Naggs v State of Queensland (Department of Health)
[2014] QIRC 208
•9 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Naggs v State of Queensland (Department of Health) [2014] QIRC 208 |
PARTIES: | Naggs, Glenn v State of Queensland (Department of Health) |
CASE NO: | HP/2013/23 |
PROCEEDING: | Action on industrial dispute |
DELIVERED ON: | 9 December 2014 |
HEARING DATE: | 9 May 2014 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | Directions issued for the parties to provide further information. |
| CATCHWORDS: | INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - classification of position - health practitioner classification structure - job descriptions, roles and responsibilities evaluated against new work level statements - whether appeal panel failed to properly consider, evaluate and conduct an evaluation of role description and other evidence - whether failed to afford procedural fairness - scope and nature of level - knowledge, skills and expertise - accountability - whether the appeal panel erred in failing to consider some work level statements claimed and considering others not claimed - whether appeal panel failed to acknowledge specialist level knowledge and skills - whether the appeal panel considered the extended scope of practice - whether appeal panel failed to recognise a significant duty - equity, good conscience and the substantial merits of the case |
| CASES: | Industrial Relations Act 1999, s 320 Newton v State of Queensland (Queensland Health) [2014] QIRC 121 Grant v State of Queensland (Queensland Health) [2014] QIRC 161 Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision v State of Queensland [2014] QIRC 193 Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148 |
| APPEARANCES: | Mr G. Butler for the Applicant. |
Decision
Glenn Naggs has been employed as a Radiographer and Sonographer at the Redcliffe Hospital since March 1997. Mr Naggs was classified as PO4 as at 2008. When the new Health Practitioner classification structure was introduced as part of the Health Practitioners' (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1), Phase 1 of the process required his position to be translated to HP4.
Phase 2 of the implementation of the HP classification structure was the Work Level Evaluation Project which allowed HPs to have their job descriptions, roles and responsibilities evaluated against the new Work Level Statements (WLS). Phase 2 allowed for the development of a Work Unit Proposal (WUP) which identified positions that required evaluation. The WUP submitted by Mr Naggs' line manager proposed his position at HP5. The title given to the position is "Specialist Clinical Radiographer/Sonographer". Mr Naggs was dissatisfied with the proposed classification and submitted an Employee Initiated Application for his position to be classified at HP6. The Work Level Evaluation Panel (WLEP) recommended a HP5 classification for Mr Naggs' position but this was not accepted by the next level of review, the Work Level Evaluation Team (WLET).
As Mr Naggs was entitled to do, he submitted a Phase 2 Appeal seeking a classification of HP5 for his position. The Appeal Panel considered that Mr Naggs' position should remain at HP4 and recommended to the Director-General of the Department of Health accordingly. The Director-General accepted that recommendation.
Mr Naggs lodged a Notice of Industrial Dispute in the Industrial Registry seeking the assistance of the Commission in resolving the dispute over his classification. When that dispute could not be resolved at a conciliation conference, the dispute was referred to arbitration.
On arbitration, the Commission's powers are confined to correcting any error that may have occurred in the agreed reclassification process and it is incumbent on the Applicant to demonstrate the error.[1] In this matter, Mr Butler, who represented Mr Naggs, contends that the following errors can be identified:
· the process undertaken by the Department after the failure to implement the recommendation of the WLEP in October/November 2008 that Mr Naggs' position be classified at HP5;
· the failure of the Appeal Panel to properly consider, evaluate and conduct an evaluation of Mr Naggs' role description and other evidence;
· the Appeal Panel failed to provide an adequate statement of reasons;
· the Appeal Panel denied Mr Naggs procedural fairness by failing to give Mr Naggs an opportunity to comment on adverse findings and failing to inform him of why he is classified at HP4 despite meeting elements of the HP5 WLS; and
· the Appeal Panel was improperly constituted.
[1] Newton v State of Queensland (Queensland Health) [2014] QIRC 121.
Many of these issues have been considered in other proceedings in the Commission. I do not consider it necessary to re-address these matters. In the circumstances I adopt and rely on the reasoning and conclusions of:
· the Full Bench in Newton v State of Queensland (Queensland Health)[2] ('Newton') and the Commission as constituted in Grant v State of Queensland (Queensland Health)[3] in determining the Commission is not concerned with anything that occurred prior to the Appeal Panel;
· the Full Bench in Dr John Parke AND State of Queensland (Queensland Health)[4] (Parke) and O'Connor DP in Morton v State of Queensland[5] (Morton) regarding the adequacy of reasons by the Appeal Panel;
· Black C in Hamlyn v State of Queensland (Queensland Health)[6] ('Hamlyn') regarding the absence of an independent chair of the Appeal Panel; and
· Black C in Hamlyn[7] regarding the status of the role description.
[2] Ibid.
[3] Grant v State of Queensland (Queensland Health) [2014] QIRC 161.
[4] Dr John Parke AND State of Queensland (Queensland Health) (HP/2013/16) - Decision Morton v State of Queensland [2014] QIRC 193.
[6] Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148 [15]-[17].
[7] Ibid [19].
In the circumstances the alleged errors to be considered by the Commission in this appeal are the contention that the Appeal Panel failed to properly consider, evaluate and conduct an evaluation of Mr Naggs' role description and other evidence and failed to afford Mr Naggs procedural fairness.
Did the Appeal Panel properly evaluate Mr Naggs' position?
I now consider the errors alleged to have been made by the Appeal Panel. Mr Butler submits that the Appeal Panel made significant errors in its findings including the failure to conduct an evaluation across the specified criteria and WLS. In particular the following is submitted about the errors made by the Appeal Panel:
"Despite the inclusion of the three specified criteria and the references to each criteria in the Appeal HPA2 and comment on each Work Level Statement in each criteria the Appeal Review outcome Exhibit
a.does not address all Work Level Statements claimed (HP5-1, HP5-2, HP5-4 and HP5-5 are claimed but not addressed).
b.rejects some HP5 work level statements claimed on the basis of 'Appellant failed to provide evidence' despite the significant evidence provided including in the role description itself.
c.addresses Work Level statements not claimed by the Applicant including (HP5‑35) and multiple others at HP4.
d.ignores the specific and repeated requirements for specialist knowledge, skills referred to in the role description together with the requirement to provide reports, the requirement to work without clinical supervision and the requirement for counselling of patients and their families.
e.does not give any guidance or provide information on why the Applicant is not a HP5 but is a HP4.
f.comments in the additional comment section that the Applicant failed to provide evidence and then adds that the duties or accountabilities could not be matched to the work level statements at the nominated level whilst recognising and matching evidence for HP5-3, HP5-5, HP5-15.
g.recognises the role of the Applicant is that of a Specialist as per HP5‑3, HP5-5, HP5-15 but then rejects or fails to address other related HP5 level criteria which can be satisfied by the same evidence including HP5-16, HP5-17, HP5-18, HP5‑32, HP5-33."
In addition, it is submitted that the Appeal Panel failed to make findings on various HP5 WLS claimed by Mr Naggs.
To assist in determining the contentions made on behalf of Mr Naggs, it is necessary to consider his appeal submission and evidence as well as the evidence of Mr Hamilton, Principal Advisor, Work Evaluation and Governance, Workforce Advisory and Remuneration, Human Resource Services, Department of Health. Further, the Commission must consider the Appeal Review Statement (ARS), which serves as the reasons the Appeal Panel made its recommendation.
HPEB1 provides three classification level criteria - Scope and nature of level; Knowledge, skills and expertise and Accountability. Those claimed by Mr Naggs and considered by the Appeal Panel are addressed below.
Scope and nature of level
Three WLS were considered by the Appeal Panel for this criteria - one WLS for HP4 and two for HP5. Mr Naggs did not claim in his appeal submission the HP4 WLS identified in the ARS and submitted three other HP5 WLS. Mr Naggs was determined to have met the three WLS considered by the Appeal Panel. Two of the WLS claimed by Mr Naggs and not considered by the Appeal Panel concerned specialist knowledge and skills.
Knowledge, skills and expertise
The Appeal Panel identified eight WLS in the ARS. Two of these relate to HP4. Of the remaining six WLS which are at the HP5 level, Mr Naggs was found to have met only one and, in respect of two other WLS, the Appeal Panel found, "[t]he duties and accountabilities could not be matched to work level statements at the nominated level". Mr Naggs did not claim two of the five WLS the Appeal Panel found he did not meet.
Accountability
The Appeal Panel considered three HP4 WLS, none of which Mr Naggs submitted but all of which he was found to have met. Three HP5 WLS were also considered; all of which Mr Naggs was found to have not met for the reason, "[t]he duties and accountabilities could not be matched to work level statements at the nominated level". One of those was not submitted by Mr Naggs and one which he claimed was not considered.
Finding
A document, "Work Level Statements and Guidelines for Health Practitioner Roles" (the Guidelines), prepared by the parties to HPEB1, dealt with the application of the WLS for the purpose of ensuring HPs understood what supporting documentation was required for each particular level. In Newton, the Full Bench accepted the HPEB1 parties were permitted to develop clarifying material to assist HPs in preparing appeals.[8] The Guidelines explain that the HP classification structure is designed such that the WLS for one classification level builds on the level below. The effect of this is that a position at each progressive HP level should contain many of the elements of the lower level plus extensions. According to the submissions of the Department, lower or subordinate WLS are assigned to the assessment when the higher level WLS are not met.
[8] Newton v State of Queensland (Queensland Health) [2014] QIRC 121 [27].
A key theme of the submissions made on behalf of Mr Naggs is that the Appeal Panel failed to recognise the specialist level at which he operates.
Despite not all of Mr Naggs' submitted WLS being considered by the Appeal Panel for the criterion of Scope and Nature of Level, it appears that the Appeal Panel was satisfied that the scope and nature of the level of Mr Naggs' position was HP5. One of the HP5 WLS that Mr Naggs was found to have met in this criterion, HP5-3, was that of "advanced level of knowledge, skills and experience and clinical leadership" rather than HP5-2, which was claimed but not considered by the Appeal Panel. The HP5-2 WLS concerns "a specialist level of knowledge, skills and experience and clinical leadership". The WLS HP5-3 is an alternative to HP5-2. The consideration of Mr Naggs at advanced rather than specialist level continued into the second criterion of knowledge, skills and expertise and he was found to meet the relevant WLS (HP5-15). I note that with respect to the second criterion, Mr Naggs only claimed the WLS HP5-15 which specifies the advanced level and not the specialist level WLS HP5-14.
The Appeal Panel was entitled to assess whether Mr Naggs met the specialist level or advanced level based on the evidence before it. I reject the submission that the Appeal Panel recognised Mr Naggs as a specialist by reference to HP5-3, 5 and 15 when both the first and last mentioned WLS refer to advanced level. The WLS HP5-5 is irrelevant to the specialist versus advanced level debate. The specialist level and the advanced level are alternatives and the HP only has to satisfy one of the alternatives along the path to having their position classified at HP5. The Commission is satisfied that Mr Naggs meets the criterion of Scope and Nature of the level at HP5 as it relates to the advanced level. However, Mr Naggs must also meet the other criteria to have his position classified at HP5.
The Department submits that the subordinate WLS for HP5-16 and 17 within the criterion of knowledge, skills and expertise are HP4-20 and 21 respectively and, within the criterion of Accountability, the subordinate WLS for HP 5-32 and 33 are HP 4-34 and 35 respectively. Mr Naggs claimed each of the HP5 WLS mentioned but was found to have met the subordinate HP4 WLS. In the circumstances I consider it is open to conclude that the Appeal Panel considered the claimed WLS of HP5-16, 17, 32 and 33 and was not able to be satisfied that Mr Naggs met them. Notwithstanding that view, I wish to make the following remarks.
Mr Naggs was found not to have met the WLS for HP5-18 and 19. These two WLS appear to be linked and Mr Naggs did not claim either of them. Further, his claim for HP5-34 was not considered. Whether these actions of the Appeal Panel found an error is also open.[9]
[9] See Morton v State of Queensland [2014] QIRC 193.
Added to that are some other matters. During the course of his evidence Mr Naggs said that two other Specialist Clinical Radiographers/Sonographers at the Redcliffe Hospital are classified at HP5 and are performing the same work as he does. He made the same claim with respect to radiographers/sonographers at various other hospitals around the State. Black C commented on the desirability for equitable outcomes in Crowhurst v State of Queensland (Queensland Health)[10] as follows:
"[53] In this regard the Appeal Panel had the advantage of reviewing a considerable number of appeal documents and had the advantage of oversight. That is, it had the information and knowledge to look across the spectrum of appeal circumstances with a view to maintaining consistency and equity in its outcomes. These are advantages which the Commission does not hold and given that the Commission is limited to determining the application on the evidence and submissions before it, it is very difficult to respond to the arguments in question unless it is fully informed of all the relevant facts and circumstances."
[10] Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145.
The final matters concern issues identified during the WLEP process and upon which Mr Naggs relies to substantiate his claim for the classification HP5. The WLEP made the following comments:
"The Role is required to provide a formal written report on their findings to the referring clinician for every ultrasound examination that they perform. This has not been able to be evaluated at this time due to there being no WLS that adequately reflects the responsibility of this component of the role.
The nature of the job involves a component of counselling and providing adverse outcomes of the examination, which is not addressed in the WLS so has not been evaluated in this process."
Mr Naggs states he is required to provide a written report for every ultrasound examination he performs directly to the referring physician without it being verified first by a radiologist. He also states that the self-verifying report is recognised as an extended scope of practice for specialist radiographers/sonographers.
In its submissions the Department said this scope of practice was recognised by the Department in accordance with its Policy, "Credentialing and defining the scope of clinical practice." That Policy ensures that allied health professionals intending to engage in complex clinical practices not traditionally performed by their profession are credentialed and have a documented defined scope of clinical practice. However, the mere fact that an allied health professional is engaging in an extended scope of practice does not make them a specialist and classified at HP5. In respect of this submission reliance was placed on the evidence of Mr Hamilton who said that on its own an extended scope of practice does not make a HP a specialist and "there's got to be more to it than that." A specialist needs to meet the WLS especially in the criteria of Scope and Nature of Level and knowledge, skills and expertise.
Ordinarily, the Commission would not accept as evidence a document which had not been put to a witness and was submitted with final submissions. In this case, the Policy document does not add anything to the debate about whether the Appeal Panel erred with respect to the classification of Mr Naggs' position.
The earlier part of this decision considered Mr Naggs' claims of being a specialist when he claimed that level for one criterion and the advanced level for another. The Commission found the Appeal Panel accepted Mr Naggs' claim at the advanced level with respect to the criterion of Scope and nature of level but not for knowledge, skills and expertise. It is arguable that Mr Hamilton's evidence holds true for claims at the advanced level as well as the specialist level.
Mr Hamilton also gave evidence that the HP1-5 WLET requested an OSG report regarding Mr Naggs' position. The report found there was no evidence to support the role description statement that the position required specialist level knowledge and skill. Further, although the position required a high level of independence and decision-making in some areas, it did not have any operational or professional management accountabilities. An HP4 classification was recommended and accepted. The Commission accepts that the Appeal Panel broadly agreed with that view as it relates to the accountabilities, however, it considered one level not claimed and did not consider another claimed level.
The WLEP commented on the reporting of adverse outcomes and counselling of patients and this duty is referenced in Mr Naggs' appeal submission. However, the nature of the ARS does not disclose whether this was considered and the view of the Appeal Panel on this duty. This appears to be a significant duty and one which I do not understand to be a usual feature of an HP4 radiographer/sonographer.
Section 320(3) of the Industrial Relations Act 1999 provides that the Commission is governed in its decision making by equity, good conscience and the substantial merits of the case. Having regard to these governing principles, the issues raised have left a residual doubt about the correctness of the classification of his position.
Mr Butler submits the Commission is able to and should confirm Mr Naggs' classification is HP5. Further, he urges the Commission to make a definitive decision and not to refer the matter back to the Department. On the state of the evidence before the Commission, I am unable to make the decision urged upon me. Accordingly, I have decided to obtain further information upon which I can reach a concluded view.
The Commission issues the following directions:
1. By close of business on 13 January 2015, the Director of Medical Imaging, Redcliffe Hospital is to provide to the Department of Health and Mr Naggs an affidavit addressing the following issues:
(i)whether, having regard to the knowledge, skills and expertise and accountabilities, Mr Naggs' position is consistent with radiographers/sonographers classified as HP4 or HP5 at the Redcliffe Hospital. Reasons for that conclusion are to be provided;
(ii)whether Mr Naggs is required to counsel patients and provide notice of adverse outcomes of the examination and the frequency with which this is performed; and
(iii)whether this function is performed by other radiographers/sonographers at the Redcliffe Hospital and if so, the classification of those staff.
2. By close of business on 27 January 2015, the Department of Health is provide a written response to the Commission and Mr Butler advising of its position in light of the affidavit provided.
3. By close of business on 10 February 2015, Mr Butler is required to provide a written response to the Commission and the Department of Health advising of Mr Naggs' position.
Notes:
(a) The Commission has assumed that the Director is best placed to make this assessment. The Department is to advise the Commission within 48 hours of the release of this decision if it considers an alternative position at the Redcliffe Hospital is better placed to make the assessment. Any such position must have detailed knowledge of the work performed by Mr Naggs and his accountabilities and those of other radiographers/sonographers at the Redcliffe Hospital.
(b) As far as practicable, the information provided must relate to the time period that was under consideration by the Appeal Panel.
(c) In completing this task, the Department of Health is to provide the Director of Medical Imaging with a copy of this decision and the relevant WLS for HP4 and HP5.
Once the above information is received the Commission will release its final decision.
In the circumstances it is unnecessary to consider whether the Appeals Panel afforded procedural fairness to Mr Naggs.
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