de Lepervanche v Queensland[2015] QIRC 2

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   Mr Andrew de Lepervanche commenced work for the Queensland Department of Health (Queensland Health) as a Graduate Radiographer at the Maryborough Base Hospital in 1996. Mr de Lepervanche progressively increased his skills, knowledge and seniority until he was appointed as a Radiographer and Sonographer at Nambour General Hospital in March 2003.

2. [2]
   A Phase 2 process in line with the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (HPEB1), provided Mr de Lepervanche with an opportunity to have his role description, role and responsibilities evaluated against Work Level Statements (WLS) relevant to his classification.  In April 2008, Mr de Lepervanche's immediate manager developed a Work Unit submission on his behalf proposing a HP5 level for Mr de Lepervanche’s position.  Mr de Lepervanche subsequently lodged an Employee Initiated Application for an HP6 level.  The proposed HP6 classification was refused and Mr de Lepervanche downgraded his expectations and lodged an appeal seeking a HP5 level.

3. [3]
   Mr de Lepervanche appealed the Phase 2 outcome in accordance with the procedure provided for in HPEB1 but was unsuccessful.  The Appeal Panel recommended Mr de Lepervanche's classification remain at the HP4 level, noting: "Overall, after assessing the evidence provided the panel agreed: The Applicant failed to provide evidence.  The Applicant provided insufficient evidence to substantiate the claims against the HP5 level."  The Director-General of Queensland Health endorsed the appeal panel's recommendation.

4. [4]
   Mr de Lepervanche subsequently filed a Notice of Industrial Dispute in relation to his classification. The dispute was subsequently assigned a new matter number, HP/2013/13, for the arbitration proceedings.

Subject of Dispute

5. [5]
   Mr de Lepervanche is seeking to have his position as a Senior Clinical Radiographer / Sonographer reclassified from its current classification as an HP4 to a higher classification of HP5.

6. [6]
   At paragraph 62 of his written submissions, Mr Butler, who represented Mr de Lepervanche in the arbitration proceedings submitted the Commission can and should order that the original appeal, WLET HP 1 - 5 and any subsequent decision be set aside or varied so that the Applicant is reclassified to the originally proposed and WLEP approved HP5 level.

The evidence and argument before the Commission

7. [7]
   Mr Butler, on behalf of Mr de Lepervanche, submitted there were numerous procedural and factual errors in Queensland Health's reclassification process and the Appeal Panel’s findings including:

• The Work Level Evaluation Team's (WLET) rejection of the specialist role endorsed by Mr de Lepervanche's Work Unit Manager;
• WLET’s finding that a lack of management and non-clinical responsibilities justified a HP4 evaluation;
• Incorrect interpretation of HP5 work level statements by WLET;
• Failure to resolve inconsistent outcomes between the Work Level Evaluation Panel (WLEP) and WLET;
• The incorrect WLET concerns raised with respect to the number of employees moving from HP3 to HP5; and
• The failure of the Appeals Panel to provide adequate reasons for the decision and to allow Mr de Lepervanche to respond to adverse findings.

8. [8]
   More specifically Mr Butler contends that despite Mr de Lepervanche's inclusion of three specified criteria and references to each criteria in his original appeal documentation in combination with commentary for each Work Level Statement at an HP5 level, the Appeal Review outcome failed to address all Work Level Statements claimed (HP5-1, HP5-16, HP5-33) and further rejected other relevant HP5 work level statements despite significant evidence provided in support of the work level statements.

9. [9]
   Mr Butler further submitted the Appeal Outcome documentation selectively recognised the specialist nature of Mr de Lepervanche's role at HP5-2 and HP5-14, but rejected or failed to address other related HP5 criteria such as HP5-4, HP5-16, HP5-19, HP5-32 and HP5-35.  Mr Butler also raised concerns that the Appeal Outcome documentation addressed work level statements not claimed by the Applicant including some at HP5 such as HP5-6 and HP5-15, noting that HP5-6 is a work level statement for a management position and HP5-15 related to dual modality roles.

10. [10]
    Mr Butler also argued the appeal outcome statement for Mr de Lepervanche's appeal process was deficient in that it failed to establish any basis for the decision reached, including the reasons why evidence was considered insufficient.

11. [11]
    The general thrust of Queensland Health's response was that Mr Butler had failed to substantiate a case for Mr de Lepervanche to be reclassified from HP4 to HP5 and had also failed to clearly demonstrate the procedural and factual errors asserted during the proceedings. 

12. [12]
    Queensland Health argued Mr Butler was pursuing a fresh merit based review or a de novo assessment by the Commission of Mr de Lepervanche's existing HP4 classification notwithstanding the decision of the Full Bench in Newton v State of Queensland (Queensland Health)^[1] which clearly dealt with jurisdictional and procedural matters around the work level evaluation process at paragraph 18 which stated:

"Thus, in order for the applicant to succeed in arbitral proceedings before a single Member of the Commission, the applicant must demonstrate that the Appeal Panel erred. The Commission is not concerned with anything that occurred prior to the appeal process."

13. [13]
    Queensland Health submitted the practical application of the above statement meant the Commission is not 'at large' to resolve any wider question as to the correct classification of an applicant. That is, the party referring such a dispute to the Commission does not thereby gain access to a de novo assessment by the Commission.

14. [14]
    Mr Ryalls on behalf of Queensland Health argued that by the time the matter 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^[2].

15. [15]
    Mr Ryalls further argued the only manner by which an employee can conceivably attack and displace the existing classification, after an appeal recommendation, is to demonstrate that an error has occurred in the appeal process: see Newton^[3].

16. [16]
    In this regard, Queensland Health submitted Mr Butler on behalf of Mr de Lepervanche had not substantiated a case for his client to be reclassified from HP4 to HP5 and in addition no significant errors had been identified that would warrant the outcome being sought by Mr Butler at paragraph 5 of this decision.

17. [17]
    Further, Queensland Health argued Mr Butler had 'cherry picked' various components of the proposed HP5 position description provided to the Commission during the proceedings in support of Mr de Lepervanche's application, notwithstanding the evidence of Mr Hamilton who highlighted the complex nature of role classifications and the different elements that were required to be considered when making an evaluation of a role, particularly a clinical role.

18. [18]
    In response to Mr Butler's submissions relating to the constitution of the Appeal Panel, the Department submitted the Appeal panel which considered Mr de Lepervanche's application was properly constituted in accordance with Clause 19.6 of HPEB1 in that the panel consisted of two management representatives, a workplace representative and a representative from Mr de Lepervanche's discipline.

19. [19]
    In response to Mr Butler's concerns in relation to the Appeal Panel failing to address work level statements HP5-1, HP5-16 and HP5-33, the Department argued that even if these work level statements had been assessed as meeting the criteria, this would not have tipped the scales in Mr de Lepervanche's favour because both the categories of Scope and Nature of Level as well as Accountability were assessed at level HP4.

20. [20]
    Queensland Health further submitted that when assessments were undertaken by the Appeal Panel that there can be a cascading effect whereby in the eyes of the Assessor a particular level is not met, so lower or subordinate work level statements are assigned to the assessment.  In this regard, Mr Ryalls on behalf of Queensland Health nominated the corresponding HP4 subordinate work level statements for HP5-4, HP5-17, HP5-32, HP5-33 and HP5-34 as being HP4-5, HP4-21, HP4-34, HP4-34, and HP4-36.

Findings

21. [21]
    The alleged procedural error with respect to the constitution of the Appeal Panel and the appointment of an independent chair has been raised and considered in another proceeding before the Commission.  In this regard I adopt the conclusion of Black C in Hamlyn^[4] regarding the absence of an independent chair of the Appeal Panel. 

22. [22]
    Mr Butler, on behalf of his client also raised a number of procedural and factual errors, and in particular the approach taken by the WLET during Phase 2 of the evaluation process.  In my view, the submission of Queensland Health with respect to the Commission's capacity to deal with events which may have occurred in Phase 1 and 2 of the reclassification process is correct.  That is, the Commission should ordinarily not be concerned with anything that occurred prior to the appeal process.
23. [23]
    In this respect I also concur with the views of Fisher C in Together Queensland, Industrial Union of Employees (for Gregory Shillig) v State of Queensland (Queensland Health)^[5] where she noted:

"In my view the practical application of the decision of the Full Bench in Dr John Parke v State of Queensland (Queensland Health)^[6] is consideration of the Appeal Panel Statement and the decision of the Director-General or their delegate. The onus rests with the Applicant to show how or where the Appeal Panel and/or the Director General or their delegate fell into error."

24. [24]
    The critical issue in this appeal is that the Appeal Panel did not recommend that Mr de Lepervanche's position be reclassified from HP4 to HP5.  In particular, Mr Butler submitted the Appeal Panel failed to address or acknowledge evidence provided by Mr de Lepervanche in support of three HP5 criteria and had incorrectly classified a number of his client’s duties under HP4 work level statements instead of the relevant HP5 categories.

25. [25]
    In response, Queensland Health highlighted the manner in which assessments were undertaken and identified subordinate HP4 work level statements which it considered to be more appropriate in the case of Mr de Lepervanche, referring to corresponding subordinate HP4 work level statements for each HP5 work level statements which was not addressed by the Appeal Panel.

26. [26]
    Unlike the decision of the Commission in Collins^[7]  where the purported subordinate HP4 work level statements did not entirely align with the missing HP5 work level statements and where the inclusion of additional HP4 work level statements were not accompanied with an adequate explanation, a review of the Appeal Outcome documentation in this matter indicates that all corresponding subordinate HP4 work level statements were addressed in the outcome statement.  Notwithstanding HP4-4 was not claimed in Mr de Lepervanche's original appeal documentation, I also accept Queensland Health's submission that this work level statement aligns with HP5‑33, one of the missing HP5 work level statement's Mr Butler has highlighted in his submissions.

27. [27]
    Significantly, HP5-33 relates directly to practitioners who are required to supervise employees at an HP4 level, extending to a role in performance appraisal and development.  In my view, whilst Mr de Lepervanche's submission included ample information with respect to his training and education of students, HP3 roles, medical staff and various registrars on a regular basis, one can appreciate how the Appeal panel came to the conclusion the examples provided by Mr de Lepervanche fell more easily into the HP4-4 given the limited information provided with respect to his role in the co‑ordination and development of delivery programs and/or formal supervision.

28. [28]
    Whilst one can appreciate Mr de Lepervanche was most likely attempting to be succinct with the information provided in his application, in my view there was not enough information provided against a number of the HP5 work level statements with respect to how he met the relevant work level statements.  For example, at HP5-4, whilst Mr de Lepervanche referred to his specialist skills he did not, in a practical sense, elaborate or provide examples about how he applied his expertise.

29. [29]
    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 de Lepervanche's application, the detailed information relating to various work level statements contained in his statement in combination with his oral evidence in respect of how roles are evaluated assisted the Commission with its understanding of how the Appeal panel approached the re-classification appeal process.

30. [30]
    In this respect, I accept Mr Ryalls' submissions that even in circumstances where Mr de Lepervanche was found to have satisfied the criteria underpinning the work level statements at HP5-1, HP5-16 and HP5-33, such an outcome would still not have resulted in his position being reclassified at an HP5 level given the review panel's decision with respect to the remaining elements of his application, particularly in circumstances where there was a lack of detailed examples as to how Mr de Lepervanche satisfied a number of the HP5 work level statements in a practical sense.

31. [31]
    After consideration of all the materials before the Commission including the evidence of both Mr de Lepervanche and Mr Hamilton, in all the circumstances I am unable to find that the Appeal panel erred.

32. [32]
    Whilst there may well be another opportunity for Mr Lepervanche to seek to have his position classification revisited at a later date in this matter, the Commission declines to interfere with the decision made by the Director-General, Department of Health.

33. [33]
    Order accordingly.