Uche Victoria Olalere v Canberra Health Services
[2025] FWCFB 45
•26 FEBRUARY 2025
| [2025] FWCFB 45 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Uche Victoria Olalere
v
Canberra Health Services
(C2024/7700)
| VICE PRESIDENT GIBIAN | SYDNEY, 26 FEBRUARY 2025 |
Appeal against decision [2024] FWC 2809 of Deputy President Dean at Canberra on 9 October 2024 in matter number C2024/3237 – Application to deal with a dispute under the ACT Public Sector Nursing and Midwifery Enterprise Agreement 2020-2022 – Appeal with respect to decision about promotion –Whether Canberra Health Services had complied with the requirement to inform the parties of its decision and reasons for decision following a recommendation of the appeal panel in accordance with clause 183.13 of the Agreement – No arguable case of appealable error demonstrated – Permission to appeal refused.
Introduction
Uche Victoria Olalere has appealed under s 604 of the Fair Work Act 2009 (the Act) in relation to a decision made by Deputy President Dean on 9 October 2024.[1] The decision concerned an application made by Ms Olalere pursuant to s 739 for the Commission to deal with a dispute under the dispute avoidance/settlement procedures in the ACT Public Sector Nursing and Midwifery Enterprise Agreement 2020-2022 (the Agreement).
Between July 2022 and December 2023, Ms Olalere participated in four recruitment rounds seeking to be appointed as a Registered Nurse Level 2 (RN2) for Canberra Health Services (the respondent). Having been notified after the fourth of those rounds that she had been unsuccessful, Ms Olalere initiated an appeal provided for in clause 183 of the Agreement. The parties agreed that the appeal panel set up to review Ms Olalere’s appeal would comprise a single member who would make a recommendation regarding the recruitment decision to the respondent’s head of service. The appeal panel made two recommendations.
The first recommendation was that the selection process be set aside, and a new selection process take place. The second recommendation was in the following terms:
In the light of [Ms Olalere’s] service acting as an RN2 and the terms of the agreement, that positive consideration be given to confirming her at level RN2 independently of the position for which she had applied should she not be the best person for that position.
In response, the respondent determined that the outcomes of the initial recruitment process would be ‘suspended’ and proceeded to withdraw the offers of permanent employment which had been made to the successful candidates. The respondent restarted the recruitment process and determined that it would have a Joint Selection Committee comprised of new members overseeing the selection process. In a letter dated 30 April 2024 (the 30 April 2024 letter), the respondent advised Ms Olalere that it had decided to recommence the recruitment process. The letter advised:
I write to formally communicate the outcome of the appeal process concerning the recruitment for position 02EYE - Registered Nurse Level 2 - Adult Acute Mental Health Services Inpatient Unit. On the 15th of April, 2024, the Appeal Panel issued its final report and recommendations subsequent to a comprehensive review of all documentary evidence pertinent to both the original decision and the subsequent appeal.
In light of the findings of the appeal and the recommendations put forth by the Appeal Panel, it has been determined that the recruitment process will be restarted, and the outcomes of the initial recruitment are suspended.
To ensure impartiality and adherence to due process, a Joint Selection Committee, consisting of new panel members and a Union Representative, will oversee the selection process. Please be advised that the decision rendered by this Committee will be final and non-appealable.
The decision to recommence the recruitment process is underpinned by the following reasons:
· An adherence to the “Principle of Fairness and Equity in Merit”, in that a new selection process with an impartial Joint Selection Committee would afford equal opportunity for candidates to be assessed for their suitability.
· Procedural integrity, in that a new selection process would provide an avenue to rectify any procedural deficiencies identified during the initial recruitment process.
The previously successful applicants were required to re-apply. When the positions were re-advertised in June 2024, Ms Olalere did not apply.
A dispute arose in relation to the second recommendation. Ms Olalere contended that the respondent neither implemented the second recommendation, nor provided reasons for its decision as required by clause 183.13 of the Agreement. Ms Olalere applied to the Commission for it to deal with the dispute. Ms Olalere proposed the following question for determination by the Deputy President:
Was the Respondent’s ‘silence’ or refusal to make a decision on the second recommendation of the appeal panel [to wit: positively consider the Appellant for confirmation at RN2 level in accordance with s.63 of the Agreement], without reasons, consistent with s.183.13 of the Agreement.
Clause 63 of the Agreement, deals with “Promotion after Acting” in the following terms:
63.1 The head of service may approve the promotion of an employee into a nominally vacant position without an additional selection process where:
63.1.1 the employee has acted in the vacant position (or a position with identical selection criteria) for a period of more than 12 (twelve) continuous months and has undergone a merit selection process in order to act in the position; and
63.1.2 the vacant position was initially advertised for a minimum period of 6 (six) months with the possibility of an extension; and
63.1.3 organisational requirements and financing for the position exist; and
63.1.4 on reasonable grounds an additional merit selection process would not identify a more meritorious applicant than the position’s present occupant; and
63.1.5 immediately before the promotion, the employee’s manager assesses the employee against the selection criteria for the position as satisfactory; and
63.1.6 there is no potentially or actually excess employee suitable to be placed in the position.
63.2 For the purposes of paragraph 63.1.1 the 12 (twelve) months continuous acting may not be considered to have been broken where the employee performs the duties of another position at the same or higher level during the 12 (twelve) month period.
63.3 For the purposes of paragraph 63.1.1 a merit selection process means a process of selection for filling a vacant position on the basis of the merit of the applicant(s), which includes:
63.3.1 advertisement of the position in the ACT Government Gazette;
63.3.2 comparative assessment of suitable applicants for the position, if there is more than one applicant; and
63.3.3 selection based on the recommendation of a Selection Advisory Committee or a Joint Selection Committee.
63.4 The promotion of an employee in accordance with subclause 63.1 will be notified as a promotion to a non-advertised vacancy. Any suitable qualified employee may lodge an appeal against the process for positions at or below RN/RM Level 2 of this Agreement, or may apply for an internal review of the process for positions at or above RN/RM Level 3 as set out in Section Q (Internal Review Procedures) of this Agreement.
Sub-clause 183.13 of the Agreement falls within clause 183, which deals with appeals concerning promotions and temporary transfers to higher office. Clause 183 of the Agreement outlines a process for the convening of an appeal panel and the making of recommendations by such a panel to the head of service. Clause 183.12 and 183.13 provide as follows:
Appeal Panel Recommendations
183.12 After reviewing an application about promotion or temporary transfer to a higher office or role affecting the appellant, the Appeal Panel will recommend to the head of service that the decision that is the subject of the application:
183.12.1 be confirmed; or
183.12.2 be varied; or
183.12.3 other action taken.
183.13 The head of service will inform the appellant and affected parties in writing of their decision and the reasons for the decision, within 28 (twenty-eight) calendar days.
The Deputy President determined the question by finding that the respondent did not fail to make a decision on the second recommendation without reasons.
The Decision
The Deputy President characterised the question for determination as concerning the adequacy of the 30 April 2024 letter in meeting the requirements of sub-clause 183.13 of the Agreement. The Deputy President was satisfied that the 30 April 2024 letter had been issued within 28 days of the appeal panel report having been given, and that it had provided the reasons for the head of service’s decision. The Deputy President considered that it could not be disputed that the powers of the appeal panel are recommendatory, and not directory, because the words of sub-clause183.12 clearly provide that it will ‘recommend’ that the subject decision be confirmed, varied or there be other action taken. As such, the Deputy President determined there is no requirement for the head of service to accept a recommendation in full or in part, but they could instead decide to take “other action”.
The Deputy President described the purpose of the 30 April 2024 letter as being to inform Ms Olalere of what the respondent intended to do as an outcome of the appeal and in light of the recommendations made. The Deputy President was satisfied the 30 April 2024 letter was intended to convey the respondent’s response to both recommendations made by the appeal panel and that it provided reasons for the decision to recommence the recruitment process. The Deputy President summarised the respondent’s reasons as being to ensure there was an impartial Joint Selection Committee, which would ensure that candidates would be afforded equal opportunity to be assessed for their suitability, and that a new selection process would provide an avenue to rectify any procedural deficiencies identified during the initial recruitment process. The Deputy President concluded that the respondent had met the requirements of clause 183.13 of the Agreement because it had provided reasons in writing for its decision in response to the appeal panel recommendations within 28 days.
Permission to appeal
The dispute resolution procedure in clause 162 of the Agreement provides that an appeal may be made to a Full Bench of the Commission against a decision of a single Member “in accordance with the FW Act”.[2] As a consequence, the general position applies, which is that a person aggrieved by a decision of the Commission may appeal that decision under s 604 of the Act, but only with the permission of the Full Bench. Subsection 604(2) of the Act requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[4] However, the fact that the first instance decision maker made an error is not necessarily a sufficient basis to justify the grant of permission to appeal.[5]
Given the dispute involved a question concerning the proper construction of the Agreement, the determination to be made did not involve a discretionary decision and the appeal is required to be determined in accordance with the “correctness standard”.[6] What follows in relation to this appeal is that, if permission to appeal is granted, the Full Bench must determine whether the Deputy President’s answer to the question was correct, and if we conclude that it was wrong, that would amount to appealable error.
Appeal Grounds
In an amended Form F7 notice of appeal (the Form F7),[7] the following grounds of appeal were outlined which are as follows:
1) The complaint and question resolved by the Deputy President (paras 17-18 of the Decision) were different from the complaint and question that the appellant had put forward to the Commission for resolution.
2) The Deputy President erred in concluding that the “Applicant needed to apply for the re-advertised positions” contrary to the appeal panel’s recommendation (para 23).
3) The Deputy President erred in concluding that the terms ‘recruitment’ and ‘selection’ could be used “loosely and interchangeably” contrary to the respondent’s HR policy (paras 23, 25 of the Decision).
4) The Deputy President erred by implying that the respondent could act arbitrarily on appeal panel’s recommendations (para 20, 25).
5) The Deputy President erred in paragraph 24 of the Decision by impliedly reviewing the internal appeal panel’s recommendation contrary to FWC’s decision making limitation.
Consideration
As the correctness standard applies to the appeal, in assessing whether there is an arguable case of appealable error it is necessary to consider whether the Deputy President’s response to the question of the construction of the Agreement was correct. If we consider that the answer given by the Deputy President was not correct, that would support a grant of permission to appeal and, if permission is granted, it would be necessary for the Full Bench to substitute what we consider to be the correct answer.[8] Although the Deputy President’s reasoning will be relevant, our task is not to identify whether the Deputy President’s reasoning process was sound, but whether her decision was correct.
Appeal ground one is based on the contention that the Deputy President erred by not answering the question that had been posed. The essence of the complaint is that the Deputy President did not accept the proposition that the respondent was silent or had refused to make a decision with respect to the second recommendation. We do not accept that proposition. Having regard to the whole of the text of the 30 April 2024 letter, it is clear that the head of service conveyed that the decision she had made in response to both of the recommendations of the appeal panel and the reasons for her decision. The text of the 30 April 2024 letter includes two references to the “recommendations” of the appeal panel, the first of which referenced the fact that there were indeed recommendations made by the appeal panel and the second, which read “In light of the findings of the appeal and the recommendations put forth by the Appeal Panel, it has been determined that the recruitment process will be restarted, and the outcomes of the initial recruitment are suspended.” The 30 April 2024 letter then outlined the two reasons for the decision of the head of service set out above at paragraph [4].
The dispute avoidance/settlement procedure in the Agreement, at sub-clause 162.1.1, provides for the resolution of disputes about matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement. We discern no error in the Deputy President’s characterisation of the question posed by Ms Olalere as one that asked whether the 30 April 2024 letter met the requirements of clause 183.13 of the Agreement. The Deputy President’s characterisation of the question to be resolved went to the heart of the underlying dispute. The letter of 30 April 2024 constituted the response of the respondent to the recommendations of the appeal panel. The substance of the question posed by Ms Olalere concerned whether the respondent had made a decision or refused to make a decision without reasons contrary to clause 183.13 of the Agreement. That was the question addressed by the Deputy President. Appeal ground one does not demonstrate any error in the Decision.
It is convenient to next deal with appeal ground four, which appears to be a complaint about various findings of the Deputy President that the powers of the appeal panel are recommendatory and not directory, that there is no requirement for the head of service to accept the recommendation in full or in part and that the head of service can decide to take other action (at paragraph [20] of the Decision), and that the recommendations were not directions that were required to be followed, with the respondent not obligated to implement the recommendations exactly as they were made (at paragraph [25] of the Decision). Ms Olalere advances this complaint despite agreeing, in her written submissions, that the powers of appeal panels are recommendatory. We discern no error in the findings of the Deputy President. Clause 183.12 of the Agreement provides for the appeal panel to make a recommendation and imposes no requirement on the head of service to accept the recommendation, either in full or in part. This is underlined by the fact that clause 183.13 contemplates that the head of service will then make a decision about the matter. The Deputy President’s construction of the clause was correct. As we consider the decision to be correct in this regard there is no arguable appealable error. To the extent it is suggested that the Deputy President implied that the respondent could act arbitrarily in relation to a recommendation of the appeal panel, we do not agree. The Deputy President simply observed that the appeal panel makes a recommendation that the head of service can accept or reject. Nothing in the decision of the Deputy President suggests that the head of service could or did act arbitrarily.
The premise of appeal ground two is that the Deputy President erred in her interpretation of the second recommendation because she determined that Ms Olalere needed to apply for the re-advertised positions. It is not clear to us why, having correctly determined that the powers of the appeal panel are recommendatory and not mandatory, the Deputy President considered it was necessary to provide an interpretation of the appeal panel’s recommendations. It may be that the Deputy President was drawn into the consideration of the meaning of the recommendations by the written submissions of the respondent, in which the respondent indicated that it had accepted the first recommendation (that there be a new selection process) and that it would only be after the outcome of the new selection process was known that the respondent might need to consider the second recommendation. Regardless, the Deputy President’s consideration of the interaction between the first and second recommendation was superfluous and did not affect the ultimate outcome of the interpretative task she was required to discharge.
The Deputy President’s opinion giving rise to appeal ground three was that the terms “recruitment” and “selection” could be used “loosely and interchangeably”. This aspect of the decision was also unnecessary to the resolution of the underlying dispute. While we note that the appeal panel only used the term “selection” and that the respondent’s hiring process outlined a distinction between the processes of “recruitment” and “selection”, the Deputy President correctly observed, in paragraph [25] of the Decision, that the respondent was not obligated to implement the recommendations of the appeal panel exactly as they were made because they were not directions that were required to be followed. The letter of 30 April 2024 made clear that the decision which had been made in response to the appeal panel recommendations was that the recruitment process would be restarted. That course was open whether it aligned with the recommendation of the appeal panel or departed from it. For these reasons, ground three demonstrates no error in the decision of the Deputy President.
Appeal ground five asserts the Deputy President erred by impliedly reviewing the appeal panel’s recommendation contrary to the limits on the Commission’s decision-making role. The gravamen of the complaint in appeal ground five is that paragraph [24] of the Decision suggests that the Deputy President considered that Ms Olalere had requested a waiver of the requirements in clause 63 of the Agreement when this had not been sought. We do not read paragraph [24] of the Decision in the manner contended for by Ms Olalere. The Deputy President simply observed that the Agreement does not confer a discretion to waive the requirements for direct promotion in clause 63. That paragraph was also, in the final analysis, superfluous to the matters which needed to be determined to resolve the dispute.
Finally, while not contained in the notice of appeal, Ms Olalere raised a sixth appeal ground. Noting the respondent provided a response to this appeal ground, we will deal with it. Ms Olalere submits that the Deputy President erred by accepting the respondent’s witness statement without considering her response. We consider the asserted factual errors about which Ms Olalere complains are directed at a summary of the respondent’s evidence outlined by Deputy President in paragraph [5], as opposed to any findings the Deputy President made. For this reason, the additional ground could not demonstrate any error in the decision.
Conclusion and disposition of the appeal
We are not persuaded that any of the appeal grounds disclose an arguable case of appealable error. The only question sought to be raised by the appeal was whether the 30 April 2024 letter complied with the requirement in clause 183.13 of the Agreement that the head of service inform the parties in writing of their decision and the reasons for the decision. The Deputy President was correct to find it did. We have also considered whether the appeal attracts the public interest. We are not satisfied, for the purposes of s 602(2), that the appeal raises any legal or factual issue of significance or general application, or that there is a diversity of decisions at first instance, or that the legal principles applied are disharmonious when compared with other decisions. We do not consider that the decision is counter-intuitive or manifests an injustice. It is not in the public interest to grant permission to appeal and there are not otherwise grounds upon which the Full Bench should grant permission to appeal.
We make one further observation. The second recommendation made by the appeal panel was that positive consideration be given to confirming Ms Olalere at level RN2 independently of the position for which she had applied if she was not assessed to be the best person for that position. We note that the respondent has rejected multiple applications by Ms Olalere to be appointed at level RN2 but has continued to offer her temporary higher duties appointments to RN2 positions. Rather than perpetuating this cycle of recruitment rounds and temporary appointments and continuing to put Ms Olalere through an experience she has described as demoralising, the respondent might wish to consider the second recommendation made by the appeal panel.
The Full Bench orders that permission to appeal is refused.
VICE PRESIDENT
Appearances:
Taiwo Olalere on behalf of Mrs Olalere
B Hamack, solicitor, of the ACT Government Solicitor for the respondent
Hearing details:
Sydney via Microsoft Teams.
11 December 2024.
[1] Olalere v Canberra Health Service[2024] FWC 2809.
[2] ACT Public Sector Nursing and Midwifery Enterprise Agreement 2020-2022, clause 162.16.
[3] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[4] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30]; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8205; (2013) 238 IR 258 at [12].
[5] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28].
[6] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [46] and [48]-[49] (Gageler J); FreshFood Management Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2023] FWCFB 97 at [29]; Clinical Laboratories Pty Ltd T/A Australian Clinical Labs v Health Services Union[2024] FWCFB 296 at [18].
[7] The only amendment made to the original Form F7 was the date of the signature.
[8] Australian Rail, Tram and Bus Industry Union v Laing O’Rourke Australia Construction Pty Ltd[2019] FWCFB 33 at [23]; Rail Commissioner v Rogers[2021] FWCFB 371 at [61].
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