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Parmar v State of Queensland (Queensland Health)[2024] ICQ 14

Parmar v State of Queensland (Queensland Health)[2024] ICQ 14

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Parmar v State of Queensland (Queensland Health) [2024] ICQ 014

PARTIES:

Parmar, Yajuvendrasinh

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

C/2023/21

PROCEEDING:

Appeal

DELIVERED ON:

25 July 2024

HEARING DATES:

18 September 2023

MEMBER:

Hartigan DP

HEARD AT:

Brisbane

ORDER:

  1. 1.The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – appellant was a public sector employee employed by the respondent – where the appellant applied and was shortlisted for a position but was advised by the respondent that he was unsuccessful in the recruitment process – where the appellant raised a complaint expressing concerns about discrimination in the recruitment process – where the appellant appealed the respondent's assessment of the complaint to the Queensland Industrial Relations Commission – where the respondent raised a jurisdictional objection – where the Queensland Industrial Relations Commission determined not to hear the appeal pursuant to s 562A(b)(ii) of the Industrial Relations Act on the basis that the appellant sought to appeal a decision that cannot be appealed – whether any relevant error of law in the decision of the Queensland Industrial Relations Commission – no relevant error in the decision – appeal dismissed.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 14A

Crime and Corruption Act 2001 (Qld) s 15

Industrial Relations Act 2016 (Qld) ss 557, 562A, 530, 530A

Industrial Relations (Tribunals) Rules 2011 (Qld) r 126

Public Interest Disclosure Act 2010 (Qld) s 11

Public Sector Act 2022 (Qld) ss 4, 43, 44, 45, 130, 131, 132, 133

CASES:

Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309

Oceanic Life Limited & Anor v Chief Commissioner of Stamp Duties (1999) 168 ALR 211

Parmar v State of Queensland (Queensland Health) [2023] QIRC 150

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Together Queensland Union, Industrial Union of Employees v State of Queensland [2018] ICQ 008

Reasons for Decision

Introduction

  1. [1]
    The Appellant, Mr Yajuvendrasinh Parmar, appeals a decision of the Queensland Industrial Relations Commission ('the Commission') that determined, pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld) ('IR Act'), to not hear Mr Parmar's public sector appeal ('the Commission's decision').
  1. [2]
    In this matter, the Commission determined not to hear the public sector appeal on the basis that the Commission reasonably believed that the appeal is misconceived or lacks substance because the decision was not a decision that could be appealed pursuant to s 132(4)(c) of the Public Sector Act 2022 (Qld) ('PS Act').

Relevant background

  1. [3]
    At the relevant time, Mr Parmar held a position as a Laboratory Scientist, Royal Brisbane and Women's Hospital.
  1. [4]
    On 25 May 2022, the Respondent, the State of Queensland (Queensland Health), published an advertisement inviting applications for the position of Medical Laboratory Scientist (Multiskilled) based at the Sunshine Coast University Hospital.
  1. [5]
    Mr Parmar applied for the role and was shortlisted for the position. After an interview he was ranked third in the order of merit and consequently, was not successful in the recruitment process. Mr Parmar was advised of the outcome of the recruitment process on 12 July 2022.
  1. [6]
    On 27 February 2023, approximately seven months after being advised of the outcome of the recruitment process, Mr Parmar complained to the Ethical Standards Unit of Queensland Health ('the ESU') about possible discrimination in the recruitment process and expressed concerns that he was more qualified than the successful candidate. Mr Parmar sought the ESU's review of the recruitment process.
  1. [7]
    On 17 March 2023, the ESU advised Mr Parmar that it had assessed his complaint and determined that the process did not demonstrate evidence of corrupt conduct under the Crime and Corruption Act 2001 (Qld), nor did his complaint constitute a public interest disclosure under the Public Interest Disclosure Act 2010 (Qld). However, the ESU did determine to refer Mr Parmar's complaint to Pathology Queensland ('PQ') to consider under the grievance policy ('the ESU Decision').
  1. [8]
    On 20 March 2023, Mr Parmar sought to appeal the ESU decision to the Commission pursuant to the PS Act ('the public sector appeal').
  1. [9]
    The Respondent raised a jurisdictional objection in response to the public sector appeal and submitted the Commission should decline to hear and determine the appeal on the basis that the decision was a decision that could not be appealed pursuant s 132 of the PS Act.
  1. [10]
    On 29 May 2023, the Commission issued the Commission's decision.[1]
  1. [11]
    Mr Parmar appeals the Commission's decision to this Court. 

The Appeal to this Court

  1. [12]
    Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law, or excess or want of jurisdiction. Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the Court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act.
  1. [13]
    Mr Parmar has not sought leave to appeal on a ground other than those referred to in s 557(1) of the IR Act.
  1. [14]
    The grounds of appeal, as they appear in Mr Parmar's Appeal Notice, are as follows:
  1. (a)
    Commissioner does not consider objection of appellant under Section 530A Industrial Relation act 206[sic] (the IR Act) that public sector appeal does not consider lawyer for representation while decision made by commissioner based on submission by lawyer of Queensland Health;

('ground one')

  1. (b)
    Commissioners[sic] consider respondent submission date 5ht[sic] while as per appellant response it is not related to this matter but mention mater[sic] PSA/2022/581 as per, mater[sic] mention on respondent submission;

('ground two')

  1. (c)
    Respondent make submission under Form 34 while form 34 is under the Section 530 of the IR Act which consider other than public service appeal; and

('ground three')

  1. (d)
    Commissioner does not consider oral and written submission by appelant[sic] under section 44(3) of the Public Sector Act 2022 (the PS Act) clearly mention the selection process must be fair and transparent and if not, it gives right to appeal under 4(C)(v) of the PS Act. Section 4 of the PS Act is for how to save the purpose of the PS Act and should override the section 132(4)(c).

('ground four')

The Commission's decision

  1. [15]
    It was argued before the Commission, that the Commission did not have jurisdiction to consider Mr Parmar's public sector appeal of the ESU decision.
  1. [16]
    Relevantly, s 132(4)(c) of the PS Act provides that a person cannot appeal against a fair treatment decision relating to the recruitment or selection process of a public sector employee.
  1. [17]
    In this regard, the Commission considered[2] the operation of s 132(4)(c) of the PS Act in the context of this matter as follows:
  1. [37]
    The substance of the Appellant's appeal is that he is aggrieved by the appointment of a candidate to the position of Medical Laboratory Scientist at the Sunshine Coast University Hospital. The Appellant is of the view that an inferior candidate was appointed to the role due to allegedly corrupt conduct. He is also of the view that his application was not successful due to discrimination and unconscious bias.
  2. [38]
    The difficulty for the Appellant is that s 132(4)(c) of the PS Act clearly states that this decision cannot be appealed.

Decisions against which appeals can not be made

…

A person can not appeal against a fair treatment decision –

…

  1. (c)
    relating to the recruitment or selection of a public sector employee;
  1. [39]
    I note that the Appellant has attempted to escalate his grievance through the ESU and submits that this appeal is against the ESU decision. The practical reality is that the grievance to the ESU solely related to the appointment of the candidate to the relevant position, which is a decision about the recruitment or selection of a public sector employee. To consider this appeal would require an assessment of the Appellant's claims regarding the process of selecting the successful applicant. To do so would be inconsistent with the legislative intention that such an assessment not be included within the appellate processes under the PS Act.
  2. [40]
    Section 132(4)(c) does not only prohibit an appeal against the actual decision to select a public sector employee, but it also prohibits an appeal against any decision relating to the recruitment or selection of a public sector employee. The ESU decision is one that relates to the selection of the successful candidate in this matter and is thus a non-appealable decision.
  3. [41]
    As required by s 562A(3)(b), I have given the Appellant the opportunity to make both written and oral submissions in support of his appeal. On the basis that I consider s 132(4)(c) to be an insurmountable hurdle for the Appellant, I have determined that the appeal will not be heard pursuant to s 562A(3)(b)(ii) of the IR Act.
  1. [18]
    It is apparent from the above, that the Commissioner determined that the ESU decision was a fair treatment decision that could not be appealed pursuant to s 132(4)(c) as it was a decision relating to the recruitment and selection process of a public sector employee.

Grounds one and three

  1. [19]
    Grounds one and three do not relate to the substance of the Commission's decision but seek to attack the representation of the Respondent by Crown Law on several procedural grounds.
  1. [20]
    Mr Parmar submits that the Commissioner erred by not considering his objection to Crown Law appearing on behalf of the Respondent at the hearing of the Respondent's jurisdictional objection on the basis that:
  1. (a)
    the Respondent was represented by a lawyer; and
  2. (b)
    the Respondent made the application using the incorrect form.
  1. [21]
    With respect to grounds one and three, Mr Parmar objected to the Respondent being legally represented by Crown Law under s 530A(4)(a) of the IR Act, on the basis that the Respondent did not provide documentation regarding the identity or credentials of the Crown Law lawyer or file the approved form, which he submits was required by r 126(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('IR Rules') .
  1. [22]
    In response to these grounds of appeal, the Respondent contends that the Commission considered and properly disposed of Mr Parmar's Notice of Objection, which was filed on the morning of the hearing, at the commencement of the hearing.
  1. [23]
    The IR Act provides the circumstances in which a party may be represented in a public sector appeal. Relevantly, s 530A of the IR Act states:

530A Representation—public service appeals

  1. (1)
    This section applies in relation to a proceeding for a public service appeal.
  2. (2)
    A party to the appeal may—
  1. (a)
    appear personally; or
  2. (b)
    be represented in the proceeding by another person under section 529.
  1. (3)
    However, a party may not be represented under subsection (2)(b) by a lawyer.
  2. (4)
    For this section, a party is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person; or
  2. (b)
    if the party is represented by an organisation—an employee or officer of the organisation.
  1. [24]
    Section 530(1A)(5) of the IR Act contains a similar provision to s 530A(4) of the IR Act. s 530(1A)(5) relevantly states as follows:

530. Legal representation

  1. (1A)
    This section applies in relation to proceedings other than a proceeding for a public service appeal.

…

  1. (5)
    For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—
  1. (a)
    an employee or officer of the party or person; or
  2. (b)
    an employee or officer of an entity representing the party or person, if the entity is—
  1. (i)
    an organisation; or
  2. (ii)
    a State peak council; or
  3. (iii)
    another entity that only has members who are employers.
  1. [25]
    Rule 126 of the IR Rules provides that a lawyer representing a party under s 530 of the IR Act must file a notice of address for service in the approved form:

126 Lawyer’snotice of address for service

  1. (1)
    Unless an address for service has already been filed and served in another way, a lawyer who represents a party or person under section 530 of the Act must, as soon as practicable after being appointed, file a notice of address for service and serve a copy of the notice on all parties to the proceeding.
  2. (2)
    The notice must be in the approved form.
  1. [26]
    During the course of the proceedings, the Respondent's representative was a lawyer employed by the State of Queensland through Crown Law. Mr Parmar objected to Crown Law appearing for the Respondent.
  1. [27]
    The Commission considered Mr Parmar's objection and determined as follows:[3]

COMMISSIONER: Thank you, Mr Parmar. All right. So firstly, I note that the appellant has advised that he objects to the respondent being represented by Crown Law. I’ve read the appellant’s outline of objection filed on the 12th of May. And what I’ll say to that: section 530A of the Industrial Relations Act provides for representation in relation to public service appeals. Section 530A subsection (4) subsection (a) provides that a party is not to be represented by a lawyer if the lawyer is - sorry, is not taken to be represented by a lawyer if the lawyer is an employee or officer of the party or person.

So on the basis that Ms Robinson is an employee of the respondent, she is not taken to be - the respondent is not taken to be represented by a lawyer in these circumstances, and so is permitted to represent the respondent in this matter.

  1. [28]
    As noted above, s 530A(4) is in similar terms to s 530(5) of the IR Act. The latter provision was considered by his Honour Martin P in Together Queensland Union, Industrial Union of Employees v State of Queensland[4] in the context of Crown Law seeking to appear for the State of Queensland. His Honour relevantly held as follows:
  1. [39]
    Section 530(5) does not have the effect of changing the fact that someone is a lawyer. Rather, it works by deeming a lawyer not to be a lawyer for the purposes of s 530 and thus not caught by the earlier proscriptions in that section. It goes no further than that. So much can be seen from the introductory words of s 530(5): “For this section …”. In other words, where a lawyer is an employee or officer of a party etc., that party may be represented by the lawyer and the restrictions in the preceding sub-sections do not apply. Thus, it is a provision which works to allow a unit to be represented by a lawyer and, therefore, comes within s 944(2).
  2. [40]
    For all of these reasons, the State of Queensland is entitled to be represented by a lawyer in its employ when it is party to a proceeding and, it follows, that s 944(1) does not prevent a public sector unit being so represented.
  1. [29]
    It is apparent from the reasons of the decision, that the Commissioner similarly concluded that in the circumstances of this matter, the Crown Law lawyers fell within the ambit of s 530A(4). I consider that the Commission's approach to the consideration of s 530A(4) was orthodox and correct.
  1. [30]
    A further matter raised by Mr Parmar in written submissions in reply was that the Crown Law lawyer adduced no evidence about their representation and accordingly, there was no relevant information before the Commissioner for her to form a view with respect to s 530A(4) of the IR Act in this matter.
  1. [31]
    Mr Parmar's submissions in this respect fail to have regard to the fact that a Form 34 – Lawyer's Notice was filed by Crown Law which detailed the Lawyer from Crown Law's name and other contact information. Further, at the commencement of the hearing on 12 May 2023 the Crown Law lawyer announced her appearance as the Representative for the Respondent and that she was employed by Crown Law.[5]
  1. [32]
    Consequently, I am satisfied that there was a factual foundation which provided a basis for the Commission to conclude that s 530A(4) applied to the circumstances of this matter. Mr Parmar has identified no appealable error in the approach adopted by the Commission.
  1. [33]
    Finally, with respect to ground three, Mr Parmar contends that the "Respondent make [sic] submission under Form 34 which Form 34 is under s 530 of the IR Act which consider other than public service appeal."
  1. [34]
    Mr Parmar's referral to Form 34 – is the form entitled "Lawyer's Notice of Address for Service" which was considered above. Relevantly, the form provides for a lawyer to provide details of the party they are representing together with the service details of the lawyer.
  1. [35]
    As was mentioned above, the Respondent's lawyer filed a lawyer's notice of address for service in this matter. The filing of this form provided a means by which Mr Parmar and the Commission were placed on notice that the lawyer employed by Crown Law was representing the Respondent and the contact details for the purpose of service of that lawyer.
  1. [36]
    Mr Parmar argued that the Respondent's representation was based on the Form 34. He further argued that the Commissioner had no jurisdiction to "allow anyone without any proper documentation required by law."
  1. [37]
    It was appropriate for the Respondent's lawyer to communicate to the Commission and Mr Parmar, to advise that the Respondent was legally represented and to provide the lawyer's contact details. No procedural deficiency arises from the Respondent's lawyer communicating that information by filing and serving the Form 34.
  1. [38]
    Whilst a lawyer who has been granted leave to appear pursuant to s 530 must file a Lawyer's Notice, a lawyer who does not require leave to appear (by operation of, for instance, s 530A(4) of the IR Act) may still file a Lawyer's Notice. It is a convenient and efficient means to communicate the contact details of the lawyer to both Mr Parmar and the Commission.
  1. [39]
    Ground three attempts to attack the appearance of the Respondent's legal representative after the filing of the Lawyer's Notice. This ground is misconceived for the reasons already stated above, the Respondent's lawyer was not required to seek leave to appear because of the operation of s 530A(4) of the IR Act.
  1. [40]
    It follows that Mr Parmar has not established an appealable ground of appeal in reliance on grounds one and three.

Ground two

  1. [41]
    Ground two relates to a typographical error in the Respondent's written submissions where the Respondent erroneously referred to the public sector appeal using the incorrect file number. All other factual information including Mr Parmar's name was correct.
  1. [42]
    As a consequence of the typographical error, Mr Parmar contended that the Commission considered submissions that did not relate to his matter. Sensibly, during the hearing of the appeal, Mr Parmar confirmed that he no longer pressed ground two.[6]

Ground four

  1. [43]
    With respect to ground four, Mr Parmar contends that the Commission erred on the basis that his appeal of the ESU decision was erroneously conflated with the recruitment and selection process.
  1. [44]
    Mr Parmar's submissions in this regard were, inter alia, as follows:
  1. 29.… Here commissioner misinterpreted the actual appeal that this appeal is not about the selection or recruiting of public sector employees but about the process does not selecting or recruiting the most suitable public sector employees based on skin and corrupt conduct and the ESU refused to investigate after reviewing only the selection report prepared by a person alleged for discrimination and corrupt conduct. Section 45(2) of the PS Act ensures that In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity-
  1. (a)
    must consider each eligible applicant's ability to perform the requirements of the position; and
  2. (b)
    may consider-
  1. i.the way in which each eligible applicant carried out any previous employment; and
  2. ii.the potential of each eligible applicant to make a future contribution to the entity; and
  3. iii.the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2, including, for example, the objectives, strategies and targets stated in the entity's equity and diversity plan.
  1. 30.Section 132(4)(C) of the PS Act itself is a violation of section 15 (Recognition and Equality before the law) of The Human Rights Act 2019 (the HR Act), which does not give an equal chance to applicants before the law to hear over public sector selection and recruitment process of public sector employee.
  1. [45]
    Mr Parmar further argued that the recruitment and section process did not follow the directive, and that the Commissioner placed little importance on ss 4(c)(v), 44(3)(b), 44(3)(c), and 45 of the PS Act, and greater importance on s 132(4)(c) of the PS Act. Mr Parmar submitted that this suggested unconscious bias by the Commissioner. 
  1. [46]
    A consideration of ground four will require consideration of the statutory construction of the relevant provisions, the terms of the ESU complaint, the ESU decision, and the Commission's decision.

Relevant principles of statutory construction

  1. [47]
    The approach to be taken to ascertain the true meaning of words used is well settled.[7] The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.[8]
  1. [48]
    The relevant principles with respect to statutory construction were considered and summarised in R v A2; R v Magennis; R v Vaziri[9] as follows:
  1. [32]
    The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  2. [33]
    Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  3. [34]
    This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  4. [35]
    The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  5. [36]
    These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  6. [37]
    None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

…

(citations omitted)

  1. [49]
    In SZTAL v Minister for Immigration and Border Protection[10] the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows:[11]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

…

(citations omitted)

  1. [50]
    Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.
  1. [51]
    Mr Parmar contends that the recruitment and selection process did not accord with s 44(3)(b) and s 44(3)(c) of the PS Act.
  1. [52]
    Section 44 of the PS Act falls within Chapter 3, Part 3 of the PS Act and is entitled 'Recruitment and Selection'.
  1. [53]
    Section 43 of the PS Act provides that the part applies to the employment of an eligible person in or to a public sector entity.
  1. [54]
    Section 44 sets out the principles underpinning the recruitment and selection process.
  1. [55]
    The purpose of s 44, as set out in s 44(1) of the PS Act, is to ensure the recruitment and selection of a high-performing, apolitical and representative public sector workforce.
  1. [56]
    Section 44(2) provides that a person undertaking a recruitment and selection process in a public sector entity, including, for example, by making a decision about employment of a public sector employee, must undertake the process in accordance with the principles set out in s 44(3).
  1. [57]
    The principles set out in s 44(3) are as follows:
  1. (a)
    recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and
  2. (b)
    recruitment and selection processes must be fair and transparent; and
  3. (c)
    recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.
  1. [58]
    Section 45 of the PS Act provides that a person selected for employment must be the eligible applicant best suited to the position.
  1. [59]
    Section 45(2) sets out relevant considerations to be taken into account by a person undertaking a recruitment and selection process in order to decide the eligible applicant best suited to the position.
  1. [60]
    Section 45(2)(a) provides that each eligible applicant's ability to perform the requirements of the position must be considered.
  1. [61]
    Section 45(2)(b) of the PS Act provides that the following matters may be considered when making the decision[12] as follows:
  1. (i)
    the way in which each eligible applicant carried out any previous employment; and
  2. (ii)
    the potential of each eligible applicant to make a future contribution to the entity; and
  3. (iii)
    the extent to which the proposed decision would contribute to fulfilment of the entity’s obligations under chapter 2 , including, for example, the objectives, strategies and targets stated in the entity’s equity and diversity plan.
  1. [62]
    Accordingly, Chapter 3, Part 3 of the PS Act provides the manner in which the recruitment and selection process is to take place in order to determine the eligible applicant best suited to the position.
  1. [63]
    Section 132 of the PS Act falls within Chapter 3, Part 10, 'Appeals'.
  1. [64]
    Section 130 provides that a person may appeal against a decision if:
  1. (a)
    an appeal may be made against the decision under s 131; and
  2. (b)
    the person is entitled to appeal against the decision under s 133 of the PS Act.
  1. [65]
    Section 131 of the PS Act sets out the types of decisions against which appeals may be made as follows:

131  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
  1. (a)
    a conversion decision;
  2. (b)
    a directive decision;
  3. (c)
    a disciplinary decision;
  4. (d)
    a fair treatment decision;
  5. (e)
    a promotion decision;
  6. (f)
    a suspension without pay decision;
  7. (g)
    a transfer decision;
  8. (h)
    a work performance direction decision;
  1. (i)
    a decision about anything else against which another Act allows a person to appeal.
  1. (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).

…

  1. [66]
    However, s 131(3) provides that s 131 is subject to s 132 of the PS Act. Section 132 relevantly sets out the decisions against which appeals can not be made. For the purpose of this appeal, consideration is to be had to s 132(4) of the PS Act which relevantly states:

132 Decisions against which appeals can not be made

…

  1. (4)
    A person can not appeal against a fair treatment decision—
  1. (a)
    made under chapter 3, part 8, division 5; or
  2. (b)
    made under chapter 3, part 8, division 3, other than a finding under section 91 that a disciplinary ground exists for the person; or
  3. (c)
    relating to the recruitment or selection of a public sector employee; or
  4. (d)
    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

  1. (e)
    relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of the grievance; or
  2. (f)
    relating to the development or performance management of a chief executive or senior executive.

…

  1. [67]
    Mr Parmar's appeal of the ESU decision is an appeal of a fair treatment decision. Section 132(4)(c) provides that a person cannot appeal against a fair treatment decision "relating to the recruitment and selection of a public service employee."
  1. [68]
    Whether the ESU decision was a decision "relating to the recruitment or selection of a public sector employee" will require consideration of the phrase "relating to".
  1. [69]
    I accept the Respondent's submissions that the words "relating to" have a wide import.
  1. [70]
    In Oceanic Life Limited & Anor v Chief Commissioner of Stamp Duties[13] it was held that:

The width of the phrase “relating to” is undoubted. Lord Macnaghten stated that ‘[t]here is no expression more general or far reaching” … The difficulties of construction presented by such language have also been noted. Taylor J observed that “… the expression ‘relating to’ … is … vague and indefinite …” and “… leaves unspecified the plane upon which the relationship is [to be] sought and identified” … One area of debate has been whether, in particular legislation, a relationship need or need not be “direct” or “direct and immediate” … Overall, the position judicially adopted has been that the operation of the phrase “relating to” is determined by the statutory context and purpose…”  (citations omitted)

  1. [71]
    Accordingly, the construction given to the phrase "relating to" will be determined by the statutory context and purpose.
  1. [72]
    In this matter, the words "relating to the recruitment or selection of a public sector employee" appear in the context of s 132 of the PS Act. The purpose of s 132 of the PS Act is to identify a decision against which an appeal cannot be made.
  1. [73]
    Specifically, s 132(4)(c) of the PS Act provides that a person can not appeal a fair treatment decision relating to the recruitment and selection of a public sector employee.
  1. [74]
    In the context of the PS Act, this would include a decision relating to the recruitment and selection process set out in Chapter 3, Part 3 of the PS Act.

Did the decision relate to the selection and recruitment of a public sector employee?

The complaint to the ESU

  1. [75]
    Mr Parmar seeks to appeal the decision which followed his complaint to the ESU. Mr Parmar forwarded his complaint to the ESU in an email with the subject "QLS/42/223 SCUH recruitment process unlawful".
  1. [76]
    Mr Parmar's complaint to the ESU was in the following terms:

Dear Sir

I am working for QLD Pathology at Caboolture Lab, I am from the sunshine coast and for that reason applied for the above full-time position at sunshine coast. After having a good interview and reference checked I got an email from supervising scientist that I am not a successful candidate for that interview as per their email. Just recently I came to know that for that position person hired was at the time of the interview not signed off for haematology, morphology, malaria, and Blood bank but he got preference when I raised the question there was not a satisfactory answer but told that other factor considers ( but what other factor details has not been given) along with technical knowledge and I personally feel other factors are my non-English speaking and white skin people and that reason there is not any diversity in the work environment. From my sources, I came to know that sunshine coast pathology all HPs work with white skin so they do not prefer to hire people with dark skin but got a selection made to less technical and knowledgeable people based on skin colour proving there is not any consideration to Diversity and inclusion policy. I am coming from a non-English speaking background and age above 45, because of the language barrier I feel given an advantage over others during the recruitment process.

…

I sought external inquiry based on antidiscrimination, not following the Diversity and inclusion policy and Unconscious bias during recruitment. And if someone is found guilty then very strict action is taken so people like me do not suffer in future.

For my own background, I finished my training in pathology Queensland within four week time which include Morphology, haematology, Blood bank, Chemistry, Microbiology and CSR, I have more than three years of experience speciality haematology and transfusion worked main laboratory at Mater pathology and Dor lab at Dorvitch pathology. That proves that I have sound knowledge of those departments.

I want to know what criteria have been set up to prove a less technical person to select on that position.

  1. [77]
    The subject matter of Mr Parmar's complaint identifies that he complains about the selection and recruitment process of a public sector employee.  Relevantly, Mr Parmar contends that in the course of the recruitment and selection process of a public sector employee, he was, inter alia, subjected to discrimination and that a person who was "less technical" was selected for the position.

The ESU decision

  1. [78]
    By email dated 17 March 2023, the ESU advised Mr Parmar that they had assessed his complaint and determined as follows:

…

Thank you for your email to the Ethical Standards Unit (ESU) below dated 27 February 2023 in relation to your concerns about possible discrimination in a recruitment process undertaken (QLD/421223) of which you were an applicant.

Your complaint has been assessed by the ESU to determine whether the information you provided amounted to suspected corrupt conduct under the Crime and Corruption Act 2001 (the CC Act) and/or a public interest disclosure under the Public Interest Disclosure Act 2010 (the PID Act). As part of this process, we reviewed the selection report for the recruitment process in question.

I can advise that the concerns you raised did not satisfy the definition of corrupt conduct as defined in section 15(1) of the CC Act and therefore there are no obligations to report the matter to the Crime and Corruption Commission. I can also advise the concerns did not amount to a public interest disclosure.

Please note this assessment decision is not an investigation of your complaint. While the concerns you raised are not considered to be suspected corrupt conduct or a public interest disclosure, they have been referred to Pathology Queensland (PQ) Human Resources (HR) to consider under the grievance policy. If you require further information in relation to any further actions that may be being considered, you can contact the PQ HR team via [email protected].

Please be advised there may be other avenues you can explore in relation to your concerns, including:

  • Seeking feedback from the panel chair regarding your application (if you haven’t already done so); or
  • Considering appeal options that might be available to you under the Appeals Directive; or
  • Considering complaint options with the Queensland Human Rights Commission (QHRC).

You would be welcome to discuss these options with the PQ HR team also.

If you have any queries in relation to the contents of this email correspondence, you may contact me on the below details.

…

  1. [79]
    The decision identifies that the ESU confirmed that it had received Mr Parmar's concerns about the recruitment process and formed a view that the concerns did not amount to corrupt conduct,[14] nor did it amount to a public interest disclosure.[15]
  1. [80]
    Mr Parmar was advised that the ESU decision did not amount to an investigation of his complaint and that the ESU referred Mr Parmar's concerns to PQ, Human Resources to consider under the grievance policy.
  1. [81]
    The ESU decision did identify that in forming the view that the content of Mr Parmar's concerns did not amount to corrupt conduct or a public interest disclosure, the selection report for the recruitment process in question was reviewed.
  1. [82]
    As noted above the Commission determined not to hear the appeal, pursuant to s 562A(3)(b)(ii) of the IR Act, on the basis that Mr Parmar sought to appeal a decision that cannot be appealed pursuant to s 132(4)(c). Relevantly, the key finding in the Commission's decision is that the ESU decision which Mr Parmar sought to appeal was a decision relating to the recruitment or selection process of a public sector employee.
  1. [83]
    On this appeal, Mr Parmar continues to contend that the ESU decision is an unfair decision as the decision to "not investigate the recruitment and selection process based on the selection report prepared by the committee, is not fair treatment to the appellant, as per s 44(3)(b) of the PS Act, recruitment and selection processes must be fair and transparent; and s 44(3)(c) of the PS Act, recruitment and selection processes must reflect the obligations under chapter 2 to relating to equity, diversity, respect and inclusion."
  1. [84]
    It is apparent that Mr Parmar contends that the recruitment and selection process did not accord with the PS Act including the principles referred to in s 44(3)(c) and they matters that may be considered in the process as set out in s 45(2)(b) of the PS Act.
  1. [85]
    As relevantly noted by the Commission, the "practical reality is that the grievance to the ESU solely related to the appointment of a candidate to the relevant position, which is a decision about the recruitment and selection of a public sector employee", and further that "[t]o consider this appeal would require an assessment of the Appellant's claims regarding the process of selecting the successful candidate."
  1. [86]
    It is apparent on the terms of the concerns raised by Mr Parmar and the ESU's subsequent decision that they each related to the recruitment and selection of a public sector employee.
  1. [87]
    Consequently, Mr Parmar seeks to appeal a decision relating to the recruitment and selection of a public sector employee.
  1. [88]
    It follows that Mr Parmar has failed to establish an error in the approach taken by the Commission below when determining that the appeal is misconceived or lacks substance on the basis that the decision is not one that is able to be appealed pursuant to s 134(4)(c) of the PS Act. 
  1. [89]
    Accordingly, ground four does not establish an error in the Commission's decision.

Conclusion

  1. [90]
    For the reasons given, grounds one to four as relied on by the Appellant regarding the Commission's decision have not established an error of the kind referred to in s 557(1) of the IR Act.

Order

  1. [91]
    Consequently, I make the following order:
  1. 1.The appeal is dismissed.

Footnotes

[1] Parmar v State of Queensland (Queensland Health) [2023] QIRC 150.

[2] Ibid [37]–[41].

[3] T1–2, 15–26 (Exhibit 1).

[4] [2018] ICQ 008 [39]–[40].

[5] T1–2, 8–9 (Exhibit 1).

[6] T1–22, 29–35.

[7] R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507 [32] ('A2').

[8] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [78]; Lake City Freighters Pty Ltd v Goram & Gotch Limited [1985] HCA 48; 157 CLR 309, 436 [461].

[9] A2 (n 7) [32]–[37].

[10] [2017] HCA 34; (2017) 262 CLR 362 per Kiefel CJ, Nettle and Gordon JJ.

[11] Ibid [14].

[12] As referred to in s 45(2) of the PS Act.

[13] (1999) 168 ALR 211, 224–5 per Fitzgerald JA.

[14] Crime and Corruption Act 2001 (Qld) s 15(1).

[15] Public Interest Disclosure Act 2010 (Qld) s 11.

Close

Editorial Notes

  • Published Case Name:

    Parmar v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Parmar v State of Queensland (Queensland Health)

  • MNC:

    [2024] ICQ 14

  • Court:

    ICQ

  • Judge(s):

    Hartigan DP

  • Date:

    25 Jul 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48
2 citations
Jump To
Cite 1 - [1985] HCA 48
Cite 2 - [1985] HCA 48
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211
2 citations
Jump To
Cite 1 - (1999) 168 ALR 211
Cite 2 - (1999) 168 ALR 211
Parmar v State of Queensland (Queensland Health) [2023] QIRC 150
2 citations
Jump To
Cite 1 - [2023] QIRC 150
Cite 2 - [2023] QIRC 150
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Together Queensland, Industrial Union of Employees v State of Queensland [2018] ICQ 8
2 citations
Jump To
Cite 1 - [2018] ICQ 8
Cite 2 - [2018] ICQ 8

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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