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  4. Hume v State of Queensland (Queensland Health) - [2021] QIRC 272

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Hume v State of Queensland (Queensland Health)[2021] QIRC 272

Hume v State of Queensland (Queensland Health)[2021] QIRC 272

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Hume v State of Queensland (Queensland Health) [2021] QIRC 272

Hume, Daniel William

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/130

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

5 August 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  2. The decision that Mr Hume's flexible working arrangements request be partially approved is set aside and another decision is substituted; and
  3. Mr Hume's flexible working arrangements be adjusted to require physical attendance at work 20% of the time (1 day each week).

CATCHWORDS:

PUBLIC SERVICE – SERVANTS AND EMPLOYEES OF THE CROWN GENERALLY – appeal against fair treatment decision – where flexible working arrangements request partially approved – considerations under Queensland Health Guideline for Flexible working arrangements and HR Policy – whether respondent considered request on an individual basis – where decision was not fair and reasonable – whether decision should be substituted with appellant's request

LEGISLATION & OTHER

INSTRUMENTS:

Directive 07/20 Appeals cl 5.2

Directive 11/20 Individual employee grievances cl 6

Industrial Relations Act 2016 (Qld) s 27, s 28, s 562A, s 562B, s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 194

Queensland Health, Flexible working arrangements HR Policy C5 (QH-POL-242) (June 2020)

Queensland Health, Guideline for Flexible working arrangements (February 2019)

Queensland Health, Leading and managing people in the new normal, Line manager pack

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Background

  1. [1]
    Mr Daniel Hume (the Appellant) is a Manager within the Infrastructure Analysis and Reporting Team of the Capital and Asset Services Branch (CASB) of the Corporate Services Division.  Mr Hume's employer is Queensland Health, State of Queensland (the Department; the Respondent). 
  1. [2]
    On 9 March 2021, Mr Hume submitted a flexible working arrangement request "to work from home 100% of the time."[1] The request was made pursuant to s 27 of the Industrial Relations Act 2016 (Qld) (IR Act).
  1. [3]
    On 30 March 2021, Mr Hume received written advice from Ms Fiona Brewin–Brown[2] (the decision–maker) that his request was partially approved as he must "return to work at 50% per fortnight (2 days one week and 3 days the other week)…" (the decision).[3]
  1. [4]
    On 12 April 2021, Mr Hume filed an appeal against the decision on the basis it was "not fair, reasonable, or consistent with Queensland Health's Flexible Working Arrangements Policy."[4]

Jurisdiction

  The decision

  1. [5]
    Section 194 of the Public Service Act 2008 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made.  Section 194(1)(eb) of the PS Act provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
  1. [6]
    On p 3 of the Appeal Notice, Mr Hume identifies the decision being appealed as:

I am appealing a fair treatment decision and I am not required to use my employer's individual employee grievances process before lodging this appeal against a disciplinary finding.

  1. [7]
    It is clear from the material before me that this matter does not relate to a disciplinary finding. I note that other than in respect of a disciplinary finding decision and a discipline decision, an appellant "seeking to lodge a fair treatment appeal is generally required to have used their agency individual employee grievance mechanism prior to lodging an appeal".[5]
  1. [8]
    Clause 5.2(h) of Directive 07/20 Appeals provides that an appeal may only be lodged by:

for a decision under section 194(1)(eb) (fair treatment decision) – a public service employee who is aggrieved by the decision. The public service employee should comply with the agency’s complaints management process prior to lodging the appeal.

  1. [9]
    In his reply submissions filed 19 May 2021, Mr Hume stated the decision–maker advised that Mr Hume must go through an internal departmental process prior to appealing to the QIRC. Consequently, Mr Hume sought advice from a Human Resources Officer regarding the internal appeals process. At that stage, Mr Hume was advised by that Human Resources Officer that he could appeal directly to the QIRC.
  1. [10]
    It appears that Mr Hume did not undertake the individual employee grievances process because of advice he received from the Human Resources Officer. I accept that Mr Hume at least enquired about the process with a view to undertaking it. Further, I note the Respondent has not contested that aspect of the Appeal Notice nor raised this omission as an issue.
  1. [11]
    Section 562A of the IR Act provides (emphasis added):
  1. (1)
    The commission may decide it will only hear an appeal against a decision mentioned in the Public Service Act 2008, section 194(1)(a), (d) or (eb) if the commission is satisfied—
  1. (a)
    the appellant has used the procedures required to be used by the employee in relation to the decision under a directive under that Act, including the individual employee grievances directive; and
  1. (b)
    for a fair treatment decision under the Public Service Act 2008, section 194(1)(eb)—it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).
  1. [12]
    I acknowledge it is a requirement under the directives that Mr Hume ought to have gone through the individual grievances process and that is an important process that should be undertaken prior to filing an Appeal Notice. However, s 562A of the IR Act indicates that I may decide I will only hear an appeal under s 194(eb) of the PS Act if the appellant has used the individual employee grievances process. Stemming from that wording is a discretion that I may decide to hear an appeal even if that process has not been undertaken. Given the particular circumstances of this case, specifically the fact Mr Hume attempted to engage in the process but was advised otherwise by a Human Resources Officer, I will proceed to determine this appeal. 
  1. [13]
    Mr Hume has been an employee of the Department at all times relevant to this appeal.
  1. [14]
    I am satisfied that the fair treatment decision, as contained in the 'Flexible working arrangements – Application and agreement form' dated 30 March 2021, can be appealed.

 Timeframe for appeal

  1. [15]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [16]
    As the decision was given on 30 March 2021 and the Appeal Notice was filed on 12 April 2021 I am satisfied that the appeal was filed by Mr Hume within the required timeframe.

   What decisions can the QIRC Member make?

  1. [17]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  1. Confirm the decision appealed against; or
  1. Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  1. Set the decision aside and substitute another decision.

The request and decision

  1. [18]
    In his request dated 9 March 2021, Mr Hume detailed the following:
  • Working remotely saves Mr Hume between two and three hours commuting each week day – this also increases flexibility in working longer than contracted hours during times of relentless work and timeframes.
  • Working remotely significantly improves Mr Hume's work/life balance by providing him extended time with his young family, allowing him to flexibly share the parental and household load and be available for his elderly mother at short notice if required.
  • The work undertaken by Mr Hume has been performed via telecommuting more efficiently and with no adverse effects to the organisation for over 12 months now.
  • Mr Hume's productivity is improved by less distractions that occur in the office and from feeling more refreshed as a result of the eliminated commute time.
  • Mr Hume is "far more agile working from home with the ability to quickly jump in and out of adhoc/unscheduled meetings and calls" and his level of contact with stakeholders has increased as a result.
  • Working from the office negatively affects Mr Hume's mental health when compared with working from home and adds to the external stresses associated with family life. Mr Hume has suffered far less illness over the last year which he attributes to the reduced exposure to potential viruses.
  • When in person meetings and events cannot reasonably be facilitated via telecommuting, Mr Hume can make himself available to attend the required venue.
  1. [19]
    In her response dated 30 March 2021, the decision–maker decided Mr Hume must "return to work at 50% per fortnight (2 days one week and 3 days the other week)…" That arrangement was said to proceed for a three–month period with a review to occur after one month. The decision indicated that frequent check in discussions would be held as part of fortnightly meetings which would provide opportunities to assess the arrangement in context of individual, team and business requirements.
  1. [20]
    The decision–maker's reasoning can be summarised as follows:
  • The CASB requirement is 50% attendance per fortnight (i.e., two days one week and three days the following week).
  • The requirement to return to work is outlined in the Department of Health, Leading and managing people in the new normal, Line manager pack (the Pack).
  • As an AO8 Manager, Mr Hume will be required to implement the Pack with his team and will therefore need to individually lead and model the Department's requirements.
  • Mr Hume's position requires face to face access for direct reports, peers and line managers, which is often impromptu.
  • The aim is to balance the individual and organisational requirements.
  • Any effect on mental health was noted as general wellbeing and not a specific medical condition.
  • The proposed arrangement does not preclude minor variations on discussion and agreement at the manager or individual's request.

Appeal Notice

  1. [21]
    In his Appeal Notice filed 12 April 2021, Mr Hume submitted the following:
  • The Queensland Health Human Resources Policy titled 'Flexible working arrangements'[6] (the Policy) expresses Queensland Health's support and encouragement of flexible work practices and acknowledges mutual benefits of "boosting the performance and wellbeing of individuals and teams"[7] as well as "optimum work/life balance."[8]
  • The key principles underpinning the Policy include "Start from a position of how can we make this work", "Promote a guilt–free attitude to requests and implementation" and "No one size fits all – everybody and every situation is different".[9]
  • The Queensland Health 'Guideline for Flexible working arrangements'[10] (the Guideline) states that "Flexible work is not restricted to specific purposes, categories or level of employees. All employees have the right to request flexible working arrangements." Further, the Guideline states that employees should:

…have access to flexible working arrangements where this is operationally feasible. As a result, where possible, decision makers (delegates) should be looking for reasons to say 'yes', rather than 'no' without grounds.[11]

  • The decision maker took a blanket approach, rather than conducting a case by case analysis. This is supported by an occurrence in which Mr Hume's line manager directed her reports to ensure their respective teams physically attend the office 50% of the time, rather than assessing each person's request on a case by case basis.
  • Mr Hume's team has successfully worked remotely for more than 12 months "by focusing on productivity, performance and output". During this period, no issues were raised with the remote working arrangement but rather Mr Hume's line manager used the phrase "keep doing what you're doing". The feedback given to Mr Hume during this period was very positive.
  • The decision references the Pack rather than the Policy. The decision incorrectly asserts the Pack requires a return of employees to their workplace, when instead it serves as an information pack to assist line managers in supporting employees returning to the workplace. Mr Hume is modelling and discussing the principles and strategies outlined in the Pack with his team.
  • The last 12 months have shown that video communication software and the regular use of virtual meetings provides a valuable level of contact. Mr Hume submits that when working remotely, he is more accessible and agile to respond to his peers and line managers and has experienced increased interaction and collaboration. Prior to remote working, the primary form of contact was via email.
  • The decision lacked explanation of specific operational requirements preventing fruition of the request.
  • The decision–maker's comments regarding mental health seems to indicate that unless an employee has a specific diagnosed mental health condition, then any considerations of mental wellbeing do not apply – this does not align with the Policy or wider societal attitudes and expectations.
  • Mr Hume outlined his health concerns and submitted that working from home has provided him with far more time to exercise and make significant improvements to his diet. The Department should be leading the way in modelling initiatives that support staff in living a healthier lifestyle.

Respondent’s submissions

  1. [22]
    In its submissions filed 12 May 2021, the Respondent submitted the following:
  • In a newsletter dated 9 March 2021, the A/Executive Director of CASB set an expectation that all CASB employees physically attend the office 50% of their working time. This expectation still allowed for employees to request alternative flexible working arrangements. The purpose of the expectation was to allow the gradual return of employees to the workplace while prioritising their health and safety and balancing this priority against the importance of returning to normal business operations.
  • Clause 2.1 of Attachment One to the Policy pertains to consideration of flexible working arrangement requests and provides:

Each individual request is to be considered by the delegate on a case–by–case basis using a team approach that considers fairness, diversity and inclusion, the guiding principles, and legislative and operational requirements.

The delegate must be able to demonstrate they worked with the employee and the larger team to find solutions that best meet work, team and personal needs.

The delegate must be as fair and equitable as possible while managing the operational requirements of the work unit and ensuring appropriate performance.

Multiple requests are best managed by taking a proactive approach where all team members are invited to consider some form of flexible work that supports their personal and team performance wellbeing.

The delegate should consider the Guideline for Flexible Working Arrangements prior to making a decision.

  • The Pack relevantly provides the following:

Your team needs you to tap into your skills in leading through change, building and maintaining strong working relationships and engagement, creating a safe working environment, managing a hybrid workforce and leading and role modelling flexibility.

These skills will create an environment of trust where your team will feel supported, valued and connected to both you and the workplace.[12]

…

This pack complements the COVID–safe workplaces: Department of Health transition plan and will help you fulfil your line manager responsibilities.

The transition plan is guiding the staged and gradual return of employees to their workplace (principal place of work) and has been developed for Department of Health employees specifically.[13]

…

The health and safety of the workforce are the number one priority and the COVID–safe workplaces: Department of Health transition plan ensures that we can adapt to the ongoing need for physical distancing and hygiene measures to actively control against the transmission of COVID–19.[14]

We will continue to support vulnerable employees as we did throughout COVID–19. Employees who are vulnerable (that is, at a higher risk of serious infection from COVID–19), or live or care for a vulnerable person and are concerned, should refer to the COVID019 vulnerable employee guideline for information on what to do.[15]

  • Page 14 of the Pack lists the benefits of physically attending the workplace, including: social connection, access to technology and equipment, corridor conversations and informal meeting opportunities, observational learning, ability to understand the mood or vibe in the workplace on a given day, incidental exercise, face to face collaboration, workshopping and whiteboarding, ad hoc problem solving and decision making.
  • It is recognised that the decision–maker incorrectly stated in the decision that the Pack requires employees to return to the workplace.
  • Although there are no concerns with respect to Mr Hume's performance, this does not outweigh the expectation and ability for employees to return to their primary place of work and the benefits in doing so as outlined in the Pack.
  • The decision–maker does not recall making the comment, "keep doing what you're doing" as alleged by Mr Hume.
  • At times, working from home does not provide a delineation between the work and home environment. There is a risk of staff not "switching off" and working longer hours due to ease of access - this impacts the ability to achieve an optimum work/life balance.
  • Technology can limit the benefits of face to face interactions and ad hoc opportunities which may arise when physically present at work.
  • Mr Hume holds a key line management role within CASB for which meaningful engagement is required with his direct reports, peers, line managers as well as manager networks across the Department. This in turn supports and maintains a culture of connectedness within CASB and broader.
  • Working from home exclusively can often lead to a more sedentary lifestyle as incidental exercise (i.e., walking to and from public transport) is reduced.
  • The Department is obligated under the Work Health and Safety Act 2011 (Qld) to provide a healthy and safe work environment. This obligation extends to preventing the recurrence, aggravation, acceleration, exacerbation or deterioration of any existing injury in a person as a result of the person's work.
  • The Department is concerned that an optimum work/life balance would not be achieved if Mr Hume were to work from home 100% of the time. Further, working from home 50% of the time is a significant increase from Mr Hume's pre–COVID arrangement of working at home 20% of the time. 
  1. [23]
    The Respondent submitted that when assessing individual flexible working arrangement requests, decision makers are bound by legislative provisions and guided by documents specific to the Department as outlined above.

Appellant’s reply submissions

  1. [24]
    Mr Hume provided further submissions in reply on 19 May 2021 as summarised below:
  • The decision did not include a statement that the QIRC has jurisdiction to hear and decide a dispute over the request.
  • Mr Hume outlined a number of events that occurred upon his return to work in accordance with the decision and evidently, following the decision. For reasons I will outline below, it is not necessary to summarise those events here.
  • Rather than building on the practical and productive working arrangements formerly in place, the decision and Respondent's submissions appear to "focus on vague hypothetical benefits or situations rather than specific requirements or consideration of my individual circumstances."
  • Mr Hume is able to "switch off" when working from home by leaving his work phone and computer in his office and not using those devices until work commences again.
  • The direct, straight to the point nature of virtual meetings keeps people on point and reduces time wasted travelling to and from meeting rooms, different floors or different buildings. In the office, Mr Hume is faced with plenty of adhoc personal interactions, however in his experience, these interactions are not work–related but rather socially focused.
  • Mr Hume's role description has not been updated since 2017. Regardless, Mr Hume has adhered to every requirement of the role for over more than 12 months of working remotely.
  • Mr Hume's role predominantly involves servicing stakeholders across the Queensland HHSs and across Government, rather than just stakeholders on his floor. The uptake of telecommunication has rendered the physical location of Mr Hume's work redundant, especially when considering the layout of the office over multiple floors and the likelihood of not "bumping into" stakeholders relevant to his role.
  • The exercise Mr Hume is able to undertake when working from home far outweighs any incidental exercise undertaken at work. Mr Hume spoke to some health benefits he has noted including weight loss and lowered blood pressure.
  • Mr Hume's wife is looking to re–enter the workforce and allowing him to work remotely will make this transition more manageable for his family.
  • The Department has overestimated the "assumed social aspects of in–person interactions" and underestimated the mutual benefits of working remotely.

Consideration

  Compliance with s 28 of the IR Act

  1. [25]
    In his reply submissions, Mr Hume raised that the decision–maker failed to stipulate in her decision "that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6" as required under s 28 of the IR Act.
  1. [26]
    I acknowledge that omission and so too should the Department for future matters. However, Mr Hume was fortunately able to identify that opportunity and filed the Appeal Notice within the required timeframe. Therefore, it does not pose a significant issue in this matter.

  Appeal principles

  1. [27]
    In his reply submissions, Mr Hume set out a number of events that occurred subsequent to the decision. I did not summarise those events above and will not consider them for the reasons that follow.
  1. [28]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [29]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Department and the associated decision–making process.  
  1. [30]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.
  1. [31]
    The issue for my determination is whether the decision was fair and reasonable. I do not consider the events outlined by Mr Hume that occurred following the decision to be relevant to determining whether the decision was fair and reasonable in the circumstances. 

  Was the decision fair and reasonable?

  1. [32]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[16]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

  1. [33]
    The essence of Mr Hume's submissions is that the decision was not fair and reasonable because his individual circumstances were not considered. Mr Hume submitted that by virtue of applying a "blanket approach" to the decision–making process, the Department has not complied with the Policy or Guideline.
  1. [34]
    The decision was prefaced with the proposition that currently the CASB "requirement is workplace attendance 50% per fortnight". The decision–maker then noted that returning to work is a requirement under the Pack – however, this statement was subsequently retracted in the Department's submissions. The decision then turned to focus on Mr Hume's position, noting he is an AO8 Manager and requires face to face access for direct reports, peers and line managers, which is often impromptu.
  1. [35]
    The impression I gauged from the decision and subsequent submissions, is that the most significant reason for determining a flexible working arrangement of 50% is that it is an expectation of the particular branch that Mr Hume works within. In the decision–maker's opinion, the fact Mr Hume is in a managerial role supported that arrangement. The Respondent submitted the expectation still allowed for employees like Mr Hume to request alternative flexible working arrangements. That is a necessary ability that was reasonably included. However, upon Mr Hume requesting alternative arrangements, it is unreasonable for the Respondent to then primarily rely on that expectation without sufficient backing. In fact, the reasonableness of allowing employees the opportunity to request alternative arrangements is somewhat negated by the consideration being primarily based on the expectation itself.
  1. [36]
    In its submissions, the Respondent contends the purpose of the expectation was to allow the gradual return of employees and balance the priority of health and safety with "the importance of returning to normal business operations". Flexible working arrangements and the supporting Policy and Guideline suggest that the concept of "normal" is evolving. If business operations can occur efficiently while an employee is working remotely, "returning" is not necessarily as important. The purpose behind the expectation supports Mr Hume's contention that a blanket approach has been taken in firstly setting that expectation and secondly, relying primarily on that expectation when making the decision.
  1. [37]
    Mr Hume relevantly pointed to a Policy principle that "No one size fits all – everybody and every situation is different".[17] This is supported by cl 2.1 of Attachment One to the Policy which states that "Each individual request is to be considered by the delegate on a case–by–case basis…" The idea of "optimum work/life balance"[18] is not obtainable simply by dividing in half an employee's time between home and the office. Achieving that balance will be different for each individual and therefore requires specific consideration of that individual's circumstances.
  1. [38]
    Mr Hume comprehensively set out the reasons why he submits working from home 100% of the time would achieve mutual benefits of boosting performance and his own wellbeing. With respect to his personal life, Mr Hume submitted he has been able to live a healthier lifestyle working remotely, assist with domestic duties and reduce external family stressors. With respect to his work performance, Mr Hume submitted he and his team have successfully worked remotely for more than 12 months and have received positive feedback regarding this period. Further, Mr Hume submits he is more accessible and agile through telecommunication which has led to increased interaction and collaboration.
  1. [39]
    In response, the Respondent raised incidental exercise benefits as well as concerns regarding living a sedentary lifestyle and being unable to "switch off" after work. The Respondent's submissions were broad and did not relate back to Mr Hume directly. For those reasons, I accept Mr Hume's submission that the Respondent's reasoning tends to "focus on vague hypothetical benefits or situations rather than specific requirements or consideration" of Mr Hume's individual circumstances. In this regard, I accept the position of Mr Hume rather than the general assumptions put forward by the Respondent, because each individual is different.
  1. [40]
    The approach taken to the decision–making did not comply with the Policy nor Guideline for the reasons outlined above. On that basis, I find the decision was not fair or reasonable and should be set aside and substituted with an alternative decision. I will now consider what that alternative decision should be.

 Should the decision be substituted to grant Mr Hume's request?

  1. [41]
    I understand the Department's concerns regarding Mr Hume being able to satisfactorily undertake his managerial duties remotely. The Guideline states that the right to flexible working arrangements is not restricted to specific types of employees.[19] However, in determining whether flexible working arrangements are "operationally feasible"[20] it is reasonable for the Department to take into account the fact Mr Hume is a line manager to other employees and that his remote working may therefore impact his responsibilities in that regard.
  1. [42]
    The Policy and Guideline do not limit the decision–maker's focus to the Department and the requesting party, but rather extends to considerations of the team's wellbeing and its performance as a whole. I note that Mr Hume's role description lists an essential requirement as being "Demonstrated experience in successfully leading, managing and developing a team within a high pressure environment, ensuring efficient and effective delivery of high quality insightful reporting."[21]
  1. [43]
    The Pack outlines the need for employees like Mr Hume to use their skills "in leading through change, building and maintaining strong working relationships and engagement… and leading and role modelling flexibility."[22] The Pack lists several benefits of physically attending the workplace. Of particular note was observational learning, informal meeting opportunities and the ability to understand the mood or vibe in the workplace on a given day. Those are particularly important abilities for a manager to have and are matters that cannot always be effectively undertaken or assessed through telecommunication.
  1. [44]
    Further, although Mr Hume contends he is able to effectively collaborate, network and ad hoc problem solve remotely, that may not be the case for his colleagues and particularly his direct reports. A managerial role necessarily requires that you are accessible and approachable. It may be the case that when a manager is permanently absent from work, a direct report is affected by virtue of not being able to undertake observational learning or ask impromptu questions without needing to set up a video call.
  1. [45]
    Flexibility works both ways and a flexible working arrangement is to be just that – flexible. Although Mr Hume contends he will attend work for events or meetings that cannot be conducted through telecommunication, I do not consider that arrangement to be flexible enough in light of Mr Hume's managerial role. The nature of Mr Hume's role warrants consideration of how the flexible working arrangement would affect those employees that fall under his responsibility and for that reason, I do not accept that working from home 100% of the time is appropriate in the circumstances.

What decision should be substituted?

  1. [46]
    For the reasons outlined above, I have concluded that working from home 50% of the time is an unreasonable decision in light of Mr Hume's personal circumstances. Notwithstanding, I have also concluded that working from home 100% of the time is not fair nor feasible having regard to the needs of the team and Mr Hume's direct reports.
  1. [47]
    With a view to balancing Mr Hume's individual benefits and organisational requirements of the Department, I will substitute the decision to allow Mr Hume to work from home 80% of the time and attend work 20% of the time. Specifically, Mr Hume will be required to physically attend work one day per week - and that new arrangement shall commence within 14 days of the release of this decision, subject to the Chief Health Officer's directions relating to the current Brisbane COVID-19 lockdown.
  1. [48]
    I note Mr Hume's submission that some of his direct reports work remotely 50% of the time. Therefore, it is encouraged that Mr Hume selects the day he physically attends at work such that he can maximise his personal interaction with those direct reports where possible.
  1. [49]
    For the reasons above, this appeal is allowed. The decision is set aside and substituted with another decision.  I order accordingly.

Orders:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  1. The decision that Mr Hume's flexible working arrangements request be partially approved is set aside and another decision is substituted; and
  1. Mr Hume's flexible working arrangements be adjusted to require physical attendance at work 20% of the time (1 day each week).

Footnotes

[1] Flexible working arrangements - Application and agreement form, submitted 9 March 2021, p 1.

[2] Senior Director, Capital Infrastructure Delivery, Capital and Asset Services Branch, Department of Health.

[3] Flexible working arrangements - Application and agreement form, 30 March 2021, p 2.

[4] Appeal Notice filed 12 April 2021, Annexure A: Letter addressed to Commissioner.

[5] Directive 11/20 Individual employee grievances, cl 6.2 - 6.3.

[6] C5 (QH-POL-242), June 2020.

[7] Queensland Health, Flexible working arrangements HR Policy C5 (QH-POL-242), June 2020, p 3.

[8] Ibid.

[9] Ibid Attachment One - Process for requests, p 1.

[10] Queensland Health, Guideline for Flexible working arrangements, February 2019.

[11] Ibid p 9.

[12] Queensland Health, Leading and managing people in the new normal, Line manager pack, p 2.

[13] Ibid p 3.

[14] Ibid p 6.

[15] Ibid p 11.

[16] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[17] Queensland Health, Flexible working arrangements HR Policy C5 (QH-POL-242), June 2020, Attachment One - Process for request, p 1.

[18] Ibid p 3.

[19] Queensland Health, Guideline for Flexible working arrangements, February 2019.

[20] Ibid p 9.

[21] Respondent's submissions, 12 May 2021, Annexure 8: Role Description, p 2.

[22] Queensland Health, Leading and managing people in the new normal, Line manager pack, p 2.

Close

Editorial Notes

  • Published Case Name:

    Hume v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Hume v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 272

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    05 Aug 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Page v Thompson [2014] QSC 252
1 citation
Jump To
Cite 1 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Dudley v State of Queensland (Office of Industrial Relations) [2023] QIRC 2122 citations
Gregson v State of Queensland (Department of Resources) [2024] QIRC 2083 citations
State of Queensland (Queensland Health) v Hume [2022] ICQ 18 citations
State of Queensland (Queensland Health) v Hume (No. 2) [2022] ICQ 332 citations
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 32 citations
1

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