Panting v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION PARTIES:	Panting v State of Queensland (Queensland Health) [2021] QIRC 276 Panting, Susan (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2021/208
PROCEEDING:	Public Service Appeal – fair treatment decision
DELIVERED ON:	10 August 2021
HEARD AT: MEMBER:	On the papers Pidgeon IC
ORDER:	The decision appealed against is confirmed.
CATCHWORDS: LEGISLATION:	PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - appeal against a fair treatment decision - where the appellant seeks an internal review of a grievance outcome - whether the review was fair and reasonable Public Service Act 2008 Individual Employee Grievances: 11/20 Long Service Leave Directive: 11/18 Recreation Leave Directive: 04/17

Reasons for Decision

Background

Ms Susan Panting is employed by the State of Queensland (Queensland Health) (the Respondent) as a Principal System Administration Officer. Ms Panting has nearly 42 years of service and in her own words has 'accrued a very healthy amount of long service leave'.
Ms Panting says that on 20 January 2020, Mr Tomlinson, Manager Asset Information Management, Asset Management Unit, approved in writing a combination of annual leave (145 hours) full pay and long service Leave (1060 hours) half pay, for the period 27 April 2020 to 16 July 2021.
Unexpectedly, in April 2020, Ms Panting commenced six months carer's leave which ended on 08 October 2020.
Ms Panting says that Mr Tomlinson advised her to cancel her leave and resubmit it from October 2020, and her approved annual and long service leave was cancelled on 20 April 2020. Ms Panting believed that a resubmitted request for leave would be approved and commence at the end of her carer's leave.
On 10 September 2020, Ms Panting emailed Mr Tomlinson advising that she would like to resubmit a request for leave for a combination of annual leave (363 hours) half pay and long service leave (1060 hours) half pay, for the period 12 October 2020 to 31 May 2022.
Mr Tomlinson did not reply to this email and so Ms Panting sent a further email on 23 September 2020 asking to meet with him at the workplace to discuss her request for leave. The outcome was that her leave request was verbally approved and she entered the leave request in the Department's payroll system for approval.
On 2 October 2020, Ms Panting was verbally informed by Mr Cameron Castles, Senior Director Asset Management, that her leave request was refused. Ms Panting says that the following reasons were provided:
1.       I am not entitled to leave at half pay.
2.       I am expected to use up all my accrued leave by gradually working fewer days per week.
3.       Enterprise Bargaining Agreement Section 9.5.
4.       Due to 'Responsible Workforce Management (RWM)' my position cannot be backfilled if I am on leave at half pay.
5.       My leave at half pay will only be approved if I agree to resign from Queensland Health.
On 7 October 2020, Ms Panting sent an email to Mr Tomlinson asking for the decision to be reconsidered as she believed the reasons provided to her were unreasonable and ill-informed. On 8 October 2020, Mr Tomlinson emailed Ms Panting requesting a period of four weeks to consider her request. Ms Panting agreed to this. During that period, Ms Panting was granted a period of four weeks annual leave at half pay.
On 5 November 2020, having not received a response, Ms Panting sent an email to Mr Tomlinson and Mr Gittins requesting a written response to the outcome of her leave request. Ms Panting received an email from Mr Gittins advising that 'in the absence of a discussion to arrive at a joint solution', a leave request limited to 13 months would be approved based on the following reasons:
1.       It comes at a difficult operational time with IT system stabilisation and the demands of COVID being felt by our client base.
2.       A leave period of 13 months balances your entitlement with the requirements to deliver operational support to Hospital and Health Services. The 13 month leave period will lead to increased service delivery capacity (i.e. staff member for an additional 6 month period) in a financially-neutral manner.
3.       Leave at half pay does extend the leave period and the financial implications of backfilling. A combination of leave at full and half pay reduces the overall period of leave and its financial impact.
Ms Panting says that after further negotiation with Mr Gittins, she was approved a combination of Annual leave (145 hours) full pay and Long Service Leave (1058.50 hours) half pay, for the period 07 December 2020 to 09 March 2022 and she is very grateful for this.

Ms Panting's grievance and request for internal review

Ms Panting lodged a grievance on 11 January 2020. Ms Panting received a written decision responding to her grievance from Ms Barbara Phillips, Deputy Director-General, Corporate Services and COVID 19 Supply Chain Surety Division.
She subsequently lodged a request for an internal review on 26 March 2021 requesting the following outcomes:
1. A review into the manner in which the Department handled my resubmitted request to take leave at half pay, which I believe to be unreasonable due to the following reasons:
·My request for leave was initially refused due to reasons that I believe are unreasonable, ill-informed and were not provided to me in writing.
·A decision, indicating whether my leave request had been approved or not, was not provided to me in a timely manner.
·On three separate occasions I was requested to either resign or commit to resigning at the end of my leave.
2. A written apology from Mr Cameron Castles who I believe, as Senior Director, Asset Management, is ultimately responsible and accountable for the unreasonable manner in which my resubmitted request for handled.
Ms Panting received a response to her request for an internal review on 19 May 2021. The internal review was undertaken by Mr Damian Green, Deputy Director-General eHealth Queensland. It is the internal review decision dated 19 May 2021 that Ms Panting seeks to appeal.
Is the Appellant entitled to appeal?
Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
Ms Panting states that she has used her employer's individual employee grievances process for lodging this appeal.
The appeal notice was filed with the Industrial Registry on 8 June 2021 within 21 days of the decision being received on 19 May 2021. I am satisfied that the Appellant may appeal the decision.
Appeal Principles
Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".

Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision of 19 May 2021 was fair and reasonable.
In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
(a) confirm the decision appealed against; or
…
(b) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Legislative and Policy Framework

Relevant parts of Directive 11/20: Individual Employee Grievances (the Directive) are below:

9.       Procedures for managing and resolving individual employee grievances
9.1   Stage 1–local action
(a)An employee must submit their individual employee grievance in writing to the appropriate delegate in their agency. The grievance must:
(i)comply with the agency’s individual employee grievance policy and procedures, unless the employee’s grievance is made to the Commission Chief Executive (CCE) about the chief executive of an agency under clause 10, and
(ii)include sufficient information to enable the agency to take appropriate action, including outlining the action that the employee considers would resolve the grievance. If the individual employee grievance does not include this information, the agency can request that additional information be provided by the employee.
(b)An individual employee grievance submitted by an employee must be resolved in accordance with the agency’s individual employee grievance policy and procedures. This action may include, but is not limited to, one or more of the following:
(i)conducting preliminary enquiries to determine appropriate options for resolution of the individual employee grievance
(ii)ADR strategies, including, facilitated discussion, mediation, conciliation or negotiation
(iii)gathering information, including from witnesses, and/or
(iv)other reasonable action in the circumstances.
(c)If the agency is reasonably satisfied that:
(i)an individual employee grievance is frivolous or vexatious, or
(ii)does not meet the relevant criteria of an individual employee grievance under clause 5, or
(iii)an employee has unreasonably refused to participate in local action, including ADR where appropriate, to resolve the individual employee grievance,
the agency may decide to take no further action in relation to the individual employee grievance. The agency must give written reasons for its decision in accordance with clause 9.1(f).
(d)A decision about an individual employee grievance should be made as soon as possible, but must be made within 28 calendar days of receipt of the individual employee grievance unless:
(i)the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
(ii)a grievance has been submitted to the CCE about a chief executive of an agency under clause 10.
(e)Where an individual employee grievance is made about an administrative decision and the agency fails to make a decision within 28 calendar days or such longer time as has been agreed, the agency is taken to have confirmed the decision and this allows the employee to then immediately make a request for internal review.
(f)After a decision has been made about an individual employee grievance– including a decision to take no action under clause 9.1(c)–the agency must provide a written decision to the employee who submitted the grievance. The decision must:
(i)outline the action taken to manage the individual employee grievance and the outcome of this action
(ii)provide the reasons for the decision, or the decision to take no action
(iii)outline any action that the agency proposes to take, or will take, as a result of the decision; and
(iv)inform the employee of their internal review rights outlined in Stage 2– internal review, including any relevant timeframes.
9.2   Stage 2–internal review
(a)If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
(b)A request for an internal review must:
(i)be received by the chief executive within 14 days of the employee receiving a copy of the decision made through local action or a decision is taken be made under clause 9.1(e)
(ii)clearly state the reasons for dissatisfaction with the decision made through local action, and not merely state a belief that the decision made through local action was unfair and unreasonable, and
(iii)state the action the employee believes would resolve the grievance.
(c)Once an agency receives a request for an internal review, the agency must notify the employee in writing:
(i)that the request for an internal review has been received by the agency
(ii)of the name and contact information for a contact person for the internal review, and
(iii)of the 14 day timeframe for making a decision in clause 9.2(f).
(d)An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
(e)If the chief executive or delegate is satisfied that:
(i)the reasons for seeking an internal review are insufficient
(ii)the request for internal review is frivolous or vexatious, or
(iii)the employee has unreasonably refused to participate in local action to resolve the individual employee grievance
the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).
(f)A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
(i)the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
(ii)where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.
(g)If the chief executive or delegate fails to make a decision in relation to the request for internal review, the agency is taken to have confirmed the decision made through local action. Depending on the issues raised in the individual employee grievance, this may result in an avenue of external review being available to an employee once the 14 day period in clause 9.2(f) has expired.
(h)At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
(i)outline the action taken to review the decision made through local action
(ii)outline the reasons for the decision, or the decision to take no further action
(iii)outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
(iv)outline any avenues of external review that may be available to the employee, including any relevant timeframes.
9.3   Stage 3–external review
(a)If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include:
(i)a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act
(ii)notification to the QIRC of an industrial dispute under an industrial instrument
(iii)an application to the QIRC in relation to an alleged contravention of a workplace right under Chapter 8, Part 1 of the IR Act
(iv)an application to the QIRC for a stop bullying order under Chapter 7, Part 4 of the IR Act
(v)a complaint to the QIRC in relation to alleged sexual harassment, racial vilification or religious vilification under Chapter 7, Part 1 of the AD Act
(vi)a complaint to the Queensland Ombudsman under the Ombudsman Act 2001. Note that under section 23 of the Ombudsman Act 2001, the Ombudsman has a wide discretion to refuse to investigate a complaint, for example, if the complainant has a right of appeal or review they have not used or where the complainant has used and exhausted another type of review or appeal
(vii)a complaint to the Queensland Human Rights Commission under section 65 of the HR Act, where the agency has not responded to an individual employee grievance about conduct affecting a relevant human right within 45 days, or where the employee considers the agency response inadequate.
(b)However, the issues raised in an individual employee grievance may mean that the grievance is not eligible for external review under the above legislation.
(c)Employees seeking more information about the procedures to be followed when making a public service appeal should refer to the QIRC appeals guide.[citations omitted]
The Internal Review Decision
The internal review decision of 19 May 2021 is nine pages long. It notes the history of the grievance and Ms Panting's request for internal review.
Ms Panting's reasons for dissatisfaction are listed, along with the associated outcomes she believes will resolve the grievance.
Mr Green states that in reviewing the decision made by Ms Phillips, he has undertaken the following steps:
·        considered the information provided by you in your written internal review request dated letter dated 26 March 2021 and attachments numbered A to G, noting your specific reasons for dissatisfaction and the evidence provided in support of these.
·        considered the material available to Ms Phillips in managing your grievance, including:
·Your initial grievance letter dated 10 January 2021 (sent by email to Ms Phillips on 11 January 2021) and attachments numbered A to C.
·Responses provided by Mr Cameron Castles, Mr Ryan Gittins and Mr Robert Tomlinson.
·Human Resources policies C38 Long Service Leave and C51 Annual/Recreation leave.
·Responsible Workforce Management (RWM) (September 2020).
·        assessed compliance with the procedure for managing and resolving individual grievances as set out in section 9.1 Stage 1 – local action of Directive 11/20.
·        followed the internal review procedure outlined in clause 9.2 Stage 2 – internal review of Directive 11/20 to ensure the scope of the review was adhered to.
Mr Green confirms that Ms Phillips was the authorised delegate to consider Ms Panting's grievance and that it was open to Ms Phillips to determine appropriate options for resolution including the examples set out at cl 9.1(b) of the Directive.
Mr Green notes the steps Ms Phillips took to deal with the complaint. He says that given the nature of the issues raised by Ms Panting and the level of detail provided by all parties, he considers the steps taken by Ms Phillips to be reasonable.
Mr Green notes that Ms Phillips ensured a fair process by affording Mr Castles, Mr Gittins and Mr Tomlinson an opportunity to respond to the issues outlined in Ms Panting's complaint and says that this action satisfied the principles of natural justice.
Mr Green says that Ms Phillips has dealt with Ms Panting's grievance in a timely way following initial agreement to extend the timeframe and subsequent agreement to consider the information gathered. Given the need to co-ordinate responses from Mr Castles, Mr Gittins and Mr Tomlinson, Mr Green considers the timeframe was reasonable and it is evident that genuine attempts were made to resolve Ms Panting's grievance as soon as possible.
Mr Green says that he has reviewed the letter issued to Ms Panting by Ms Phillips which outlines the decision on her grievance. Mr Green says that he has assessed the content against the procedure outlined in the Directive, specifically cl 9.1(f) and is satisfied that the letter complies with the requirements of the Directive.

Mr Green says that overall, he found the transparency of Ms Phillips' letter demonstrated that all information had been thoroughly considered in relation to each of the concerns Ms Panting raised. Further, there is no evidence to suggest there was any bias in her decision making.
On page 7 of the decision Mr Green says:
Whilst I recognise you are disappointed with Ms Phillips' decision in relation to the outcome of your grievance, I must clarify that the purpose on an internal review is not intended to reassess the grievance. My role is to review Ms Phillips' decision to ensure it was fair and reasonable as I have described above. I believe the additional information that I have provided above may assist you to understand the reasons behind Ms Phillips' decision. I trust this additional information has helped you to understand how the decision was made in relation to your grievance.
Ms Panting's reasons for appeal
Ms Panting is dissatisfied with the Department's decision. Her appeal notice sets out reasons for appeal relating to each of the points listed in her grievance.
My request for leave was initially refused due to reasons that I believe are unreasonable, ill-informed and were not provided to me in writing.
Ms Panting's appeal submissions
Ms Panting submits that the decision fails to address the reasons she says were unreasonable and ill-informed that were provided to her on 2 October 2020 via phone call where her leave request was refused.
Ms Panting says that Ms Phillips and Mr Green were selective in their investigations and did not acknowledge or address all the reasons provided by Mr Castles to refuse her leave in its entirety. These reasons are central to her grievance.
Ms Panting refutes the Department's claim that appropriate consideration was given to her leave request and that she has been provided with information through discussions with her managers and in writing.
Ms Phillips states in the decision letter, 'it is not clear to me the leave type you were requesting at the time'. Ms Panting says that she raised this in her internal review request, including the fact that Ms Phillips did not seek to clarify the leave type requested. Ms Panting asks how Ms Phillips could make an informed decision regarding the grievance without knowing the specific leave type requested and which is central to her grievance.
The decision states that the information Ms Panting was provided with in email communications were consistent with the principles and criteria outlined in the Responsible Workforce Management (RWM) document. Ms Panting submits that the only information provided to her regarding RWM was during the telephone conversation with Mr Tomlinson when he stated that due to RWM her position could not be backfilled if she is on leave at half pay.
Ms Panting submits that the decision focused primarily on RWM stating that it was a significant consideration that included 'both operational and financial aspects of approving your leave application'.
Ms Panting says that on commencement of her carer's leave, her position remained vacant for four months. On 10 August 2020 it was backfilled by an employee who was seconded to the position until 8 October 2020 when it became vacant again. Operationally the service was able to perform effectively without her. Ms Panting says that she also suggested a potential secondee to the position, Ms Jennifer Weston, who she now believes is backfilling her position. Financially, she believes that the half pay long service leave component of her leave request should not have any financial impacts to the service.
The reasons provided to Ms Panting on 5 November 2020 were entirely different reasons to those provided on 2 October 2020 and supported the approval of a reduced amount of leave. Ms Panting says her grievance does not relate to the reasons of 5 November 2020.
Ms Panting has always acknowledged that she was requesting a lengthy period of leave but says that after 42 years of service with Queensland Health, it is to be expected that she would have accrued a large amount of long service leave.
The Long Service Leave Directive: 11/18 (the LSL Directive) states that long service leave may be taken up to the total amount of long service leave due as at the date of commencement of the leave, it may be granted on half pay for any purpose, and the leave may be taken in conjunction with other forms of leave.
It was unreasonable to flatly refuse Ms Panting's leave based on the five reasons given and says that the reasons were never provided to her in writing. She says that face to face discussions to explain the reasons or to negotiate a shorter duration of leave did not take place and were never offered to her. It was only after Ms Panting sought advice from the Department and her Union that management agreed to reconsider their refusal.
It was not until 5 November 2020, some eight weeks after her leave request was submitted and more recent request an outcome in writing, that Mr Gittins included in an email, the offer of a face-to-face discussion.
The response provided to Ms Panting by the Department's internal review states that all relevant policies were considered in managing her grievance. Ms Panting sets out submissions as to how she believes the policies were not properly addressed.[1]
[1] Appeal Notice, Schedule 1, page 3.
Ms Panting says that she does not accept Mr Green's claim that the subsequent decision and reasons provided to her in the email from Mr Gittins on 5 November 2020 satisfies the concern she has regarding the notification provided on 2 October 2020.
A decision indicating whether my request for leave had been approved or not, was not provided to me in a timely manner.
Ms Panting says that her email to Mr Tomlinson on 10 September 2020, to resubmit her request for leave, was not responded to and that this has been acknowledged in the decision.
Ms Panting does not believe that Management made genuine attempts to communicate with her. She says that it was only after she advised Mr Tomlinson that she had sought further advice that responses started to occur.
Ms Panting says that the communication of information from management was not forthcoming and that she had to instigate communication by phone and email.
Ms Panting says that Mr Castles did not, as he claims, attempt to discuss all options directly with her by offer of face-to-face meetings. She says that he never attempted to contact her and that there is no evidence to support this claim. Ms Panting submits a timely response from the Department is required by cl 10.2 of Directive 04/17: Recreation Leave (Recreation Leave Directive).
On three separate occasions I was requested to either resign or commit to resigning at the end of my leave.
Ms Panting submits that in February 2020, Mr Castles asked her in a 'one on one' meeting, to commit to resigning from Queensland Health at the completion of her leave in 2021. When Ms Panting did not comply with this request, she was asked by Mr Tomlinson to provide Mr Castles with a statement in writing that at the completion of her leave in 2021 she was 'considering the option to retire'. Ms Panting sought advice from the HR Policy Team and the Together Union and was advised that she was not required to resign or put anything in writing indicating an intention to resign.
Ms Panting says that it was out of exasperation that, on 2 October 2020 after receiving a third request to resign that she stated to Mr Tomlinson that she would consider providing the requested resignation if it meant her leave request would be approved as she did not think she could return to work in such an unpleasant working culture. It was then after emailing Mr Tomlinson on 7 October 2020 advising that resignation was not a requirement to have leave approved that he provided an email response on 8 October 2020 stating that a letter of intended resignation would not satisfy minimum obligatory human resource information.
Ms Panting says that the Department's decision states that Mr Gittins supported the option put forward for Ms Panting to nominate a retirement date in order to have leave at half pay approved based on his understanding that Ms Panting did not intend to return to work following her leave. Ms Panting does not understand how Mr Gittins could have formed this view given she had already refused two previous requests to commit to resigning and had not had any communication with him regarding her leave request until she commenced liaising with him from 5 November 2020.
Ms Panting says that the decision fails to acknowledge the seriousness of being coerced to resign on three separate occasions and to acknowledge that this contradicts the Anti-Discrimination Act 1991. She does not accept, as stated in the Agency's decision, that coercing her to resign was 'genuinely intended to explore how your leave could be approved'.
A written apology from Mr Cameron Castles who I believe, as Senior Director, Asset Management, is ultimately responsible and accountable for the unreasonable manner in which my resubmitted request for leave was handled.
Contrary to the Department's decision that 'it does not appear that any further action is required', Ms Panting seeks an apology from Mr Castles. The decision to refuse all of her leave for the reasons provided on 2 October 2020 via phone call was unreasonable.
Ms Panting says that her request for leave was not handled professionally nor was it dealt with in line with the relevant industrial instruments governing annual leave and long service leave.
Ms Panting says that Mr Castles' decision breached her industrial entitlements and his insistent requests for her to resign breached the Anti-Discrimination Act 1991.
Department submissions
The Department provide some background to Ms Panting's matter and I note that it does not differ very much to that provided by Ms Panting. However, the Department states that on 3 November 2020, Mr Tomlinson attempted to arrange a meeting between Ms Panting and Mr Gittins to discuss the specifics of her leave application. The Department says that on 5 November 2020, Ms Panting emailed Mr Tomlinson confirming that leave at half pay was her preferred choice of leave and that she did not feel that a meeting with Mr Gittins was necessary. Mr Gittins responded later that day, approving a combination of leave at full and half pay for a period of 13 months.
Ms Panting agreed to and is accessing a combination of annual leave, long service leave and COVID response leave from 12 October 2020 through to 11 March 2022.
The grievance process and internal review as outlined in Mr Green's letter to Ms Panting dated 19 May 2020. I note the Department draws attention to the fact that the Director-General determined that while a Band 1 or Band 2 delegate is authorised to accept and respond to an internal review of an employee complaint, that was not appropriate in this matter. Mr Damian Green was appointed for the matter by way of an instrument of delegation.
With regard to Ms Panting's appeal, the Department says that both Ms Phillips and Mr Green were independent parties, allowing each stage to be conducted without bias or any predetermined outcome.
Further details regarding Mr Green's decision are outlined, but these are already listed above from [23] to [30].
The Department says that Ms Panting's appeal notice and submissions have not provided any new information which would alter the findings made by Mr Green in the internal review.
There are no submissions addressing each of Ms Panting's reasons for appeal. As such, I have relied on the responses provided in the decisions of Ms Phillips and Mr Green.
Grievance response from Ms Phillips
Your initial leave request was refused due to reasons that were unreasonable, ill-informed and were not provided to you in writing.
Ms Phillips response to this concern can be summarised as follows:
·Initial considerations given to your leave application included financial impacts to the service and ability to backfill your role in accordance with RWM, in addition the ability to maintain service delivery requirements;
·the government is focused on savings measures including the RWM approach;
·workforce decisions must consider the ability to deliver core business as well as the potential financial impacts;
·Mr Tomlinson and Mr Gittins were authorised to consider Ms Panting's leave request;
·given the length of time of Ms Panting's leave request and the applications for components to be taken at half pay, the leadership team sought advice from Mr Castles and relevant areas in HR to assist in determining whether Ms Panting's request could be approved;
·while these considerations may not have been articulated in detail in the first instance, Ms Phillips is satisfied that Mr Gittins gave appropriate consideration of Ms Panting's request and that Mr Tomlinson advised her in writing of the decision;
·Ms Phillips is satisfied that Ms Panting was provided with the decision and the reasons for the decision in writing.
Decisions relating to your leave requests were not provided in a timely manner
Ms Phillips response to this concern can be summarised as follows:
·The initial leave request was made informally by email to Mr Tomlinson on 10 September 2020 and on 2 October 2020, Ms Panting was informed that the request was not approved;
·this equates to a period of just over three weeks for the initial decision about Ms Panting's leave application to have been made and provided to her in writing;
·following subsequent communication between Ms Panting, Mr Gittins and Mr Tomlinson over the period 7 October 2020 and 30 November 2020, an alternative period of leave was negotiated and approved on 2 December 2020;
·The Policy requires that a decision about annual leave be made within five working days and, where this cannot be achieved, an employee is to be advised and kept informed as to the decision status;
·given the significant period of leave Ms Panting was requesting and the potential operational and financial impacts, it is not unexpected that enquiries would need to be made and consultation undertaken with the leadership team about how the leave request may be supported;
·Ms Phillips found that generally speaking, she does not consider three weeks to be an unreasonable timeframe to make enquiries and a decision;
·however, Ms Phillips also stated that given Ms Panting's requested leave was proposed to commence on 12 October 2020, this timeframe was not ideal;
·Ms Phillips further found that it appears that in line with the requirements of the Policy, Ms Panting was not kept informed during this initial period about the status of her leave request;
·Ms Phillips noted that regular communications regarding her leave application and its ultimate approval did occur over the over the subsequent six weeks between 7 October 2020 and 30 November 2020.
On three occasions Ms Panting was requested to resign or commit to resigning at the end of her leave
Ms Phillips response to this concern can be summarised as follows:
·She notes the three occasions Ms Panting was asked to either commit to resigning or provide confirmation that she was considering the option of retiring;
·she does not find it unusual for employees and line managers to have discussions about an employee's intentions with respect to their return to work or future retirement plans prior to long term leave being taken;
·Ms Phillips said that an employee's intention to resign or otherwise should not be a determining factor for the approval of one's leave request;
·it appeared that the initial decision to not approve Ms Panting's leave primarily related to workforce considerations and the ability to backfill her role;
·Mr Castles and Mr Tomlinson appeared to be of the view that should Ms Panting have committed to resigning from her position, this would support a business case for her position to be backfilled, providing an ability for her leave to be approved;
·Ms Phillips noted that Mr Tomlinson confirmed in his email of 8 October 2020 that this was not the case;
·Ms Phillips found that the discussions with Ms Panting regarding resignation or retirement at the completion of her leave was a genuine attempt to look at how her leave could be approved rather than a request that she resign from her position.
A written apology from Mr Castles
Ms Phillips does not consider an apology from Mr Castles is required.
While Ms Phillips considers that Mr Castles, Mr Gittins and Mr Tomlinson appropriately sought advice to assist with the consideration of Ms Panting's leave application, she finds that there were opportunities to provide her with more detailed information about those considerations and, particularly at the time of her initial request, to have provided her with this information in a more timely manner.
Internal Review Response from Mr Green
Ms Panting's reasons for dissatisfaction with the grievance outcome are very similar to those outlined in her initial grievance and in her request for external review via this appeal.
With regard to Ms Panting's first concern, that her request for leave was initially refused due to reasons she believes are unreasonable, ill-informed and were not provided to her in writing, Mr Green identifies two decision points regarding her leave application submitted on 10 September 2020:
1. On 2 October 2020 Mr Tomlinson telephoned you to advise your leave application had been declined. The email sent by Mr Tomlinson to you on the same date confirms the reasons were due to the Responsible Workforce Management process that had been introduced and limitations associated with available backfill options to management that would arise. The email also mentioned the option of transition to retirement arrangement had been considered.
2. On 7 October 2020, you emailed Mr Gittins requesting for your leave application to be reconsidered. On 5 November 2020, Mr Gittins emailed you, with the subject line 'RE: Response to your email – Request for Leave at Half Pay', providing a decision to approve a period of 13 months leave (a combination of leave at half-pay and full pay) and outlined reasons which related to the need to balance your entitlement to take accrued leave with operational and financial considerations of the unit.
Mr Green found that in making a decision on this issue, Ms Phillips had considered not only the initial decision (and reasons provided) of 2 October 2020 but also the subsequent decision (and reasons) of 5 November 2020. Mr Green also noted that in her decision letter, Ms Phillips acknowledged the reasons had not been articulated to Ms Panting in detail in the first instance but that she was satisfied that a more detailed explanation was subsequently provided by Mr Gittins on 5 November 2020.
Mr Green found that it was reasonable for Ms Phillips to consider she was satisfied that, overall, Ms Panting had been provided with the reasons for the decision on her leave application.
Mr Green made reference to the information Ms Phillips had available to her: responses from Mr Castles, Mr Gittins and Mr Tomlinson; the RWM information published on the Queensland Health intranet page; H R policies.
Mr Green found that it was evident that the decision making regarding the 10 September 2020 request needed to considered factors introduced as a result of the RWM and that those factors had not been a relevant consideration when Ms Panting's previous (cancelled) leave application was made.
Further, Mr Green found that the introduction of RWM was consistent with the focus of the responses provided by the managers. Mr Green said, in summary:
·It is recognised the RWM requirements were newly introduced at the time;
·Mr Gittin's response outlined the extensive enquiries made with Human Resources and within the business to clarify what needed to be considered when making a decision on the leave application;
·the principles and criteria outlined in the RWM document appear to be consistent with the information provided to Ms Panting in the responses;
·the principles and criteria were also outlined in email communications from the managers to Ms Panting; and
·the information available to Ms Phillips demonstrates the managers gave consideration to both operational and financial impacts of Ms Panting's leave application.

Mr Green found that it was reasonable for Ms Phillips to form the view that appropriate consideration had been given to Ms Panting's leave application.
With regard to Ms Panting's concern that the decision regarding the approval of her leave had not been provided to her in a timely manner, Mr Green stated that he had reviewed the timeline of events based on the information available to Ms Phillips outlined at [65] above. Mr Green noted that within the information available to Ms Phillips, the managers promptly responded to all emails sent by Ms Panting, generally within one business day, with the exception of one occasion acknowledged by Mr Tomlinson, where he had not responded to Ms Panting's email of 10 September 2020 until 23 September 2020 as he was waiting for advice. Mr Green found that there was no evidence to indicate the management team were reluctant to communicate with Ms Panting.
Mr Green made reference to the enquiries which were being undertaken during the four week period to seek advice in relation to the leave application and the significant changes to backfilling arrangements which arose once the RWM had been introduced.
Mr Green noted that Ms Phillips had recognised that there were opportunities in the initial stage of the leave application to provide Ms Panting with information in a timelier manner. However, Mr Green found that given there had been an agreement to allow a four week period between 8 October 2020 and 5 November 2020 to consider the request, it was reasonable to expect that updates were not required during this time.
With regard to Ms Panting's concern that on three separate occasions she was requested to resign or commit to resigning at the end of her leave, Mr Green noted that the first two occasions nominated by Ms Panting occurred in February 2020 and March 2020 and that these occurred prior to her leave application of 10 September 2020.
Mr Green considered the information Ms Phillips had available to her in relation to the discussion on 2 October 2020 in which Ms Panting alleged Mr Tomlinson suggested she nominate a resignation date at the end of the half-pay leave application of 10 September 2020:
· Mr Castles' written response which included a copy of an email sent by Mr Tomlinson to you on 8 October 2020 in which Mr Tomlinson clarified the intent of his previous conversation with you to 2 October 2020 regarding the provision of a letter of intended resignation. In the email, Mr Tomlinson clarified that it was his intention to put the idea forward as a suggestion, and not to insist that it be the course of action undertaken. Mr Tomlinson also clarified that he was of the belief that it may have released the MOHRI, however had since been advised it would have no effect.
· Mr Gittins' response which supported the view that Mr Tomlinson put forward the option (for your consideration) of nominating a retirement date based on his understanding that you did not intend to return to work following your leave. Mr Gittins' response also corroborated the view there was a misunderstanding that it would help alleviate the financial and service delivery impacts from the half pay leave request.
Mr Green states that he considered the information that was available to Ms Phillips. Mr Green found that the responses provided by Mr Tomlinson, Mr Gittins and Mr Castles all demonstrate they were looking at ways to support Ms Panting's leave request, by exploring the impact of backfilling the position over a lengthy period. Mr Green also referred to Mr Gittins seeking advice from HR and the leadership team to understand the implications of backfilling the position with regard to the RWM strategy.
Mr Green found that there was no evidence to suggest the managers were driven by any ill intentions. Mr Green further found that it was reasonable for Ms Phillips to be of the view that based on the response, the discussions were genuinely intended to explore how Ms Panting's leave could be approved. In stating that the finding Ms Phillips made on this issue appears fair and reasonable, Mr Green also noted Ms Phillips clarification in her written decision that 'an employee's decision to resign or otherwise should not be a determining factor for the approval of one's leave request'.
Mr Green says that he is satisfied based on Ms Phillips' decision where Mr Castles had appropriately sought advice to assist the consideration of Ms Panting's leave application, and therefore no grounds to warrant seeking an apology from Mr Castles.
Mr Green noted Mr Castles' response stating that he was disappointed to hear that Ms Panting felt she was treated unfairly during the process and that it was not the intention.
Consideration
I have read and considered all submissions and material provided to me even if I do not refer to specific documents or aspects of the submissions or material. I note that the statements provide to Ms Phillips by Mr Castles, Mr Tomlinson and Mr Gittins were not attached to the initial submissions of the Department. I requested that these statements be provided and I have reviewed them along with all other information provided.
With regard to the requirements set out at cl 9.2(h) of the Directive; I am satisfied that the internal review decision: outlines the action taken to review the decision made through local action; outlines the reason for the decision to take no further action; and outlines avenues of external review available to Ms Panting, including relevant timelines.
To determine whether it was reasonable for Mr Green to decide that the decision of Ms Phillips was fair and reasonable and that no further action was required, I have considered the information available to me as it relates to each of Ms Panting's reasons for appeal.
Concerns regarding initial refusal of leave request on unreasonable grounds and response to initial leave request not being provided in writing or in a timely manner
After 42 years with the Department, it is clear that Ms Panting was very disappointed in what she saw as the delays and conflicting information being provided to her regarding an application for leave that she thought would be uncontroversial given that a very similar application had been approved previously. Adding to Ms Panting's disappointment is that the reason she had cancelled the previously approved leave was to commence carer's leave to support her husband who is suffering serious health issue.
As I understand it, the key difference between the approval of the first (cancelled) leave request and the initial refusal of the later request (leading to this request for external review) appears to be the introduction of the RWM program in the intervening period.
The request for leave and both the verbal and emailed response to that request appear to have been made and communicated in an informal way. I note that Ms Panting submits that a leave request submitted by email is formal in nature, however, it is not formal in the sense that it was not a leave form submitted through the formal process. I note that at the time that Ms Panting made her emailed request on 10 September 2020, she appeared to be seeking 'pre-approval' to ensure that her application would be favourably considered when she lodged it through the formal process.[2] The various email trails provided to me show that Ms Panting was provided reasons for refusing her leave and that it was these reasons she addressed in her request for her leave to be reconsidered.
[2]The final sentence of the email reads, 'I will complete the necessary form in My HR, however I wanted to advise you and get your ok prior to lodging any requests online.'
There does not appear to have been any resistance from Mr Tomlinson, Mr Gittins or Mr Castles to Ms Panting seeking advice from HR or her union regarding the matter.[3] In fact, the information Ms Panting provided as a result of the advice she sought appears to have been taken into account in the final decision to approve her leave.
[3]For example, Extract of Microsoft Teams chat attachment 3 filed 23 July 2021.
Following Ms Panting raising her concerns, the evidence demonstrates that there was a period of consultation and advice sought in order to determine if Ms Panting's leave could be approved. Ms Panting raised her concerns in detail in an email to Mr Gittins dated 7 October 2020. The exchange of emails between various individuals from there appears to be focused on seeking advice in response to Ms Panting's concerns.
Despite Ms Panting's submissions about the motivations of the three men, it appears to me that each of them was motivated by a desire to comply with the RWM policy while also seeking ways for Ms Panting's leave to be approved. While leave accumulates as a workplace right and there is an entitlement to apply to take it at half pay, the Directive states that 'granting of the leave on half pay is subject to departmental convenience, however requests for leave should not be unreasonably refused'.[4] It was reasonable for those responsible for approving or refusing the leave to give consideration to 'departmental convenience' and I accept that this is what occurred.
[4]Long Service Leave Directive 11/18, cl 16.
To that end, it is clear to me that the initial decision was taken as a result of a focus on operational matters and capacity to backfill. The initial refusal of Ms Panting's leave appears to have been as the result of the genuinely held belief of those involved that it was not possible to approve such a long term period on half pay in the circumstances the Department found itself in.
When Ms Panting asked for this to be reconsidered and expressed her concerns as to why refusal was unreasonable, the matter was reconsidered and this resulted in leave being approved.
Ms Panting's leave was eventually approved in what appears to be a mutually agreeable way. When Ms Panting replied and asked for the initial decision to be reconsidered, it was then, albeit after a period of weeks, withdrawn and replaced with a decision to approve her leave. Essentially, the actions taken and the eventual decision in November 2020 to approve the leave served to ameliorate the initial decision Ms Panting had taken issue with.
The decision maker found that while there could have been more communication with Ms Panting in the early stages of the process, given the complexity of the nature and the agreement from Ms Panting to allow a period of time for the managers to look into the matter, the time taken to eventually approve Ms Panting's leave was not unreasonable. I consider this to be both an acknowledgement of Ms Panting's concern and a recognition that there were practical considerations that led to a delay that could not be considered unreasonable in the circumstances.
The initial decision was corrected and the final decision was to approve the leave.

[100]I note Ms Panting's submissions regarding Ms Phillip's statement in the grievance decision that she was not clear as to the type of leave being requested at time. I do not agree with Ms Panting's assessment that Ms Phillips cannot have made an informed decision without knowing the specific leave type requested. The decision of Ms Phillips clearly makes reference to the leave applied for and approved and to the information provided to Ms Phillips.
[101]I find that the internal review decision of Mr Green to confirm the finding of Ms Phillips in relation to this concern was fair and reasonable.
[102]I do not consider that further action is required as a result of this concern.
Concern regarding requests to resign or commit to resigning
[103]At the outset I note that Ms Panting has not resigned from her position or committed to resigning from her position.
[104]I further note that Mr Tomlinson was transparent in his dealings with Ms Panting. He sent Ms Panting an email on 2 October 2020 to report to her his response to Mr Gittins following their conversation about her initial leave application, it reads in part:
…I explained that a Workforce program named Responsible Workforce Management had been introduced that will impact the back-fill options for her position rendering it almost impossible to extend Jess's secondment in her role. Further, advice had been received that the expected transition to retirement arrangement was a gradual reduction in work days. I did suggest that the department's position may be reconsidered if Sue decided to nominate a resignation date at the end of her half-pay leave arrangement as this means the position is technically vacant; Sue said she would consider this option as she had thought that she wouldn't return to the department. Sue said she would seek further advice from HR and her Union and would reply next week.
Please let me know if I have done something wrong.

[105]I note that on 8 October 2020, Mr Tomlinson provided Ms Panting with a correction informing her that his understanding that a commitment to resign or retire may have a positive impact on decision making regarding her leave was wrong.
[106]It seems to me that that email withdrew any suggestion he was making and acknowledged that to the extent he provided any such advice or made such a request, he was wrong and the advice or request was withdrawn.
[107]In any case, Ms Panting had sought advice from the Department's own human resources team and it was confirmed that she could not be required to retire or resign in order to have her leave approved. It appears that this advice was also provided to Mr Gittins and Mr Tomlinson.
[108]While it would be of significant concern if employees were being coerced or forced to retire or resign in order to access leave, I agree with Ms Phillips that it is not unusual nor prohibited for there to be conversations about employee's intentions when long term leave is applied for. Like Mr Green in his internal review decision, I note that Ms Phillips acknowledged in her decision that an employee's intention to resign or otherwise should not be a determining factor involved when approving leave requests.
[109]Ms Panting says that the behaviour of those raising resignation or retirement with her contradicts the Anti-Discrimination Act 1991. This appeal is not a pathway to receiving a decision as to whether that Act has been breached.
[110]I note Ms Panting's concern about two other times she alleges she was asked to resign or retire, however these do not appear to be connected to the initial leave decision on appeal and I have limited information available regarding these interactions. However, for completeness, I believe that Ms Phillips' acknowledgement noted at [109] would likewise apply to any other occasions that intention to retire was raised with Ms Panting in relation to a leave application.
[111]I find that Mr Green's decision confirming the finding of Ms Phillips in relation to this concern was fair and reasonable.
[112]Additionally, as found by Mr Green, I do not consider it necessary for any further action to be taken in relation to this concern.
Request for an apology from Mr Cameron Castles
[113]Ms Phillips noted that the handling of Ms Panting's application for leave was not ideal but that the matter was complex and found that there was no need for Mr Castles to issue an apology.
[114]I have reviewed Mr Castles communication to Mr Gittins and note his advice to Ms Phillips that it was sent following advice from the HR team. I further note that in his response to Ms Phillips, Mr Castle relevantly said:
…I am disappointed to learn that Sue has felt she has been treated unfairly during this process. This was certainly never our intention…
…Again I am disappointed that Sue has felt she has been treated unfairly in this process, and this has resulted in a complaint escalated to yourself. In the spirit of resolution I would welcome the opportunity to participate in a mediation process if it is deemed warranted to resolve the matter between the parties.

[115]In such circumstances, I cannot see the necessity or the utility in an apology being issued from one employee who was involved in the decision making and appeared to be acting on advice or his understanding of the policy, even if this was misguided.
[116]I find that the internal review decision of Mr Green was sound and that it was open to him to find that Ms Phillips response to the grievance was reasonable.
[117]Finally, I note that this is the third review of an initial decision which was withdrawn and replaced with a decision Ms Panting says she is grateful for. The eventual second decision approving Ms Panting's leave appears to have led to an outcome satisfactory to all parties. This demonstrated to me that Ms Panting's concerns with the initial decision were dealt with at the local level. I find no reason to disturb the external review decision of Mr Green.
Order
[118]The internal review decision of decision Mr Green dated 19 May 2021 is confirmed.

[2021] QIRC 276

10 August 2021