Slater v State of Queensland (Queensland Health)
[2022] QIRC 396
•14 October 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Slater v State of Queensland (Queensland Health) [2022] QIRC 396 |
PARTIES: | Slater, David v State of Queensland (Queensland Health) |
CASE NO.: | PSA/2022/507 |
PROCEEDING: | Public Service Appeal – Promotion decision |
DELIVERED ON: | 14 October 2022 |
MEMBER: | Power IC |
| HEARD AT: | On the papers |
| ORDER: | 1. Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld), the decision the subject of the appeal is set aside. 2. I direct that: (a) the matter be returned to the decision maker with a copy of the decision on appeal; (b) the Chief Executive of the Department is to revoke the appointment to the position of Information Technology Operations Management Specialist AO7 position number 32061550 published in the Queensland Government Gazette on 8 April 2022 within 28 days of receipt of this decision on appeal; (c) the Department is to form a new selection panel for the purposes of conducting a fresh recruitment process for the position of Information Technology Operations Management Specialist AO7 position number 32061550; and (d) the new selection panel be provided with a copy of the Recruitment and Selection Directive (Directive 12/20). |
| CATCHWORDS: | PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – public service appeal – appeal against a promotion decision – where the appellant unsuccessfully applied for a position – potential conflict of interest not declared – deficiencies in recruitment process – decision was not fair and reasonable – appeal upheld |
| LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 27, 28 and 194 |
| CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
Mr David Slater ('the Appellant') is currently employed by the State of Queensland (Department of Education) as a Guidance Officer.
On 3 February 2022, the Appellant applied for the position of AO7, Information Technology Operations Management Specialist, Services Management and Improvement, eHealth Queensland ('the position') with the State of Queensland (Queensland Health) ('the Respondent'), however, was not shortlisted and was unsuccessful in obtaining the position.
By appeal notice filed on 21 April 2022, the Appellant appeals the promotion decision ('the decision') of the Respondent, pursuant to s 194(1)(c) of the Public Service Act 2008 (Qld) ('the PS Act').
Appeal principles
The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision of the Respondent was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
[4] IR Act s 562B(3).
What decisions can the Industrial Commissioner make?
In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
(a)confirm the decision appealed against; or
(b)set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the PS Act that the Commission considers appropriate.
Relevant legislative provisions and Directives
Section 562C(2) of the IR Act provides:
In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act.
Section 194(1)(c) of the PS Act relevantly provides that a promotion decision may be appealed against:
194 Decisions against which appeals may be made
(1)An appeal may be made against the following decisions—
…
(c)a decision to promote a public service officer (a promotion decision);
…
Section 27 of the PS Act provides that the merit principle must be applied for an appointment or secondment as a public service employee:
27 The merit principle
(1)The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).
…
Section 28 of the PS Act sets out the merit criteria to be considered when applying the merit principle:
28 Merit criteria
In applying the merit principle to a person, the following must be taken into account—
(a) the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
(b) if relevant—
(i) the way in which the person carried out any previous employment or occupational duties; and
(ii) the extent to which the person has potential for development.
Directive 07/20 Appeals ('Appeals Directive') and Directive 12/20 Recruitment and Selection ('Recruitment and Selection Directive') are relevant to the determination of the appeal.
Clause 5.2(e) of the Appeals Directive provides that an appeal against a promotion decision may only be lodged if particular conditions are satisfied:
5.2 An appeal may only be lodged by the following persons:
…
(e) for a decision under section 194(1)(c) of the PS Act (promotion decision)—a tenured general employee or public service officer aggrieved by the decision (an aggrieved officer), provided the following conditions are met:
(i) the decision relates to the gazetted promotion of a public service officer or tenured general employee
(ii) the aggrieved officer's application to the role being appealed was received on or before the deadline for the receipt of applications or in the case of continuous applicant pools, the application was received prior to the date of distribution to the selection panel for the relevant promotion
(iii) the aggrieved officer has sought post-selection feedback in accordance with the provisions of the directive relating to recruitment and selection, and
(iv) for an appeal against a promotion from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved officer was covered by the invitation to apply.
I am satisfied that the requirements of cl 5.2(e) of the Appeals Directive are met and that this matter may proceed to appeal.
The Recruitment and Selection Directive prescribes processes and sets conditions that must be satisfied during the recruitment and selection process, including:
(a)the minimum requirements for vacancy advertising;[5]
[5] Recruitment and Selection Directive cl 6.
(b)the merit assessment processes to be observed;[6]
[6] Ibid cl 7.2.
(c)requirements relating to selection decisions including a requirement that they be clearly documented and able to be independently reviewed;[7]
(d)standards relating to pre-employment checking including referee checks;[8]
(e)the requirement to present adverse information to an applicant;[9] and
(f)a requirement that applicants who request feedback must be given timely and constructive feedback.[10]
[7] Ibid cl 7.3.
[8] Ibid cl 8.
[9] Ibid cl 9.
[10] Ibid cl 10.
Clause 7.2 of the Recruitment and Selection Directive provides:
7.2 Assessment processes for advertised vacancies must:
(a) incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants’ merit within the current context and duties of the role
(b) take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)
(c) incorporate pre-employment checks including referee checking as per clause 8
(d) measure the relative merit of each applicant, and
(e) be consistent with the principles of employment equity and anti-discrimination.
Clause 7.3 of the Recruitment and Selection Directive provides:
7.3 Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants).
Clause 7.5 of the Recruitment and Selection Directive provides:
7.5 If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended applicant is considered to be more meritorious than the next in the order of merit, must be provided.
Clause 7.6 of the Recruitment and Selection Directive provides:
7.6 In approving an appointment, the decision maker must be satisfied the proposed appointee is the most meritorious and, where applicable the selection process complies with the PS Act and this directive.
Clause 10 of the Recruitment and Selection Directive provides:
10. Post selection feedback
10.1 Subject to clause 10.2 all applicants are to be advised that they may request feedback.
10.2 Graduate applicants who are interviewed are to be advised they are entitled to request feedback.
10.3 Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel sufficient to explain the panel’s recommendation and the decision maker’s decision.
Grounds of Appeal
The Appellant outlined the following grounds of appeal, in summary, that:
1.the Appellant sought post selection feedback on 25 February 2022, however, received no response;
2.the merit principle has not been followed and was overlooked; and
3.other applicants were known to the panel.
The Appellant contends that the successful applicant does not have the 'depth and breadth' of leadership experience when compared with the Appellant and that the Appellant's qualifications, experience and referee reports were not accurately considered by the panel.
Appellant's Submission
The Appellant, in his submissions, reiterates the contentions raised in the appeal notice and further submits, in summary, that:
(a)the Appellant highlighted his abilities throughout his application and also demonstrated his knowledge regarding selection requirements, transferability of skills and extensive knowledge of Service Now;
(b)the Appellant provided his resume which highlights his wealth of knowledge, skills, history of leadership roles and his extensive qualifications which made him highly suitable to the role;
(c)the Appellant's application for the role was submitted on time;
(d)several written referee reports from previous line-managers were provided to support the Appellant's application which also demonstrated an extensive and positive track record as a public service employee and the values in carrying out these duties;
(e)the advertised position did not specify the number of positions, nor offered applicants the ability to specify their preferred location if they were successful in being awarded the role. The Appellant holds the view that this created bias towards his application, as the reporting relationship for the position was based in the Brisbane geographic area and the successful applicant was already employed with eHealth Queensland in the same geographic area;
(f)not being provided with feedback has limited the Appellant's ability to question why he was not shortlisted;
(g)the selection panel members names were not shared with the Appellant and it is unknown if the candidates were previously known to panel members; and
(h)the shortlisting matrix information was not shared with the Appellant and therefore, the Appellant has not had the opportunity to examine how the panel arrived at their decision.
Respondent's submissions
The Respondent outlined the recruitment process with respect to the position, highlighting that:
(a)the panel individually reviewed all applications and met to discuss and shortlist candidates for interview. The panel used the candidate's resume and cover letter to assess candidates against the key responsibilities and the 'how you will be assessed section' of the position description;
(b)the second phase of the recruitment process was a structured interview consisting of five questions used to assess the practical skills, behavioural and situational experience of the candidates against the key attributes required for the position; and
(c)the shortlisted candidates were also required to provide a logical diagram and present this at interview and referee checks were requested for the most meritorious applicant and reviewed by the panel to assess team fit and key soft skills, in accordance with HR Policy B1 Recruitment and selection.
In response to the Appellant's appeal notice and submissions, the Respondent submits, in summary, that:
(a)the selection documentation identified the selection process and selection strategies utilised by the panel which included cover letter, resume, structured interviews, work demonstrations and referee reports;
(b)the selection report states that all shortlisted applicant's resumes and cover letters were assessed and determined that they contained the key skills required to perform the position. The selection report detailed the structured interview and logical diagram which determined the successful applicant as the most meritorious applicant suitable for appointment;
(c)the panel noted that the Appellant was unable to demonstrate some of the key skill requirements of the position;
(d)as noted in the selection report, the delegate prior to approving the selection report identified a perceived conflict of interest with the applicant selected for appointment having a pre-existing working relationship with members of the panel. This conflict was managed by requesting a second referee report and no prior knowledge was introduced by any panel members;
(e)there is no evidence to support the Appellant's claim that the decision was predetermined and is clear from the selection documentation that a fair and reasonable process was conducted in order to identify the most meritorious candidate;
(f)the panels shortlisting notes states that the Appellant's application summarised various pieces of work, however failed to meet key criteria outlined in the position description and determined that the Appellant did not address the key attributes required for the position and was therefore not shortlisted to the second phase of the recruitment process; and
(g)the Respondent acknowledges that feedback was not provided to the Appellant when requested and the panel chair acknowledges the oversight of a response to the Appellant's email request.
The Respondent outlined the following shortlisting feedback regarding the Appellant's application:
• proved experience with ServiceNow, good analytical and communications skills however failed to demonstrate the result of these good qualities.
• demonstrated involvement in a number of different data related pieces of work however did not articulate an understanding of the importance of accurate data, nor how data is related/utilised by ITSM/ITIL processes.
• "With extensive and wide-ranging experience as a Guidance Officer, Head of Department, and Regional System Technician I have demonstrated my knowledge of ITOM, ITSM and the principles of ITIL throughout all my roles within DoE." This was not supported further throughout the application to demonstrate a deeper understanding or ownership of the processes, process development or implementation experience/skills
• There was no mention of underpinning processes, data and data constructs to support Configuration and Asset Management processes and broader ITSM and ITOM Processes – including event management, orchestration, and Service Dependency Maps
Appellant's submissions in reply
The Appellant, in reply to the Respondent's submissions, submits that:
(a)the Respondent has not provided the three shortlisted candidates responses to the selection criteria so a comparison cannot be examined against the Appellant's responses;
(b)the shortlisting notes of the Appellant demonstrates the panel's maladministration, negligence, or oversight in the shortlisting process. The panel has either not read, or subjectively dismissed, the Appellant's responses as the shortlisting notes clearly addressed the Appellant's responses to the selection criteria;
(c)the Respondent has subjectively and ambiguously excluded information relating to how merit was assessed;
(d)the Respondent has provided information on how the shortlisted candidates were assessed but only after the shortlisting process had occurred;
(e)the Respondent has provided no evidence of how the Appellant's application was scored against the other candidates that applied for the role and a selection matrix highlighting how all applications were assessed has not been provided;
(f)the only information provided to the Appellant is the shortlisted candidates but no information relating to how they were shortlisted has been provided;
(g)the only measure to address the conflict of interest was for the applicant to obtain a second referee report and an unverified statement that no prior knowledge was introduced by any panel member cannot be substantiated. This results in bias as the Appellant was never given an opportunity or feedback regarding their referees;
(h)the delegate only noted the conflict of interest when supporting the recruitment decision, and the Respondent has not provided how they assessed and mitigated the conflict;
(i)the Respondent's material highlights the delegate had been aware of the conflict of interest and had the opportunity to change panel members to ensure integrity in the process or remove themselves from the process. The Respondent's material also shows the panel chair did not declare details regarding their conflict of interest; and
(j)the Respondent's acknowledgment that no feedback was provided is a failure in the selection process.
Consideration
The determination of this appeal requires an assessment of whether the recruitment and selection process was deficient and hence not fair and reasonable.
The Appellant's first ground of appeal was that he sought post selection feedback on 25 February 2022, however, received no response. The Respondent has acknowledged that feedback was not provided to the Appellant when requested, with the panel chair advising that the failure to respond to the Appellant's email request was an oversight.
As noted above, cl 10.3 of the Recruitment and Selection Directive provides that Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel sufficient to explain the panel's recommendation and the decision maker's decision. The failure to provide feedback upon request is a clear breach of the Recruitment and Selection Directive. The provision of feedback assists applicants to understand the reasons for the decision and provides an important opportunity for professional development.
I accept the Respondent's submission that the failure to provide feedback was due to an administrative oversight, and there is no evidence that the Appellant was deliberately denied access to feedback on his application. Despite the contravention of cl 10, the failure to provide feedback does not render the recruitment and selection process deficient as the decision had already been made at the time of the contravention.
The second ground of appeal relates to a merit assessment of the Appellant's application. The panel's shortlisting summary was brief in that they outlined basic details about each applicant along with a notation as to whether an applicant was to be shortlisted and the reason for that decision. The 'candidate comment' for the Appellant was as follows:
Candidate does not meet the requirements of the role.
Clause 7.3 of the Recruitment and Selection Directive provides that selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed. In my view, it would have been appropriate to include more detailed considerations in the shortlisting comments for each applicant. I accept that in circumstances where there are a significant number of applicants, greater detail is required in recording considerations of the interviewed applicants rather than that at the shortlisting stage. However, considerations of the comparative assessment of applicants in the shortlisting process must be detailed enough to allow for the process to be independently reviewed. In these circumstances, it would be reasonable to expect further details outlining which of the requirements of the position the Appellant did not meet. The selection panel's 'candidate comment' does not allow for that review to occur. The documentation does not allow for me to determine how applications were assessed on a comparative basis.
The Commission requested the selection panel notes be disclosed to inform the decision in this appeal. The Respondent provided an email that had been sent by the panel chair to an Acting Senior Human Resources Partner on 13 June 2022 containing feedback on the Appellant's application.[11] The email was created over two months after the selection process had been completed and appears to be in response to the Appellant's request for feedback. The contents of this email are not contemporaneous notes of the shortlisting process, and whilst the email does provide feedback on the Appellant's application, it does not allow for a review of the comparative assessment of applicants.
[11] The feedback in the email is consistent with the feedback outlined above at [25].
The Appellant submits that, as a consequence of applicants not being offered an opportunity to specify their preferred location, bias existed against his application. The Appellant submits that the bias arose because the reporting relationship for the role was based in the same geographic area as the successful applicant who was already employed with eHealth Queensland. After considering the selection report, there is no indication that the geographical location of any applicant formed part of the panel's considerations. The purpose of including the geographical locations of applicants in the shortlisting notes is unclear given that it did not form part of the criteria for selection. Regardless, there is no requirement that applicants be given the opportunity to specify their preferred location in the recruitment and selection process.
The third ground of appeal was that the other applicants were known to the panel. Prior to approving the selection report, the delegate identified a perceived conflict of interest with the applicant who had been selected for appointment on the basis that the applicant had a pre-existing working relationship with members of the panel.
Clause 7.8 of the Recruitment and Selection Directive provides the following:
To promote integrity in recruitment, selection panel documentation must include a declaration from each panel member and the decision maker that identifies:
(a) any actual, potential, or reasonably perceived conflicts of interest between the panel member or decision maker and applicants for the role, or
(b) the absence of a conflict of interest between the panel member or decision maker and applicants for the role.
The Respondent submits the following:
Noted on the selection report, the delegate prior to approving the selection report identified a perceived conflict of interest with the applicant selected for appointment having a pre-existing working relationship with members of the panel. This conflict was managed by requesting a second referee report and no prior knowledge was introduced by any panel members.
The selection report contains a section titled 'Conflicts of Interest' under which the following statement appears:
No conflicts of interest identified by Panel Members.
The Respondent did not provide an explanation as to why the panel members who had a working relationship with the successful applicant did not declare a conflict of interest. It is clear that there was a perceived conflict of interest between two panel members and the successful applicant due to their working relationship at the time of the selection process. One consequence of the failure to disclose the conflict is that it is not possible to know if the third panel member was aware of this relationship. The failure to disclose the perceived conflict of interest also makes it impossible to assess how any conflict was managed.
The conflict was identified by the delegate who made the following comments in the selection report before approving the appointment:
The Preferred Candidate is an existing employee within the team and as such there could be a perceived conflict of interest. I do not consider that this existing relationship impacted the recruitment process and I was not on the recruitment panel. I approve the selection report.
The Respondent submits that the conflict was managed by requesting a second referee report and that 'no prior knowledge was introduced by any panel members'. These measures do not mitigate a failure to declare a perceived conflict of interest.
It is not unusual for panel members to have current or former working relationships with applicants from the same agencies. However, the Recruitment and Selection Directive requires that any conflicts of interest be declared to ensure such conflicts can be managed. The failure to declare the perceived conflict of interest in this process prevented any measures being taken prior to the selection process to ensure that a fair and transparent process was adopted. Although the delegate attempted to rectify this failure prior to approving the recommended applicant, this was too late in the process to ensure that the decision could be accepted as fair and reasonable.
Conclusion
I am satisfied on the material before me that the recruitment and selection process in this appointment contained deficiencies which render the decision to be neither fair nor reasonable.
The decision subject to this appeal will be set aside and the matter returned to the Respondent with a copy of the decision on appeal. To ensure compliance with the requirements of the PS Act and Recruitment and Selection Directive, the Respondent will be directed to conduct a fresh recruitment process following the revocation of the appointment.
Orders
I make the following orders:
1. Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld), the decision the subject of the appeal is set aside.
2. I direct that:
(a) the matter be returned to the decision maker with a copy of the decision on appeal;
(b) the Chief Executive of the Department is to revoke the appointment to the position of Information Technology Operations Management Specialist AO7 position number 32061550 published in the Queensland Government Gazette on 8 April 2022 within 28 days of receipt of this decision on appeal;
(c) the Department is to form a new selection panel for the purposes of conducting a fresh recruitment process for the position of Information Technology Operations Management Specialist AO7 position number 32061550; and
(d) the new selection panel be provided with a copy of the Recruitment and Selection Directive (Directive 12/20).
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