Garvey v State of Queensland (Office of Industrial Relations)
[2021] QIRC 296
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- Unreported Judgment
- Garvey v State of Queensland (Office of Industrial Relations)[2021] QIRC 296
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Garvey v State of Queensland (Office of Industrial Relations)[2021] QIRC 296
Garvey v State of Queensland (Office of Industrial Relations)[2021] QIRC 296
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Garvey v State of Queensland (Office of Industrial Relations) [2021] QIRC 296 |
PARTIES: | Garvey, Timothy Gerard (Appellant) v State of Queensland (Office of Industrial Relations) (Respondent) |
CASE NO: | PSA/2021/168 |
PROCEEDING: | Public Service Appeal – Appeal against a promotion decision |
DELIVERED EX TEMPORE ON: | 26 August 2021 |
HEARING DATE: | 26 August 2021 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: | Pursuant to section 562A(2) of the Industrial Relations Act 2016 (Qld), I decline to hear the appeal. |
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against a promotion decision – appellant unable to demonstrate arguable case – exercise of discretion not to hear appeal |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A, 562B, 562C |
CASES: | Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
APPEARANCES: | Mr T G Garvey the Appellant Ms T Jones and Mr A James for the Respondent |
Reasons for Decision
Delivered ex tempore on 26 August 2021
Background
- [1]Mr Timothy Garvey is employed as an AO6 Principal Inspector with the Labour Hire Licencing Compliance Unit (‘LHLCU’) which is a division of the Office of Industrial Relations (‘OIR’).
- [2]On 16 December 2020, a role for Lead Inspector (an AO7 position) was advertised via the SmartJobs and Career website. The closing date for applications was on 29 January 2021.
- [3]Mr Garvey (and 53 other people) applied for the role. The advertisement identified that the merit for the role would include consideration of a range of qualities, characteristics and experience. Mr Garvey (and 51 others) were unsuccessful in their application for these positions.
- [4]The two successful candidates had their appointments confirmed in the Queensland Government Gazette on 16 April 2021. It is this promotion decision that Mr Garvey now appeals.
Statutory framework for Public Service Appeals
- [5]Public service appeals conducted under the Industrial Relations Act 2016 (Qld) ('the IR Act') have a limited jurisdiction. The process of hearing appeals under the IR Act does not involve a rehearing of the matter.[1] It is a review of the decision.[2] The singular task that I am charged with is to determine whether the decision was fair and reasonable.[3]
- [6]The provisions of s 562C(2) of the IR Act further narrow the jurisdiction with respect to decisions in relation to promotions. Such decisions can only be set aside in circumstances where I consider the recruitment or selection process to be deficient.
- [7]Further, having considered the material filed by the parties in the form of the Appeal Notice (and attached submissions) and the subsequently filed submissions (and multiple attached documents), I was of the preliminary view at the commencement of the hearing that Mr Garvey’s appeal was broadly without basis.
- [8]Consequently, at the commencement of the hearing, in addition to the statutory considerations outlined above, I brought s 562A(2) of the IR Act to Mr Garvey’s attention.
- [9]Section 562A(2) of the IR Act relevantly sets out as follows:
562A Commission may decide not to hear particular public service appeals
…
(2) The commission may decide it will only hear an appeal against a promotion decision under the Public Service Act 2008 if the commission is satisfied, by oral or written submissions, that the appellant has an arguable case for the appeal.
Parties' submissions
- [10]In relation to the appeal filed by Mr Garvey, the parties filed submissions in accordance with directions issued from my chambers. The submissions from Mr Garvey filed in these proceedings broadly expand upon the four grounds of appeal contained in the Appeal Notice filed on 7 May 2021.
- [11]I will address those grounds in more detail in my considerations below. Suffice is to say at this point that Mr Garvey contends in his appeal that the process was deficient in respect of four aspects. Mr Garvey essentially contends that:
- the members of the recruitment panel lacked appropriate qualifications;
- the outcome of the recruitment process was predetermined in respect of favoured employees;
- he received no clear feedback as to why he was unsuccessful; and
- the selection process did not follow the appropriate rating process for candidates.
- [12]The respondents in their submissions, in some detail, outlined the steps taken to ensure the validity of the recruitment process and included in their material statements from panel members outlining the steps they took in the preselection and selection process in relation to the recruitment for the positions.
Consideration regarding section 562A
- [13]At the commencement of the hearing Mr Garvey was informed of my preliminary views with respect to the overall merits of his appeal. Mr Garvey was provided with a copy of s 562A of the IR Act and he was given an opportunity to consider his position before making submissions.
- [14]Mr Garvey was given an opportunity to personally address the Commission in respect of each of the grounds of appeal identified in his Appeal Notice. Mr Garvey was invited to answer questions and expand on his evidence and submissions in support of the four grands of his appeal.
- [15]In summary, the submissions, both in writing and those that were received orally from Mr Garvey at the hearing, addressed the four grounds as follows.
Ground 1
- [16]Ground 1 provides:
There is no evidence that there was the relevant experience or qualifications on the panel to adequately assess the skill set required to carry out investigations as required by the Australian Government Investigations Standard (AGIS).
- [17]In relation to this ground of appeal, Mr Garvey was not able to say what qualifications any of the panel members had or did not have, nor could he demonstrate what (if any) qualifications they were ‘required’ to have.
- [18]More importantly, Mr Garvey was unable to demonstrate why an absence of such qualifications in panel members (or even in the successful candidates) made the recruitment process deficient, unfair or unreasonable.
- [19]The AGIS applies exclusively to Federal Government departments and agencies. It would seem that the imposition of this standard of compliance, or possession of qualifications relevant to the Australian Government Investigations Standard is a standard imposed solely by Mr Garvey.
- [20]More broadly, I could see no evidence that the Australian Government Investigations Standard has any direct or (more importantly) binding effect on the Queensland Public Service, the OIR or the recruitment process which Mr Garvey now appeals.
- [21]In these circumstances, the absence of AGIS qualifications by either the panel members or the successful applicants are entirely irrelevant to any consideration of the validity of the recruitment or selection process. The first ground of Mr Garvey’s appeal is unsustainable.
Ground 2
- [22]In relation to ground 2 of Mr Garvey’s appeal, the particulars are as follows:
The outcome had been pre-determined and the members of the LHC who would get these positions were favoured staff members and, accordingly, a pre-determined outcome is not fair and reasonable.
- [23]Mr Garvey’s notice of appeal sets out examples of events and incidents of what he says are favourable treatment of candidates or less favourable treatment of him in the workplace. None of the matters particularised in the submissions accompanying the notice of appeal is directly connected with the recruitment process. Instead, the matters listed appear to be a collection of subjective accounts of workplace events with which Mr Garvey conflates his personal perceptions of bias to produce what he regards to be evidence of less favourable treatment of him, or more favourable treatment of others.
- [24]At the hearing on 26 August 2021, Mr Garvey was given the opportunity to produce evidence or to explain in more detail the basis of his (quite serious) assertion that the outcome of the recruitment process was predetermined to favour the successful candidates. Notwithstanding Mr Garvey’s expansive submissions at hearing, and his tendering of specific documents, he was still unable to produce any reliable evidence that could or did objectively support a conclusion that the recruitment of the successful candidates was a predetermined outcome.
- [25]In the case of documents he produced, in each case, a finding of bias or predetermination would require the application of Mr Garvey’s substantially subjective opinions about what each document ‘proved’ in order to even begin to entertain his submissions.
- [26]On their face, none of the documents (either alone or collectively) objectively tended to prove Mr Garvey’s theory. At best for Mr Garvey, having regard to the materials tendered at hearing and the submissions he made, the documents that he produced were incapable of producing any conclusion as to their meaning, and certainly not one that indicated any bias on the part of the decision-makers in respect of the recruitment process.
- [27]I have no doubt that Mr Garvey is adamant in his belief of the appointment being predetermined, but adamant belief alone is not proof to the requisite standard. Despite multiple opportunities to do so, he was unable to produce any credible evidence to objectively support his asserted conclusion.
- [28]In those circumstances, ground 2 of Mr Garvey’s appeal is also unsustainable.
Ground 3
- [29]Ground 3 of the appeal relevantly:
Despite requesting detailed written feedback there was no coherent reason cited for the rejection of my application. There was no reference to my lack of skills, qualifications or experience for the role, which leads me to believe the convener did not have the intention to assess my application fairly and reasonably.
- [30]It was noted during the hearing that this ground relates to post-recruitment conduct by the panel Chair and does not relate the process leading to the decision.
- [31]It was my clear impression from his responses to my answers during the hearing that Mr Garvey effectively conceded that this ground falls outside the scope of the matters that I am able to consider with respect to the appeal against the decision which is an appeal against the efficiency or deficiencies in the process for recruitment or selection. A failure to provide feedback after the conclusion of the process falls outside consideration of matters pertaining to the recruitment or selection process as set out in s 562C(2).
- [32]An exception might be where it is argued that a failure to provide feedback was a product of some deficiency in the process. Mr Garvey points to no defect in the process under this ground, only to his subjective theory about what an alleged lack of feedback indicates.
- [33]In any event, even if it was a matter that might be relevant to be taken into account in such an appeal, it would appear that the assertion made by Mr Garvey that he did not receive detailed written feedback would be roundly refuted by having regard to attachment 12 to OIR’s submissions filed on 8 June 2021. Attachment 12 is a file note by the panel Chair documenting a 35-minute meeting in which it appears there was a detailed discussion around the recruitment process and the matters that Mr Garvey did or did not address.
- [34]In all of those circumstances, I regard ground 3 to be unsustainable.
Ground 4
- [35]Ground 4, relevantly:
The selection process was flawed because it did not provide a record of the scoring of the applications.
- [36]During the course of the hearing Mr Garvey conceded that there was no mandatory or uniform method of numerically scoring candidates in recruitment.
- [37]While Mr Garvey may hold a view as to the reliability or risks that arise from the method that was used by the panel in this instance, he can point to no deficiency by use of those methods. Having regard to the methods used, I can identify no deficiency in them either.
- [38]In those circumstances, I consider that ground 4 is unsustainable.
Conclusion
- [39]It follows from my conclusions on these matters that I’m not satisfied that Mr Garvey has an arguable case. In those circumstances, I intend to exercise my discretion pursuant to s 562A(2) of the IR Act to decline to hear his appeal.
- [40]For completeness, I add that in the course of the proceedings at hearing significant parts (if not all parts) of the evidence that would have been dealt with in the context of a hearing of the substantive appeal were also dealt with in dealing with the preliminary issues arising for Mr Garvey under s 562A(2).
- [41]Having regard to that evidence in the form of the written submissions already filed by the parties before the hearing, and the submissions by Mr Garvey today, I am content that even had I determined to hear the matter, I would have concluded that the decision was fair and reasonable in any event.
- [42]I would have come to such a conclusion not simply on the basis of the obvious inadequacies in Mr Garvey’s arguments, but because the material filed by the OIR (which includes statements from the panel members who were involved in the recruitment process) left me in no doubt that the process of recruitment was not deficient or, where it may have deviated in compliance in any way at all, it did not produce a result that was unfair and unreasonable.
Order
- [43]In all of these circumstances I make the following order:
Pursuant to section 562A(2) of the Industrial Relations Act 2016 (Qld), I decline to hear the appeal.