Gilmore v Queensland[2015] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   Mr Chris Gilmore has been permanently employed at The Prince Charles Hospital Medical Imagine Department (TPCH) for fifteen years.  Over this time period Mr Gilmore has progressively increased his skills, knowledge and seniority to the point where he is currently a Radiographer / Sonographer - Team Leader at the TPCH.  As at 30 May 2008 Mr Gilmore’s title was Specialist Clinical Radiographer / Sonographer.  In his affidavit Mr Gilmore explained his role in the following terms:

"2.My clinical position is set at the largest tertiary level cardiothoracic teaching hospital in Queensland and one of the largest of its type in the world.

     …

3.have clinical experience in the disciplines of radiography, nuclear medicine and sonography.  Radiography is most well known, but less well known is nuclear medicine, which involves injecting radio-active pharmaceuticals into patients.  An image is then detected in a way that forms the outline of a body part, or a disease process.  I consider sonography to be the most difficult by a considerable margin however.  This is due to the nature of the work which extends beyond the technical acquisition.  It delves beyond the technical and deeply into the medical field in interpretation and diagnosis.  As such, medical doctors will perform surgery and invasive procedures directly upon my report."

2. [2]
   Prior to Mr Gilmore's participation in the Health Practitioner evaluation process he worked in a combination of PO4 and PO5 roles at TPCH.  An initial Work Unit Proposal developed by Mr Gilmore's immediate supervisor as part of the Phase 2 evaluation process proposed a role description at the HP6 level for the Applicant.  Mr Gilmore also submitted an Employee Initiated Application in June 2008.  At some point in the following period Mr Gilmore was advised his application was unsuccessful and that his position had been evaluated as sitting within the HP4 classification level.  Later department records highlight an 'error' in the process and records the Director General of the Queensland Department of Health (Queensland Health) approving Mr Gilmore’s position at an HP5 classification on 21 July 2010.

3. [3]
   Mr Gilmore appealed the Phase 2 outcome in October 2010 in accordance with the procedure provided for in HPEB1 with the objective of obtaining a reclassification of his position to HP6.  His appeal was unsuccessful, with the Appeal Panel recommending Mr Gilmore’s classification remain at the HP5 level, noting: "The evidence provided does not meet HP6 work level statements."  The Director-General of Queensland Health endorsed the appeal panel’s recommendation.

4. [4]
   Mr Gilmore subsequently filed a Notice of Industrial Dispute in relation to his classification.  The dispute was assigned a new matter number of HP/2013/30 for the arbitration proceedings.

Subject of Dispute

5. [5]
   Mr Gilmore is seeking to have his position reclassified from its current classification as an HP5 to a higher classification of HP6.

6. [6]
   At paragraph 52 of his written submissions, Mr Butler, who represented Mr Gilmore in the arbitration proceedings submitted the Commission should confirm the validity of the initial WLEP decision of an HP6 level and instruct the Respondent to set aside the erroneous WLET HP 6-8 and subsequent decision of the Director General taken on the basis of the appeal panel recommendation.

The evidence and argument before the Commission

7. [7]
   Mr Gilmore progressed through the Professional Officer (PO) stream during the first several years of his employment at TPCH and from mid 2005 held a substantive PO level 4 position as a Radiographer / Sonographer.  He described how he had taken a sabbatical to the United Kingdom in 2005 to enhance his skills, learning how to prepare the final report for his clinical examinations which was eventually recognised by Queensland Health as an extended scope of practice.  Mr Gilmore also highlighted a number of developmental activities he had undertaken since 2006 to develop and broaden specialised techniques in his work and to also pursue peer recognition opportunities.

8. [8]
   These activities included seeking and achieving a Master’s level qualification in sonography, undertaking research which involved expert and specialised sonography techniques and peer review publication standards.  Mr Gilmore also broadened his scope of practice into another specialised area involving information technology relevant to Sonography.  As a result, Mr Gilmore received recognition at PO5 level.  Mr Gilmore acknowledged he received higher duties payments from time to time when performing these additional duties, but also noted he remained a point of reference or contact for many internal and external stakeholders irrespective of when or if he was paid higher duties.

9. [9]
   In 2007, Mr Gilmore pursued further opportunities to broaden his technical expertise which involved being trained and mentored by a doctor.  The specialised techniques were subsequently recognised in Mr Gilmore's extended scope of practice.  Mr Gilmore’s evidence is that by late 2007 his contributions on behalf of and with other sonographers on clinical matters were recognised state-wide through peer review research.  He was also involved in advising on IT related matters beyond TPCH.  Mr Gilmore was nominated to join a Medical Radiation Professionals Interest Based Bargaining (MRPIBB) process where he represented sonographers on clinical and professional issues.  At the conclusion of the MRPIBB, Mr Gilmore continued to meet with sonographers state-wide as part of his work with Queensland Health, which also involved participating as a committee member with a sonographer focus group which among a number of purposes also advanced clinical matters including competence, education and advocacy.

10. [10]
    The Terms of Reference for a Section Senior Sonographer Group, set out on official Queensland Health letterhead, were attached to the written submissions provided to the Commission on behalf of Mr Gilmore.  The role of the group, membership of which was limited to 'in-charge' medical imaging sonographers in the Queensland Public Service and Mater Heath Services included:

• To collaborate and advise on the development of a state-wide clinical education and training framework for Sonographers;
• To inform and advise various representative bodies and units on relevant issues relating to clinical education, training and quality control for Sonographers;
• To liaise with relevant entities so the group is aware of the latest technology relating to Sonography;
• To standardise protocols for ultrasound procedures across Queensland Health institutions;
• To provide information and advice to Queensland Health on issues relevant to Queensland Health sonographers.

In his oral evidence Mr Gilmore was very clear that his engagement and participation in this group formed part of his role description.

11. [11]
    Mr Gilmore's evidence is that he was regularly requested by medical doctors to train other doctors in the areas he held expertise in, as part of a state-wide specialist training program required by the Australian medical colleges.  He was also requested to train and mentor other staff including nurses, radiographers, sonographers and IT personal in the areas where he held expertise.

12. [12]
    In addition to his bachelor degree in Applied Science (1998), Graduate Diploma Medical Ultrasound (2004) and Masters in Medical Ultrasound (2007), Mr Gilmore described how he compiled extensive material at the conclusion of his research project including a peer reviewed project report (QUT) and reports to both QUT and the TPCH Ethics Committees.  He was also approached by the Australian Sonographers Association (ASA) shortly afterwards through a committee member to consider publishing a peer reviewed article.  Mr Gilmore submitted he was of the understanding there were other sonographers who had been evaluated at the HP6 level that had qualifications equal to entry level for a sonographer, which were less than his Masters level.

13. [13]
    Mr Gilmore also described the nature of the research he undertook at TPCH which resulted in him formulating a series of recommendations with respect to reducing length of hospital stays and expediting positive outcomes for heart attack victims and patients with congenital heart conditions treated at the TPCH.  He advised his research was peer reviewed by a selection of sonographers including an ASA committee member, QUT course co-ordinator and other ASA accredited sonographers.

14. [14]
    Other specialised roles undertaken by Mr Gilmore whilst at TPCH included his involvement as a PACS administrator which he described as being responsible for leading the operation of a clinical computer system of significant scale and training many staff at TPCH and beyond, including the Royal Brisbane Hospital to differing levels of expertise in relation to his use.  Mr Gilmore said he was required, on a daily basis to offer advice in both a higher level acting and his existing substantive position to internal and external stakeholders from across the state.  He recalled his position description being altered to reflect his unique PACS technical expertise as part of the department's work unit proposal.

15. [15]
    Mr Gilmore provided examples of specialist sonography techniques he’d undertaken in his role, highlighting the considerable venous access techniques required for Cystic Fibrosis patients whereby Peripherally Inserted Central Catheter (PICC) devices are inserted into a patient’s bloodstream toward their heart.  Ultrasound techniques are utilised to guide needles into a vein just millimetres in size and radiation techniques are utilised to position the tip of a catheter close to the heart.  In addition to teaching these techniques to medical doctors, Mr Gilmore advised that many other TPCH departments would often refer complex patients when they had previously been unsuccessful with venous access.  Mr Gilmore confirmed these specialised techniques are included in his extended scope of practice but raised concerns he was aware of other sonographers with limited skills in these areas but who were evaluated at the HP6 level.

16. [16]
    Whilst it is somewhat unclear from the evidence before the Commission as to when a number of these activities were undertaken, Mr Gilmore also submitted he is published as a lead author in the ASA magazine, the nation's highest impact magazine for radiographers and has presented on clinical matters many times in his professional capacity at TPCH as well as other state and national forums.

17. [17]
    Mr Gilmore also described how he had expanded his clinical sonography expertise into more specialised sonography and technology, guiding a procedure to remove kidney stones with ultrasound and was also involved extensively mentoring specialist level radiographer(s) and sonographer(s).  

18. [18]
    Mr Butler, on behalf of Mr Gilmore submitted there were various procedural and factual errors in Queensland Health’s reclassification process and the Appeal Panel’s findings including:

1. The original incorrect notification of an HP4 outcome;
2. The seeming confusion associated with whether Mr Gilmore’s position was originally submitted as an HP5 or an HP6;
3. The failure of the Appeal panel to conduct an evaluation;
4. The failure of the Appeal panel to provide adequate reasons for its decision;
5. The failure of the Appeal panel to provide the Applicant with an opportunity to respond to adverse findings.

19. [19]
    More specifically, Mr Butler contends that notwithstanding Mr Gilmore’s extensive 37 pages of commentary on each HP6 work level statement and further 270 pages of references and supporting material, the Appeal Review Outcome Attachment:

1. Failed to address the HP6 and HP7 Work Level Statements claimed;
2. Rejected particular work level statements claimed despite the significant evidence cross referenced in Mr Gilmore’s application;
3. Included and addressed work level statements not claimed; and
4. Ignored specific and repeated requirements for high level specialist knowledge, skills and consultant experience referred to in the role description.

20. [20]
    Mr Butler further submitted the Appeal Outcome failed to recognise and comment on work level statements WLS HP6-1, HP6-8, HP6-19 and HP6-22 claimed by Mr Gilmore and further rejected his claims made against WLS HP6-2, HP6-3, HP6-4, HP6-11, HP6‑20, HP6-21, HP7-13 and HP7-27.  That is, of the twelve applicable HP6 WLS the Appeal Panel did not consider or answer four claimed by the applicant and rejected a further seven at the HP6 level plus two at the HP7 level on the basis that Mr Gilmore failed to provide evidence.  A further seven WLS at HP5 or HP4 that were included in the Appeal Outcome documentation were not claimed by the Applicant.  Mr Butler also argued the appeal outcome statement was deficient in that it failed to establish any basis for the decision reached, including the reasons why evidence was considered insufficient.

21. [21]
    In response, the general thrust of Queensland Health’s submissions was that Mr Butler had failed to substantiate a case for Mr Gilmore to be reclassified from HP5 to HP6 and had also failed to clearly demonstrate any significant errors in the appeal process that would warrant the orders sought by Mr Butler at paragraph 5 of this decision.

22. [22]
    Mr Ryalls on behalf of Queensland Health submitted the Commission’s powers with respect to the arbitration of Mr Gilmore’s reclassification dispute were confined to correcting any error that may have occurred in the agreed classification process.  Further, that any applicant that referred a reclassification dispute to the Commission must be able to demonstrate that an error has occurred in the process.

23. [23]
    Queensland Health argued Mr Butler was pursuing a fresh merit based review or a de novo assessment by the Commission of Mr Gilmore’s existing HP4 classification notwithstanding the decision of the Full Bench in Newton v State of Queensland^[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."

24. [24]
    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.

25. [25]
    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, and 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]

26. [26]
    Mr Ryalls further argued the only manner by which an employee can conceivably attack and displace the existing classification, after an appeal recommendation, it to demonstrate that an error has occurred in the appeal process: see Newton.^[3]  In this regard, Queensland Health submitted Mr Butler on behalf of Mr Gilmore had not substantiated a case for his client to be reclassified from HP5 to HP6 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.

27. [27]
    Further, the extended scope of practice asserted to by Mr Gilmore throughout his evidence is already recognised by the Department via credentialing by a defined scope of practice processes.  Additionally, Mr Ryalls argued the Section Senior Sonographers Reference Group and associated activities relied on by Mr Gilmore was essentially formed collectively by chief sonographers rather than through any formal involvement with Queensland Health.

28. [28]
    In response to Mr Butler's submissions relating to the constitution of the Appeal Panel, the Department submitted the Appeal Panel which considered Mr Gilmore'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 Gilmore’s discipline.

29. [29]
    In response to Mr Butler's concerns in relation to the Appeal Panel failing to address work level statements HP6-1, HP6-8, HP6-19 and HP6-22, Queensland Health submitted HP6-8 and HP6-19 had been addressed, and that even in circumstances where HP6-1 and HP6-22 were addressed it would not have tipped the scales in Mr Gilmore’s favour because Scope and Nature of Level and Knowledge, Skills and Experience were both assessed at HP5 and accountability at HP4.

30. [30]
    Queensland Health relied on the evidence of Mr Hamilton and his comments with respect to the holistic nature in which roles had been assessed further submitting 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 and that in Mr Gilmore's case a number of WLS at HP5 and HP4 within accountability were more appropriate. 

31. [31]
    Mr Ryalls, on behalf of Queensland Health submitted a series of subordinate WLS at the HP4 and HP5 level, which he argued were deemed more reflective of Mr Gilmore's duties by the Appeal Panel at the time of his application.

Findings

32. [32]
    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.

33. [33]
    Mr Butler, on behalf of his client also raised a number of procedural and factual errors, and in particular highlighted an error in the phase 1 process where Mr Gilmore’s role had been classified at an HP4 level, however it is clear this error was addressed by Queensland Health prior to the Stage 2 appeal documentation being lodged with Mr Gilmore’s substantive role being officially classified at an HP5 level in July 2010.

34. [34]
    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^[5] and later, Fisher C in United Voice, Industrial Union of Employees, Queensland (for Peter Mattner) and the State of Queensland (Queensland Health).^[6]  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".^[7]

35. [35]
    To gain a better understanding of his role, experience and skills and without objection from Queensland Health, Mr Gilmore answered questions from the Commission in relation to his appeal application and the nature of his work.  Under cross-examination, Mr Gilmore provided further details during the proceedings in relation to the nature of his work and the specialised techniques he utilised in his role. 

36. [36]
    Mr Gilmore's evidence during the arbitration proceedings in combination with his appeal documentation covered the scope and nature of his role, as well his as accountability, knowledge and experience.  In particular, Mr Gilmore provided extensive evidence in relation to his post-graduate qualifications and research-related experience, the application of high level technical skills in a clinical setting and his involvement with setting policy and advising on the development of a state-wide clinical education and training framework through the Senior Sonographers Reference Group.  Mr Gilmore highlighted the leadership role he played within and across his field, noting regular contact from doctors and other health practitioners often seeking his guidance in the application of high level specialist techniques or in circumstances where they had otherwise failed in their own attempts to achieve a particular outcome.

37. [37]
    The representative from Queensland Health was somewhat dismissive of Mr Gilmore's involvement in the Senior Sonographers Reference Group however a review of the materials provided to the Commission suggests the group is well established and endorsed by Queensland Health to the extent Mr Gilmore was able to provide the Commission with a Queensland Health document setting out the role and purpose of the group which appears to have state-wide recognition.  I accept Mr Gilmore's evidence that he regularly attends the group in work time and is expected, as part of his role requirements and development to participate in the group.

38. [38]
    Mr Gilmore also provided examples in his of where he had contributed to the improvement of service initiatives and professional competence.  Whilst it somewhat unclear as to when the material was published, Mr Gilmore also highlighted his contribution to peer reviewed publications, linking in one case his contribution and research back to initiatives he introduced in the workplace.  Whilst he was not able to provide evidence in support of this claim during the proceedings, Mr Gilmore also advised that not one of the referees that he had submitted in support of his technical knowledge and expertise had been contacted during the appeal process.

39. [39]
    The Appeal Review statement and the reasons provided to Mr Gilmore as to why his role does not fall into an HP6 classification simply lists the Applicant as failing to provide evidence in support of the relevant HP6 WLS.  Of the WLS HP6 criteria which were acknowledged in the outcome documentation, the Appeal Panel found Mr Gilmore had failed to provide evidence in all but one of the claimed WLS HP6 and HP7 criteria.

40. [40]
    Mr Don Hamilton's evidence on behalf of Queensland Health, whist quite detailed with respect to the approach taken by the Agency in relation to the various stages of the reclassification process generally, does not provide the Commission with any insight or explanation as to why particular HP4 and HP5 work level statements were addressed, or HP6 and HP7 work level statements not addressed by the Appeal Panel.

41. [41]
    I have formed the view that there is sufficient evidence before me to conclude that, albeit inadvertently, the Appeal Panel erred in excluding certain evidence provided by Mr Gilmore in his appeal submission from its consideration. 

42. [42]
    Mr Gilmore prepared an extensive submission for the Appeal Panel which contained supporting documentation and cross-references to all relevant HP6 and HP7 work level statements for his role.  Whilst it may well be the case that Mr Gilmore did not satisfy every HP6 or HP7 criteria the difficulty the Commission has is that the Appeal Outcome documentation also fails to provide Mr Gilmore, after considering his application and relevant work level statements, with a clear understanding as to why his position was not reclassified at the HP6 level.

43. [43]
    In the matter of Morton v State of Queensland^[8], his Honour Deputy President O'Connor stated:

"In Public Service Board v Osmond (1986) 159 CLR 656, the High Court held that there is no general common law duty on decision-makers to provide reasons for administrative decisions in Australia.

In Cypressvale Pty Ltd v Retail Shop Lease Tribunal, Fitzgerald P said:

'… the law has moved on in the decade since Osmond…

… even Public Service Board v Osmond does not hold that fairness does not ordinarily require that reasons be given for decisions which affect rights and liberties; its conclusion was rather that at that time, those who made administrative decisions were not required to provide reasons because that was established by a long line of authority.  It is not really surprising that, in a complex society in which there is a proliferation of tribunals with power to affect citizen's rights and liabilities, the courts have come to insist that it is an incident of a duty to act fairly that decisions be adequately explained.'

In my view, in order for the Commission to properly perform its functions in determining a reclassification dispute it was necessary for the Appeal Panel to provide a basic explanation of the fundamental reasons which led it to reach its conclusion that the applicant should be classified at HP5."

44. [44]
    I have also formed a view that there is not a clear enough explanation provided to Mr Gilmore as to why he was unsuccessful in his application.  In this respect, I consider the apparent failure of the Appeal Panel to provide adequate reasons for its decision a further error in the process.

45. [45]
    Having regard to the nature of the error in the process, the appropriate course for the Commission to adopt is to have the decision of the Director-General set aside and the matter referred back to Queensland Health for determination of the appropriate classification level.  The review should also include a close examination of Mr Gilmore's appeal documentation and references, as well as his contribution to state-wide policy development and education, broad scope of practice accreditation, specialist technical expertise, post-graduate qualifications and discipline-related research activities within and beyond TPCH.

Orders

46. [46]
    For the reasons advanced above I make the following orders:

1. The decision of the Director-General is set aside;

2. The matter of determining the applicant’s appropriate classification level is remitted to Queensland Health;

3. The assessment of the applicant’s classification level is to be undertaken on or before 31 March 2015.