Shirmohammadi v State of Queensland (Department of Agriculture and Fisheries)
[2025] QIRC 265
•7 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Shirmohammadi v State of Queensland (Department of Agriculture and Fisheries) [2025] QIRC 265 |
| PARTIES: | Shirmohammadi, Maryam v State of Queensland (Department of Agriculture and Fisheries) |
| CASE NO: | PSA/2024/203 |
| PROCEEDING: | Public Sector Appeal |
| DELIVERED ON: | 7 October 2025 |
| MEMBER: | Caddie IC |
| HEARD AT: | On the papers |
| ORDER: | The decision appealed against is confirmed. |
| CATCHWORDS: | PUBLIC SECTOR APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Fair Treatment Appeal – where the Appellant appeals an internal review decision related to a Performance Development Agreement the Appellant considers is adverse and unfair – consideration of whether decision appealed against was fair and reasonable – consideration of the purpose and nature of Performance Development Agreements – considerations of procedural fairness – decision was fair and reasonable. |
| LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564 Public Sector Act 2022 (Qld) ss 129, 131, 132, 133 Directive 11/20 Individual Employee Grievances Directive 15/20 Positive Performance Management Directive 02/24 Positive Performance Management |
| CASES: | Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283 |
Reasons for Decision
Dr Maryam Shirmohammadi ('Dr Shirmohammadi') is employed as Principal Research Scientist, Forest Product Innovation, (PO5) with the Department of Primary Industries (formerly the Department of Agriculture and Fisheries) ('the Department'). Dr Shirmohammadi has been employed in this role since 2019.
Dr Shirmohammadi was responsible for overseeing and managing the 'DAF Durability Centre' under the supervision of Dr William Leggate ('Dr Leggate').[1] A key part of Dr Shirmohammadi's responsibilities was overseeing the project Decay on Timber and engineered wood product systems due to water ingress/egress.[2] This project was undertaken by the Department in conjunction with the Durability Centre.
[1] Dr Leggate, as called by the Appellant and in his signature block, is also referred to as Mr Leggate in the decision letter. He will be referred to as Dr Leggate in this Decision.
[2] Submissions of the Appellant, filed 7 January 2025, [7].
This appeal of a fair treatment decision, filed 16 December 2024, originated from the final assessment of Dr Shirmohammadi's Performance Development Agreement 2022-2023 (PDA) that included adverse outcomes against previously agreed performance and development objectives.[3]
[3] The performance and development objectives in the PDA were agreed between Dr Shirmohammadi and her supervisor Dr Leggate on 6 February 2023.
More specifically, the decision appealed against is the internal review decision given by Mr David Innes ('Mr Innes' or 'the decision maker') (A/General Manager, Horticulture and Forestry Science, Agri-Science Queensland) dated 27 November 2024,[4] that upheld the outcome of the PDA review and two local reviews of the outcome.
[4] Individual Employee Grievances Directive 11/20, cl 9.2.
For the following reasons, I have determined to confirm the decision appealed against as fair and reasonable.
Background
A performance review meeting was held on 24 April 2024 between Dr Shirmohammadi, Dr Leggate and Ms Marsh from Human Resources (HR). The meeting was to complete the 12-month review of progress against the performance and development objectives set in her PDA dated 6 February 2023. No six-month review was completed.
Dr Shirmohammadi did not sign the record of the performance review meeting. She disagreed that her feedback had been incorporated, she considered comments included were harsh and it was not an accurate record of all the matters discussed. Dr Shirmohammadi objected to the traffic light system where objectives were rated red or amber.
On 13 May 2024, Dr Leggate reviewed the PDA and confirmed it was appropriate that some deliverables were marked as amber, representing that 'development was ongoing' and some as red, which reflected requirements not having been met.
Dr Leggate, by email dated 3 June 2024, acknowledged Dr Shirmohammadi's disagreement with the outcome and his included comments. He indicated he would sign the PDA as the Manager and it would be placed on file. The email detailed why some elements were coded red and amber. The email then proposed they could move on to development of a positive PDA for 2024/2025.[5]
[5] Submissions in reply of the Appellant, filed 5 February 2025, Email of 3 June 2024 from Dr Leggate to Dr Shirmohammadi.
As requested by Dr Shirmohammadi, a further review was conducted by Dr Tim Smith, Director, Forestry and Bioscience, ('Dr Smith') on 20 August 2024, which determined that the PDA was fair and reasonable.
Dr Shirmohammadi lodged an Individual Employee Grievance (IEG) on 31 October 2024,[6] which was accepted by the Department as a Stage II Grievance in line with the IEG Directive.[7]
[6] Submissions of the Appellant, filed 7 January 2025; Letter of 27 November 2024 from David Innes to Dr Maryam Shirmohammadi, 8.
[7] Directive 11/20, cl 9.2.
The decision maker conducted an internal review of the 13 May 2024 and the 20 August 2024 local decisions.
On 27 November 2024, Mr Innes provided Dr Shirmohammadi with a written decision detailing the outcome of the Stage II review process ('the decision'). This decision confirmed the two previous decisions and affirmed that the PDA accurately captured feedback regarding Dr Shirmohammadi's performance.[8]
[8] Form 89, filed by the Appellant on 16 December 2024, Letter of 27 November 2024 from David Innes to Dr Maryam Shirmohammadi, 8.
In the appeal notice, Dr Shirmohammadi explained that the adverse PDA 'is unfair and shall unfairly impact on my career, reputation and professional standing.'[9]
[9] Form 89, filed by the Appellant on 16 December 2024, 4.
Appeal principles
The Commission must 'decide whether the decision appealed against was fair and reasonable.'[10] This involves consideration of the decision arrived at, having regard to the information available to the decision maker at the time the decision was made, and the process followed. The words 'fair' and 'reasonable' have their ordinary meanings.[11] The Commission is not confined to legal reasonableness.[12] The appeal is by way of review, not by way of rehearing.[13] Findings made in the decision which are reasonably open to the decision maker are not expected to be disturbed on appeal.[14]
[10] Industrial Relations Act 2016 (Qld) s 562B(3).
[11] Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16, [25] (Merrell DP).
[12] Ibid [20]-[22], (Merrell DP).
[13] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[14] O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10] (Power IC).
Dr Shirmohammadi nominated that the appeal was made pursuant to s 131(1)(d) of the Public Sector Act 2022 (Qld) ('the PS Act'), which is a 'fair treatment decision':
131 Decisions against which appeals may be made
(1)An appeal may be made against the following decisions –
…
(d) a fair treatment decision;
….
(2)However, if an appeal may be made under this section against a decision, other than under subsection (1) (d), the appeal can not be made under subsection (1)(d).
(3)This section is subject to section 132.
A 'fair treatment decision' is defined by the PS Act as a decision that a 'public sector employee believes is unfair and unreasonable.'[15]
[15] Public Sector Act 2022 (Qld) s 129.
Section 132 of the PS Act relevantly identifies which decisions may not be appealed against:
132 Decisions against which appeals can not be made
(1)A person can not appeal against any of the following decisions –
…
…
(4)A person can not appeal against a fair treatment decision –
(a) made under chapter 3, part 8, division 5; or
(b) made under chapter 3, part 8, decision 3, other than a finding under section 91 that a disciplinary ground exists for the person; or
…
(c) relating to a person's work performance, other than a decision about the person's work performance that is recorded in a formal way as part of a periodic performance review; or
Example for paragraph (d) –
a decision about performance recorded in a person's performance development agreement as part of the person's 6-monthly or annual performance review
…
Eligibility to appeal
This appeal, being against a decision relating to performance recorded in a person's PDA, falls into the exception outlined in s 132(4)(c) and is capable of being appealed.
As a public sector employee aggrieved by the decision, Dr Shirmohammadi is entitled to appeal.[16]
[16] Ibid s 133(d).
Section 564(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against was given.[17] Dr Shirmohammadi filed her appeal on 16 December 2024, having received the decision on 28 November 2024.
[17] Industrial Relations Act 2016 (Qld) s 564(1); s 564(3)(d).
I am satisfied that the decision is one that may be appealed against, that Dr Shirmohammadi was entitled to appeal, and that the appeal was lodged within the required time.
Decisions the Commission may make
The IR Act relevantly prescribes what action the Commission may take when determining a public sector appeal.
562C Public service appeals – decision on appeal
(1)In deciding a public service appeal, the commission may –
(a)confirm the decision appealed against; or
(b).....
(c)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.
…
Decisions sought
Dr Shirmohammadi sought that her appeal be upheld and that 'the adverse PDA ranking be removed and corrected.'[18] In submissions this request is further explained as: 'the relevant performance review (PDA) report is to be amended to include all green traffic lights – reflecting satisfactory performance in all areas'.[19]
[18] Form 89 filed by the Appellant on 16 December 2024, 4.
[19] Submissions of the Appellant, filed 7 January 2025, [25].
In response to Dr Shirmohammadi's request that the performance review report be amended, the Department submitted that, although the Commission can substitute a new decision, the Commission is not empowered to amend the performance review.[20]
[20] Submissions of the Respondent, filed 21 January 2025, [5].
The Department sought that the Decision be confirmed as fair and reasonable and asked the Commission to dismiss the appeal.[21]
[21] Submissions of the Respondent, filed 21 January 2025, [26]-[27].
Relevant directives and policies
Directive 11/20 'Individual Employee Grievances' ('the Directive') applies to public service employees and relevant entities. In Clause 4, the policy principles underpinning the Directive are expressed as follows:
4.1 The Queensland Government is committed to creating positive and healthy workplace cultures, where employees supervisors and managers:
(a)make decisions and take actions that are fair and transparent, and take responsibility for the consequences of their decisions and actions
(b) question actions that are inconsistent with the public service values and Code of Conduct for the Queensland public service
(c) treat each other with respect independent of their status or disagreement
(d) listen to understand and show empathy for others
(e) work together to resolve issues early and as informally as possible.
The Directive establishes what may constitute the subject of an individual employee grievance and establishes the relevant principles and steps for resolution:
5.1 An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that:
(a) an administrative decision, which they are aggrieved by, is unfair and unreasonable
(b) the conduct or behaviour of an employee, agent or contractor is unfair and unreasonable
(c) the conduct or behaviour of an employee, agent or contractor constitutes bullying in the workplace, sexual harassment, racial vilification, religious vilification or vilification on the grounds of gender identity or sexuality
(d) the conduct or behaviour of an employee is a breach of the Code of Conduct
(e) an act or decision is not compatible with human rights or a decision failed to give proper consideration to a relevant human right under the HR Act.
…
8.1 Employees are required to ensure that individual employee grievances are submitted as soon as reasonably possible after the administrative decision, alleged conduct or alleged behaviour has occurred.
8.2 Individual employee grievances are to be managed and resolved using a three-step process:
(a) local action (the first stage of the individual employee grievance process)
(b) internal review of a decision made following local action (the second stage of the individual employee grievance process), and
(c) where applicable, external review of a decision made at internal review (the third stage of the individual employee grievance process).
8.3 Agencies, including managers and supervisors, must manage individual employee grievances:
(a)in accordance with principles of natural justice, including timely decisions and the provision of adequate reasons;
(b)in a manner that protects the privacy of the employee who has submitted the grievance subject to any legal disclosure obligations, such as the requirement to provide natural justice to the subject of the grievance; and
(c) in accordance with the procedures in clause 9.
8.4 All parties to an individual employee grievance:
(a) must engage in the individual employee grievance process in good faith; and
(b)be provided with regular and timely information by the decision maker in relation to the progress of the individual employee grievance.
…
9.1 Stage 1 – local action
(a)An employee must submit their individual employee grievance in writing to the appropriate delegate in their agency…
…
(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.
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 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.
…
(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
(ii)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.
…
The relevant directive regarding positive performance management defines a PDA as 'an agreement between an employee and their manager regarding the expected performance of the employee and any agreed development during the course of their employment'.[22] The directive specifies that these are normally entered into and reviewed at least annually.[23]
Grounds of Appeal
[22] Directive 02/24, 9.
[23] Ibid.
The impugned PDA
The relevant PDA agreement for the 2022-2023 period featured a 'red' assessment for the Water Ingress project, and amber assessments for 'project development' and 'leadership, management and relationship/communication activities' and some other development sections. The PDA also reflected green outcomes throughout.[24]
[24] Letter of 27 November 2024 from David Innes to Maryam Shirmohammadi, 2.
The Traffic Light system used by the Department to identify outcomes used green to indicate strong development progress was being made, amber as reflecting that development was ongoing, and red to flag areas where the employee was not meeting requirements.[25]
[25] Ibid.
Dr Shirmohammadi raised the following concerns about the PDA in the appeal notice:
·the 2022-2023 PDA was conducted by Dr Leggate, who, despite being Dr Shirmohammadi's supervisor, was absent for a period of time and was not Dr Shirmohammadi's supervisor for 5 months of the relevant period of the PDA;
·that Dr Leggate marked down the PDA on the basis that Dr Shirmohammadi had not completed a major project report within the required time, despite being aware that 'the vast majority of delay…had been caused by the client…and by Dr Leggate and others who delayed in their review of published works';[26]
·that while Dr Leggate found that the project report submitted by Dr Shirmohammadi was not of a suitable standard or quality, 'other senior personnel' agreed the report was of sufficient quality;[27] and
·Dr Leggate recorded and reported in the PDA items that were not part of the PDA discussion had between Dr Shirmohammadi, Dr Leggett and a Human Resources Officer.
[26] Form 89 filed by the Appellant on 16 December 2024, [3].
[27] Ibid, [4].
Appeal grounds
The conclusion reached in the decision Dr Shirmohammadi appeals against is as follows:[28]
[28] Letter of 27 November 2024 from David Innes to Maryam Shirmohammadi, 8.
My decision
In considering the requirements under Directive 11/20, for the reasons set out above and
based on all the information provided to me, I am not satisfied you have raised any matters
through your request which provide sufficient reasons for me to disrupt the original decision. I
consider that your PDA reviews accurately captured feedback regarding your performance. I
consider the review conducted by Dr Smith in relation to your concerns to be fair and
reasonable in the circumstances and I confirm those decisions.
Dr Shirmohammadi identified the following grounds of review of the decision of 27 November 2024:[29]
·that the Stage II review decision ignored the points raised by Dr Shirmohammadi;
·neither Dr Shirmohammadi nor her nominated witnesses were interviewed by the Department when conducting their Stage II review; and
·the Stage II grievance decision upheld the first decision despite 'substantial evidence to the contrary'.
[29] Form 89 filed by the Appellant on 16 December 2024, 4.
The overarching argument advanced by Dr Shirmohammadi was as follows:
The Appellant's case is essentially that because the decision maker was not provided with all relevant material, including emails and documents prepared and transmitted by the Appellant responding to concerns raised by her Supervisor, and because the Appellant was not provided with copies of all materials placed before the decision maker, thereby denying her rights to procedural fairness, the Respondent's entire review process is tainted and has resulted in a decision designed to uphold the PDA report signed by BL, and which is manifestly unfair.[30]
…
In brief the Appellant's case is that she has been denied procedural fairness and that the decision maker has taken account of irrelevant considerations (events which occurred outside the review period), and further relevant considerations… were not taken into account, such that the Respondent's review should be overturned.[31]
[30] Submissions of the Appellant, filed 7 January 2025, [21].
[31] Ibid [24].
The broad issues that underpinned Dr Shirmohammadi's contentions were as follows:
·the PDA decision was unfair as it would adversely impact Dr Shirmohammadi's career and reputation;
·the decision was flawed fundamentally as the decision maker did not consider all of the available evidence;
·there was a lack of procedural fairness as the Applicant was not provided with all documents;
·the documents that were relied upon by the decision maker were selective in nature, and some were irrelevant; and
·the Department failed to follow its own process in that it had not conducted a mid-term performance review.
I will consider the submissions of the parties as relevant to each of these contentions relied upon by Dr Shirmohammadi in support of her claim for relief.
Concerns about career, reputation and promotion potential
A key submission of Dr Shirmohammadi is that the decision appealed against 'has and/or shall adversely impact on her professional reputation, career and prospects for promotion.'[32]
[32] Ibid [2].
Dr Shirmohammadi explained that this was because the 'traffic light system' adopted in the PDA reflects red and yellow coded assessments, which 'reflect sub-standard performance'.[33]
[33] Ibid [22].
In response, the Department characterised the Appellant's concern as 'misplaced'.[34] They highlighted that the purpose of a PDA was to provide feedback to employees and emphasised that PDAs remain private between an employee and employer.[35]
[34]Submissions of the Respondent, filed 21 January 2025, [16].
[35] Ibid.
Consideration
PDAs are an important tool in the positive performance management approach required under the PS Act and Directive. The PDA process is separate to any process for managing unacceptable work performance where a structured Performance Improvement Plan may be implemented. Section 7.5 of the Positive Performance Management Directive 15/20 states:[36]
7.5 The process for managing unacceptable work performance could lead to:
(a) the employee meeting the work performance expectations for the role and completing the PIP and reverting to ongoing performance development agreements and regular reviews as outlined under clause 6.7, or
(b) the employee meeting some of the agreed expectations for the role, and the chief executive extending the PIP for a further specified period, or
(c) the employee failing to meet the work performance expectations set out in the PIP and the chief executive considering management action or commencing a disciplinary process under the directive relating to discipline.
[36] The Directive currently in force relevant to positive performance management, Directive 02/24, reproduces cl 7.5 at cl 10.10.
The Department of Agriculture and Fisheries Performance and Development Agreement Policy 2020 ('DAF Policy') also identified a separate process for unsatisfactory performance.
Where an individual's performance is unsatisfactory, they will be managed in accordance with performance improvement and/or disciplinary processes.
While Dr Shirmohammadi vehemently disagreed with the characterisation of any of the outcomes against expectations as red or amber, her overall performance was not viewed in the PDA, decision letter or filed submissions to represent unsatisfactory work performance. There was no proposal to seek Chief Executive (or delegate) approval for a structured performance improvement plan. At its highest, the decision letter referred to an email from Dr Leggate dated 10 February 2023 indicating that the ongoing delay "is becoming a major non-performance matter." The PDA reflected concerns about some aspects of her performance.
In his email of 3 June 2024,[37] Dr Leggate proposed to move to discussing and agreeing the replacement PDA, whilst acknowledging the Appellant's ongoing dissatisfaction. In the PDA itself, it provided:
We will need to ensure the next PDA is carefully developed to address all of these items.
[37] Email of 3 June 2024 from Dr Leggate to Dr Maryam Shirmohammadi.
There was no basis for Dr Shirmohammadi to form a view that the outcomes against expectations contained in the final PDA review would be known to or accessible to any party without a proper purpose. The DAF Policy at clause 14 provides:
14 Storage of information
All information relating to the PDA process is to remain confidential and must only be discussed with officers who have a need to know and/or provide advice about the process e.g. supervisor, manager. In cases of dispute resolution or medical conditions that affect performance for monitoring and evaluation of the PDA, documentation may be accessed by a third party to assist in the resolution of the issue. Medical information will not be released without employee consent.
The original PDA documentation is stored with the employee's supervisor. The employee should also keep a copy of their own PDA. Copies of PDAs may be collated to assist in identifying training and development needs of the unit. If an employee is promoted, transferred or redeployed, PDA documentation is retained by the originating work unit and not forwarded to the new work area or agency. PDA documentation must be retained for a period of seven (7) years after last action.
No evidence was provided to support the contention that the red and amber ratings in the PDA, confirmed as reasonable in the decision letter, had already caused her career or reputational damage. I am not persuaded that Dr Shirmohammadi's perception of the future or potential impact of the PDA on her career, reputation or promotion prospects are substantiated.
I note also that it was not a matter addressed in the decision letter the subject of this appeal. It is not clear whether it was not raised as an issue in the formal grievance or whether it was a matter raised but not directly mentioned by the decision maker as relevant to his consideration of the local decisions. Either way it is not a basis to set the internal review decision aside.
Failure to consider the totality of the evidence
The decision was rendered unfair and unreasonable, Dr Shirmohammadi argued, by the failure of the decision maker to consider all relevant material.
Dr Shirmohammadi explained this contention as follows:[38]
The decision maker did not review, investigate, interview, or otherwise consider the totality of the evidence in this case. With all due respect to Mr Innes, he read documents (many of them selective) provided to him by HR and then signed a 9-page letter drafted and presented to him by HR. This does not represent nor reflect a fair or reasonable review of the Appellant's grievance about the Respondent's decision on her PDA. For example, neither the Applicant nor witnesses nominated were interviewed or called upon to provide documents and/or other evidence.
[38] Submissions of the Appellant, filed 7 January 2025, 4, [18].
By way of example of the first issue, the Appellant submitted that neither the Appellant or any of the witnesses she nominated were interviewed or asked to provide additional evidence.
The Department submitted that the role of the internal review decision maker was to:
…review the decisions made by the Team leader and Director and determine whether the decisions were fair and reasonable in the circumstances. It was not a workplace investigation, rather a review of the decision and process undertaken in relation to the decision.
…The Decision Maker carefully considered all the information available and was not required to interview the Appellant or any witnesses.[39]
[39] Submissions of the Respondent, filed 21 January 2025, [21] – [22].
In relation to selective material being provided to the decision maker, the Appellant pointed to the provision of emails transmitted mainly by Dr Leggate to herself (and others) but failed to provide her "many and detailed email responses" for review by the decision maker.[40]
[40] Submissions of the Appellant, filed 7 January 2025, [20].
The Department acknowledged in submissions that Dr Shirmohammadi provided examples of the further documentation she said should have been considered by the decision maker at Annexure 11 of her submissions.
The relevant documentation consisted of emails between Dr Shirmohammadi and Dr Leggate discussing the progress of the report. A significant email is sent by Dr Leggate on 12 May 2023, providing feedback on the draft report and detailing concerns with it. Dr Shirmohammadi responds on 24 August 2023 with a detailed explanation of her perspective on the issues raised by Dr Leggate.
The Department submitted that consideration of these emails by the decision maker was not necessary, given the large volume of information already available and says the information 'was reflected in other documents available to the decision maker'.[41]
[41] Submissions of the Respondent, filed 21 January 2025, [25].
The Department refuted the contention that these documents not being provided to the decision maker rendered the internal review decision unfair or unreasonable.[42]
[42] Ibid.
Consideration
There is no requirement for an investigation or interviews to be conducted with witnesses or the employee at Stage II of the IEG process. Investigation and interviewing witnesses are options that exist at Stage One that may be utilised at the discretion of the local decision maker. Stage II is not a fresh consideration of the grievance itself, it is a review of the stage one decision. The Directive does contain a general requirement at cl 8.4 (b) that all parties must be provided with regular and timely information by the decision maker in relation to the progress of the grievance. Lack of investigation and interviews is not a reason to set the decision aside.
In relation to selective information provided to the decision maker, the Appellant has included documents she contends should also have been provided. The identified documents appear to be her side of the email communications with Dr Leggate that were provided to the decision maker. Of the identified documents, I consider the most significant was Dr Shirmohammadi's response on 24 August 2023 to the 12 May 2023 email from Dr Leggate that was provided to and relied upon by the decision maker. It is not clear why, having considered the 12 May document was relevant, that the response would not equally be considered so.
The Department contends there is nothing in the Annexure 11 material that was necessary and not already before the decision maker in other documents. No detail was provided in relation to that contention. It is also not clear why the Appellant would not have attached all the documents she considered material to her grievance when lodged on 31 October 2024.
I agree this highlights a deficiency with the documentation that was before the decision maker. Whether it was significant enough to make a material difference to the decision will be considered together with the other evidence objections regarding relevance and documents relied upon not provided to the Appellant.
Irrelevant material was relied upon by the decision maker
Dr Shirmohammadi submits that the decision maker had regard to irrelevant material that fell outside of the relevant time period that informed an errant conclusion.
Documents referred to within the decision letter are as follows:[43]
[43] Letter of 27 November 2024 from David Innes to Maryam Shirmohammadi, 3.
The emails from Mr Leggate, sent prior to and during the relevant PDA year, related to the
Water Ingress Project amongst others, seeking updates, offering assistance, sharing examples
of good practice and feedback relevant to this activity in your PDA. I understand Mr Leggate
referred to a number of these emails in feedback provided to you as part of discussions about
the outcomes of your PDA on 3 June 2024. Whilst I acknowledge some emails were sent prior
to the relevant PDA year, I consider them relevant as they related to the same project/s that
carried forward to the relevant PDA year. The specific emails I have sighted are detailed below,
and I have attached some of the emails that I consider provide more detailed context.
- 10 January 2022 emailing stating traceability report now 6 months overdue.
- 11 July 2022 – 31 March 2023 email trail commencing from Forestry Project Officer in
relation to budget for UG CLT Assembly, multiple attempts to resolve the budget
deficit and cost centre.
- 25 July 2022 seeking update on durability centre activities, advising Durability Centre
Director waiting for a number of overdue deliverables.
- 12 December 2022 asking for update on durability tasks and whether on target
- 03 January 2023 asking to prioritise overdue durability centre reports/papers/tasks,
setting a timeframe of end of January and offering assistance.
- Follow up emails sent 8 February 2023 (Attachment 1).
- 10 February 2023 seeking update on durability centre overdue deliverables, stating
‘this is becoming a major non-performance matter’ (Attachment 2).
- 22 February 2023 email providing feedback on draft moisture ingress report you
submitted on 21 February 2023, stating needs more work and content and report
must be consistent with project budget.
- 28 February 2023 Additional supporting information provided, including sending you a
copy of another final report to use as a comparison (Attachment 3).
- 29 March 2023 stating durability centre – moisture ingress project 3 months overdue,
asking for a draft so it can be peer reviewed, offering assistance and reinforcing that it
is a priority (Attachment 4).
- 31 March 2023 asking for a meeting with Dr Shirmohammadi and Ms Francis about
durability centre update following draft report you submitted on 29 March 2023.
- 5-6 April 2023 email following up surplus funds in durability centre project, raising
concerns, reminding you of previous conversations about these concerns 'months
ago' and matter needs urgent attention.
- 12 May 2023 email providing you with detailed feedback following review
(Attachment 5).
- 22 June 2023 (re budget costers) advising wrong budget costers used, reasons why
certain costers were allocated and to correct errors.
- 4 July 2023 email from Robbie McGavin with summary points discussed re Water
Ingress Project – final report status (Attachment 6).
Outside of identification of emails dating from October 2022 to December 2022 as outside of the period for review, Dr Shirmohammadi does not elaborate on which other documents are said to be outside the time period and thus irrelevant.
In their response, the Department denied that the decision maker referred to irrelevant considerations. Instead, they argue that the emails dating from January 2022 to January 2023 were necessary to consider as furnishing historical context. The Department also states the emails were relevant to illustrate the ongoing issues with delivering on project deadlines.[44]
[44] Submissions of the Respondent, filed 21 January 2025, [24].
Consideration
I do not agree with the Department that reliance on the 2022 emails was necessary to establish significant and ongoing issues with the delivery of the project report. The emails from 2023 adequately demonstrate this.
Dr Shirmohammadi submitted that the funding contract never specified a due date for a final project report. While that may be correct, Dr Leggate had made it clear during the relevant performance year it was required to be delivered. Dr Shirmohammadi further submitted that the Durability Centre Director preferred publication of individual papers, not a final project report. While that may be correct and is verified in an email dated 24 August 2023, Dr Leggate had made it clear during the relevant performance year it was required to be delivered.[45]
[45] Email of 12 May 2023 from Dr Leggate to Dr Shirmohammadi; Email of 22 February 2023 from Dr Leggate to Dr Shirmohammadi; Email of 28 February 2023 from Dr Leggate to Dr Shirmohammadi.
Failure to provide documents relied upon
Dr Shirmohammadi, in an interrelated submission, contends that the Department, in failing to provide copies of all the documents relied upon by the decision maker to reach their decision, has breached the principles of procedural fairness.
The series of documents specified above by the Department as useful in reaching a determination were not all provided to Dr Shirmohammadi.[46] Dr Shirmohammadi states that while some were provided as annexures, some were not and '…Where documents are relied upon – they should have been provided to the Appellant.'[47]
[46] Letter of 27 November 2024 from David Innes to Maryam Shirmohammadi, 3.
[47] Submissions of the Appellant, filed 7 January 2025, [19].
Dr Shirmohammadi identified the following five emails relied upon by the decision maker and not provided to her as follows:
·10.1.2022
·11.7.22
·25.7.22
·12.12.22
·22.6.23
Further it is submitted that other than the email dated 22.6.23, all of the other emails relied upon also fall outside the review period and are irrelevant.[48]
[48] Ibid.
In response, the Department argues that the emails were between the Team Leader and the Appellant and had previously been drawn to the attention of Dr Shirmohammadi in an email from the Team Leader on June 3, 2024. The Department say it was not necessary to attach the emails to the Decision because they believed Dr Shirmohammadi could 'reasonably locate these in her own records'.[49]
[49] Submissions of the Respondent, filed 21 January 2025, [23].
Consideration
The decision maker referenced material he considered as relevant to his decision. He annexed some of the documents to the Decision that he considered provided detailed context. While it would be optimal that all material relied upon by the decision maker was attached to the decision all but one of the documents is also asserted by the Appellant as irrelevant. I have supported that conclusion above. The documents were all exchanged between the Appellant and Dr Leggate, the content of which is summarised in the decision and would likely be known to the Appellant. If the Appellant did not know what the 22 June 2023 email regarding 'costers' related to or could not locate it from her own records, then it could have been requested. The Appellant has not identified the exact prejudice she has suffered as a result of that document not being attached.
As reproduced at [28] above, the Directive only stipulates the following in relation to what must be included in the internal review decision:
(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
(ii) 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.
Having considered the evidentiary related grounds I have concluded there were deficiencies in relation to not all relevant documents being supplied to the decision maker and reliance on material not relevant to the performance year in which the impugned PDA operated. Further it would have been better if all the documents referenced in the decision were attached to the decision.
I do not conclude separately or together that these deficiencies were significant enough to render the decision-making process underpinning the decision appealed as unfair or unreasonable. The most significant deficiency is the failure of either party to have provided to the decision maker the August 2023 email response to Dr Leggate's 12 May 2023 email. While that document should have been provided as a comprehensive summary of the Appellant's response to a range of matters raised by Dr Leggate, the issues underpinning that response did exist in other material before the decision maker and were substantially addressed by the decision maker in reaching his decision.
I form this view because the email raised matters and issues from commencement of the Appellant's employment in 2019 and included actions and events in 2022. I have agreed with the Appellant's submissions that matters outside the performance year are not relevant to the decision regarding the impugned PDA. There is no material before me to suggest any of that background is contested.
The email does reference the Centre Director's preference for papers rather than projects and lists research paper output from Dr Shirmohammadi, including in 2023, that are relevant. The email further rejects the assertion that the preference of the Centre Director may have been borne out of frustration. It does confirm that the Appellant understood a project report was required to be completed. It reiterates that many of the issues experienced at the relevant time were beyond her control. These issues were before the decision maker as part of the PDA documentation, other emails,[50] and considered in the decision letter.[51]
[50] Letter of 27 November 2024 from David Innes to Maryam Shirmohammadi, 2.
[51] The decision letter references email correspondence exchanged between Dr Leggate and Dr Shirmohammadi in May/June 2024 that ventilates the issues beyond the control of the Appellant. The decision maker reasons that while those issues existed, mitigation was put in place by providing the Appellant with dedicated time and additional resources to complete the required work. The decision maker refers to the information provided in the PDA document and in the HR notes that acknowledge the output of Dr Shirmohammadi.
The part of the email not otherwise referenced in the decision is the Appellant's statements about feeling ambushed at the meeting on 13 May 2023. The meeting is identified in the decision letter as an opportunity to discuss issues with the project report with the Appellant and the internal reviewers. It is confirmed in the decision letter that Dr Leggate provided constructive and accurate feedback to the Appellant. It concludes:
There is no argument that you work hard on your academic work and Mr Leggate has provided numerous suggestions on ways to continue to develop your skills and abilities across all aspects of your role.
When considering issues of procedural fairness, the focus of the Commission must be on whether 'practical injustice' has occurred that could have 'materially affected' the decision.[52] The process undertaken is therefore not required to be perfect.[53]
[52] Nuske v State of Queensland (Department of Education) [2023] QIRC 199, [87] (O'Connor VP).
[53] McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308, [68] (Dwyer IC); Cunningham v State of Queensland (Queensland Health) [2022] QIRC 161, [31] (Power IC).
Discrepancy in records relating to Performance Review Meeting on 24 April 2024
Dr Shirmohammadi and the Department agree a performance review meeting was held online on 24 April 2024 between Dr Shirmohammadi, Dr Leggate and a HR Representative.
Dr Shirmohammadi and the Department disagree on the notes reflecting the discussions held during the meeting, with significant divergence between the notes kept by the Department and those kept by Dr Shirmohammadi.
Dr Shirmohammadi covertly recorded this meeting:
While the Appellant accepts that it is not ordinary conduct to record such workplace conversations, the Appellant was in the midst of an application for an order to stop workplace bullying…such that she recorded the meeting for protection. As it happens, such recording was required as it shows discrepancies and inaccuracies as to the Respondent's record of what was agreed and discussed at the 24.4.24 review meeting. A transcript of the 24.4.24 meeting, and a comparison table as to what the Respondent record and what was actually said is at Annexure 10.
Dr Shirmohammadi points to the transcription of this recording as constituting evidence that the PDA was not reflective of the discussions had between attendees of the meeting, seemingly suggesting the written PDA was more critical than what the transcription reveals.
The Department submits that their record of the two-hour meeting is accurate. They explain that comments in PDA decisions and contemporaneous records are not intended to constitute 'verbatim records' of what occurred and instead are closer to a summary of the main points discussed.
The PDA guide sets out that the:
…purpose of the template is to help keep an accurate record of the PDA conversations. Keep notations and comments succinct and brief.[54]
[54] Submissions of the Respondent, filed 21 January 2025, [14].
The transcript of this recording was not before the decision maker.
Consideration
Noting that the role of the Commission in determining public sector appeals is by way of review,[55] the IR Act outlines that only in appeals against promotion decisions or disciplinary decisions can the Commission take other evidence into account.[56]
[55] Industrial Relations Act 2016 (Qld) s 562B.
[56] Ibid s 562B(4) (a) – (b).
When considering the meaning and structure of 562B of the IR Act, it is useful to note that the appeal jurisdiction conferred on the Commission by Chapter 11 of the IR Act operates to restrict the extent to which new evidence can be considered.[57] These reviews are not of the merits of the decision.
[57] Wyer v Queensland (Department of Education) [2022] QIRC 408.
It is not appropriate for this decision to have regard to the evidence created by the Applicant that was not before the decision maker.
Failure to offer a support person at 24 April meeting
Additionally, Dr Shirmohammadi submits that by failing to offer that a support person attend the meeting of 24 April 2024, the Department breached their obligations to afford procedural fairness.
As regards Dr Shimohammadi's contention that the failure to offer a support person impinged on the procedural fairness of the process, the Department states that:
The Appellant was provided notice, details of the attendees and purpose of the meeting. The Senior HR Consultant was attending as an independent party, not as a representative for the Team Leader. If the Appellant had requested a separate support person attend the meeting, it would have been accommodated. The Department submits that there has been no unfairness, particularly in circumstances where the Appellant recorded the meeting.[58]
[58] Submissions of the Respondent, filed 21 January 2025, [13].
Consideration
This procedural concern arises from the 12-month PDA review discussion on 24 April 2024, prior to the completion of the PDA documents, either of the local reviews of the PDA outcome; and perhaps most significantly, is not a matter contemplated in the internal review decision subject to this appeal. It is not relevant to my review of that decision.
While I note the submissions made by both parties in relation to this issue, it is not clear on any of the material provided that it would be usual practice in a PDA discussion to be offered a support person; and/or that it would be usual for a HR person to attend as an independent party. If the latter situation was unusual then it was open to Dr Shirmohammadi to advise that as a result, she wanted to bring a support person to the discussion.
I also note in an email the Appellant sent to Dr Leggate, dated 2 April 2024, following a discussion regarding her overdue PDA, and attached to Dr Shirmohammadi's submissions in reply, the statement:
It is great that you have now booked time with HR to discuss next week.
While I am not suggesting this is endorsement for HR to attend the actual meeting, the statement seems approving of Dr Leggate seeking HR advice about the process, rather than something that would be concerning to Dr Shirmohammadi's interests.
No mid-term review
Dr Shirmohammadi outlines that the relevant period for the PDA was 12 months, commencing from 6 February 2023. The Department's own policy required a mid-term review occur in September 2023. Dr Shirmohammadi highlights this did not occur and submitted that is to her detriment.
The fourth principle of the Department's Performance and Development Agreement Policy and Procedure provides as follows:[59]
4. The PDA process runs over a twelve (12) month period and includes 3 stages:
· Planning – development of the PDA (July/August, or within 2 weeks of start date)
· Mid-cycle review
· Final review (June/July)
[59] Submissions of the Respondent, filed 21 January 2025, Attachment, 7.
The purpose of the mid-cycle review is set out as follows at cl 6.2:
Supervisors meet with individual employees to:
· Discuss and provide two-way feedback on progress against planned objectives
· Consider any changes to business and/or project plans and activities that impact on the employee's performance objectives. Review and revise objectives if required (amend the PDA if necessary)
· Discuss progress against planned development activities
· Discuss issues impacting on the achievement of performance objectives and identify solutions
· Record summary of progress on PDA
…
6.4 Ongoing performance conversations throughout the cycle
Regular informal performance conversations are to take place throughout the cycle. These conversations will allow both parties to raise issues as they occur and to amend the PDA to accommodate changing priorities. Regular informal conversations ensure there are no surprises at review meetings and issues can be addressed before they escalate.
The Department endorsed the comments within the decision letter that there were circumstances that may have delayed the PDA process. They explained that there were 'legitimate' reasons that the mid-cycle review did not occur, including the Team Leader being on leave and Dr Shirmohammadi raising concerns about the acting Team Leader. In these circumstances, the Department submit no unfairness resulted from the lack of a review, stating that the Team Leader gave Dr Shirmohammadi ongoing feedback, verbally and by email, outside the PDA process.[60]
[60] Submissions of the Respondent, filed 21 January 2025, [15].
Dr Shirmohammadi highlights in submissions in reply that, contrary to the policy and procedure, she was not provided with 'discussions, feedback, support and/or mentoring'.[61]
[61] Submissions in reply of the Appellant, filed 5 February 2025, [5].
The Department say that a mid-term review would have been of little utility in that:
It is not likely that a mid-year review would have improved its timeliness or altered the final PDA review.
To this, Dr Shirmohammadi says:
Such a statement begs the question as to the purpose of a mid-term review, demonstrates the Respondent's preparedness to contravene its own policy, and evidences hypocrisy whereby the Appellant is being challenged about an alleged delayed final report – during a PDA process which didn't merely delay but abrogated its responsibility to conduct a midterm PDA review, which the Appellant submits would have addressed any performance issues of concern to the Respondent, and which was plainly unfair.[62]
[62]Submissions in reply of the Appellant, filed 5 February 2025, [10].
Dr Leggate took a period of leave during which he was not Dr Shirmohammadi's supervisor for five out of the 12-month review period.[63]
[63] Submissions of the Appellant, filed 7 January 2025, [11].
Dr Shirmohammadi submits that in this time period, she received no 'support, dialogue, guidance, feedback and mentoring, and/or mid-term review as required'.[64]
[64] Submissions in reply of the Appellant, filed 5 February 2025, [6].
In reply, the Department acknowledge that Dr Leggate's absence from 3 July 2023 to 8 September 2023 but do not agree that this adversely impacted the Appellant, contending that he was the relevant supervisor at the time the PDA was finalised and could comment on the work completed during the PDA cycle.[65]
[65] Submissions of the Respondent, filed 21 January 2025, [11].
Consideration
It is not contested that the mid-term review was not conducted as required by the Department's policy. The Positive Performance Management Directive stipulates that PDA discussion must occur at least annually. It appears there were a series of events contributing to that fact. While the mid-term review may have provided an opportunity for the issues of concern in relation to the agreed performance expectations to be clarified and resolved, it is clear that those matters were the subject of ongoing communication with the Appellant.
I also note the Department's submissions relating to the impact of Dr Leggate's absence on his capacity to conduct the final review and I concur with those submissions. The matters in contention regarding the final PDA document are matters that he was engaging with the Appellant about and could either be demonstrated or not. They did not require continuous supervision across the entire performance year to verify.
This process issue does not render the decision unfair or unreasonable.
Conclusion
Having considered each of the process issues raised by the Appellant to argue the internal review decision was unfair and unreasonable I do not agree with that assertion. Further, the decision maker in the letter responds to each of the outcomes sought in the Stage 2 Grievance, reviews the available evidence and forms a view based on his assessment of that evidence. The reasons for those decisions are spelt out in the letter in sufficient detail to understand on what basis the decision has been made. While some deficiencies with the process have been identified, they do not fatally infect the decision.
The task is not to decide whether 'the decision could have been undertaken in a manner that was fairer or reached a decision that was more reasonable', rather the question is whether it was fair and reasonable in the circumstances.[66]
[66] Baldwin v State of Queensland (Queensland Health) [2025] QIRC 224, [79] (Caddie IC).
The Appellant is seeking that, on appeal, the Commission reach into the PDA 2022-2023 document and replace any outcome rated as amber (development ongoing) or red (not meeting requirements) with green (strong development progress being made). That is not a decision the Commission can make in the present matter, both by reason of the jurisdiction conferred and that it is not an objectively reasonable request.
I order accordingly.
Order
The decision appealed against is confirmed.
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