Further, there was no requirement on the Appeal Panel to seek further information from an Applicant. There is nothing to suggest that the failure of the Appeal Panel to do so was deficient but more so, that the Appeal Panel had sufficient information before it from which to make its decision.
Queensland Health's opposition to the claim
[20]    The submission made by Queensland Health is that the application must be refused for the following reasons:



Ms McCormick's dispute relates to Phase 1 of the reclassification process - i.e. the direct translation to the new Health Practitioner Classification Structure as per Schedules 2 and 3 of HPEB1. Ms McCormick was translated from Professional Officer Level 4 (PO4) to Health Practitioner Level 4 (HP4) within HPEB1.
[Commission View - I have accepted that general statement as accurately
reflecting a component of Ms McCormick's complaint.]

 The context within which this dispute is raised, requires the purpose of
Phase 2 and the 'third step' in the process to be considered.

1. Phase 2 relates to the WLEP process where employees covered by HPEB1 have the opportunity to have their job descriptions, roles and responsibilities evaluated against Work Level Statements.
2. The "third step" was to ensure that any employee who was dissatisfied with the outcome of the Phase 2 evaluation process could lodge an appeal if they disagreed with the recommended classification level in relation to their role. In effect, clause 19.3 of HPEB1 relates to the employee disputing their classification level via the Appeal process.

[21] With regard to Ms McCormick's dispute, the Respondent states that there has been no error identified to the Commission in the reclassification process. In effect, the only identified error occurred with the incorrect classification level applicable to Ms McCormick at the commencement of the WLET stage. In my view, that matter was appropriately resolved and did not cause an error in the sense that the process followed with Ms McCormick's application was erroneous.

[22] The application is dismissed.

1 Newton Keith v State of Queensland (Queensland Health) (HP/2013/35) - Decision -

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McCormick v Queensland Health [2014] QIRC 190

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	HP	-	Health Practitioner
	HPEB1	-	Health Practitioners (Queensland Health) Certified
Agreement (No. 1) 2007
	JEMS	-	Job Evaluation Management System
	WLEP	-	Work Level Evaluation Panel
	WLET	-	Work Level Evaluation Team
	LOE	-	Lines of Enquiry

Step 1 -	Standardised data set - receipt of Work Unit Proposals (WUP).
Step 2 -	Work Level evaluation (WLE) of individual position conducted by a HP discipline specific WLE 'Panel' (WLET)
Step 3 -	Intra-disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (WLTE).
Step 4 -	Intra-Disciplinary Relativity/Consistency Review conducted by multi-disciplinary WLE 'Team' members, this group consisted of members from WLEP & WLET.
Step 5 -	HPIBB Oversight, including the subsequently developed
Oversight Sub Group (OSG)."

	"HP5-2	Demonstrates a specialist level of knowledge, skills, experience and clinical leadership;
	HP5-5	Contributes to the development of professional competence in their given area;
	HP5-14	Demonstrates specialist knowledge of a specialist level clinical skills;
	HP5-16	Demonstrates recognized expertise knowledge and skills obtained through significant professional development activities, post graduate education or formal qualifications;
	HP5-17	Utilises evidence-based practice to apply knowledge and skills that facilitate novel, complex critical discipline specify or multidisciplinary clinical decisions with minimal clinical practice supervision; and
	HP5-35	Provides high level specialist clinical advice within specific
expertise to …".

	HP5-2	Specialist level of knowledge, skills, experience and clinical leadership;
	HP5-5	Contributes to the development of professional competence;
	HP5-14	Demonstrates specialist knowledge and specialist level clinical skills.

	HP5-20	Utilised knowledge and skills in contributing to formal research and developing knowledge base of the professional discipline.
[Note - "The Applicant failed to provide evidence."]
	HP5-32	Accountable for providing independent high level specialist clinician services.
[Note - "The Applicant failed to provide evidence."]
	HP5-34	Leads change through service wide quality and service improvement and the development of better practice.
[Note – "The Applicant failed to provide evidence."]

	The WLET record for Ms McCormick incorrectly identified her as being at a HP3 level [T 1-57]. Ms McCormick was working at the HP4 level.
[Commission View - While the documentation initially did show this, it is clearly an oversight as all other documentation refers to Ms McCormick currently being employed at the HP4 level. While this is a particular error, it was not one which infected the determination ultimately made.]
	That WLET and the Appeal Panel had failed to recognise her specialist qualifications and that the work performed by her was of a specialist nature. Ms McCormick explained that at the PO4 level (which was previously held by her) before entering the HP stream at HP4 level, reference had been made to "Professional specialists at this level would undertake work with significant scope and or complexity and or undertake professional duties of an innovative, novel, and or critical nature without professional direction".
[Commission View - Queensland Health has submitted that Ms McCormick's complaint centres more upon her translation from the PO4 level to the HP4 level rather than what occurred after that event. In light of the submissions made, that is a fair comment. Notwithstanding that, the general thrust of Ms McCormick's argument relates to the classification level of HP5, sought and not attained.
Mr Brown, whose evidence on this point is accepted, stated that there has been an acknowledgement of the skills acquired by Ms McCormick throughout the process, but many of those attributes were not deemed to be at a HP5 level, or even in the event that they might have been, there was no supporting evidence from Ms McCormick to satisfy the HP5 criteria.
Mr Brown stated that the diploma formal qualifications held by Ms McCormick were the minimum requirement for her to practise as a sonographer. The Continuing Professional Development (CPD) courses are a requirement for a sonographer and a certain number of those courses must be undertaken throughout a year. The nuchal translucency accreditation was not required by her position at the hospital. There has also been an acknowledgement that Ms McCormick has undertaken some professional development courses/activities.
I have not found this to be an error on the part of WLET.]
	Ms McCormick said she could not understand, if that were the case and she had not provided sufficient evidence to support her claim, why WLET did not seek further information from her, which she says she could have readily provided.
[Commission View - Section 19.9 of HPEB1 states:
"The Appeal Panel may seek further information from the party/ies to the Appeal if required". The Appeal Panel did not do this and there was no obligation on its part to do so. This does not represent an error on WLET's part.]
	It is submitted that the statement made by WLET in refusing her application was erroneous in the following respect. There were no Work Level Statements for HP5 that required "operational or professional accountabilities for a clinical HP5" [Evidence of Mr Hamilton - T1 - 85, 87].
[Commission View - Mr Hamilton's evidence which is accepted on this point is that;

	The role description was developed and approved by Ms McCormick's line manager and represented an accurate reflection of her role - it included and recognised her additional "nuchal translucency accreditation". These were additional LOE's, but WLET had not queried Ms McCormick or her line manager further as to the accuracy of her role description.
[Commission View - The evidence of Ms McCormick was that this particular qualification was not required in her workplace as the Hospital did not provide that service. This does not represent an error. WLET was not under any obligation to request further information on this point.]
	"High level judgement" was a requirement of the HP5 Knowledge Skills and Expertise. Ms McCormick said that attribute was also a requirement of HP4 Work Level Statements. Ms McCormick states that the reference to "high level independent and decision making and plans, initiates and evaluates improvement activities" in no way detracted from or justified a change to Ms McCormick's proposed HP5 level.
[Commission View - Ms McCormick had identified her particular knowledge skills and expertise in her Role Description and these were acknowledged during the various processes. However the fact that WLEP did not see these as sufficient to classify Ms McCormick at a HP5 level does not constitute an error in the reclassification process.]
	A JEMS evaluation of the Radiographer/Sonographers at Redcliffe/Caboolture Hospitals was conducted in 2007 and confirmed the Specialist nature of the role at the PO4 level and the "general recognition through various Queensland Health facilities of sonography at the Specialist PO4 level".
It was duly noted that Ms McCormick held certification on the Australian Sonographer Accreditation Registry (ASAR) as both an accredited specialist sonographer and cardiac sonographer.
In the HP Classification Structure, the definition of "Specialist" is as follows: