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Williamson v State of Queensland (Department of Natural Resources, Mines and Energy)[2021] QIRC 247

Williamson v State of Queensland (Department of Natural Resources, Mines and Energy)[2021] QIRC 247

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Williamson v State of Queensland (Department of Natural Resources, Mines and Energy) [2021] QIRC 247

PARTIES:

Williamson, Ian

(Appellant)

v

State of Queensland (Department of Natural Resources, Mines and Energy)

(Respondent)

CASE NO:

PSA/2020/320

PROCEEDING:

Public Service Appeal – Promotion Decision

DELIVERED ON:

23 July 2021

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDERS:

  1. The promotion decision is set aside.
  2. The matter is returned to the Department of Natural Resources, Mines and Energy with a copy of this decision.
  3. I direct that, within one month, the chief executive of the Department of Natural Resources, Mines and Energy is to revoke the appointment of Mr Greg Farlow to the position of Manager, Field and Land Access, Engagement Field and Compliance, Divisional Support, Georesources, classification AO8, vacancy reference number 331637/19, and publish a gazette notice that the appointment is revoked.
  4. I direct that a new selection panel is to be formed, for the purposes of selecting an applicant for the vacant position of Manager, Field and Land Access, Engagement Field and Compliance, Divisional Support, Georesources, classification AO8, vacancy reference number 331637/19, ('the vacant position') and that the new selection panel must not include:
  1. a.
    Mr Brent Keenan, Manager, Human Resources, Workforce Management and Analytics, Human Resources, Business and Corporate Partnership, of the Department;
  1. b.
    Ms Anita Bellamy-McCourt, A/Director, Georesources Policy, Policy Division of the Department;
  1. c.
    Mr Andrew Grabski, Executive Director, Technical Services, Georesources of the Department;
  1. d.
    Mr Cale Dendle, Executive Director, Minerals and Coal of the Department;
  1. e.
    Dr Steven Ward, Director, Engagement and Compliance of the Department;
  1. f.
    Ms Althea Cardwell, Acting Director, Energy Division of the Department; and
  1. g.
    Ms Kerynne Birch, Extractions Energy and Chemical Industries, Department of Environment and Science.
  1. The new selection panel must be provided with a copy of ss 27 and 28 of the Public Service Act 2008 (Qld) and Public Service Commission Directive 15/13: Recruitment and Selection.
  2. The chief executive is to continue the recruitment and selection process for the vacant position from the point immediately after the selection of shortlisted applicants for interview.  The shortlisted applicants in the resumed selection process shall comprise the four shortlisted applicants in the process subject of this appeal, together with both Mr Williamson and Mr Murphy.

CATCHWORDS:

PUBLIC SERVICE – APPEAL – PROMOTION DECISION – whether the recruitment and selection process was deficient – consideration of mandatory assessment processes under Directive 15/13 Recruitment and Selection – consideration of merit and process – where Department changed priorities of role – where key capability requirement was not published – determination that process was deficient

LEGISLATION:

Directive 03/17 Appeals cl 11

Directive 07/20 Appeals cl 5.2

Directive 12/20 Recruitment and Selection

Directive 13/20 Appointing a public service employee to a higher classification level cl 1.1

Directive 15/13 Recruitment and Selection cl 7, cl 9, cl 10, cl 11, cl 12, cl 13 

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C

Public Service Act 2008 (Qld) s 25, s 27, s 28, s 194, s 196

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Appeal Details

  1. [1]
    Mr Ian Williamson (the Appellant) appeals against a promotion decision of the Department of Natural Resources, Mines and Energy (the Department) (the Respondent).
  1. [2]
    The vacant position of Manager, Field and Land Access, Engagement Field and Compliance, Divisional Support, Georesources (AO8) within the Department (the promotional position) was advertised in 2019.
  1. [3]
    Mr Williamson applied for the promotional position on 18 December 2019, along with 27 other applicants.  He was one of the six shortlisted applicants that were interviewed on 31 January 2020. 
  1. [4]
    On 17 March 2020, Mr Williamson was advised that his application had been unsuccessful.  Mr Greg Farlow (the promotional appointee) was instead appointed to the promotional position and public notification of that promotion decision was gazetted on 3 April 2020 (the first promotion decision).
  1. [5]
    Mr Williamson appealed that first promotion decision. 
  1. [6]
    Deputy President Merrell decided Mr Williamson's appeal on 22 July 2020.  In summary, his Honour ordered that the first promotion decision be revoked; an entirely new selection panel be formed; and that the Department's recruitment and selection process be resumed by the freshly constituted selection panel "from the point immediately after the receipt of the applications from the 28 applicants" for the vacant position.
  1. [7]
    Whilst the first appeal progressed, the promotional appointee performed the promotional position.  Following the order revoking the permanent appointment, the promotional appointee continued in the role on a temporary basis.
  1. [8]
    In accordance with his Honour's orders, Mr Shaun Ferris, Deputy Director-General of the Department (the delegate) assembled a new selection panel (the second selection panel) to resume the recruitment and selection process.
  1. [9]
    The second selection panel was Chaired by Mr Cale Dendle[1] and also comprised Mr Brent Keenan[2] and Ms Anita Bellamy-McCourt.[3]  Mr Dendle later withdrew from the panel and the delegate then appointed Mr Keenan as Chair and Mr Andrew Grabski[4] as the new third panel member.
  1. [10]
    On 28 August 2020, Mr Dendle, Mr Keenan and Ms Bellamy-McCourt met to shortlist the applicants.
  1. [11]
    On 1 September 2020, Mr Dendle withdrew from the second selection panel and Mr Grabski was appointed as a panel member. 
  1. [12]
    On 7 September 2020, the second selection panel "met to discuss Mr Grabski's views on the applicants and to finalise the shortlist of applicants for interview."[5]
  1. [13]
    The promotional appointee and three other applicants were shortlisted for interview by the second selection panel "after analysing the written applications."[6]  Ultimately, only three applicants were interviewed, as one shortlisted applicant withdrew their application.
  1. [14]
    Mr Williamson was not shortlisted for interview by the second selection panel.  He sought feedback as to why this was the case from Mr Keenan, in his capacity as Chair.  That feedback was provided on 30 September 2020.
  1. [15]
    The second selection panel determined that the promotional appointee was the only applicant meritorious for the role. 
  1. [16]
    The outcome was that the promotional appointee was appointed to the promotional position for the second time.  Public notification of that promotion decision was gazetted on 6 November 2020 (the second promotion decision).
  1. [17]
    The second promotion decision is the subject of this Appeal.
  1. [18]
    In my view, the second promotion decision appealed against was not fair and reasonable, as the selection process was deficient.
  1. [19]
    My reasons follow.

Relevant Legislation

  1. [20]
    The Public Service Act 2008 (Qld) (PS Act) was amended on 14 September 2020. 
  1. [21]
    Directive 15/13: Recruitment and Selection (Pre-Amendment RS Directive) was also amended and Directive 12/20: Recruitment and Selection (Amended RS Directive) was issued by the Public Service Commission on 25 September 2020. 
  1. [22]
    Directive 03/17: Appeals (the Pre-Amendment Appeals Directive) was also amended and Directive 07/20: Appeals (Amended Appeals Directive) was also issued by the Public Service Commission on 25 September 2020.  As this Appeal was filed on 17 November 2020, the Amended Appeals Directive has been referenced in this Decision.
  1. [23]
    Given that the recruitment and selection process subject of this appeal predated those most recent amendments, aspects of the Pre-Amendment PS Act and Pre-Amendment RS Directive are relevant to the determination of this Appeal.

Decision against which an appeal may be made

  1. [24]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made.  Section 194(1)(c) of the PS Act provides that an appeal may be made against "a decision to promote a public service officer (a promotion decision)". 
  1. [25]
    Section 196(c) of the PS Act prescribes that a public service employee aggrieved by a promotion decision who is entitled to appeal under a directive may appeal.
  1. [26]
    The relevant directive, namely the Amended Appeals Directive, provides an array of requirements at clause 5.2(e).  I do not intend to reproduce the entirety of those requirements here.[7]  It is uncontentious between the parties that the Appellant meets those requirements.  It is clear that the promotion decision related to a gazetted promotion, the Appellant's application was received on or before the nominated deadline,[8] and there was an appropriate request by the Appellant for post-selection feedback from the Respondent.[9]
  1. [27]
    I am satisfied that the second promotion decision, as contained in the gazetted notice of 6 November 2020, constitutes a decision made by the Department and is capable of appeal.

Appeal principles

  1. [28]
    The appeal is decided by reviewing the decision "to decide whether the decision appealed against was fair and reasonable".[10]
  1. [29]
    The IRC member must observe the principles of natural justice in deciding an appeal.
  1. [30]
    The appeal is not conducted by way of re-hearing but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[11]  The word 'review' must take its meaning from the context in which it appears.[12]
  1. [31]
    Section 562B(4) of the Industrial Relations Act 2016 (Qld) (IR Act) provides that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission –

  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [32]
    A decision made by the Respondent, which was reasonably open to it, should not be disturbed on appeal.

What decisions can the IRC Member make?

  1. [33]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  1. a.
    Confirm the decision appealed against; or
  1. b.
    Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate.
  1. [34]
    Clause 11.2 of the Pre-Amendment Appeals Directive provides that the IRC member may issue any direction they consider necessary, including:
  1. a.
    a direction that, within one month, the chief executive is to revoke the appointment and publish a gazette notice that the appointment is revoked;
  1. b.
    a direction that the chief executive either recommences the recruitment and selection process from the point of advertising the vacancy or continues with the process from a particular time or event as identified by the IRC member; or
  1. c.
    a direction that a new selection committee is to be formed and a direction regarding the composition of the new selection committee, where a decision is made that a chief executive is to recommence the recruitment and selection process.
  1. [35]
    That provision is not now contained in the Amended Appeals Directive - nor in the Amended IR Act, Amended PS Act or Amended RS Directive. 
  1. [36]
    In terms of the directions that the IRC member is able to make in appeals of promotional decisions such as this, I therefore rely on the general powers in s 451(1)(2) of the IR Act:
  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may –
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.

Determining the appeal

  1. [37]
    An IRC member may only set aside a promotion decision if they find that the recruitment or selection process was deficient.[13]
  1. [38]
    In determining whether there was such a deficiency, an IRC member must consider whether the recruitment and selection process complied with the PS Act, a regulation, and a directive of the commission chief executive.[14]
  1. [39]
    The Amended Appeals Directive and the Pre-Amendment RS Directive are also relevant to the determination of this appeal.
  1. [40]
    It is necessary, in determining whether the decision was fair and reasonable and whether the recruitment and selection process was deficient, to consider Mr Williamson's submitted grounds of appeal.

Appellant's Submissions

  1. [41]
    Mr Williamson identified the appeal grounds in the Appeal Notice filed 17 November 2020.  He filed further written submissions on 17 December 2020 and on 24 March 2021. 
  1. [42]
    Mr Williamson identified two grounds of appeal – merit and process:

Merit

  1. a.
    Mr Williamson submitted that he was the most meritorious applicant for the position and that the merit principle and criteria was not properly applied by the selection panel.[15]
  1. b.
    Mr Williamson based this claim on:
  • superior demonstration of how he meets the "Key Duties and Accountabilities" demonstrated in his written application and CV;
  • diverse skillset including management and conduct of investigative and compliance roles and functions;
  • completion of relevant courses in compliance and investigation;
  • experience in the management of significant events requiring stakeholder and team engagement;
  • ability to train and mentor staff in investigation and compliance;
  • high level negotiations;
  • ability to manage compliance activities and investigations in various regulatory frameworks.
  1. c.
    Mr Williamson submitted that "When considering all of the key duties and responsibilities of the role…in respect of all skillsets required he is far more superior to the appointee and evidence of that superior skillset was evident in his written application before the panel."[16]
  1. d.
    Mr Williamson considered that feedback received from the panel Chair disregarded his investigative management skills.  However, Mr Williamson submitted he is aware that the promotional appointee has since been required to undertake a course in Government Investigations – an area in which he himself has extensive formal training and experience.
  1. e.
    Further, he noted that the panel Chair had stated experience in the resource sector was an advantage and priority over investigation skills.  Mr Williamson disagreed with the Department's submission that it was appropriate for the panel and delegate to have considered that experience in the resource sector was central to the role, given the Key Duties and Responsibilities and competencies.  While notations to that effect were contained in the shortlisting commentary and feedback to Mr Williamson, the importance of "industry sector experience" has been much elevated between the first and second selection processes.  "In the second process, this appears to have been applied as a mandatory requirement, or at the very least what would normally be described in a job application as highly desirable or highly regarded."  That was not stated in the original job description nor considered crucial by the first selection panel or the Department when initially establishing the role requirements.[17]

Even so, the resource sector experience was not applied fairly between the applicants in the second selection process.  Mr Williamson relied on the evidence of the second selection panel's shortlisting matrix to illustrate that although panel members had noted limited or nil resource sector experience held by other applicants, some of that cohort had been shortlisted for interview in spite of that.  Mr Williamson considered this to be evidence that the requirement was not fairly applied between applicants.[18]

  1. f.
    Mr Williamson noted the Department also claimed that "stakeholder engagement and managing teams" was highly relevant to the role.  However, the shortlisting matrix again demonstrated that this was not consistently applied between applicants.[19]
  1. g.
    Mr Williamson utilised RTI applications to obtain the interview questions used by the second selection panel in that process.  The Department "…identified there was no benchmarking established prior to the interviews nor was there any need for benchmarking."[20]  Mr Williamson's view is that "benchmarking is essential to a fair and transparent process.  Without benchmarking there is no mechanism to ensure each panel member is assessing each applicant's merit to the same standard."[21]  He submitted that the deliberate omission of a recorded system to evaluate responses was further evidence of pre-determined outcome.
  1. h.
    Mr Williamson stated that not only was he shortlisted by unanimous decision of the previous selection panel, he was ranked 'first' and then 'second' in order of merit on the selection reports prepared as part of that earlier process resulting in the first promotion decision.

Process

  1. i.
    Mr Williamson submitted that factors other than merit informed the conduct of the selection process contrary to s 27 of the PS Act - and that this deficient process infected the second promotion decision that is the subject of this appeal.
  1. j.
    He claimed that the process was fundamentally flawed and the decision should be overturned on that basis.
  1. k.
    Mr Williamson stated that the process was biased and demonstrated adverse conduct against him.  He claimed this was due to his earlier successful appeal of the first promotion decision at the QIRC.

Omission of two previously shortlisted applicants

  1. l.
    Mr Williamson submitted that this contention was evidenced by the second selection panel's determination not to include he and Mr Shane Murphy as shortlisted applicants for interview in the second selection process.  He notes that only two of the six applicants shortlisted for interview by the first selection panel were not shortlisted for interview by the second selection panel that was constituted to decide the second promotion decision.  Those two applicants were Mr Williamson and Mr Murphy, who provided an affidavit in support of Mr Williamson's appeal of the first promotional decision.
  1. m.
    Mr Williamson noted that only three of the six shortlisted applicants were on the order of merit in the first selection process – himself, Mr Murphy and the promotional appointee.
  1. n.
    He posited that the second selection panel's failure to include him as a shortlisted applicant indicated bias and a predetermined outcome, given he was the promotional appointee's strongest competition.
  1. o.
    Mr Williamson stated that documentation obtained in support of his appeal of the first promotional decision "…were discussed at length in the QIRC decision, which found the Appellant was the most meritorious applicant in the original process."  He proposed that his "…superior merit would have been noted had the subsequent selection process been conducted fairly."[22]  Mr Williamson included several extracts from the first selection panel's Selection Report that attested to him being the most meritorious applicant for the promotional position.  He concluded that "…it is not reasonable nor logical for this panel to have formed this completely different opinion of the Appellant having regard to merit alone."[23]

Predetermined outcome to appoint Mr Greg Farlow

  1. p.
    Mr Williamson stated that "…the process for this current promotion decision was bias from the outset and that the panel was determined to appoint Mr Farlow at all cost."  He submitted that "…the panel had no intention of shortlisting him given what had occurred as a result of his first appeal, whereby the QIRC made strong findings against the Respondent in respect of having carried out an unfair process and highlighted questionable conduct by the original panel members."[24]
  1. q.
    Mr Williamson stated that "…the outcome was predetermined in favour of the original appointee, Mr Greg Farlow (the 'appointee').  Had the selection panel conducted the selection process in accordance with the directive, and the Appellants merit properly and fairly assessed, the Appellant would have been at the very least shortlisted and given an opportunity to demonstrate his superior merit to that of the appointee."[25]

Mr Farlow acting in the promotional position while appeal underway and since

  1. r.
    Whilst Mr Williamson's appeal of the first promotion decision was underway,[26] the Department moved to fill the promotional appointee's substantive position and that appointment was gazetted on 3 July 2020.[27]  Mr Williamson stated that the timing of that recruitment process, and appointment of the successful candidate to the promotional appointee's substantive position, prior to the first appeal being decided was "pre-emptive and reckless."[28]  He submitted that the inference to be drawn from that sequence of events was disregard for due process with respect to the appeal, which included allowing the promotional appointee to continue in the promotional position after the first promotion decision had been revoked by Deputy President Merrell and filling his substantive position.

Mr Farlow's substantive position filled by another

  1. s.
    Mr Williamson stated that "Upon the Appellant's successful appeal the Respondent had no choice other than to ensure the current promotion process appointed the appointee, as if it did not, the appointee would hold no position with the Respondent.  This would make the appointee a surplus employee and would place him in a precarious position or at worst, with no job at all."[29]

Mr Farlow's profile updated on website

  1. t.
    Further evidence of the Respondent's intention to retain the promotional appointee in the promotional position was said to be the modification of the promotional appointee's profile on the Queensland Government's 'Govnet' website to show that he held the position 'Manager, Field and Compliance, Department of Natural Resources, Mines and Energy.'  Mr Williamson noted that this profile update was done on 22 July 2020, the same date of the release of Deputy President Merrell's Decision.

Priorities of the role altered between first and second selection process

  1. u.
    Mr Williamson stated that the priorities of the role were also altered between the recruitment and selection process undertaken by the first selection panel, that resulted in the first promotional decision being revoked on appeal - and the subsequent recruitment and selection process undertaken by the second selection panel.  He contended this was done to manufacture enhancement of the promotional appointee's suitability and adversely impact his own.
  1. v.
    Mr Williamson explained "During the original process the selection panel prioritised investigation and incident management including developing audit programs, communication skills, management of geographically dispersed staff including performance management and team cohesiveness."[30]
  1. w.
    By comparison, in the subsequent recruitment and selection process undertaken by the second selection panel, Mr Williamson stated that "…the Respondent placed minimal less weight on the original priorities…and placed significantly more weight on stakeholder engagement and resource sector experience."[31]
  1. x.
    Mr Williamson referred to elements of the first recruitment and selection process - including interview questions, comments contained in the first selection report, submissions made by the Respondent in the appeal decided by Deputy President Merrell – and compared those with comments made by the Chair of the second selection panel in the verbal feedback provided to him - as evidence of the changed priorities of the role.  Mr Williamson concluded that the changed priorities reflected "…a clear deliberate bias favouring the known experience of the appointee against that of the Appellant."[32]
  1. y.
    Mr Williamson understood the Department's view to be that the second selection panel was not bound by what a previous panel or delegate may have identified as the priorities of the role.  (That is, the six Key Duties and Responsibilities of the Role, outlined in the Role Profile).  However, Mr Williamson submitted that it was because the second selection process was more properly a continuation of the recruitment and selection process for the filling of the vacant promotional position that was commenced in 2019.  He stated "The fact that the QIRC directed the process be recommenced at the shortlisting stage does not give the Respondent or panel the authority to change the priorities of the role.  The role description had been developed and adopted at the commencement of this process."[33]
  1. z.
    The changed priorities of the role between the first and subsequent recruitment and selection processes resulted in both Mr Williamson and Mr Murphy "…being on the order of merit for the original process, with neither of them having resource sector experience.  It is questionable how the Respondent significantly altered the requirements of the role since the original process to the extent that investigation skills are seen as no longer as relevant and important to the role, particularly when the role is one which manages staff conducting investigations and compliance activities."[34]

Second panel aware that first promotion decision revoked

  1. aa.
    Whilst the Department submitted that the second panel members were aware that the first promotion decision had been revoked but not aware that occurred as a result of Mr Williamson's appeal and direction by the QIRC, this is not supported by the following evidence:[35]
  • Mr Keenan's file note of the feedback conversation with Mr Williamson stated "…I noted that issue with the process and QIRC advice to restart.  Ian mentioned it was a direction, I agreed."[36]
  • References to the first appeal and RTI process was documented in emails between Department officers.[37]
  • The positional reporting lines and physical office proximity between people involved in the appeal and second selection process means it is unlikely to have been "conducted in isolation."[38]
  • A Departmental officer[39] had been involved in the first selection process but also provided an Affidavit in the second appeal, monitored the RTI process and was aware of information with respect to the second selection process including assembly of the new panel.[40]
  1. bb.
    The Department has argued that the first appeal is not relevant to this matter.  However, Mr Williamson submitted that the Department's efforts to conceal the second selection panel's knowledge of his first appeal and QIRC direction strongly indicate that it is relevant to his claims of bias and pre-determined outcome.[41]

Respondent's Submissions

  1. [43]
    The Respondent filed written submissions on 20 January 2021, which are summarised as follows:
  1. a.
    The Department understands Mr Williamson's grounds of appeal are:[42]
  • The second promotion decision was predetermined in favour of Mr Greg Farlow (the promotional appointee);
  • The second selection panel was biased against Mr Williamson because he successfully appealed the first promotion decision;
  • Had the selection process been conducted in accordance with the RS Directive, Mr Williamson would have been at least shortlisted;
  • Mr Williamson believed himself to be more meritorious for the promotional position than the promotional appointee.

Merit

  1. b.
    Mr Williamson submitted that he was the most meritorious candidate on the basis of factors identified at paragraph [42] above.
  1. c.
    It is recognised that Mr Williamson identified relevant courses undertaken and provided examples of his experiences.
  1. d.
    While Mr Williamson had submitted that he is "better placed to review briefs of evidence regarding compliance and enforcement action given his work experience and training" and pointed to the promotional appointee being required to undertake a course in Government Investigations to demonstrate his superior merit with respect to that, the Department stated that it was in fact the promotional appointee who requested to undertake that training.  He was not required to do so.
  1. e.
    With respect to judging the relative importance of one component of the role requirements over another, the Department:

…acknowledges that investigation skills are a component of the Role but does not accept that resource sector experience is "far less relevant" or that because Mr Williamson had extensive experience in investigations he was "far superior" to the Relevant Appointee because:

a. the Role is responsible for delivering compliance and regulatory functions in relation to land access across the breadth or the resources sector, including, petroleum and gas, coal, minerals, small scale mineral and fossicking; and

b. the Role is predominantly focused on minerals and works closely with the coal and minerals tenures area.[43]

  1. f.
    Experience, education and / or qualifications were relevant factors in assessing merit, however the selection panel considered all the merit information available in making the promotion decision.[44]
  1. g.
    The shortlisting matrixes documents the second selection panel's assessment of the applicants' relevant work experience and whether the requirements of the role were met.  The second selection panel's decision not to shortlist Mr Williamson was because he "…did not have any experience in the resources sector and had not demonstrated his ability to build and maintain effective collaborative relationships with stakeholders in the regulatory and compliance framework."
  1. h.
    The feedback provided to Mr Williamson by Mr Keenan on 30 September 2020 explained the reasons why the second selection panel considered him not to be a meritorious applicant.
  1. i.
    The Department submitted that the second selection panel and delegate's decision was reasonably open to them to make, based on the information available at the time of the second promotion decision.[45]

Process

  1. j.
    The Department submits that the second selection process complied with the relevant provisions of the PS Act and RS Directive.  That process included the following steps:

a.analysis of written applications based on the six Key Duties and Accountabilities (KDA) specified in the role profile (Attachment 1) and on the competencies of the Role in particular whether applicants had relevant experience in the resource sector and in managing teams in the compliance framework;

b.shortlisting of the applicants (Attachment 2);

c.structured interview for the shortlisted applicants before the selection panel on 14 September 2020;

d.referee reports and consideration of demonstrated work performance;

e.completion of a recruitment and selection report (Attachment 3); and

f.offer of permanent employment.

There was a total of 27 applicants for the Role.  Applicants were requested to submit their resume and prepare a brief letter outlining why they were interested in the Role and how their skills and experiences complement the Role and/ or how they meet the capabilities of the Role, what they would bring to the Role and what they would get out of the Role. [46]

Omission of two previously shortlisted applicants

  1. k.
    There is no evidence that the fact of Mr Williamson's first appeal was taken into account by the second selection panel or that the second selection panel was biased against either he or Mr Murphy as a result.

Predetermined outcome to appoint Mr Greg Farlow

  1. l.
    In response to Mr Williamson's contention that he would have been shortlisted had the process been conducted on merit alone, the Department submitted that no evidence has been provided to support that claim but it instead "…appears to be based on Mr Williamson's own assessment of his application, noting he does not have the applications on behalf of the other applicants against which he can assess his application."[47]

Mr Farlow acting in the promotional position while appeal underway and since

  1. m.
    The promotional appointee performed the role while the first appeal was ongoing as "…there is no legal requirement for the Respondent to delay the implementation of reviewable decisions until the relevant appeal period has expired.  Such a requirement would cause significant operational inconvenience."[48]  The promotional appointee continued in a temporary basis following the appointment being revoked.

Mr Farlow's substantive position filled by another

  1. n.
    The Department stated that this was "irrelevant to the section process and had no bearing on the selection process."[49]
  1. o.
    Mr Keenan was aware of this circumstance during the recruitment process, however the remaining two members of the second selection panel were not.
  1. p.
    Mr Williamson has submitted that if the promotional appointee was not appointed to the promotional position, he would have no position with the Department.  This is refuted by the Department, who instead says it "…would be required to locate a suitable alternative (ongoing) role…"[50] for the promotional appointee in that event.

Mr Farlow's profile updated on website

  1. q.
    The Department's submissions filed 20 January 2021 do not address Mr Williamson's claim, contained in the Appellant's submissions filed 17 December 2020, Attachment 5.

Priorities of the role altered between first and second selection process

  1. r.
    The Department stated that the selection panel did not alter the priorities of the role to suit the promotional appointee's previous work experience.  However, stated that:

f.the panel and the delegate are not bound by what a previous panel or delegate may have identified as the "priorities" of the Role and were required to make their own assessment of the Role; 

g.it was entirely appropriate for the selection panel and delegate to have considered that experience in the resource sector and managing teams and in the engagement compliance framework was central to the role given the KDA and competencies of the Role.

  1. s.
    The shortlisting matrix reveals the basis for the selection panel's assessment of the applicants' merit - and the feedback provided to Mr Williamson.  The merit assessment was undertaken on his application; however Mr Williamson was not shortlisted due to his lack of experience in the resource sector and as he had not demonstrated ability to build and maintain effective collaborative relationships with stakeholders on the regulatory and compliance framework.
  1. t.
    While it is true that the first and second selection panels arrived at different shortlisting outcomes, that does not evidence bias or that the second promotion decision was unfair or unreasonable.  The Department denied that Mr Williamson was not shortlisted due to any reason other than merit.

Second panel aware that first promotion decision revoked

  1. u.
    "The selection panel were aware that the previous promotion decision had been revoked but were not aware that this was the result of an appeal brought by Mr Williamson or what Mr Murphy's involvement had been in the appeal."[51]
  1. v.
    The second selection panel had not been aware of which applicants had been shortlisted in the previous recruitment process.  However, they became aware on 1 September 2020 (through an email from another applicant) that the promotional appointee had been appointed in the first selection process.[52]

Relevant legislation

  1. [44]
    Mr Williamson's submissions were essentially that the second promotion decision was resultant from process deficiencies, infected with bias and a failure to make the promotion decision on merit alone as legislatively required. 
  1. [45]
    Section 562C(2) of the IR Act states (emphasis added):

In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act.

  1. [46]
    The following PS Act provisions detail the required considerations of the merit principle and criteria (emphasis added):

27The merit principle

  1. (1)
    The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).

28Merit criteria

In applying the merit principle to a person, the following must be taken into account –

  1. (a)
    the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  1. (b)
    If relevant –
  1. (i)
    The way in which the person carried out any previous employment or occupational duties; and
  1. (ii)
    The extent to which the person has potential for development.
  1. [47]
    The RS Directive prescribes particular processes and conditions that must be satisfied during the recruitment and selection process:
  • the minimum requirements for vacancy advertising;[53]
  • the merit assessment processes to be observed;[54]
  • requirements relating to selection decisions including a requirement that they be clearly documented and able to be independently reviewed;[55]
  • standards relating to pre-employment checking including referee checks;[56]
  • the requirement to present "adverse information" to an applicant;[57]
  • a requirement that applicants who request feedback must be given timely and constructive feedback.[58]
  1. [48]
    Further, cl 9.4 (a)(b) of the RS Directive provides (emphasis added):

The following information must be provided when a vacancy is advertised:

 (a) a description of the duties to be undertaken and the key capabilities against which applicants' merit will be assessed

 (b) any mandatory qualifications or conditions including, if a chief executive has designated a role as an identified role, the mandatory attribute(s) applicants must possess to be eligible for appointment

 …

  1. [49]
    Clause 10.2 of the RS Directive provides (emphasis added):

10.2Assessment processes for advertised vacancies must:

  1. (a)
    incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role;
  1. (b)
    take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance);
  1. (c)
    incorporate pre-employment checks (including referee checking) as per clause 11;
  1. (d)
    measure the relative merit of each applicant; and
  1. (e)
    be consistent with the principles of employment equity and anti-discrimination.
  1. [50]
    Clause 10.3 of the RS Directive provides (emphasis added):

Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants).

  1. [51]
    Clause 10.5 of the RS Directive provides:

If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended application is considered to be more meritorious that then next in the order of merit, must be provided.

  1. [52]
    Clause 10.6 of the RS Directive provides (emphasis added):

In approving an appointment, the decision maker (delegate) must be satisfied that the proposed appointee is the most meritorious and (where applicable) the selection process complies with the PSA and this directive.

  1. [53]
    Clause 11 of the RS Directive refers to "Pre-employment checking (including referee checks)".  Clause 11.2 and 11.3 provides that (emphasis added):

Referee checking relating to an applicant's work behaviour and performance (including seeking the referee's knowledge about past performance assessments and past serious disciplinary action) must be conducted.  The panel is responsible for determining when, during the selection process, referee checking if to be conducted. 

At a minimum, referee checking must be conducted in relation to the applicant(s) recommended for appointment and (where applicable) on an order of merit.  Referee checking for other applicants is at the discretion of the panel.

Consideration

  1. [54]
    The determination of this appeal turns on whether Mr Williamson is able to establish that the second selection process was deficient.

 Effect of changed priorities of the role on the applicants shortlisted for interview

  1. [55]
    Mr Williamson contends that the process was deficient in determining the merit of the applicants to be shortlisted for interview. 
  1. [56]
    The second selection panel shortlisted four applicants for interview.  Those same four applicants had also been shortlisted for interview by the first selection panel. 
  1. [57]
    However an additional two applicants - Mr Williamson and Mr Murphy - had previously been shortlisted for interview by the first selection panel, but had not been shortlisted for interview by the second selection panel.
  1. [58]
    Mr Williamson surmised that omission was due to residual irritation resultant from the success of his earlier appeal of the first promotion decision, in which Mr Murphy had also provided an Affidavit in support.  That claim was denied by the Department.
  1. [59]
    Mr Williamson said that between the first selection process (subject of his first appeal) and the second selection process (subject of this appeal), the priorities of the promotional position were changed.  He claimed this was done to enhance the selection prospects of the promotional appointee.  The Department denied that was the case. 
  1. [60]
    In circumstances where Mr Williamson was 'first' and then 'second' in the order of merit established by the first selection panel through that earlier interview process, he submitted that the only way he would not make the shortlist once again was if the priorities of the role were altered for the second selection process.
  1. [61]
    Notwithstanding its denial that the role priorities were changed to advantage the promotional appointee, the Department proceeded to argue that it was open to the second selection panel and delegate to make their own assessment of the priorities of the role and they were not bound by what a previous panel or delegate may have identified.  The Department submitted that "it was entirely appropriate for the selection panel and delegate to have considered that experience in the resource sector and managing teams team and in the engagement compliance framework was central to the role given the KDA and competencies of the Role."
  1. [62]
    I consider that the process with respect to the shortlisting of applicants for interview was deficient.  My reasons follow.
  1. [63]
    On 22 July 2020, Deputy President Merrell had ordered that the first promotion decision be set aside and that the Department's chief executive continue with the recruitment and selection process for the vacant position from the point immediately after the receipt of the applications from the 28 applicants for vacancy reference number 331637/19.  The Role Profile for said vacancy had already been created.[59]  In accordance with his Honour's orders, the vacancy was not readvertised - but rather the selection process resumed from the point of receipt of the 28 applications.  The Key Duties and Accountabilities, Competencies and Role Requirements contained in the Role Profile therefore remained undisturbed. 
  1. [64]
    Clause 9.4(a)(b) of the RS Directive prescribes the information that must be provided when a vacancy is advertised (either in the advertisement itself or in material such as the role description), including "a description of the duties to be undertaken and the key capabilities against which applicants' merit will be assessed" and "any mandatory qualifications or conditions…" 
  1. [65]
    I do not agree that it was open to the second selection panel and delegate to disturb the settled priorities of the role after the vacancy had been advertised, the Role Profile created and the selection process reset and resumed by order of the Commission.  If it were true that "experience in the resource sector" was in fact genuinely "central to the role given the KDA and competencies of the Role", one would reasonably have expected to see that express requirement contained in the Role Profile.  It does not appear.
  1. [66]
    Contrary to the mandatory requirement of cl 9.4(a) of the RS Directive in such circumstances, "experience in the resource sector" has not been advertised as one of the "key capabilities against which applicants' merit will be assessed." 
  1. [67]
    In my view, it is unfair and unreasonable for the second selection panel to have elevated an unpublished criteria of "experience in the resource sector" such that two previously shortlisted applicants were excluded as a result.

 Findings

  1. [68]
    I find that it was not open to the Department to shift the goal posts in the second selection process, with respect to the changed priorities of the role.  The unpublished requirement for "experience in the resource sector" was not included as a key capability against which applicants' merit will be assessed, as required by the RS Directive.  Thus that aspect of the process utilised for selecting applicants for interview was deficient.

Requirement to measure the relative merit of each applicant

  1. [69]
    Clause 10.2 of the RS Directive provides that the assessment processes for advertised vacancies must measure the relative merit of each applicant."
  1. [70]
    The evidence of the shortlisting matrix indicates to me that applicants' merit has not been fairly assessed with respect to the unpublished elevated requirement for "experience in the resource sector".  Mr Williamson has pointed to specific examples where other applicants have been considered not to have had such resource sector experience but have nonetheless been shortlisted for interview. 
  1. [71]
    Even if the Department's position were to be accepted that the priorities of the role could change in the second selection process, one would still encounter the fatal flaw of that requirement not being fairly applied between applicants at the point of determining the cohort to be interviewed by the second selection panel.
  1. [72]
    Further to the RS Directive requirement to "measure the relative merit of each applicant", Mr Williamson has also challenged the impossibility of properly discharging this duty in the absence of interview question benchmarking.  While such documentation would certainly have assisted the independent review of the selection decision for the advertised vacancy in this case, the Selection Report[60] provided does meet the minimum requirement under cl 10.3 of the RS Directive for "…a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants)."
  1. [73]
    The Selection Report approved by the delegate includes the statement that "I have made my decision after reviewing the following material provided to me by the panel (Insert list of all documents provided to the decision maker)."  The boxes ticked indicate that the following were provided to the delegate in this case: "Role description"; "Selection report"; "Application material of the recommended applicant and all applicants assessed as meritorious"; "Referee reports for recommended applicant(s)".  I observe that although a "Short-listing matrix" was created by the second selection panel, it was not provided to the delegate.  In hindsight, this may have been a useful inclusion.

Findings

  1. [74]
    I find that the unpublished requirement for "experience in the resource sector" was not fairly applied in the assessment of applicants for shortlisting.  That is a further deficiency in the second selection process conducted.  I am satisfied that the examples from the shortlisting matrix provided illustrate the point made by Mr Williamson.[61] 

Was the second promotional decision based on merit alone – or was it infected with bias to engineer a pre-determined outcome?

  1. [75]
    Mr Williamson stated that he was the most meritorious applicant for the promotional position.  His submissions elaborate why he believes that to be the case.  In addition, the Decision of Deputy President Merrell recounted in some detail that Mr Williamson was 'first', and then 'second', in the order of merit established by the first selection panel through that earlier selection process conducted in the February / March 2020 period. 
  1. [76]
    The Department countered that claim is impossible to make, given Mr Williamson does not have access to the remaining 27 applications.
  1. [77]
    On this point, I agree.  Ahead of the conduct of any selection process in accordance with the requirements of the PS Act and RS Directive, Mr Williamson cannot know with certainty whether or not he is the most meritorious applicant for the promotional position at the present time. 
  1. [78]
    It is not in dispute that appointments "must be based on merit alone"[62] and that "the following must be taken into account – the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question."[63]
  1. [79]
    My consideration now turns to Mr Williamson's contention that essentially the second selection process was infected with bias to engineer a pre-determined outcome.
  1. [80]
    Allegations of bias should not be made lightly, as they are not taken lightly. 
  1. [81]
    Mr Williamson submitted that the following events supports his conclusion:
  1. a.
    The promotional appointee was acting in the promotional position whilst thefirst appeal was on foot and after the first appeal Decision was issued.
  1. b.
    The promotional appointee's substantive position has since been permanently filled.
  1. c.
    The promotional appointee's website profile was updated on the same day as Deputy President Merrell's Decision was released.
  1. d.
    The second selection panel was aware that the first promotion decision had been revoked by his Honour's Decision.

Promotional appointee was acting in the promotional position

  1. [82]
    Mr Williamson submitted that allowing the promotional appointee to continue in the promotional position after the first promotion decision had been revoked by Deputy President Merrell indicated the Department's disregard for due process with respect to the appeal.
  1. [83]
    The Department stated that the promotional appointee performed the role while the first appeal was ongoing as "…there is no legal requirement for the Respondent to delay the implementation of reviewable decisions until the relevant appeal period has expired.  Such a requirement would cause significant operational inconvenience."[64]  The Department noted that the promotional appointee continued in the promotional position on a temporary basis, following his Honour's Decision.
  1. [84]
    Mr Williamson filed his first appeal on 17 April 2020 and his Honour released his Decision on 22 July 2020.  That Decision found there to be deficiencies in the first selection process and ordered that the appointment being revoked and the selection process reset and resumed.  That second selection process takes time – and a second appeal was subsequently filed by Mr Williamson in this matter.  Further time was therefore required to decide this appeal. 
  1. [85]
    The point is that 1 year and 3 months has now elapsed since Mr Williamson filed his first appeal against the first promotion decision.  In such circumstances, it is quite reasonable that "someone" be appointed by the Department to undertake the promotional position on a temporary basis in the meantime.

Findings

  1. [86]
    In my view, there is no inference to be drawn as to the Department's reasons for appointing the promotional appointee to the promotional position on a temporary basis other than an operational need to get the work done – whilst the appeal process and resultant Decisions run its course.

Promotional appointee's substantive position has since been permanently filled

  1. [87]
    Mr Williamson submitted that while his appeal of the first promotion decision was underway, the Department moved to fill the promotional appointee's substantive position and that permanent appointment was gazetted on 3 July 2020.   His Honour released his Decision in the first appeal on 22 July 2020, shortly thereafter. 
  1. [88]
    Mr Williamson stated that the timing of that recruitment process, and appointment of the successful candidate to the promotional appointee's substantive position, prior to the first appeal being decided was "pre-emptive and reckless."   Further, Mr Williamson observed that if the promotional appointee was not appointed to the promotional position, he would have no position with the Department. 
  1. [89]
    This is refuted by the Department, who instead says it "…would be required to locate a suitable alternative (ongoing) role…"  for the promotional appointee in that event.  That is consistent with the requirement under cl 11.3 of the Pre-Amendment Appeals Directive.  It is admitted that Mr Keenan was aware of this circumstance during the recruitment process, however the remaining two members of the second selection panel were not.
  1. [90]
    While Mr Williamson believes that this demonstrated the Department's determination to shoehorn the promotional appointee into the promotional position permanently and decisively, I take a different view.  As explained above, the time between Mr Williamson filing his first appeal and this Decision on his second appeal is 1 year and 3 months.  That would be a significant period of time for any person to be acting in a position at higher classification level on a temporary basis.  In fact, following amendments to the PS Act effective 14 September 2020, if the Department had not permanently appointed someone to the promotional appointee's substantive position, that person would now likely be entitled to request conversion to the higher classification position permanently under s 149C of the PS Act.  Section 25(2)(d) of the PS Act further prescribes that "Public service employment is to be directed towards promoting – …employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial employees".  That principle is confirmed again at cl 1.1 of Directive 13/20: Appointing a public service employee to a higher classification level (the Higher Classification Directive). 

Findings

  1. [91]
    With all that in mind, while the Department would no doubt prefer not to have to find a suitable alternative ongoing role for the promotional appointee in the event that the second selection panel and delegate had made a different second promotion decision – I do not believe that to be sufficient or determinative in these circumstances.

Update of promotional appointee's website profile

  1. [92]
    Mr Williamson submitted that further evidence of the Department's intention to retain the promotional appointee in the promotional position was said to be the modification of the promotional appointee's profile on the Queensland Government's 'Govnet' website to show that he held the position 'Manager, Field and Compliance, Department of Natural Resources, Mines and Energy.'  Mr Williamson noted that this profile update was done on 22 July 2020, the same date of the release of Deputy President Merrell's Decision.
  1. [93]
    The Department's submissions do not address Mr Williamson's claim.[65]
  1. [94]
    I see that Attachment 5 to the Appellant's submissions contains the relevant profile from the 'Govnet' website.  I agree that document shows that the modification occurred on "Wed 22-7-2020 7:30".  I have reviewed the email sent by Associate Merrell releasing his Honour's Decision in the first appeal and note that it was sent on 22 July 2020 at 11:45 am.  Seemingly, the release of his Honour's Decision was after the modification to the Govnet website profile – not before. 

Findings

  1. [95]
    The timing of the profile update appears to me to be coincidence - rather than an expression of the Department's pre-determination of the outcome of the promotional position.

Second selection panel was aware that the first promotional decision had been revoked

  1. [96]
    Mr Williamson stated that the Department's efforts to conceal the second selection panel's knowledge of his first appeal and subsequent QIRC Decision strongly indicate that it is relevant to his claims of bias and pre-determined outcome.[66]  He argued that whilst the Department submitted that the second selection panel members were aware that the first promotion decision had been revoked, they were not aware that occurred as a result of Mr Williamson's appeal and direction by the QIRC.  Mr Williamson submitted that is not supported by the following evidence:[67]
  1. a.
    Mr Keenan's file note of the feedback conversation with Mr Williamson stated "…I noted that issue with the process and QIRC advice to restart.  Ian mentioned it was a direction, I agreed."[68]
  1. b.
    References to the first appeal and RTI process was documented in emails between Departmental officers.[69]
  1. c.
    The positional reporting lines and physical office proximity between people involved in the appeal and second selection process means it is unlikely to have been "conducted in isolation."[70]
  1. d.
    Another Departmental officer[71] had been involved in the first selection process but also provided an Affidavit in the second appeal, monitored the RTI process and was aware of information with respect to the second selection process including assembly of the new panel.[72]
  1. [97]
    With respect to Mr Keenan's file note of the feedback conversation, the Department has admitted that "The selection panel were aware that the previous promotion decision had been revoked but were not aware that this was the result of an appeal brought by Mr Williamson or what Mr Murphy's involvement had been in the appeal." [73]   That is not inconsistent with the file note Mr Williamson referenced in his submission.  Mr Keenan is a Manager, Human Resources with the Department.  In that capacity, he would no doubt appreciate that if the previous first promotion decision had been revoked and the selection process restarted, it would be due to a successful appeal to the QIRC.  What the Department said was that the selection panel did not know that appeal was "…brought by Mr Williamson or what Mr Murphy's involvement had been…"  The file note indicated that Mr Williamson first raised the issue with Mr Keenan in that feedback discussion as "Mentioned if I knew about the process…" and "Ian mentioned it was a direction, I agreed."  In those circumstances, what is demonstrated is that Mr Williamson effectively let it be known that it were he who had filed the first appeal.  The notes of that exchange do not prove that the Department had misrepresented 'who knew what and when' in their submissions on that point.
  1. [98]
    With respect to the Department officers' emails containing references to the first appeal and RTI process, and the Department officer involved in the first selection process but also said to be aware of information with respect to the second selection process including assembly of the second selection panel, I would simply note that much work flows from the filing of an appeal such as this.  Directions Orders are issued by the Commissioner allocated the matter to decide and those must be responded to.  His Honour's Decision revoking the appointment and ordering the selection process be restarted resulted in further work to be done unpicking arrangements made and establishing a second selection panel and process.  The foundational point is that the second selection panel members were not part of the first selection panel, consistent with his Honour's orders.  In a similar vein, whilst some Departmental officers had exchanged emails about some such aspects, they were not members of the second selection panel. 
  1. [99]
    Mr Williamson has also submitted that the lines of report and physical office location proximity between Mr Keenan and the Departmental officers who had exchanged emails about the matter were so "…inextricably linked that the suggestion that this process was conducted in isolation from the first is absurd."  I recognise that Mr Williamson has now been actively engaged in two selection processes and two appeals of the ensuing promotion decisions for a period of more than 1 year and 3 months.  I can imagine it has consumed much of his personal time and occupied his thoughts.  However, it is perhaps safe to assume that it has not absorbed Departmental officers to the same degree.  There would be other priorities, projects and staffing matters to progress.  Similarly, 1 William Street is a large building housing hundreds of public sector employees.  In light of that, even the submission that some of those Departmental officers are located on the same floor in that building does not persuade me to the required standard that bias is evidenced.
  1. [100]
    In the Department's submissions, I observed it was precisely said that "The selection panel was not aware of which applicants had been shortlisted in the previous recruitment process, however, became aware on 1 September 2020 (through an email from another applicant) that the Relevant Appointee had been permanently appointed to the Role in the previous promotion decision."[74]
  1. [101]
    As the second selection panel met to shortlist applicants on 7 September 2020, it is clear that they were all aware of who had been subject of the first promotion decision before shortlisting.  However, given the promotional appointee was likely to have included his current temporary position (and period acting in the position) in the material submitted in the second selection process, I do not consider that to be significant in this Decision.

 Findings

  1. [102]
    I am not persuaded there is sufficient evidence of bias in the material before me.

Conclusion

  1. [103]
    Mr Williamson appeals against the second promotion decision. 
  1. [104]
    An IRC member may only set aside a promotion decision if they find that the recruitment or selection process was deficient.  In determining whether there was such a deficiency, an IRC member must consider whether the recruitment and selection process complied with the PS Act, a regulation, and a directive of the commission chief executive.
  1. [105]
    For the reasons explained above, I have found that this second selection process conducted by the Department was also deficient, as it again did not comply with the PS Act and RS Directive. 
  1. [106]
    I acknowledge that the impact of this Decision will also be felt by Mr Greg Farlow, the advertised successful candidate for the promotional position,[75] through no fault of his own.  I appreciate that Mr Farlow has now been working in the promotional position since April 2020[76] - a considerable period of time.
  1. [107]
    However, it remains that the second selection panel's inattention to the express requirements of the process to be undertaken will unfortunately result in a further period of professional uncertainty for several applicants. 
  1. [108]
    Having acknowledged the 'human impact' of this Decision, the Act and Directive prescribes mandatory terms to be complied with.  I am required to determine findings on the various appeal grounds on that basis alone.
  1. [109]
    The appeal is upheld.

Orders:

  1. The promotion decision is set aside.
  2. The matter is returned to the Department of Natural Resources, Mines and Energy with a copy of this decision.
  3. I direct that, within one month, the chief executive of the Department of Natural Resources, Mines and Energy is to revoke the appointment of Mr Greg Farlow to the position of Manager, Field and Land Access, Engagement Field and Compliance, Divisional Support, Georesources, classification AO8, vacancy reference number 331637/19, and publish a gazette notice that the appointment is revoked.
  4. I direct that a new selection panel is to be formed, for the purposes of selecting an applicant for the vacant position of Manager, Field and Land Access, Engagement Field and Compliance, Divisional Support, Georesources, classification AO8, vacancy reference number 331637/19, ('the vacant position') and that the new selection panel must not include:

a. Mr Brent Keenan, Manager, Human Resources, Workforce Management and Analytics, Human Resources, Business and Corporate Partnership, of the Department;

b. Ms Anita Bellamy-McCourt, A/Director, Georesources Policy, Policy Division of the Department;

c. Mr Andrew Grabski, Executive Director, Technical Services, Georesources of the Department;

d. Mr Cale Dendle, Executive Director, Minerals and Coal of the Department;

e. Dr Steven Ward, Director, Engagement and Compliance of the Department;

f. Ms Althea Cardwell, Acting Director, Energy Division of the Department; and

g. Ms Kerynne Birch, Extractions Energy and Chemical Industries, Department of Environment and Science.

5.  The new selection panel must be provided with a copy of ss 27 and 28 of the Public Service Act 2008 (Qld) and Public Service Commission Directive 15/13: Recruitment and Selection.

6.  The chief executive is to continue the recruitment and selection process for the vacant position from the point immediately after the selection of shortlisted applicants for interview.  The shortlisted applicants in the resumed selection process shall comprise the four shortlisted applicants in the process subject of this appeal, together with both Mr Williamson and Mr Murphy.

Footnotes

[1] Executive Director, Minerals and Coal, Department of Natural Resources, Mines and Energy.

[2] Manager, Human Resources, Workforce Management and Analytics, Human Resources, Business and Corporate Partnership, Department of Natural Resources, Mines and Energy.

[3]A/Director, Georesources Policy, Policy Division, Department of Natural Resources, Mines and Energy.

[4] Executive Director, Technical Services, Georesources, Department of Natural Resources, Mines and Energy.

[5] Respondent’s Submissions filed 20 January 2020, page 2, [11].

[6] Ibid [12].

[7] Directive 07/20 Appeals cl 5.2(e).

[8] As Deputy President Merrell’s previous Decision ordered that the recruitment and selection process resume under a new panel at the point immediately after receipt of the 28 applications.

[9] Mr Keenan provided feedback to Mr Williamson on 30 September 2020; Respondent’s submissions filed 20 January 2021, [29].

[10]Industrial Relations Act 2016 (Qld) s 562B(3).

[11] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[12] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.

[13] Industrial Relations Act 2016 (Qld) s 562C(2).

[14] Ibid.

[15] Directive 15/13 Recruitment and Selection cl 7.1.

[16] Appellant’s submissions filed 17 December 2020, page 3 [11].

[17] Appellant’s further submissions filed 24 March 2021, page 1 – 2, [3] – [5].

[18] Ibid page 2 – 3, [6] – [7].

[19] Ibid page 3, [8] – [9].

[20] Appellant’s further submissions filed 24 March 2021, page 3, [10], Attachment 4 Email from Mr Keenan to Mr Williamson dated 19 March 2021.

[21] Appellant’s further submissions filed 24 March 2021, page 3, [10].

[22] Appellant’s submissions filed 17 December 2020, page 4 [15].

[23] Appellant’s submissions filed 17 December 2020, page 5 [18].

[24] Ibid page 5 [19].

[25] Ibid page 1 [2].

[26] Shortly prior to the release of Deputy President Merrell’s Decision in PSA/2020/47 on 22 July 2020.

[27] Mr Dale Leathbridge was promoted to the position of Principal Mining Registrar, Mineral Assessment Hub, Minerals and Coal, Georesources.

[28] Appellant’s submissions filed 17 December 2020, page 1 [5].

[29] Appellant’s submissions filed 17 December 2020, page 2 [6].

[30] Ibid [8].

[31] Ibid [10].

[32] Appellant’s submissions filed 17 December 2020, page 2 [10].

[33] Appellant’s further submissions filed 24 March 2021, page 2 [4].

[34] Appellant’s submissions filed 17 December 2020, page 3 – 4 [14].

[35] Appellant’s further submissions filed 24 March 2021, page 1 [1].

[36] Ibid Attachment 1.

[37] Appellant’s further submissions filed 24 March 2021, Attachment 2 contained email exchanges between Departmental officers.

[38] Appellant’s further submissions filed 24 March 2021, page 1 [1].  Both reporting lines of departmental officers’ positions and the location of their offices on the same level of the building were noted by the Appellant.

[39] Ms Tania Fitzgerald, Manager, Divisional Corporate Support, Georesources, Department of Natural Resources, Mines and Energy.

[40] Appellant’s further submissions filed 24 March 2021, Attachment 3 contained emails indicative of that claim.

[41] Ibid page 1, [2].

[42] Respondent’s submissions filed 20 January 2021, page 1, [2].

[43] Respondent’s submissions filed 20 January 2021, page 4, [26].

[44] Ibid [27].

[45] Respondent’s submissions filed 20 January 2021, page 5, [30].

[46] Ibid page 2, [7] – [8].

[47] Respondent’s submissions filed 20 January 2021, page 3, [19].

[48] Ibid page 1, [5].

[49] Respondent’s submissions filed 20 January 2021, page 3, [20].

[50] Ibid.

[51] Respondent’s submissions filed 20 January 2021, page 3, [20].

[52] Ibid [20](d).

[53] Directive 15/13 Recruitment and Selection cl 9.

[54] Ibid cl 10.2

[55] Ibid cl 10.3.

[56] Ibid cl 11.

[57] Ibid cl 12.

[58] Ibid cl 13.

[59] Appellant’s submissions, filed 17 December 2020, Attachment 9.

[60] Respondent’s Submissions, Attachment 3.

[61] Appellant’s further submissions filed 24 March 2021, page 2-3, [5] – [9].

[62] Public Service Act 2008 (Qld) s 27.

[63] Ibid s 28(a).

[64] Respondent’s submissions filed 20 January 2021, page 1, [5].

[65] Mr Williamson made the claim in submissions filed 17 December 2020, Attachment 5 and the Department’s submissions were filed after that date on 20 January 2021.

[66] Appellant’s further submissions filed 24 March 2021, page 1 [2].

[67] Ibid [1].

[68] Ibid Attachment 1.

[69] Appellant’s further submissions filed 24 March 2021, Attachment 2 contained email exchanges between Departmental officers.

[70] Appellant’s further submissions filed 24 March 2021, page 1 [1].  Both reporting lines of departmental officers’ positions and the location of their offices on the same level of the building were noted by the Appellant.

[71] Ms Tania Fitzgerald, Manager, Divisional Corporate Support, Georesources, Department of Natural Resources, Mines and Energy.

[72] Appellant’s further submissions filed 24 March 2021, Attachment 3 contained emails indicative of that claim.

[73] Respondent’s submissions filed 20 January 2021, page 3 [20](h).

[74] Respondent’s submissions filed 20 January 2021, page 3 [20](d).

[75] As gazetted for a second time on 6 November 2020.

[76] Then acting in the promotional position on a temporary basis, following his Honour’s Decision on the first appeal on 22 July 2020.

Close

Editorial Notes

  • Published Case Name:

    Williamson v State of Queensland (Department of Natural Resources, Mines and Energy)

  • Shortened Case Name:

    Williamson v State of Queensland (Department of Natural Resources, Mines and Energy)

  • MNC:

    [2021] QIRC 247

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    23 Jul 2021

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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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