Fitzgerald v Queensland[2015] QIRC 13

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   Mr Mark Fitzgerald (the Applicant) commenced work for the Queensland Department of Health (Queensland Health) in or around 1994 progressively acquiring dental skills and broadening his experience to the point where he was appointed as a Senior Dental Technician Level (TO4) within the Logan-Beaudesert Health Service District.

2. [2]
   There is no argument that in early September 2006 Mr Fitzgerald's role as a Senior Dental Technician (SDT) was impacted by a restructure when the Beenleigh Oral Health Clinic was relocated and merged with the Logan Hospital Oral Health Clinic.  As a result, there was a requirement for only one Senior Dental Technician position rather than two within the merged clinics.  At the time it was proposed to the two existing SDT's, one of whom was Mr Fitzgerald, that one of the positions would be abolished and the incumbent officer would be declared a surplus officer in accordance with IRM 1.15-2 Management of Surplus Employees: Identification and Notification to Surplus Employees (the IRM).

3. [3]
   Under the IRM the surplus officer would receive salary maintenance at their substantive TO4 pay rate until such time as they voluntarily chose to be deployed or redeployed to another position, or resigned from the service.  Importantly, it was proposed at the time that the surplus Senior Dental Technician would provide dental services in accordance with a TO3 position description and that the "appropriate paperwork" would be completed to move the surplus officer out of the TO4 position which was being abolished and into a "surplus" position.

4. [4]
   It appears that although there was an opportunity for the two SDT's impacted by the restructure to participate in a closed merit selection process, Mr Fitzgerald voluntarily elected to move to the "surplus officer" status.  As a result, he commenced performing his work at another site in accordance with a TO3 position description while waiting for reassignment.  In the event a suitable permanent TO4 position became available within the Logan-Beaudesert Health Service District, Mr Fitzgerald was advised he would be "suitably assessed for the position".  Further, if another SDT (TO4) role was "created" within the district, Mr Fitzgerald was advised he would be automatically transferred into the role.  The restructure took effect from 18 September 2006.

5. [5]
   Mr Fitzgerald's evidence is that prior to the introduction of HPEB1, he was classified at Level 3, Pay point 5 of the District Health Services Employees' Award - State 2003.  Under phase one of the HPEB1, he transferred to an HP3.7 classification in accordance with Schedule 3 of HPEB1.

6. [6]
   A Phase 2 process in line with the Health Practitioners (Queensland Health) Certified Agreement (no. 1) 2007 (HPEB1), provided Mr Fitzgerald with an opportunity to have his role description, role and responsibilities evaluated against Work Level Statements (WLS) relevant to his classification.  On 27 June 2008 Mr Fitzgerald submitted an Employee Initiated application (EIA) seeking a reclassification to an HP4 level.  In his reasons for seeking a review of his classification Mr Fitzgerald recorded "Previous District and Senior Dental Technician Functionality".  On November 2009, Mr Fitzgerald was advised he was unsuccessful in his EIA.

7. [7]
   Mr Fitzgerald appealed the Phase 2 outcome on 25 October 2010 in accordance with the procedure provided for in HPEB1 but was unsuccessful.  The Appeal Panel recommended Mr Fitzgerald's classification remain at the HP3 level, noting: "Overall, after assessing the evidence provided the panel agreed: Insufficient Evidence provided.”  The Director-General of Queensland Health endorsed the appeal panel's recommendation.

8. [8]
   United Voice, on behalf of Mr Fitzgerald, subsequently filed a Notice of Industrial Dispute in relation to his classification.  The dispute was subsequently assigned a new matter number, HP/2013/36, for the arbitration proceedings.

Subject of Dispute

9. [9]
   Mr Fitzgerald is seeking to have his existing Senior Dental Technician role reclassified from an HP3 level to an HP4 level.  Subject to the Commission's decision, Mr Fitzgerald has submitted a series of dates on which he believes the reclassification should take effect, which would also result in him receiving back pay.

10. [10]
    In the event the Commission does not agree to reclassify Mr Fitzgerald, he is seeking, in addition to compensation of $380 000, additional paid training to assist with a position transfer and to be afforded priority status for promotion by Queensland Health.

The evidence and argument before the Commission

11. [11]
    The main thrust of Mr Fitzgerald's submissions focussed on Queensland Health's (QH) failure to provide him with a TO4 position following the restructure of the Logan and Beaudesert Oral Health Clinics and the failure of QH HR to advise various assessment panels of his surplus status during the translation process.

12. [12]
    Mr Fitzgerald's evidence was that Queensland Health provided assurances during the 2006 restructure resulting in the Logan-Beaudesert Oral Health Clinic that he would retain his substantive position of TO4 and would suffer no economic loss notwithstanding his surplus status.  He argued there was no mechanism under the HP translation process to take into consideration prior IRM rules and surplus officer benefits.

13. [13]
    Mr Fitzgerald further submitted the HP Oversight Committee had failed to consider relevant evidence by not including a check sheet for the overview conducted by the Work Level Evaluation Team.  He also argued his role, skills, experience and knowledge satisfied the relevant HP4 WLS and Guidelines.

14. [14]
    More specifically, Mr Fitzgerald contended the correspondence prepared by Ms Liz Cook with respect to the restructure of the Logan and Beaudesert Oral Health Clinic (MF3) confirmed he was to retain the substantive position of TO4 so that he would not be disadvantaged while a permanent placement deployment proceeded during the HPEB phase.  He further submitted that had Queensland Health stood by their commitment to deploy him as outlined in the correspondence from Liz Cook in 2006, then he would have already secured an equivalent HP4 role at Wembley Road Dental Laboratory prior to the HP translation process.

15. [15]
    Mr Fitzgerald contended he was not provided the "work level statements and guidelines for health practitioner roles" until just a few days before the closing date of the appeals process and further, that had Queensland Health acted in a timely fashion with respect to deploying him to another TO4 role, then his transition to HP4 would have been automatic.  He also raised concerns that he had been misled through the translation process when he was instructed to only refer to his current role when he was completing his application.  

16. [16]
    Queensland Health argued the Commission's powers with respect to Mr Fitzgerald's application were confined to correcting any error which may have arisen during the agreed reclassification process.  Further, that the Commission is not at large to resolve the wider question as to the correct classification of an applicant in circumstances where Mr Fitzgerald does not have access to a de novo assessment.

17. [17]
    Mr Ryalls on behalf of Queensland Health argued that by the time Mr Fitzgerald's grievance with respect to his classification is referred to the Commission, the process undertaken in Phase 2 is no longer the operative decision in relation to the extant classification of the employee because the determination of the Appeal Panel stands apart from the Phase 2 evaluation.  Therefore, the recommendation of the Appeal Panel and the subsequent decision of the Director-General wholly displaces and removes any effect of the processes undertaken in Phase 1 and Phase 2 of the classification procedure: see State of Queensland (Acting through Queensland Health) and Together Queensland, Industrial Union of Employees and Others.^[1]

18. [18]
    Mr Ryalls further argued the only manner by which Mr Fitzgerald could conceivably attack and displace the existing classification, after an appeal recommendation, is to demonstrate an error has occurred in the appeal process: see Newton.^[2]

19. [19]
    In this regard, Queensland Health submitted Mr Fitzgerald had not substantiated a case to be reclassified from HP3 to HP4 and in addition, no significant errors had been identified that would warrant the outcome being sought by Mr Fitzgerald.

20. [20]
    Mr Ryalls submitted Mr Fitzgerald's transfer to surplus status was a separate and unrelated circumstance that should not be taken into account when assessing if an error had occurred in the Phase 2 Work Level Evaluation Project.  Notwithstanding its position with respect to surplus status, Queensland Health argued Mr Fitzgerald had ample opportunity to raise his concerns about such an issue within the scope of the HP Phase 2 process but hadn't done so, either at the EIA or internal appeal process.

21. [21]
    Mr Don Hamilton, who provided evidence to the Commission with respect to the processes undertaken by the Queensland Health during the evaluation process for all Health Practitioners, advised Mr Fitzgerald's EIA submission was one of 3 Dental Technician submissions whose position had been initially proposed by line Manager/s at the HP3 level.

22. [22]
    At paragraph 27 of his affidavit (Exhibit 7), Mr Hamilton noted:

“[27] The Dental Technicians WLEP reviewed Mr Fitzgerald's EIA and decided to recommend the position at the HP3 level.  The WLEP noted “This position reports to the Senior Dental technician.  The primary purpose of this position is as an advanced practitioner, perform more complex and diverse technical tasks and engage in independent decision making and judgement on a day to day basis with minimal supervision in the provision of quality technical oral health services.”

This evaluation was based on information from the role description and the EIA, statements in the EIA supported the role description and both were evaluated as HP3.  The WLEP then indicated EIA comments aligned to the following WLS HP3-7, HP3-14 and HP3-26.”

23. [23]
    In response to Mr Fitzgerald's reliance on the alleged assurances provided by QH in correspondence (Exhibits 3, 4 and 6) that he would retain his TO4 substantive position, Mr Ryalls argued none of those materials provided such an assurance.  Instead, Queensland Health contends the documentation refers to salary maintenance and deployment principles under the relevant IRM policies and provided no assurances Mr Fitzgerald would retain a substantive TO4 position. 

24. [24]
    In the event the Commission determines Mr Fitzgerald was not provided with assurances with respect to retaining a substantive TO4 position, Queensland Health contends that it then follows that Mr Fitzgerald's argument the HP process failed to consider his surplus officer status and the IRM rules during the assessment process, must also fail.

Findings

25. [25]
    The Commission's role and the approach it may take in determining whether the Appeal Panel erred has been commented on by the Full Bench in Dr Adam Scott^[3] and later Fisher C in United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) and the State of Queensland (Queensland Health).^[4]  In determining whether the Appeal Panel erred consideration must be given to the Appeal Review Statement, the decision of the Director General as well as the submission made by the employee to the Appeal Panel.  Further, in reaching its view, the Commission can decide to take into account evidence that was “put aside in the process or fresh evidence”.^[5]

26. [26]
    Mr Fitzgerald, supported by Mrs Fitzgerald represented himself during the proceedings. He diligently prepared and gave evidence and provided extensive written submissions in relation to this matter.  Included in the materials he provided to the Commission were a series of letters from Queensland Health relating to the 2006 restructure and his surplus position along with further correspondence from the Department in the second half of 2011 responding to Mr Fitzgerald's concerns that he had been denied the opportunity to be considered for other TO4 positions prior to the HP translation process.

27. [27]
    A close review of these materials highlights that whilst Mr Fitzgerald was guaranteed salary maintenance at the substantive TO4 pay rate until such time as he voluntarily chose to be deployed or redeployed to another position, there was no guarantee provided that he would retain or attain a TO4 substantive position.  It is clear Queensland Health did provide assurances that Mr Fitzgerald would be "suitably assessed" in the event a TO4 position became available.  The Department also undertook to transfer Mr Fitzgerald into a TO4 position in the event a position was created within the District, however there was no evidence before the Commission demonstrating a new TO4 SDT position had been created in the district and that Mr Fitzgerald had missed out on the role on or before the time of his Appeal.

28. [28]
    Regrettably, later in 2011, there appears to be unsigned copy of a letter (Exhibit 8) from Dr Elizabeth Holder acknowledging Mr Fitzgerald had mistakenly been left off the surplus register.  In earlier correspondence from a Workforce Manager (Exhibit 5), Queensland Health acknowledges the oversight, but then advises Mr Fitzgerald had (unsuccessfully) participated in the recruitment process for the only supervisory position that had become available in the District prior to the HP translation process.  In this respect Queensland Health's position was although an error may have occurred in the surplus registration process, it did not automatically give rise to a sustainable argument that Mr Fitzgerald should have been remunerated on a possibility that he may have been deployed to a position that may have been upgraded to an HP4 level.

29. [29]
    The other difficulty with Mr Fitzgerald's argument is that it is not clear as to how he expected the Phase 2 appeal panel to undertake an assessment of a role that he no longer held and which came with responsibilities that in many cases he no longer performed.  A review of Mr Fitzgerald's appeal documentation reveals a partial reliance on the performance of responsibilities that took place prior to the 2006 restructure.

30. [30]
    Further, the guidelines understandably did not and could not cater for an assessment against a role that a person might hold in the future or in Mr Fitzgerald's case held in the past prior to his transfer to surplus status.  In this respect one can understand why he was encouraged to submit an application that reflected the duties and responsibilities of the role he was undertaking at the time.  Further, although it is regrettable that Mr Fitzgerald was left off the surplus register, I am persuaded by Mr Ryall's submissions that the omission was a separate matter and certainly not one that could have been resolved by the Phase 2 Appeals Panel process.

31. [31]
    In this respect I am unable to find, in all the circumstances that the Appeal Panel erred by overlooking the surplus status and IRM rules associated with Mr Fitzgerald's surplus status.

32. [32]
    During the proceedings Mr Fitzgerald also argued he met the relevant criteria of HP4 WLS.  Mr Don Hamilton, on behalf of Queensland Health highlighted the manner in which those assessments were undertaken.  Whilst Mr Don Hamilton's evidence on behalf of Queensland Health does not provide the Commission with any insight into the discussions of the Appeal Panel with respect to Mr Fitzgerald's application, the detailed information relating to various WLS contained in his statement assisted the Commission with its understanding of how the Appeal panel approached the re‑classification appeal process.

33. [33]
    After consideration of all the materials before the Commission including the Appeal Outcome documentation, and Mr Fitzgerald's application and supporting materials in all the circumstances I am unable to find that the Appeal panel erred when it determined Mr Fitzgerald's position should remain at the HP3 level.

34. [34]
    Given these findings, the Commission declines to interfere with the decision made by the Director-General, Department of Health.

35. [35]
    Order accordingly.