Naidu v State of Queensland (Queensland Health)
[2014] QIRC 218
•19 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Naidu v State of Queensland (Queensland Health) [2014] QIRC 218 |
PARTIES: | Naidu, Sumant v State of Queensland (Department of Health) |
CASE NO: | HP/2013/21 |
PROCEEDING: | Action on industrial dispute |
DELIVERED ON: | 19 December 2014 |
HEARING DATES: | 10 and 11 March 2014 |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | The Commission declines to interfere with the decision made by the Director-General, Department of Health. |
| CATCHWORDS: | INDUSTRIAL LAW- ACTION ON INDUSTRIAL DISPUTE - Classification of position - new health practitioner classification structure - employee engaged as health practitioner - internal appeal unsuccessful - whether the appeal panel was properly constituted - whether the appeal panel failed to properly consider, evaluate and conduct an evaluation of role description and other evidence - whether the appeal panel erred in failing to consider some work level statements claimed and considering others not claimed - powers of the Commission on referral of reclassification dispute |
| CASES: | Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145 |
| APPEARANCES: | Mr G. Butler, for the Applicant. |
Decision
Application
Sumant Kumari Naidu ("the Applicant") is a radiographer and sonographer employed at the Department of Health ("the Respondent"). Following work at other hospitals, she has been employed at Logan Hospital in various positions since July 1995. In 2006, she was appointed as Assistant Director of Medical Imaging Services (Ultrasound)/Team Leader, and has held that position (in an acting then confirmed capacity) since then.
The Applicant's position was previously classified at a Professional Officer ("PO") level and, upon certification of the Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 ("HPEB1"), the Applicant was translated to the Health Practitioner ("HP") classification structure at level 4. In 2009, after a work level evaluation process conducted under HPEB1, the Applicant was advised that the Work Level Evaluation outcome for her position as a Senior Consultant Sonographer/Radiographer was at HP level 5 ("HP5"). The Applicant contends that she should have been classified at the HP6 level. She commenced industrial dispute proceedings in the Queensland Industrial Relations Commission ("the Commission") seeking that her role be determined or classified at HP6 level.
The issues
The Notice of Industrial Dispute lodged under s 229 of the Industrial Relations Act 1999 ("the Act") on 31 May 2012 describes the subject matter of the dispute as having two limbs:
(a) failure by the respondents to comply with provisions of an enterprise agreement providing for reclassification as Health Practitioner; and
(b) failure to implement reclassification level and pay remuneration in accordance with the requirements of the relevant Enterprise Agreements leading to an underpayment of wages.
The legal framework for deciding the issues: what the HPEB1 provides
Part B of HPEB1 deals with Classifications in the following clauses:
(a) Health Practitioner Classification structure (clause 16), which refers to the eight level HP Classification Structure based on skill and knowledge requirements, including recognition of minimum qualifications, and increasing levels of responsibility and complexity for specified types of positions;
(b) Classification Level Criteria (clause 17), which refers to draft Work Level Statements ("WLSs") for each level of the HP Classification Structure and a process for final generic WLS to be finalised and filed with the Commission;
(c) Implementation of Health Practitioner Classification Structure (clause 18), which refers to the three phases by which the new HP Classification Structure will be implemented, including Phase 2 which provides an opportunity for all employees covered by HPEB1 to have their job descriptions and roles and responsibilities evaluated against new WLS;
(d) Work Level Evaluation Process (clause 19), which applies when an individual employee disagrees with the results of a Work Level Evaluation and recommended classification level in Phase 2 or Phase 3;
(e) Appointments to Classification Levels (clause 20), which provides that, with the exception of appointments under Phase 1 and Phase 2, appointments to a classification level will be based on appointment on merit to advertised vacancies or in accordance with the relevant IRM or Directive;
(f) Movement within Classification Levels (clause 21), which provides that employees in levels HP1 to HP7 are eligible to increment in accordance with HPEB1;
(g) Transitional Health Practitioner Classification Levels (clause 22), which provides that HP2.8 and HP3.8 levels will only be available for certain levels for a transitional period; and
(h) Movement between Classification Levels (clause 23), which provides that, with the exception of movements during Phase 2, movements between classification levels will be based on appointment on merit to advertised vacancies or in accordance with the relevant IRM of Directive.
For present purposes, the focus is on clause 19, which provides a detailed, step-by‑step process for an employee to appeal against a recommended classification level. In summary:
(a) an employee may lodge an appeal when, during the Phase 2 Work Level Evaluation Project, the employee disagrees with the recommended classification level (clause 19.3);
(b) appeals must be received within 21 calendar days of receiving the original decision and are referred to an Appeal Panel (clauses 19.4, 19.5);
(c) the Appeal Panel will be formed from the Work Level Evaluation Team (other than members who conducted the original Work Level Evaluation for that position) and will include a representative from the employee's discipline or profession (clause 19.6);
(d) the Appeal Panel has power to consider whether the Work Level Evaluation of all of the employee's duties, roles and responsibilities should result in the employee's position being reclassified (clause 19.7);
(e) the Appeal Panel must invite submissions from the employee and may seek further information from the party (or parties) to the appeal if required (clauses 19.8, 19.9);
(f) the Appeal Panel must consider submissions and make a majority recommendation regarding the correct classification level of the position being evaluated (clause 19.10);
(g) the Appeal Panel will report their recommendation to the Director‑General or their authorised delegate who will make a decision regarding the correct classification level of the position being evaluated (clause 19.12);
(h) the Director-General or their authorised delegate will advise the employee of their decision (clause 19.13);
(i) the District must implement the decision of the Director-General or their authorised delegate (clause 19.14); and
(j) any party can refer a reclassification dispute to the Commission once all internal appeal processes have been exhausted (clause 19.15).
The scope and limits of the Commission's powers to decide issues in a reclassification dispute
The parties referred to decisions of the Commission and the Industrial Court of Queensland in relation to the Commission's powers in relation to this application. It is not necessary to discuss those decisions in detail. Rather, a summary of the key propositions for which they stand is appropriate for this case.
In Newton v State of Queensland (Queensland Health)[1] ("Newton"), a Full Bench of the Commission considered a dispute similar to the present case. Having quoted clause 19.7 of HPEB1, the Full Bench stated:
"[14] The appeal to the Appeal Panel is, in our view, akin to a hearing de novo. In short, the Work Level Evaluation Panel ("WLEP") and Work Level Evaluation Team ("WLET") conducted the work level evaluation and came to the recommended classification level. This is the Phase 2 process. The Appeal Panel's sole role is to consider whether the employee's position should be reclassified.
…
[16] The referral of the procedural and jurisdictional issues to a Full Bench has provided the Commission with the first opportunity to properly consider the scope of what constitutes a "reclassification dispute" that is referred to the Commission for hearing under the HPEB1 processes.
[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."
[1] Newton v State of Queensland (Queensland Health) [2014] QIRC 121.
That decision is consistent with, and builds on, previous decisions of the Commission. In Dr John Parke AND State of Queensland (Queensland Health)[2] ("Parke"), a Full Bench of the Commission held that:
(a) the Commission's power to deal with a "classification dispute" is vested in the Commission by HPEB1 and HPEB2 and the submission by a party to HPEB1 and HPEB2 of a particular nominated classification dispute for resolution;[3]
(b) the Commission's powers are confined to correct my error in the reclassification process that may have occurred in the agreed reclassification process;[4]
(c) any applicant that has referred a classification dispute to the Commission must be able to demonstrate that an error has occurred in the process;[5]
(d) the reference of a dispute to the Commission under clause 19.15 of HPEB1 or clause 24.15 of HPEB2 has the effect of enlivening the Commission's powers under s 230 of the Act and permitting the "reclassification dispute" to be dealt with pursuant to that section;[6]
(e) it is not necessary to take into consideration an applicant's professional affiliations and involvement in, and membership of, various boards and committees if those things are not part of the applicant's job requirements.[7]
[2] Dr John Parke AND State of Queensland (Queensland Health) - (HP/2013/16) - Decision ibid, [15].
[4] ibid, [18]; see also Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision < ibid, [18].
[6] Dr John Parke AND State of Queensland (Queensland Health) - (HP/2013/16) - Decision [28]
[7] ibid, [46].
In a subsequent decision, Together Queensland Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health)[8], Commissioner Fisher referred to the view of the Full Bench in Parke (of which she was a member) and stated that:
(a) (consistently with what the Full Bench would decide subsequently in Newton), the practical application of that decision is that, on arbitration, the Commission considers the Appeal Panel's statement and the decision of the Director-General or their delegate, and the onus rests with the Applicant to show how or where the Appeal Panel and/or the Director-General or their delegate fell into error;[9] and
(b) the Commission's powers under s 230 of the Act are enlivened when a reclassification dispute is referred to it under either HPEB1 or HPEB2, and a decision made under s 230 is not in the form of a recommendation to be considered by the Director-General or their delegate, but it is a decision to be implemented.[10]
[8] Together Queensland Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health) [2014] QIRC 053 [33].
[9] ibid, [15].
[10] ibid, [33].
Commissioner Fisher also concluded that:
(a) failure by the Appeal Panel to consider all Work Level Statement descriptors relied on by an appellant is not necessarily an error of process provided that the reasons in the "decision" are tolerably clear;[11] and
(b) a holistic assessment of the role description is required and a position cannot be classified at a higher level just because several Work Level Statement descriptors are satisfied.[12]
[11] ibid, [29].
[12] Ibid, [30].
It will be clear from some of those propositions that the subject matter of the dispute set out in the Notice of Industrial Dispute is cast too broadly. The issues that the Commission should consider are identified later in these reasons.
Ms Naidu's qualifications, registrations and memberships
The Applicant is qualified in two disciplines: radiography and sonography. Since obtaining a Certificate in Radiography from the Fiji School of Medicine in 1982, she has obtained a Diploma in Radiography from the University of Sydney (1995), a Bachelor of Applied Science (Diagnostic Radiography) from the Queensland University of Technology ("QUT") (1996), a Post Graduate Diploma in Applied Science (Medical Ultrasound) from QUT (1998) and a Masters of Applied Science (Medical Ultrasound) from QUT (2006).
The Applicant is a registered radiographer with the Australian Health Practitioner Regulation Agency and holds a radiation licence in the State of Queensland as a requirement to use radiation equipment. She is also registered with the Australian Sonographer Accreditation Registry as an accredited medical sonographer general specialist.
The Applicant is a member of the:
(a) Australian Sonographers Association;
(b) Australasian Society of Ultrasound in Medicine; and
(c) International Society of Ultrasound in Obstetrics and Gynaecology.
In addition to the detailed information about her professional qualifications and experience, the Applicant provided an affidavit (Exhibit 2) and oral evidence about the nature and extent of her work as a radiographer and sonographer and her management roles. That evidence was given in support of her contention that she met the criteria and supplied the evidence as a consultant expert in 2008. She conceded in cross-examination that the membership of one of the professional bodies was not a requirement of her role.
The nature of the position
The Applicant submits that her position was recognised as a mixed clinical management role and that the role description has clinical obligations of the highest order together with significant recognition and impact at a State-wide level through Tertiary Hospital research participation. It also has significant operational management responsibility for the Medical Ultrasound service including responsibility for strategic directions and leadership.
In relation to the management aspects of the position, it is relevant to note that the organisational chart for the Medical Imaging Department at Logan Hospital shows that the Consultant Sonographer has clinical responsibility for certain staff (which include sonographers, radiographers and darkroom staff) but that the Director, Medical Imaging services has management responsibility for those staff. The Applicant gave evidence that she agreed with that chart, although she said she had some staff come under her directly or indirectly. As noted below, the Applicant advised in 2008 that her role was 20 per cent management and 80 per cent clinical.
The Applicant submits that there can be no valid argument that she does not meet the HP6 WLS for a mixed clinical management HP6 role. In her view, that is demonstrated, amongst other things, by the Appeal Panel's recognition that the Applicant performs in a consulting capacity providing clinical expertise and utilising expert command of specialised techniques.
However, as will be seen from the evidence summarised below, the features of the position and the Applicant's qualifications to fill it cannot be considered in isolation. More than 20 sonographer positions were subject to the same reclassification process, and they were assessed relative to each other as well as relative to other professional positions as part of a large and comprehensive process under HPEB1.
The process that was followed for determining the Applicant's classification level
The process followed in relation to the work level evaluation of Applicant's position and her appeal can be assessed by reference to the Applicant's affidavit (Exhibit 2), and the affidavit of Donald Graham Hamilton, Principal Advisor, Work Evaluation and Governance, Workforce Advisory and Remuneration, Human Resource Services, Department of Health (Exhibit 8), as well as correspondence and related documents in evidence in these proceedings.
In summary, under Phase 1 of the work level evaluation process of HPEB1, the Applicant's pre-existing role as a PO translated to HP4. Under Phase 2 of the work level evaluation process, a new role description was developed for her position which apparently was consistent with the HP6 template provided by the Respondent and reflected the HP6 level WLSs. The Applicant participated in the development of that role description. The role description was forwarded, along with the Work Unit Proposal for the position to be classified at HP6 level, to the relevant WLEP.
On 7 November 2008, the WLEP contacted the Applicant and asked her for additional information about specified matters:
(a) What is the incumbent's role as a State-wide resource for clinical advice and advocacy?
(b) Who contacts the incumbent for advice?
(c) What was the subject of the incumbent's Masters?
(d) How does it benefit Queensland Health?
The Applicant sent written responses to the questions on 26 November 2008 (Exhibit 5), including advice that her role as a Section Senior Sonographer was 20 per cent management and 80 per cent clinical.
The Sonography WLEP evaluated the Work Unit Proposal role description and recommended that the Applicant's position be assigned at the HP6 level.
There followed a process described by Mr Hamilton involving five steps (see Exhibit 8) that were developed in about October 2008, after HPEB1 had commenced. The Intra-disciplinary Relativity/Consistency Review (Step 3) was conducted by a multi‑disciplinary team for the primary purpose of reviewing the relativity and consistency of HP classification levels within a specific discipline/profession across departments/units and districts. The Inter-Disciplinary Relativity/Consistency Review (Step 4) was conducted to review the relativity and consistency of classification levels within the HP workforce between disciplines/professions, districts, departments and work units. The Inter-disciplinary Review notes of 8 October 2009 stated that the Queensland Health management members of the Step 4 WLET HP6 to 8 expressed, in relation to the Sonographer WLEP recommendations, "… concern about level outcomes vis a vis other disciplines and concern that HP level determined appear not to be consistent with WLS in certified agreement." The WLET HP6 to 8 recommended that the Applicant's position (and that of other sonographers) "Remain at translated level pending consistency check when other disciplines completed", i.e. at HP4 level. After a consistency check was conducted regarding sonography positions with other HP disciplines, the WLET concluded "Position was reviewed on 21/10/09 and agreed HP5 level." Another note on the document stated: "21/10/09 - WLET agree - consistent with like positions endorsed at level HP5."
Mr Hamilton also gave evidence that:
(a) the Step 4 WLET HP6 had to 8 arrived at a "holistic" evaluated outcome based on the relative work value of all the proposed HP6 to HP8 positions across the State and across all HP disciplines; and
(b) the Applicant's position was one of 22 sonography positions recommended by the Sonography WLEP at the HP6 level across all submitted Work Unit Proposals, but the WLET HP6 to 8 did not endorse any of those 22 positions at the HP6 level (Exhibit 8 paras 34, 24).
The Applicant received a notification letter dated 25 November 2009, which stated erroneously that her Phase 2 work level evaluation outcome was HP4.
In a letter dated 4 December 2009 (Exhibit 3), the Applicant was advised that:
(a) the previous letter provided incorrect information, and that her Phase 2 Work Level Evaluation outcome was HP5;
(b) if she disagreed with her classification level, she may lodge an appeal with Queensland Health within 21 calendar days of receiving this notification advice;
(c) the appeal process places the onus on the appellant to substantiate why the Phase 2 classification outcome is not commensurate with the responsibilities and accountabilities of the position;
(d) if she elected to lodge an appeal, the Appeal Panel would make a majority recommendation regarding the correct classification of her position;
(e) an appeal may result in three possible outcomes, namely that the appeal panel:
i.confers the HP level higher than the Phase 2 evaluated outcome;
ii.confirms the Phase 2 outcome; or
iii.confers the appellant's HP level lower that the appellant's Phase 2 outcome (but not lower than the appellant's translated outcome).
On 21 July 2010, the Director-General approved a recommendation that the Applicant's position be assigned at the HP5 level.
As noted earlier, clause 19 of HPEB1, Work Level Evaluation Process, applies when an individual employee disagrees with the results of a Work Level Evaluation and recommended classification level in Phase 2. That clause provides a detailed, step‑by‑step process for an employee to appeal against a recommended classification level.
The Applicant submitted an intent to appeal, and submitted her appeal documentation (Exhibit 6) in December 2010. That document was 37 pages long. It described the role and addressed four criteria and various HP6 WLSs in respect of each. Attached to that document were 70 other documents including certificates, statements of accreditation, letters and emails.
In relation to each of Criteria 1 to 4 the appeal form stated:
"Please refer to the Work Level Statements and Guidelines. Provide evidence for differentiators at the applicable work levels. Note: Assessment will be done holistically - no single differentiator will automatically result in a change to the Phase 2 outcome."
In a letter dated 11 April 2011 (Exhibit 4), a Deputy Director of Queensland Health advised the Applicant that:
(a) by agreement of all parties to HPEB1, the assessment of appeals was conducted by panels constituting two management representatives, a workplace representative and a representative of her discipline;
(b) appeals were considered on the basis of the requirements for the role as at 30 May 2008;
(c) the appeal panel found "Some elements of HP6 across Scope, and Knowledge, Skills and Expertise, but holistically assessed as a HP5" (and a more detailed statement of reasons for the decision was attached);
(d) on the basis of the criteria agreed by all parties, the appeal panel recommended that her appeal was unsuccessful and her HP classification level would remain unchanged;
(e) the Director-General had endorsed the recommendation of the appeal panel.
The Applicant subsequently lodged a Notice of Industrial Dispute with the Commission and, after other steps before Commissioner Thompson and Deputy President Swan, the matter was referred to arbitration.
Alleged procedural errors and their consequences
The Applicant submits that the processes adopted by the Respondent were consistent up to October/November 2008. It was only after the failure to implement the recommendation of the Sonography WLEP (that the Applicant's position be assigned to HP6 level) that the process became subject to error.
The Applicant criticises specific aspects of the process that resulted in her position being evaluated at the HP5 level, including that:
(a) there is no record of a consistency check occurring before the Appellant was notified in November 2009 that her work level evaluation outcome was HP4;
(b) no records were found to show that the consistency check or all the other steps in the HPEB1 Phase 2 Work Level Evaluation Principles & Process Overview (Exhibit 8, DGH2) and the Health Practitioner Communique of 1 July 2009 (Exhibit 8, DGH6) were followed; and
(c) there were various alleged errors in the agreed reclassification process. (submission para 48)
The Applicant also takes issue with the composition of the Appeal Panel and the way in which the Appeal Panel dealt with her appeal.
The Applicant submits that, subject to the limitations imposed by relevant decisions of the Industrial Court and Full Bench of the Commission, the Commission has power[13] to make appropriate orders to correct the errors that have occurred in the determination of classification of the Applicant at various stages of the agreed classification process and the appeal process. The Applicant submits that individual members of the Commission should not "over rigorously" apply the approach of the Full Bench in Newton as the appeal decision cannot be completely isolated from decisions taken at earlier stages in the reclassification process. Rather, the Applicant urges the Commission to decide the matter only on the evidence before it, by which I understand the Applicant to refer to evidence in relation to stages of the classification and the appeal process.
[13] Under ss 320(2) and (3), 331(a) and 334(1)(a) of the Act.
That submission is too wide in light of the Full Bench decisions in Newton and Parke noted earlier. Although information about earlier steps in the process (such as summarised above) might provide context to the appeal, the focus of these proceedings must be on the decision of the Appeal Panel and the adequacy of its reasons. As the Respondent submits, the determination of the Appeal Panel stands apart from the Phase 2 evaluation. Any recommendation of the Appeal Panel under clause 19.12 of HPEB1 and the subsequent decision of the Director-General (or their delegate) displaces the effect of the processes undertaken in Phase 1 and Phase 2 of the classification procedure. Consequently, as the Full Bench wrote in Newton, for the Applicant to succeed in this application, she must demonstrate that the Appeal Panel erred. The Commission is not concerned directly in assessing what occurred prior to the appeal process. Consequently, the Commission need not consider the Applicant's criticisms of aspects of the process before the appeal.
The composition of the Appeal Panel
In relation to the appeal process, the Applicant submits that the Appeal Panel was not properly constituted in accordance with clause 19.6 of HPEB1, but:
(a) consisted of four members rather than five, as required;
(d) did not include the required independent convenor;
(e) included someone who was not a member of the WLET.
Clause 19.6 of HPEB1 provides:
"The Appeal Panel will be formed from the Work Level Evaluation Team formed in accordance with Sections 6.4 and 6.5 of Schedule 5 and will include a representative from the employee's discipline or profession. Members of the Appeal Panel will be different from those members of the Work Level Evaluation Team who conducted the original Work Level Evaluation for that position."
Clauses 6.4 and 6.5 of Schedule 5 provide:
"6.4 The QHSSP will establish a Work Level Evaluation Team. Members of the Work Level Evaluation Team will be suitably trained and will include HPs.
6.5 The Work Level Evaluation Team will form a number of Work Level Evaluation Panels to consider applications for Work Level Evaluation of positions. The Work Level Evaluation Panel will include suitably trained representatives, including from the discipline or profession for the position being evaluated, whether as members of the Work Level Evaluation Team or as co-opted members. The composition and number of the Work Level Evaluation Panels will be approved by the HPIBB Group."
HPEB1 does not specify how many people should be on the Appeal Panel.
The only evidence led by the Applicant in relation to this matter was to the effect that:
(a) initially she did not know who was on the Appeal Panel, but had since learned the identity of at least two members (including one person who worked with her and was the discipline representative);
(b) although there were supposed to be five people on the Appeal Panel, it comprised four people and did not include an independent person;
(c) she believed that the Appeal Panel should have included an independent person because that was what was stated in the Toolkit and Checklist in relation to Intent to Appeal, Phase 2 Work Level Evaluation Decision under HPEB1 (Exhibit 7).
The relevant paragraphs of Exhibit 7 state:
(a) clause 19.6 of the HPEB1 provides for the formation of the appeal panel from the WLET and the composition of such panel. That clause "is only prescriptive on the inclusion of a relevant discipline representative and by interpretation, provides that members of the appeal panel will not be members of the Work Level Evaluation Panel or the Work Level Evaluation Team who conducted the original Work Level Evaluation for that position" (para 4.d.);
(b) the appeal panel "will be convened by an external person and the remainder of the membership will have an equal number of management and health practitioner representatives who were not involved in the work level evaluation and review process" (para 5.a.vii.);
(c) the appeal panel "will consist of: (1) external independent person as panel convenor; (2) management representatives; and (2) workforce representatives" (para 6.f.i.); and
(d) the external independent person would not be a current serving Commissioner of the Commission, and the nomination of an independent person will be agreed by the parties (para 6.f.ii).
On the basis of some of the statements in Exhibit 7, it was understandable that the Applicant expected that her appeal would be considered by an Appeal Panel of five members. However, such a panel was not mandated by HPEB1. In cross‑examination, the Applicant said that she did not know if there was an agreement between the parties to have, or not to have, an independent person. As noted earlier, the letter from a Deputy Director of Queensland Health to the Applicant dated 11 April 2011 (Exhibit 4) stated that, by agreement of all parties to HPEB1, the assessment of appeals was conducted by panels constituting two management representatives, a workplace representative and a representative of her discipline.
The Respondent submits that the Appeal Panel was correctly constituted in accordance with clause 19.6 of the HPEB1 (comprising two management representatives, a workplace representative and a representative from the Applicant's discipline) and the Applicant had been unable to lead evidence to demonstrate that the Appeal Panel may have been incorrectly constituted. I agree.
The Applicant submits, in effect, that the Respondent should demonstrate that the Appeal Panel was properly constituted. To that end, the Applicant states that the Respondent has not provided any evidence of the appeal process despite having the opportunity to do so. In particular, the Applicant submits that the Commission should note and draw the appropriate inferences from the "comprehensive failure" of the Respondent to provide any evidence as to the composition or conduct of the Appeal Panel in this matter.
When essentially the same issue about the composition of the Appeal Panel was raised, and the same argument put in relation to the Respondent, in Newton[14] the Full Bench wrote:
"The applicant cannot rely on the silence of the respondent. As noted above, the applicant must prove that there has been an error in the process. On the material before the Full Bench, the applicant has failed to do so."
[14] Newton v State of Queensland (Queensland Health) [2014] QIRC 121, [23].
I draw the same conclusion in this case.
The Appeal Panel's approach to the Applicant's appeal
The Applicant submits that:
(a) there are significant errors in relation to the Appeal Panel's findings, including the failure of the Appeal Panel to:
·conduct an evaluation;
·consider the comprehensive evidence (including the cross references to the four specified criteria and HP6 WLSs provided by the Applicant;
·provide adequate reasons for decision;
·provide the Applicant the opportunity to respond to adverse material or findings, or provide additional material;
·comply with the appeal process specified in clause 19 of the HPEB1 and conduct itself in a procedurally fair way; and
(b) the Appeal Panel erred because the correct outcome and recommendation to the Director-General based on an evaluation of the appeal evidence before it was that the role description was at the HP6 level not HP5.
Paragraph (b) simply records that the Applicant disagrees with the outcome of the process. That is not a potentially separate basis for finding in her favour. Rather, it reflects the disappointment with what followed the WLEP process noted earlier in this decision.
In relation to the appeal process, the Applicant also submits that, despite the inclusion of the four specified criteria and the extensive cross-referencing of evidence for each WLS in relation to each criterion, the Appeal Review Statement (Attachment SN2 to Exhibit 2):
(a) does not address all four criteria the Applicant was required to meet i.e. 1 Scope & Nature of Role; 2 Knowledge, Skills & Expertise; 3 Accountability; and 4 People and Resource Management;
(b) does not address all WLSs claimed;
(c) rejects WLSs claimed despite the significant evidence cross-referenced and provided on the grounds that the Applicant failed to provide evidence;
(d) addresses WLSs not claimed by the Applicant;
(e) confirms that, despite a finding that the Applicant met some elements of HP6 across Scope & Knowledge, does not identify the basis for classifying the position at HP5;
(f) does not record any elements across Criterion 4 - People and Resource Management; and
(g) the appeal ignores the specific and repeated requirements for operational management planning and the reporting and training requirements specified in the role description.
The adequacy of the Appeal Review Statement
When considering the Applicant's submissions about this aspect of the appeal process, I have borne in mind the various judicial statements cited by the Applicant. I am content to follow the approach outlined by the High Court that:
"the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."[15]
[15] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [31] (Brennan CJ, Toohey, McHugh and Gummow JJ).
The Appeal Review Statement lists the 17 WLS descriptors considered by the Appeal Panel and includes brief comments in relation to each, noting whether each descriptor was met or not met. These descriptors are grouped as follows:
(a) Scope & Nature of Level - HP5-2, HP5-5, HP6-2, HP6-3, HP6-4
(b) Knowledge, Skills & Expertise - HP5-14, HP5-17, HP5-19, HP5-20, HP6-10, HP6-16, HP6-8, HP6-9
(c) Accountability - HP5-33, HP5-34, HP5-35.
The Appeal Panel considered that the Applicant's position met 10 of the HP5 descriptors and two of the HP6 descriptors, but did not meet five of the HP6 descriptors. Overall, after assessing the evidence provided, the Panel agreed: "Some elements of HP6 across Scope, and Knowledge, Skills and Expertise; but holistically assessed as a HP5." That brief statement identifies the basis for classifying the position as HP5.
The Applicant's submission includes a table that: lists specific WLS referenced by the Applicant; notes whether the Applicant provided detailed evidence; lists each WLS referred to or not referred to by the Appeal Panel, and whether the Appeal Panel decided that the position meets or does not meet each HP5 or HP6 WLS; and notes against which WLS the Appeal Panel stated that the Applicant "failed to provide evidence".
The Applicant submits that there were errors in the Appeal Panel's process and conclusion, including because there was a "mismatch between the appeal decision and the appeal documentation including the appeal evidence." In particular, the Applicant nominates six WLSs that the Applicant claimed were relevant to her appeal but which, she contends, the Appeal Panel did not answer.
In reply, the Respondent submits, first, that the Appeal Panel provided answers in relation to three of the WLSs claimed by the Applicant and to which she says the Appeal Panel did not refer (namely WLS 6-11, 6-20 and 6-21)). As I understand that submission:
(a) in substance, WLS 6-11 was considered in relation to Knowledge, Skills & Expertise by reference to WLS 5-20; and
(b) in substance, WLS 6-20 and WLS 6-21 were considered in relation to Accountability by reference to WLS 5-33 and WLS 5-35 respectively,
on the basis that if a higher level is not met, a lower or subordinate Work Level Statement is assigned to the assessment (a process discussed below). Consequently, rather than decide that a WLS 6 descriptor was not met, the Appeal Panel moved to consider whether the lower level descriptor was met. In those instances, WLS 5 descriptors were met.
Second, the Respondent submits that, even if the other three descriptors (WLS 6-1 in relation to Scope & Nature of Level; and WLS 6-19 and WLS 6-22 in relation to Accountability) were assessed by the Appeal Panel as "Meets", that would not have tipped the scales in favour of the Applicant because it is clear that Knowledge, Skills & Expertise and Accountability were both assessed at HP5. Whilst that might have been the outcome, some response to those additional descriptors in the Appeal Review Statement would have provided a more complete response to the appeal.
In reply to the submission that the Appeal Panel addressed WLSs not referred to by the Applicant, the Respondent refers to evidence given by Mr Hamilton about the work level evaluation process. The Respondent submits that the principle behind the WLS is that the Scope, Knowledge and Accountabilities of work undertaken at each level is consistent across the workforce and each level builds systematically on the level below.
As noted above, the Respondent submits that when assessments are made there can be a "cascading effect" so that, if a particular level is not met, a lower or subordinate WLS is assigned to the assessment. In the Applicant's case, it was found that the following WLS at HP5 level were more appropriate:
(a) Scope & Nature of Level: WLS 5-2 (for WLS 6-2), WLS 5-5 (WLS 6-4)
(b) Knowledge, Skills and Expertise: WLS 5-19 (WLS 6-10), WLS 5-20 (WLS 6-11), 5 WLS 5-18 (WLS 6-16)
(c) Accountability: WLS 5-33 (WLS 6-20), WLS 5-35 (WLS 6-21).
In reply to the Applicant's submission that the Appeal Panel did not address criterion 4, People and Resource Management, the Respondent states that that criterion was provided on the appeal application to allow appellants who may have responsibilities in this area to provide extra information about their accountabilities within their appeal.
The Respondent also stated that the Appeal Review Statement follows the same format as the Work Level Statements & Guidelines for Health Practitioner Roles (see Exhibit 8 DGH1), i.e. Scope & Nature of Level; Knowledge, Skills & Expertise; and Accountability. Appellants who may provide information in the People and Resource Management criteria will draw WLS from the Accountability section within the particular HP level that they are seeking. The Applicant highlighted HP6-19 to HP6-22, which fall within the Accountability section of the Clinical Professional Stream for HP6 (see p 37 of the Guidelines, Exhibit 8 DGH1). Again, it would have been useful if the Appeal Panel had given some written acknowledgement of that in its Appeal Review Statement.
Nonetheless, I accept the Respondent's explanations and responses to those matters raised by the Applicant in relation to the Appeal Review Statement.
I now consider the Applicant's other criticisms of the appeal process.
Lack of detailed reasons: The fact that the Appeal Panel did not give detailed reasons is neither surprising nor is it sufficient to ensure the success of the Applicant's case. HPEB1 did not require the Appeal Panel to provide reasons for its decision. The Appeal Panel was obliged by clause 19.10 to make a "recommendation regarding the correct classification level of the position being evaluated." Clause 19.11 requires "summaries of outcomes of appeals" to be reported to the HPIBB Group in "sufficient detail" to enable it to analyse and oversee the appeals process.[16]
[16] See Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148, [12].
Failure to consider comprehensive material: Generally speaking (and subject to a reservation expressed below), the Applicant has not provided the Commission with any evidence that the Appeal Panel failed to consider the detailed submissions and supporting material provided to it by her. The brevity of reasons given in the Appeal Review Statement should not, of itself, lead to a conclusion that the Applicant's submissions and accompanying material were not given sufficient consideration or that the Appeal Panel was not familiar with the submissions being made.
The only troubling issue relates to the various statements in the Appeal Review Statement that the "appellant failed to provide evidence" in relation to some of the HP6 WLSs. The Applicant appears to understand those statements to mean literally that the Appeal Panel considered that she provided no evidence at all. Exhibit 6, however, shows that the Appellant provided information in relation to those WLSs. It is not clear whether the Appeal Panel intended to suggest that, in its assessment, the material was unconvincing or insufficient evidence in support of the appellant's submission (rather than there was an absence of material). If so, it should have said so in such terms. In the overall context of the Appeal Review Statement, however, I am (somewhat reluctantly) willing to draw that inference.[17] It follows that I do not conclude that those statements constitute an error in the appeal process.
[17] I note that Commissioner Black took a similar approach in Hamlyn v State of Queensland (Queensland Health) [2014] QIRC 148, [27].
No opportunity to respond: The Applicant contends that the Appeal Panel did not give her an opportunity to respond to adverse material or findings, or provide additional material. There is nothing in the documentation from the Appeal Panel to suggest that there were matters in respect of which it required further information, explanation or response from the Applicant (see HPEB1 clause 19.9). The Applicant provided extensive documentation to the Appeal Panel. The Appeal Panel apparently proceeded, and was entitled to proceed, on the basis that it had all the relevant material before it.
Conclusion
Having regard to:
(a) the extensive documentary evidence provided to the Commission, supplemented by the oral evidence of the Applicant and Mr Hamilton;
(b) the fact that, in order to succeed, the Applicant has to demonstrate that the Appeal Panel erred; and
(c) the written and oral submissions of the parties,
I am satisfied that, even if there were some imperfections in the way in which the Applicant's appeal was processed and decided, the appeal process was conducted adequately.
The evidence demonstrates that the result in relation to the Applicant's appeal was consistent with the reclassification of the positions of other similarly qualified sonographers.
In reaching my conclusions in relation to this application, I have also given some weight to the relative roles of the Appeal Panel and the Commission when considering whether the HP5 classification of the Applicant's position is appropriate. Clause 19.7 of HPEB1 provides that the Appeal Panel has power to consider whether the Work Level Evaluation of "all of the employee's duties, roles and responsibilities" should result in the employee's position being reclassified. As Commissioner Black commented in a similar case,[18] the Appeal Panel had the advantage of reviewing a considerable number of appeal documents and had the advantage of information and knowledge that enabled it to look across the spectrum of appeal circumstances with a view to maintaining consistency and equity in its outcomes. The Commission does not have those advantages. Rather the Commission can only make a decision on the basis of evidence before it in a particular case.
[18] Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145, [53]
The Applicant has not established that the Appeal Panel was not properly constituted, and has not shown that the Appeal Panel made an error in relation to her appeal. The Commission declines to interfere with the decision made by the Director-General, Department of Health, in relation to the reclassification of the Applicant's position.
Order accordingly.
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