Uche Victoria Olalere v Canberra Health Services
[2024] FWC 2809
•9 OCTOBER 2024
| [2024] FWC 2809 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Uche Victoria Olalere
v
Canberra Health Services
(C2024/3237)
| DEPUTY PRESIDENT DEAN | CANBERRA, 9 OCTOBER 2024 |
Application to deal with a dispute – promotion after acting in higher duties position.
Mrs Uche Victoria Olalere (Applicant) has made an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute with Canberra Health Services (CHS or the Respondent) under the dispute settlement procedure in the ACTPS Nursing and Midwifery Enterprise Agreement 2020-2022 (the Agreement).
The dispute relates to the application of certain provisions of the Agreement regarding promotion after acting in a higher duties position.
The Applicant is a permanent employee of CHS in the substantive position of Registered Nurse Level 1 (RN1). Her employment commenced in 2018 as a Nursing Assistant, and having completed her university degree in 2020, she moved to the Adult Acute Mental Health Services (AAMHS) in November 2021 as a RN1.
Between July 2022 and December 2023, she participated in four recruitment rounds to be appointed as a Registered Nurse Level 2 (RN2) for which she was unsuccessful. She was offered and accepted a series of ‘higher duties’ positions as a RN2 commencing in October 2022, for which she received a higher duties allowance (HDA). After her participation in her fourth recruitment round in December 2023 (for which she was unsuccessful), she was offered a further 11-month HDA position as a RN2.
The Applicant was advised she was unsuccessful in obtaining a RN2 role in late January 2024, and CHS say that on around 1 February 2024 she was provided with feedback on her performance and the areas in which CHS had identified she required further development. CHS say that it was because there were areas of her performance that were identified as requiring development that she was unsuccessful in obtaining a permanent RN2 role.
On 6 February 2024 the Applicant lodged an application for an Appeal Panel to be convened to appeal an appealable decision in accordance with s.183 of the Agreement. The Appeal Panel was convened by the appointment of a single member, with the consent of the Applicant.
The decision of the Appeal Panel, made on 12 April 2024, states that:
a. By proceeding with the appeal panel being constituted by a single member, the parties are opting for a consent recommendation approach outside the Agreement; and
b. This approach delivers the same outcome to the Applicant as the Agreement process because her matter would be heard by an independent body and its report and any recommendations would be considered by the Head of Service, and this is the same as the appeal process that is described in the Agreement.
The Appeal Panel made two recommendations (the recommendations) as follows:
“i.the selection process be set aside and a new selection process take place, and
ii.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 applied should she not be the best person for that position.”
On 30 April 2024, CHS wrote to the Applicant in the following terms (the 30 April letter):
“Dear Ms Olalere,
Appeal Made by Ms Uche Olalere, Decision:
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:
·Adherence to the Principle of Fairness and Equity in Merit: A new selection process with an impartial Joint Selection Committee will afford equal opportunity for candidates to be assessed for their suitability.
·Procedural Integrity: A new selection process will provide an avenue to rectify any procedural deficiencies identified during the initial recruitment process.
Please do not hesitate to contact me should you require any further clarification or assistance regarding this matter.
Sincerely,
Katie McKenzie
Executive Director, MHJHADS”
There is no dispute that CHS did set aside the process, in that it withdrew the offers of permanent employment it had made to the successful candidates and re-started the recruitment process. The applicants who had been successful had to re-apply for the positions. The Applicant did not re-apply for the positions when they were re-advertised in June 2024.
The dispute arises in relation to the second recommendation, in that the Applicant contends that CHS did not implement the second recommendation or provide reasons consistent with s.183.13 of the Agreement.
The question posed by the Applicant which she says will resolve the dispute is:
“Was the Respondent’s silence or refusal to make a decision on the second recommendation of the appeal panel [to wit: positively consider the Applicant for confirmation at RN2 level in accordance with s.63 of the Agreement], without reasons, consistent with s183.13 of the Agreement?”
For the reasons set out below, I find that the Respondent did not fail to make a decision on the second recommendation without reasons.
Relevant provisions of the Agreement
Section 63 of the Agreement, which is headed Promotion After Acting, is in the following terms:
63. PROMOTION AFTER ACTING
63.1The head of service may approve the promotion of an employee into a nominally vacant position without an additional selection process where:
63.1.1the 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
63.1.2the 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
63.1.4on reasonable grounds an additional merit selection process would not identify a more meritorious applicant than the position’s present occupant; and
63.1.5immediately before the promotion, the employee’s manager assesses the employee against the selection criteria for the position as satisfactory; and
63.1.6there is no potentially or actually excess employee suitable to be placed in the position.
63.2For 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.
63.3For 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;
63.3.2comparative assessment of suitable applicants for the position, if there is more than one applicant; and
63.3.3selection based on the recommendation of a Selection Advisory Committee or a Joint Selection Committee.
63.4The 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.
Section 183 deals with appeals about promotions and temporary transfers to higher office. Once an appeal panel is convened, section 183.12 provides that the appeal panel will recommend to the head of service that the decision the subject of the application be either confirmed, varied, or other action taken.
Section 183.13 provides that:
“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.”
Consideration
The question for determination by the Commission is a narrow one, and the factual background is largely not in dispute. In essence, it is about the adequacy of the 30 April letter in meeting the requirements of s.183.13.
The Applicant contended that the answer to the question for determination was ‘no’, in that CHS did not advise her in writing of its decision and the reasons for the decision as to both recommendations within 28 calendar days. In doing so, the Applicant put forward two main arguments. First, she sought to draw a distinction between a recruitment process and a selection process (being two separate parts of a hiring process) and argued that the first recommendation did not require CHS to re-do the recruitment process – it only required CHS to re-do the selection process from the candidates (including the Applicant) who had already applied for the RN2 positions. As such, she was not required to re-apply for the positions. Second, she contended that CHS did not deal with the second recommendation at all in that CHS had not given positive consideration to confirming her at level RN2 independently of the position for which she applied, should she not be the best person for that position.
CHS said it interpreted the first recommendation to mean re-starting the entire process, ie recruitment and selection, not just selection. Further, the second recommendation was a recommendation that depended on the outcome of the new selection process (ie the first recommendation), which the Applicant chose not to participate in. CHS argued that the Applicant’s participation in the new selection process was a condition that she did not meet. CHS contended the first recommendation must be dealt with before the second recommendation had work to do. In other words, it was only after the outcome of the new selection process was known that the Respondent might need to consider the second recommendation. The recommendations assume that for the Applicant to meet the requirements of s.63 of the Agreement, including the requirement specified in that clause that to be directly promoted, the Applicant needed to be found suitable following her participation in a merit selection process for the RN2 position. As a result, CHS argued that the answer to the question is ‘yes’.
In terms of s.183, in my view it cannot be disputed that the powers of the appeal panel are recommendatory and not directory. So much is clear by the words of s.183.12 which provide that the panel will ‘recommend’ to the head of service that the decision the subject of the application be confirmed, varied or other action taken. There is no requirement for the head of service to accept the recommendation in full or in part, and can decide to take ‘other action’.
In terms of the requirements of s.183.13, I am satisfied that the 30 April letter was issued within 28 days of the appeal panel report, which was given on 12 April 2024, and provided the reasons for the head of service’s decision.
The purpose of the 30 April letter from CHS was to inform the Applicant of what it intended to do as an outcome of the appeal and the ‘recommendations’ that were made. I am satisfied it was intended to convey CHS’s response to both recommendations made by the appeal panel.
I agree with the submissions of CHS to the effect that the second recommendation is dependent on the outcome of first recommendation. The words: “should she not be the best person for that position” in my view make it clear that for the second recommendation to have work to do, the Applicant must first have been considered to not be the best person for that position. For that to occur, the Applicant needed to apply for the re-advertised positions.
I accept CHS’s submission that the Agreement does not confer any discretion on the Head of Service to waive the requirements for direct promotion set out in clause 63, as those requirements are mandatory and must be met before there can be direct promotion.
The Applicant drew a distinction between recruitment and selection. In my view, and while it is not unusual for these terms to be used loosely and interchangeably, the 30 April letter made it clear that CHS would undertake a new recruitment process, which necessarily included a selection process. I do not consider this to be at odds with the first recommendation, but even if it was, CHS was not obligated to implement the recommendations exactly as they were made. Again, the recommendations are not directions that were required to be followed, and the 30 April letter made clear the decision of the head of service as a result of the appeal process.
The 30 April letter provided reasons for the decision to recommence the recruitment process which are set out above. The reasons in summary were to ensure 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.
Overall, I am satisfied that CHS met the requirements of s.183.13 in that it provided reasons in writing for its decision, in response to the appeal panel recommendations, within 28 days. The application is so determined.
DEPUTY PRESIDENT
Appearances:
T Olalere for Uche Victoria Olalere.
M Chilcott for Canberra Health Services.
Hearing details:
2024.
By Video:
August 13.
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