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  4. Scott v State of Queensland (Queensland Health) - [2015] QIRC 164

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Scott v State of Queensland (Queensland Health)[2015] QIRC 164

Scott v State of Queensland (Queensland Health)[2015] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Scott v State of Queensland (Queensland Health) [2015] QIRC 164

PARTIES:

Adam Scott

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

HP/2014/1

PROCEEDING:

Action on industrial dispute

DELIVERED ON:

4 September 2015

HEARING DATE:

13 March 2015

MEMBER:

Industrial Commissioner Black

ORDERS:

Applicant reclassified to HP7

CATCHWORDS:

INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Employees engaged as health practitioners - Job descriptions, roles and responsibilities evaluated against new work level statements - internal appeal process unsuccessful.

CASES:

Industrial Relations Act 1999, s 230

Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007

Newton v State of Queensland (Queensland Health) (HP/2013/35) [2014] QIRC121

APPEARANCES:

Dr Adam Scott, the Applicant.

Mr K. Ryalls for the State of Queensland (Queensland Health), the Respondent.

Decision

  1. [1]
    Dr Adam Scott (the applicant) filed a Notice of Industrial Dispute in the Industrial Registry on 5 September 2011.  Dr Scott was employed by Queensland Health (Royal Brisbane and Women's Hospital (RBWH)) in the position of Director of Cardiac Sciences at the relevant time (May 2008).  The Notice of Industrial Dispute concerned the classification of Dr Scott's position at the HP6 level rather than at the HP7 level.  Attempts to settle the dispute by conciliation were unsuccessful and the dispute was referred to arbitration.
  1. [2]
    The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1) established a new classification structure for employees of Queensland Health (QH) engaged as Health Practitioners.  The process for implementing the new classification structure was set out in Clause 18 of HPEB1.  Phase 1 allowed direct translation of employees who met certain criteria.  Dr Scott translated from Professional Officer Level 5 (PO5) to Health Practitioner Level 5 (HP5).
  1. [3]
    Phase 2 of the process allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements.  According to the evidence of Mr Hamilton, the Phase 2 process involved five procedural steps intended to assess the relative work value of each application from an individual, intra-disciplinary, and an inter-disciplinary perspective.  The five steps alluded to are summarised in the following terms:

Step 1 -  Standardised data set - receipt of Work Unit Proposals (WUP) including Employee Initiated Applications (EIA).

Step 2 -  Work Level Evaluation (WLE) of individual position conducted by a HP discipline specific WLE 'Panel' (WLEP).  Includes consideration of any EIA.

Step 3 -  Intra-Disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' (WLET).

Step 4 - Inter-Disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' (IDR), this group consisted of members from WLEP and WLET.

Step 5 -  HPIBB Oversight, including the subsequently developed Oversight Sub Group (OSG).

  1. [4]
    Under the Phase 2 process, the applicant's role was initially proposed at HP7 in the relevant Work Unit Proposal.  The Work Level Evaluation Panel agreed with this level. The determination of the WLEP was then subject to both an intra-disciplinary and an inter-disciplinary relativity and consistency review by WLET.  In this process WLET referred the work unit proposal to the Oversight Sub Group (OSG) for consideration and input.  Subsequently the OSG referred the matter back to the WLET for final determination having regard to the OSG comments or feedback.  This feedback was then considered at a Step 4 WLET meeting on 1 September 2009 when it was determined to moderate the applicant's role to the HP6 level.  The OSG input forms part of the WLET documentation which is in the evidence as Attachment DGH2 to Exhibit 5.
  1. [5]
    The applicant lodged his intent to appeal the WLET evaluation pursuant to clause 19 of HPEB1 on 7 January 2010.  His supporting material is in the evidence as Attachment 52 to Exhibit 2.  He was advised that his appeal was unsuccessful on 11 April 2011.  The Appeal Review Statement is in the evidence as Attachment H to Exhibit 1.

Guiding Principles

  1. [6]
    Under clause 19 of HPEB1, the Appeal Panel was required to consider whether the Work Level Evaluation of all of the employee's duties, roles and responsibilities should result in the employee's position being reclassified.  No direction was given about the conduct of the appeal other than that the panel must invite submissions "regarding the correct classification for the position" from the employee.  It seemed reasonably clear that the Appeal Panel was to make a comprehensive assessment of all the material provided and make a determination having regard to the relevant work level descriptors.
  1. [7]
    Clause 19 also provided that any "party can refer a reclassification dispute to the Queensland Industrial Relations Commission once all internal appeal processes have been exhausted."  In so far as the determination to be made by the Commission is concerned, on the authority provided by the Full Bench decision in Newton, the question to be answered is whether the Appeal Panel erred. 
  1. [8]
    The Commission's approach does not include an examination of the outcomes arrived at by either the WLEP or the WLET.  In the circumstances, the subject application will be determined by considering whether the Appeal Panel correctly applied the terms of clause 19 of HBEB1.  In this regard the question to be answered is whether the Appeal Panel correctly concluded that a work level evaluation of all the applicant's duties, roles and responsibilities did not justify any reclassification.  This was the substantive issue at stake, but it was also open to the applicant to argue that procedural errors at the Appeal Panel level may have contributed to a wrong decision.
  1. [9]
    It follows that the applicant cannot rely on errors alleged to have occurred in the deliberations of the WLET and OSG and which he said were reflected in a reading of the WLET record which is in the evidence as Attachment 48 to Exhibit 2.
  1. [10]
    While therefore a significant number of the grounds relied on by the applicant are either irrelevant or are not sufficiently significant to alter the Appeal Panel finding, a number of grounds were advanced, which if sustained, could question the validity of the Appeal Panel's recommendation.  It is these grounds that require consideration in the determination of the applicant's claim for reclassification.

Appeal Review Statement

  1. [11]
    A difficulty in prosecuting and deciding a dispute notification arising from recommendations of the Appeal Panel is that the panel did not provide detailed reasons for the conclusions it arrived at.  The applicant took the view that disclosures on the WLET record provided some insight into the reasons why his position was not reclassified to HP7.  A consideration of the appeal review statement, the WLET record, and the work level statements led the applicant to conclude that the Appeal Panel erred in finding that: 
  1. (i)
    His position did not incorporate responsibility for management of a major complex service at a tertiary referral hospital;
  1. (ii)
    His position did not supply strategic direction at a District level;
  2. (iii)
    His position did not lead professional standards with the discipline at the district level;
  1. (iv)
    His position did not incorporate a significant strategic focus and did not involve alignment across multiple sites;
  1. (v)
    His position did not involve high level problem solving which challenges existing protocols and contributes to new policy formulation.
  1. [12]
    It was not necessary in forming a holistic view for the Appeal Panel to make findings in respect to all the work level descriptors.  Hence the Appeal Panel may not have made findings in respect to all the matters alluded to by the applicant in the preceding paragraph.  What we do know from a reading of the appeal review statement is that the Appeal Panel determined in particular that the applicant should be ranked at the HP6 level in respect to three criteria 1 (Scope and Nature of Level) descriptors; that the applicant did not meet descriptor HP7-10; and that the applicant met descriptor HP7-13.  More general conclusions were reflected in the additional comments section of the review statement.
  1. [13]
    In its comments the Appeal Panel noted that it was not satisfied that the evidence justified reclassification to HP7 based on an assessment of criteria 1 descriptors (Scope and Nature of Level).  In respect to criteria 2 descriptors (Knowledge, Skills and Expertise), the Panel said that the applicant met a clinical descriptor (HP7-13), but was unable to reach a definitive conclusion in respect to the management descriptors (HP7-18 to HP7-23).  In this regard the Appeal Panel comments were to the effect that "it was difficult for the panel to ascertain outcomes, attributable directly to the applicant against HP18, 19, 20, 21, 22, or 23."  In the circumstances the panel concluded that the applicant did not meet HP7 in respect to the criteria 2 descriptors.  In terms of criteria 3 descriptors (Accountability), the Panel concluded that the applicant's circumstances reflected a small to medium size team and that the applicant met the relevant descriptors at the HP6 level, not the HP7 level.
  1. [14]
    Given that clause 19.7 of HPEB1 required the Appeal Panel to review all of the applicant's duties, roles and responsibilities, the applicant argued that the Appeal Panel erred in not addressing all of the descriptors in its appeal review statement.  The statement addressed two HP7 work level descriptors (HP7-10; HP7-13) and three HP6 descriptors (HP6-5; HP6-6; HP6-7).  It was the applicant's view that a number of other descriptors should have been addressed.  Further it was the applicant's view that content of the appeal review statement suggested that the Appeal Panel had disregarded any consideration of his clinical duties, roles and responsibilities and in so doing had failed to holistically evaluate his role as a management/clinical/research position.  It was his submission that his role had "significant Clinical, Strategic and Research Foci at the HP7 level". 
  1. [15]
    The Department submitted that when the applicant pursued his appeal to the Appeal Panel, he relied substantially or wholly on management work level statements.  He did not claim that his appeal should be sustained by reference to streams other than management.  The Department submitted that the applicant had the opportunity at the Appeal Panel stage to differentiate himself from the HP6 level based on clinical stream statements but did not avail himself of such opportunity.
  1. [16]
    All of the descriptors addressed in the appeal review statement were management descriptors except for HP7-13 which was a clinical descriptor.  This approach was consistent with the material submitted by the applicant in support of his appeal.  In this material, which is in the evidence as Attachment 52 to Exhibit 2, the applicant addressed nineteen work level descriptors (HP7-5, HP7-6, HP7-7, HP7-8, HP7-9, HP7-10, HP7-11, HP7-18, HP7-19, HP7-20, HP7-21, HP7-22, HP7-23, HP7-33, HP7-34, HP7-35, HP7-36, HP7-37, HP7-38).  All of these descriptors were management stream descriptors.
  1. [17]
    Notwithstanding the manner in which the applicant elected to conduct his appeal, it does not follow that the Appeal Panel did not consider the clinical elements of the applicant's role.  I accept Mr Hamilton's evidence that the designation of a role within the management stream did not preclude consideration by the Appeal Panel, or any of the evaluation teams at an earlier stage of the evaluation process, of the clinical aspects of the role or the clinical work level descriptors. 
  1. [18]
    In my view it was more likely than not, having regard to the additional comments in the appeal review statement, that the Appeal Panel concluded that the applicant could not secure reclassification based on either the management stream or the clinical stream work level statements.

Exercise Physiology

  1. [19]
    The applicant claimed that his role may have been evaluated too narrowly and that the exercise physiology component of the role may not have been taken into account by the Appeal Panel.  This was a significant focus of the applicant's clinical and research activities and constituted a second discipline.  From the applicant's perspective the exercise physiology component was also relevant because it was additional to the scope of work of a typical clinical measurement scientist.  The applicant's evidence about the subject was given at T1-35:

"Yes, but no - no other clinical measurements department in the state - director of clinical measurements supervises exercise physiology, and this is a different defining factor that it is different;  that it is not just part of another FTE to your staff load.  It has a whole other gamut of responsibilities, and that was also as a chief lead for the Hospital at Home Heart Failure Program;  it took a whole other component, and this is where we have patients - so when we talk about the Hospital at Home Heart Failure Program this is a stand alone unit that organisationally sits under internal medicine;  however, my position is responsible for the asset and financial control of the exercise physiology component of the heart failure service in the district, and this includes rostering, budget, staff training, HR issues, student coordination, training, clinical education, research and asset management."

  1. [20]
    Notwithstanding this submission, it is relevant that the role description of the applicant (Attachment 46 to Exhibit 2) consistently referenced “exercise physiology” in its list of key accountabilities.  Further the applicant’s appeal material also made plain that the applicant's role included the exercise physiology component.  In the circumstances I am not disposed to form a view that the Appeal Panel disregarded or failed to take into account the material before it which related to the exercise physiology component of the applicant's role.

Clinical Expertise

  1. [21]
    While the panel concluded that the applicant met the HP7-13 descriptor, a conclusion which acknowledged attainment of a post graduate qualification and related achievements, it did not conclude that the applicant met HP7-12 which required a demonstrated ability to apply "an expert level of clinical knowledge".  Further, in finding that the applicant met the HP6-5 descriptor (and therefore did not meet the associated HP7-5 descriptor), the panel concluded that the applicant held "well-developed" clinical expertise and not "high level clinical expertise". 
  1. [22]
    This distinction in the level of clinical expertise was drawn in the Work Level Statements & Guidelines document (Attachment DGH1 to Exhibit 5).  In the introductory comments to the HP6 and HP7 management stream statements it said that management positions at HP6 level demonstrate "well-developed clinical expertise in their given areas, with a high level of managerial responsibility across a large professional team or a diverse multi-disciplinary team with a large facility or speciality health service", while the HP7 Management positions must demonstrate "high clinical expertise with significant management responsibility for management of a major complex service at a tertiary referral hospital".
  1. [23]
    The work level statements and guidelines document explains what is meant by "well developed clinical expertise" at page 61.  In setting out guidelines for the application of the HP6-12 descriptor in the management stream, the document states that "there is an expectation of a minimum of HP4-level clinical knowledge, skills and expertise".  This position is consistent with the information in the document dealing with the clinical stream where at the HP5 level a specialist level of clinical skills must be demonstrated and at the HP6 level an expert level of clinical skills must be demonstrated.
  1. [24]
    The effect of the Appeal Panel's conclusion that the applicant met the HP6-5 management descriptor and did not meet the HP7-5 management descriptor was that the clinical skills demonstrated by the applicant were to be assessed at either the HP4 level or the HP5 level in terms of the clinical stream.  This meant that the applicant could not qualify for the HP7 level via the clinical stream. 
  1. [25]
    While the finding of the Appeal Panel about the applicant's level of clinical expertise was consistent with what was written in the role description, it was not consistent with the evidence adduced in the proceedings which supported the applicant's claim that his clinical standing was at an expert or consultant level.
  1. [26]
    It was Dr Parsonage's evidence that the applicant demonstrated a "higher expert level of knowledge, skills and experience in cardiology".  Dr Parsonage agreed that the applicant's expert status was demonstrated by a PhD in Cardiac Medicine, a significant publishing history in high impact factor journals as first author, and a history of obtaining competitive research grants.  The applicant said that his expert status was also justified by reference to academic criteria such as his membership of the QUT Faculty of Health Advisory Committee, and his receipt of an invitation from QUT to become an adjunct associate professor.
  1. [27]
    Dr Parsonage said that in 2004 the applicant was a member of a steering committee which established models of care and implemented clinical pathways for the investigation of patients presenting to emergency departments with chest pain.  He said that these pathways subsequently became the framework for the development of state wide clinical pathways under the auspices of the state wide cardiac clinical network.  He said the steering committee was supported by the Executive Director of Medical Services and that he provided funding for the project.
  1. [28]
    In an attachment to his affidavit Dr Atherton stated that the applicant had established himself as a world expert in the field of chronic heart failure and exercise physiology as evidenced by his publications and presentations at major cardiac meetings, both locally and internationally.  He said that the applicant had played a significant role in the development of Queensland Health cardiology policies and procedures and was seen as a state wide leader in this field.  He said that the applicant was involved in a number of district, area, and state wide working groups or committees.  Further he held numerous adjunct positions within tertiary institutions in Queensland.
  1. [29]
    Dr Atherton said in his evidence that the applicant demonstrated an expert level of knowledge, skills, experience and clinical expertise.  He said that the applicant had acted in a consultant capacity in disseminating clinical expertise on a national basis.  His evidence on the subject was given at T1-111:

"Well, the obvious one would be chest pain evaluation, where Dr Scott has had a major role in informing that process, and that was a pathway developed initially at the RBWH, and now they’ve received funding through Queensland Health to implement this process across the state and there have been other jurisdictions who have approached Dr Scott regarding implementing similar processes in their services, so that would be an example, and that would be in a consultative capacity."

  1. [30]
    If it is accepted that the applicant's clinical expertise should be correctly rated at the expert or consultant level, then it follows that the Appeal Panel erred in concluding that the applicant held a significantly lower level of clinical expertise.  This was a conclusion of some significance because, on balance, it brought an end to applicant's prospects of securing a HP7 ranking by reference to the clinical stream, with associated or flow-on implications for his prospects under a holistic evaluation of both the clinical and management streams.
  1. [31]
    If the applicant did not hold an expert level of clinical skill, he could not be ranked above HP5 in the clinical stream.  Therefore if the Appeal Panel determined that the applicant was below this level of clinical skills, it was unlikely that it could proceed to classify the applicant at the HP7 level based on the clinical stream descriptors.  Such a view is consistent with the approach of the Appeal Panel in not proceeding to specifically comment on all the clinical work level descriptors.  It also followed that the Appeal Panel, in assessing the applicant's appeal, would be primarily concerned with management stream descriptors.

Size of Team

  1. [32]
    The additional comments included in the appeal review statement disclosed that the panel concluded that the applicant did not qualify for the HP7 level in criteria 3 (Accountability) because the "accountabilities reflect a small to medium size team".
  1. [33]
    The relevance of the size of the team supervised or managed was established in the work level statements and guidelines document when it stated at page 47 that relevant management stream work level statements will "include specific detail referencing the anticipated size of the team under managerial control".  For HP level 4 the indicative size of team was expressed "at minimum, 3FTE Health Practitioners, plus assistants and other staff".  The document also said that HP4 positions would have "operational and resource management responsibility of small discipline teams".  The guidelines for the HP5 management stream did not nominate the number of persons to be supervised but did state that management positions at this level were responsible for "operational management and resource allocation for a medium-sized team".  At the HP6 management level, the guidelines document stated that managerial responsibility would extend "across a large professional team or a diverse multi-disciplinary team with a large facility".  The management stream descriptor at HP7-6 requires "managerial responsibility across large professional or multidisciplinary teams".
  1. [34]
    A superficial comparison between the HP6 and HP7 criteria 3 descriptors suggests that this criteria is unlikely to be determinative given that they are expressed in very similar terms.  Having said that, while work level statements build on each other and there are questions of degree to be considered in their application, I have a reservation about the rejection of the applicant's material based on a view that he presided over a small to medium size team.
  1. [35]
    Given the definition of a small team, it would appear more likely than not that the team supervised by the applicant would be correctly rated as a medium size team.  While the difference may not be significant, the reference by the Appeal Panel to a small to medium size team also appeared inconsistent with the conclusion of the panel that the applicant met the HP6-5 descriptor which describes a "high level of managerial responsibility across a large professional team or a diverse multi-disciplinary team".  In either circumstances the criteria 3 findings of the Appeal Panel are not conclusively expressed.

Failure to Seek Further Information

  1. [36]
    Clause 19.9 of HPEB1 provided that the Appeal Panel "may seek further information from the party/ies to the Appeal if required".  It was in this context that the applicant took issue with the comment in the appeal review statement that the panel had difficulty discerning the individual contribution of the applicant in terms of the work level statements from HP7-18 to HP7-23.  Having so concluded the applicant argued in his written submissions that the panel should have sought further information from him to ensure that any doubt was removed.
  1. [37]
    The effect of the applicant's written submissions on the subject was that the panel erred in not correctly weighting his contribution to team activities.  He explained his position in paragraphs 27 to 29 of his submission in reply:

"27.  The DOH fails to understand or comprehend how service planning, service provision and pathways are established and provided to patients within the hospital health setting (DOH submission: Point 34, 35).  The development of a program which is to be rolled out state-wide or nationally does not originate from a sole individual or discipline but rather from a group of primary investigators representing their individual jurisdictions to provide a multi-disciplinary approach.  Teams function in a multi-disciplinary capacity as no single discipline has expertise in all facets of a treatment program that is being delivered.  This ensures that there are no gaps in the service offering as one discipline cannot represent or comment on the scope of practice or capacity of another discipline.  The Chest Pain Pathway and Fabry disease program required 'Primary Investigators' from multiple discipline (Medical and Cardiac Sciences).  Professor Scott had the experience and expertise to perform this role as the representative for Cardiac Sciences.  This role was to represent (State-wide and nationally) and speak on behalf of any aspect of the program that was the jurisdiction of Cardiac Sciences.  Without this key component, the program would not have been delivered nor achieved the outcomes that they have.

  1. This lack of understanding by the DOH is particularly evidence in the program "Cardiopulmonary exercise testing of patients with Fabry Disease".  Professor Scott was the only individual in the Department of Health that had the expertise and experience to set up a "Core lab" to perform cardiopulmonary exercise testing in these patients.  In respect to this, Professor Scott was the definitive (sole) person responsible for development of the professional standards and/or services for cardiopulmonary exercise testing of patients with Fabry disease.
  1. This could not have been, and was not done, by a Medic/Cardiologist/Internal Medicine Physician.  Professor Scott played a significant role establishing and implementing a treatment pathway for these patients.  It is important to understand that patients are treated holistically as they have comorbidities that are treated by a multi-disciplinary team.  As a result, their treatment requires the input of other specialities (e.g. Cardiologists, Internal Medicine Physicians) to titrate medications and perform other procedures.  Therefore, there are roles that are beyond the scope of practice of each discipline hence why there is a multi-disciplinary or "collegiate" (as put by the DOH) approach in the treatment of patients."
  1. [38]
    I think there is a basis to conclude that in evaluating the descriptors HP7-18 to HP7-23, the Appeal Panel has underestimated the applicant's contribution.  I think the Appeal Panel took the broader view that the achievements or outcomes included in the applicant's appeal materials reflected a team activity or a team outcome and that the material was not sufficient to justify changing the applicant's individual classification.  I understand the line of reasoning, but in this particular case I think the applicant's contribution may have been understated.  In the circumstances it would have been desirable for the Appeal Panel to seek more information and to remove any doubt about the conclusion to be reached on material submitted by the applicant relevant to criteria 2 descriptors.

Equity

  1. [39]
    In terms of the Phase 2 evaluation process, the central purpose of the WLET was to ensure equity and consistency both within and across disciplines.  The purpose is expressed in clause 9.2 of Schedule 5 to HPEB1:

"9.2  The Work Level Evaluation Team will then review the recommendations of the Work Level Evaluation Panels to monitor relativities and ensure consistency across disciplines and professions, Departments/Units and Districts."

  1. [40]
    In terms of the work of the Appeal Panel, Clause 19.11(b) of HPEB1 implies that the methodology employed by the Panel must "comply with the guiding principles of Phase 2".  The guiding principles include the proposition at clause 4.4 of Schedule 5 that "the reclassification process will be applied consistently to ensure equitable outcomes for all Districts and Health Practitioner disciplines or groups". 
  1. [41]
    Therefore the panel's work is not conducted entirely in a vacuum and the panel in its approach is expected to act consistently and to be cognisant of the guiding principles associated with the Phase 2 process, including the desirability of delivering equitable outcomes for all districts and health practitioner disciplines or groups.
  1. [42]
    A matter for consideration in the proceedings related to whether the applicant should be ranked below other Directors of Cardiac Sciences.  In this regard it was the evidence of Mr Hamilton's that at the end of the internal reclassification process, including matters before the Appeal Panel, two Directors were graded HP7 and five directors were graded HP6, with some other Directors graded HP5.
  1. [43]
    Mr Hamilton said that at the start of the reclassification process, total work unit proposals across the state relating to Directors of Cardiac Sciences included five directors proposed at the HP7 level and eighteen directors proposed at the HP6 level.  Following evaluation by the WLEP the outcomes changed to five at the HP7 level and 12 at the HP6 level.  When WLET/OSG had completed the relativity and consistency checks the results were one HP7 and five HP6.  Following appeals these results changed to two HP7 and eight HP6.  Presumably 10 directors were classified at HP5 in the end result. 
  1. [44]
    The circumstances associated with one of the Directors who was graded HP7 were discussed in the evidence adduced in the proceedings.  Ms Buquet was Director of Cardiac Sciences at the Prince Charles Hospital.  It was Dr Atherton's evidence that the roles of the applicant and Ms Buquet were "very similar".  Dr Atherton also said that the RBWH did not rely on Ms Buquet for advice or direction.  The effect of this evidence was that, at least in respect to the RBWH, Ms Buquet did not take up a lead role in respect to the cardiac sciences discipline. 
  1. [45]
    It was the applicant's evidence that the cardiac science procedures conducted at both hospitals were the same complexity.  He said that the services delivered out of Caboolture and Redcliffe hospitals were very small.  He said that Ms Buquet did not hold clinical or operational leadership over the RBWH.  He said that he was the only director of cardiac sciences that held professional and operational responsibility for exercise physiologists.  The applicant gave the following evidence at T1-100:

"… So I’ve identified that the complexity of service provision that both sides provide is the same.  Does her position have a greater number of staff?  Yes. 

FTE.  Yes?  ‑‑‑Correct.  As - is - does she have multiple sites - Redcliffe and Caboolture?  Correct.  However, does she do any research?  No.  Does she do any policy development and implement novel solutions?  No.  Is she recognised at a university level as an expert in the field?  No.  Does she have jurisdiction over any other health service district?  No.  Does she supervise exercise physiology?  No.  She supervises clinical measurements.  Is she -was she sitting on significant state-wide committees, such as the Adult Cardiac Services Mapping Group?  No.  Was she an author on the development of the state in regards to that the document - the Central Area Health Service Network, which you raised this morning?  No.  So there are distinct difference between the incumbents and the positions with FTE, services, state-wide, research, education, student supervision."

  1. [46]
    In his evidence Mr Hamilton drew attention to the OSG comments in the WLET report (Attachment DGH2 to Exhibit 5) where it was stated that there were "fundamental differences between the incumbents and the positions".  It was explained that Ms Buquet contributed to new policy direction and was responsible for strategic focus within the district, state wide and nationally.
  1. [47]
    Differentiation in favour of Ms Buquet may also have been made on the basis that she was responsible for over 30 FTE, and on the basis that her district included Caboolture and Redcliffe hospitals.  However, while Ms Buquet's district comprised the three hospitals, the RBWH was deemed to be a district in its own right.

 National v State Wide Focus

  1. [48]
    The differentiation of Ms Buquet's role based on "national" dimensions led to some discussion in the proceedings about the significance of this factor in the Appeal Panel's deliberations.  While the satisfaction of state wide criteria is a pre-condition in the clinical stream work level statements for a HP6 classification, it is not clear to me that satisfaction of national criteria is a pre-condition to classification at the HP7 level.
  1. [49]
    In its final submissions and in its cross-examination of the applicant and Dr Atherton, the Department tried to make out a case that it was a pre-requisite of progression to the HP7 level that the applicant demonstrated involvement at a national level.  However I do not believe that this case has been sufficiently made out.  For the clinical stream, while the introductory comments and some differentiators include reference to factors where a state and national dimension is required, no such requirement is included in the actual wording of the HP7 descriptors.
  1. [50]
    Criteria 1 descriptors refer either to "state-wide" or to "state-wide or nationally", while criteria 2 and criteria 3 descriptors only refer to "state-wide".  In terms of the management stream work level statements for HP7, the emphasis is on district and state or state-wide accountabilities.  There does not appear to be any requirement to demonstrate accountabilities at the national or international level.
  1. [51]
    Given that a holistic approach is to be taken to the evaluation process, that no single statement can define an employee's level, and given that the applicant does enjoy an adequate level national recognition, I am not of the view that this factor could be relied on by the department to support rejection of the applicant's claim.
  1. [52]
    While it may have been convenient for evaluators during the evaluation process to rely on the "national" factor in differentiating between candidates for HP7, having regard to the content of the work level statements, it may not have been a valid differentiator.

Dr Atherton's Evidence

  1. [53]
    Dr Atherton supported the application.  In his view the duties, roles and responsibilities of the applicant met the HP7 work level descriptors.  It was his evidence that it may have been difficult for the Appeal Panel to comprehend the complexities of the applicant's role given his clinical, management and research responsibilities.  Dr Atherton contested findings made, or apparently made, by the Appeal Panel in respect to significant work level descriptors.  It was his evidence that:
  • -The applicant demonstrated an expert level of knowledge, skills, experience and clinical expertise;
  • -The applicant played a significant role in creating a chest pain management service which was of critical importance and solved large scale, complex clinical or workflow problems;
  • -The applicant was responsible for all aspects of operational management of cardiac sciences and exercise physiology including responsibility for staff;
  • -The applicant had full operational and professional responsibility for managing two disciplines that provide complex service provision (Cardiac Sciences and Exercise Physiology) for emergent, acute and sub-acute patients at a major tertiary referral hospital/district (RBWH Health Service District) and had a significant focus at a statewide level aligning across multiple disciplines and sites;
  • -The applicant was responsible for providing strategic direction for two allied health disciplines (Exercise Physiology and Cardiac Sciences) at the RBWH Health Service District and provided a lead role in informing strategic direction for two allied health disciplines (Exercise Physiology and Cardiac Sciences) across the central area health network and state wide;
  • -The applicant was responsible for leading the professional standards within both disciplines (Exercise Physiology and Cardiac Sciences) at a district level and also provided the major contribution at a state wide and national level (including providing strategic direction to Exercise and Sports Science Australia (ESSA) - the recognised national registration body for exercise physiology;
  • -The applicant performed a highly significant role with strategic focus at a district/area and state wide level for two disciplines (Exercise Physiology and Cardiac Sciences);
  • -The applicant utilised high levels of expertise in agency policies and standards towards problem solving for two disciplines (Exercise Physiology and Cardiac Science).  He was required, on a daily basis, to continually challenge existing protocols and contribute to new policy development.

The Respondent's Case

  1. [54]
    Queensland Health submitted that the submissions of Dr Scott, and the evidence adduced by Dr Scott, did not establish that the Appeal Panel erred in refusing to reclassify Dr Scott.  In more particular terms QH submitted:
  • That following the Full Bench decision in Newton[1] the only manner by which an employee can attack and displace the existing classification, after an Appeal Panel recommendation, is to demonstrate that an error has occurred in the appeal process;
  • The applicant failed to establish that errors of significance or relevance had occurred in the appeal process which might have had the effect of reversing the recommendation of the Appeal Panel;
  • The applicant was bound by the case that he had presented to the Appeal Panel.  Given that his supporting material was directed at management work level statements, he cannot complain about an Appeal Panel outcome which appeared to focus on management statements;
  • Notwithstanding the focus on management statements, the Appeal Panel did arrive at a holistic evaluated outcome;
  • The material upon which the applicant relies emphasises a district/state-wide focus for his activities which confirms that the applicant's role fits  holistically within the HP6 level;
  • While the applicant was involved at a collegiate level in particular activities, when his duties, roles and responsibilities were considered independently of others, he did not satisfy the HP7 work level statements.

 Conclusion

  1. [55]
    I am satisfied that it was more probable than not that the Appeal Panel arrived at the wrong conclusion in recommending against the reclassification of the applicant.  The effect of my reasoning is that the correctness of the conclusion of the Appeal Panel is questioned by the following considerations:
  1. (i)
    The evidence supports a finding that the applicant held an expert or consultant level of clinical expertise;
  2. (ii)
    The Appeal Panel's finding about the applicant's level of clinical expertise appears to be wrong;
  3. (iii)
    That such a finding was significant and had the potential to lead to incorrect findings in respect to other work level descriptors;
  4. (iv)
    That had such findings been reversed it is probable that the applicant's appeal would have been upheld;
  5. (v)
    That it would not be inconsistent with equity considerations were the applicant to be reclassified in the manner sought;
  6. (vi)
    That in not electing to seek further information the Appeal Panel has understated the applicant's contribution to outcomes which were relevant to whether he met criteria 2 descriptors;
  7. (vii)
    That had the applicant's contribution not been understated his prospects of a successful appeal would have been enhanced;
  8. (viii)
    That there may be some inconsistency in the Appeal Panel finding that the applicant did not meet criteria 3 descriptors;
  9. (ix)
    The evidence of Dr Atherton contradicted the panel's findings in respect to a number of work level descriptors.
  1. [56]
    In the circumstances, I propose to resolve the dispute in favour of the applicant, subject to conditions imposed about the retrospective operation of the order to be made in resolution of the dispute.  The decision is to reclassify the applicant to the HP7 level with effect from the date of filing of his dispute notification (5 September 2011).  The retrospective effect given to this decision is limited to financial or monetary components where it is practicable to give effect to a retrospective date of operation.  It is not my decision to turn back the clock for all employment purposes or for all purposes of the relevant industrial instrument.  The parties are given liberty to re-apply should further clarification be required in respect to this determination.     
  1. [57]
    Order accordingly.

Footnotes

[1] Newton v State of Queensland (Queensland Health) (HP/2013/35) [2014] QIRC121 http://www.sclqld.org.au/caselaw/QIRC

Close

Editorial Notes

  • Published Case Name:

    Scott v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Scott v State of Queensland (Queensland Health)

  • MNC:

    [2015] QIRC 164

  • Court:

    QIRC

  • Judge(s):

    Member Black IC

  • Date:

    04 Sep 2015

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
Newton v State of Queensland (Queensland Health) [2014] QIRC 121
2 citations
Jump To
Cite 1 - [2014] QIRC 121
Cite 2 - [2014] QIRC 121

Cases Citing

Case NameFull CitationFrequency
Hennessy v State of Queensland (Queensland Health) (No 2) [2023] QIRC 2132 citations
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees (No 2) [2013] ICQ 32 citations
1

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