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Lenssen v State of Queensland (Queensland Health)[2021] QIRC 347

Lenssen v State of Queensland (Queensland Health)[2021] QIRC 347

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lenssen v State of Queensland (Queensland Health) [2021] QIRC 347

PARTIES:

Lenssen, John

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/306

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

13 October 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. 1.The appeal is allowed;
  2. 2.The decision that Mr Lenssen's flexible working arrangement request be partially approved is set aside and another decision is substituted; and
  3. 3.Mr Lenssen's flexible working arrangement be adjusted to allow him to work from home two weeks in every three weeks.

CATCHWORDS:

PUBLIC SERVICE – SERVANTS AND EMPLOYEES OF THE CROWN GENERALLY – appeal against fair treatment decision – where flexible working arrangement request partially approved – considerations under Queensland Health Guideline for Flexible working arrangements and HR Policy – whether respondent had reasonable grounds to accept request in part – where decision was not fair and reasonable

LEGISLATION &

OTHER INSTRUMENTS:

Directive 07/20 Appeals cl 5

Directive 11/20 Individual employee grievances cl 6

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

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)

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Background

  1. [1]
    Mr John Lenssen (the Appellant) is an AO3 Supply Officer within the COVID-19 Supply Chain Surety Division at Nambour General Hospital. Mr Lenssen's employer is Queensland Health, State of Queensland (the Department; the Respondent). 
  1. [2]
    Mr Lenssen commenced work at Nambour General Hospital approximately four years ago. Mr Lenssen works alongside two other Purchasing Officers and a supervisor.
  1. [3]
    On 21 May 2021, Mr Lenssen submitted a flexible working arrangement (FWA) request to work "from home/alternative location" as he would "like to continue the current flexible work roster for the Sunshine Coast Purchasing Team which was put in place due to the Covid 19 Pandemic."[1]
  1. [4]
    The request was made pursuant to s 27 of the Industrial Relations Act 2016 (Qld) (IR Act).
  1. [5]
    On 2 July 2021, Ms Lynette Jones[2] advised Mr Lenssen that his request is partially approved and the 'Agreed changes, conditions or adjustments' are as follows:

The roster provided is revised to have 3 in the office each working day including a Weds. This may mean the days each person is listed to work from home or in the office may need to change to accommodate the additional day on a rotational basis and will require some flexibility around this, the days may need to change each week.

Office desk phones are transferred through to a home phone contact (either land line or mobile) on WFH days;

Work hours to cover span of established office hours 7:00 - 4:30 (with the continuance of ADO accrual time incorporated)[3]

  1. [6]
    On 16 July 2021, Mr Lenssen requested an internal review of Ms Jones' decision.
  1. [7]
    On 6 August 2021, Mr David Sinclair[4] (the decision-maker) responded to Mr Lenssen's internal review request and determined the following:

I understand that discussions have taken place with respect to proposing an equitable roster for you and your team to attend the workplace and that this has resulted in three different roster patterns being proposed:

  1. The original roster from 2020 - which represents you working from home a total of two weeks in every three and from the workplace one week in every three
  2. The Current Roster - which represent you working from home 14 days in a four-week period, and the remaining six days in the workplace; and
  3. The three staff in the office roster which represents you working from home two days each week, and the remaining three days in the workplace.

I understand that roster patterns 2 and 3 above, were presented and agreed to by you and your team following discussions with Ms Jones and your supervisors. I do note that roster 3 was only agreed to 'under duress', and further that Ms Jones had requested that this roster be adjusted to include a third team member present at the workplace each Wednesday.

I have now had the opportunity to review your request for a flexible working arrangement, specifically that you work from home in the same manner in which you did during the COVID pandemic (roster pattern 1 above). In reviewing the request and reaching my findings, I have considered the personal and operational perspectives.

I wish to advise that I have determined to support the implementation of roster 3, which represents you working from home two days in each week and the remaining three days from the workplace. I have requested this be implemented initially for a three-month period / trial commencing immediately and to be reviewed in early November 2021.

(the Decision)[5]

  1. [8]
    On 26 August 2021, Mr Lenssen filed an appeal against the Decision on the basis it is "not fair, reasonable, or consistent with Queensland Health's Flexible Working Arrangements Policy."[6]

Jurisdiction

The Decision

  1. [9]
    On p 3 of the Appeal Notice, Mr Lenssen identified the decision being appealed as:

I am appealing a decision made under another Act which allows me to appeal.

Please provide the name of the Act: INDUSTRIAL RELATIONS ACT 2016

  1. [10]
    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)(f) of the PS Act provides that an appeal may be made against "a decision about anything else against which another Act allows a person to appeal."
  1. [11]
    On 27 August 2021, the parties were advised in email correspondence from the Industrial Registry that:

Having reviewed the Appeal Notice filed by Mr Lenssen on 26 August 2021, Commissioner McLennan is minded to treat the matter as a "Fair Treatment" Appeal. Therefore, it is her intention to proceed with consideration of whether or not the Department's decision was "fair and reasonable" in this case.

If either party objects to that course, the reasons should form part of the written submissions to be filed in accordance with the attached Directions Order issued today at the hand of Industrial Commissioner McLennan.

  1. [12]
    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)". In submissions filed 10 September 2021 and 28 September 2021, the Department stated that "These proceedings involve an appeal under section 194(1)(f) of the Public Service Act 2008 (the Act)." Despite those comments, the Department did not proceed to outline reasoning for an objection to the appeal being considered under s 194(1)(eb) of the PS Act. Further, the Department's submissions contained no jurisdictional objection to the appeal being heard and decided by the QIRC at this time.
  1. [13]
    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".[7]
  1. [14]
    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. [15]
    After receiving Ms Jones' decision on 2 July 2021, Mr Lenssen requested an internal review on 16 July 2021. It is that internal review decision that forms the subject of this appeal.
  1. [16]
    It appears that Mr Lenssen did undertake the individual employee grievances process at least in part. Further, I note the Department has not contested that aspect of the appeal nor raised any omission in undertaking the process as an issue. Therefore, I will proceed to determine this appeal.
  1. [17]
    Mr Lenssen has been an employee of the Department at all times relevant to this appeal.
  1. [18]
    I am satisfied that the Decision can be appealed.

Timeframe for appeal

  1. [19]
    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. [20]
    As the decision was given on 6 August 2021 and the Appeal Notice was filed on 26 August 2021, I am satisfied that the appeal was filed by Mr Lenssen within the required timeframe.

What decisions can the QIRC Member make?

  1. [21]
    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.

Submissions

  1. [22]
    In accordance with the Directions Order issued on 27 August 2021, the parties filed written submissions.
  1. [23]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [24]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

The request and decision

  1. [25]
    In his request dated 21 May 2021, Mr Lenssen detailed the following benefits and aids to working from home (WFH) under his requested arrangement:[8]
  • Improvement to mental health after the loss of his wife in 2019;
  • More time to be active and productive with work and life in general;
  • Modern technology accommodates effective communication;
  • Reduced risk of colds and respiratory conditions of which he is more susceptible due to his diagnosis as a Type 2 Diabetic, noting that four people share a small office in the workplace; and
  • More enjoyment from work and life generally.
  1. [26]
    In his review of Ms Jones' decision, the decision-maker "determined to support the implementation of roster 3, which represents (Mr Lenssen) working from home two days in each week and remaining three days from the workplace."[9] That arrangement was said to proceed for an initial three–month period with a review to occur in early November 2021.
  1. [27]
    The decision–maker's reasoning can be summarised as follows:[10]
  • The Decision represents a balance of providing flexibility for Mr Lenssen to focus on his mental health and wellbeing while also considering the operational and team requirements.
  • Should additional ad hoc arrangements be beneficial in light of Mr Lenssen's medical condition, the decision-maker encourages discussion.
  • Mr Lenssen's role involves client and customer interfacing, requiring regular interactions with colleagues, teams, internal and external clients.
  • Attending the workplace increases opportunities to interact and improve through team dynamics, hearing others and engaging in sporadic conversation of mutual learning and benefit.

Consideration

Appeal principles

  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.

Was the decision fair and reasonable?

  1. [32]
    With respect to decisions about requests for flexible working arrangements, s 28(2) of the IR Act provides that "The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds."
  1. [33]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[11]

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. [34]
    In determining whether the Decision was fair and reasonable, I will consider the following aspects raised by the parties:
  1. Operational and team requirements;
  1. The benefits of physically attending the workplace;
  1. Mr Lenssen's personal circumstances;
  1. Concerns regarding the workplace; and
  1. Ms Jones.

Operational and team requirements

  1. [35]
    Mr Lenssen disputes that the Decision reasonably balances his wellbeing with 'operational and team requirements' which was a ground for granting Mr Lenssen's request in part.
  1. [36]
    The Queensland Health 'Guideline for Flexible working arrangements'[12] (the Guideline) states that "Flexible work is not restricted to specific purposes, categories or levels of employees. All employees have the right to request flexible working arrangements." Further, the Guideline states that employees should (emphasis added):

…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.[13]

  1. [37]
    The Department argues the decision-maker undertook a review of each request on a case-by-case basis and considered the type of work performed, the impact of the FWA on other employees as well as service requirements and the ability to maintain adequate supervision.
  1. [38]
    The Department's reference to operational, team and service requirements was vague. I gathered that one requirement is the Department's contention that Mr Lenssen's role involves regular interactions with colleagues and clients. In response, Mr Lenssen argued that the work undertaken involves raising orders on a computer, during his tenure he has not been required to attend face to face interactions and is able to maintain a good rapport with people despite not having met them personally.
  1. [39]
    Mr Lenssen contends the decision-maker's assertions regarding social interactions are unfounded and do not constitute a genuine business reason to refuse his FWA request. Mr Lenssen sought feedback from "primary clients" to support the argument his requested FWA would have little impact on client services. In response, the Department did not evidence specific circumstances in which Mr Lenssen has been required to have face to face interactions with clients and I accept Mr Lenssen's argument that the history and nature of his work suggests face to face interactions are not required for him to effectively carry out his role. It was not reasonable for the Department to rely upon such interactions as a ground to grant Mr Lenssen's request in part. 
  1. [40]
    Mr Lenssen contends that during the COVID-19 lockdown period (from March 2020), all targets were met, and he is unaware of any internal or external complaints regarding service delivery during that time. In the absence of any issues being raised by the Department, I accept that fact supports the argument Mr Lenssen was able to undertake his duties to a high standard while WFH.
  1. [41]
    Further, Mr Lenssen argued that permanent FWA would help "cushion the blow of snap lockdowns through having minimum disruption and changes to workplace arrangements…" during future "Covid normal" situations. While I agree with that argument, I do not place substantial weight on that premise considering it is uncertain how long the lockdowns will continue to be imposed. It would be unreasonable to implement a permanent FWA in light of a circumstance that is uncertain and indefinite.
  1. [42]
    The Department argued that the requested FWA would affect the ability to maintain adequate supervision. I accept this was a reasonable consideration and a difficulty that should be accounted for in assessing FWA requests. Notwithstanding, the Department did not particularise the requirements of supervision as it relates specifically to Mr Lenssen, why reporting and supervision is affected by WFH and why those considerations support the Decision. In response, Mr Lenssen argued that his immediate supervisor has been supportive throughout the process and has adapted to supervising Mr Lenssen and the team remotely. In the absence of evidence in support of its justification, I find it was not reasonable for the Department to rely on the issue of supervision as a ground to grant Mr Lenssen's request in part.
  1. [43]
    The Department argues the decision-maker took into account the type of work performed, the impact of the FWA request on other employees and service requirements. That may be the case, but the reasoning that led to its conclusion is not borne out on the evidence before me. It is unclear why the type of work performed by Mr Lenssen supports the Decision. It is unclear how the other employees are impacted by Mr Lenssen WFH and how those impacts support the Decision. Further it is unclear what operational, team and service requirements need to be met and how Mr Lenssen and the team would be unable to meet those requirements under the FWA request. The Decision is vague, lacks particularity and for those reasons I find it was not fair or reasonable for the Department to grant the request in part on the grounds outlined above.

Benefits to attending the workplace

  1. [44]
    The Queensland Health Human Resources Policy titled 'Flexible working arrangements'[14] (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"[15] as well as "optimum work/life balance."[16]
  1. [45]
    The Department argued that physically attending the workplace benefits interactions, team dynamics, hearing others and engaging in sporadic conversation of mutual learning and benefit. As outlined above, Mr Lenssen listed various benefits to WFH that were not contested by the Department and submitted that WFH does not affect the quality of his work, meeting targets, nor his relationship with colleagues and clients.
  1. [46]
    The Department argued that Mr Lenssen's request and submissions focused largely on benefits to himself with little regard for any benefits to the team. However, I note Mr Lenssen's statement that no service complaints were received by him during the COVID WFH period and argument that permanent FWA would assist in minimising the impacts of snap lockdowns by reducing disruption and changes to workplace arrangements.
  1. [47]
    The Department broadly referred to "a large body of scientific research" which it contends outlines considerable benefits in attending the workplace. I accept that engaging in and hearing interactions would be beneficial to all employees. However, those benefits need to be balanced with the benefits of WFH and this will be different for each employee. If an employee has an overwhelming number of genuine reasons to support a particular FWA then the benefit of engaging in sporadic conversations may be outweighed. This balancing act supports the need to review each request on a case-by-case basis.
  1. [48]
    The Department's submissions regarding benefits of attending the workplace were general and did not relate back to Mr Lenssen directly. I accept that the Department's consideration of the benefits to attending work were reasonable, however for the reasons that follow, I find that those benefits were not reasonably balanced with consideration of Mr Lenssen's personal circumstances and therefore benefits of attending work are not reasonable grounds to grant Mr Lenssen's in part.

Consideration of personal circumstances

  1. [49]
    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".[17]
  1. [50]
    Clause 2.1 of Attachment One to the Policy pertains to consideration of FWA 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.

  1. [51]
    The Department argued that a 'team approach' was used rather than an exclusively individual approach in light of the fact that several members of Mr Lenssen's team requested FWA.
  1. [52]
    The decision-maker accepted that Mr Lenssen's productivity and physical health warranted the approval of his FWA request, albeit a partial approval. The Decision reasonably encouraged discussion around ad hoc arrangements when required to respond to Mr Lenssen's medical condition. However, in addition, Mr Lenssen expressed the benefits of him being able to spend more time with his family due to not having to commute and the reduction of risk to his daughter who had a history of respiratory conditions. Further, Mr Lenssen has recently become a widower and submitted that WFH has improved his mental health.
  1. [53]
    With respect to taking a "team approach", the Department submitted that in ensuring fairness and equality, sometimes the conditions granted to individuals may be identical and it may appear as though a blanket approach has been taken. I accept that may sometimes be the case but note the team approach must be balanced against the need to consider each request on a case-by-case basis. My interpretation of ensuring fairness and equality in this context is that the decision-maker ought to assess each request using the same principles. In my view, fairness and equality is not brought about by simply granting every employee the same FWA because that goes against the requirement to consider each request on a case-by-case basis.
  1. [54]
    Mr Lenssen relevantly pointed to a Policy principle that "No one size fits all – everybody and every situation is different".[18] 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"[19] 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. [55]
    The Department contends that the operational and team requirements and the general benefits of balancing work and life are the same regardless of which team member requests a FWA. In consideration of that point, I note that although there may be a range of operational and team requirements, the extent to which those requirements apply to an individual employee will differ from one to the next. Further, the benefits of balancing work and life will differ from one employee to the next.
  1. [56]
    The Policy requires that the delegate demonstrate they worked with the employee and the larger team to find solutions that best meet work, team and personal needs. I do not find it unreasonable that Mr Sinclair did not physically visit the Nambour office and meet the team. Undoubtedly there are going to be a lot of FWA requests received by the Department and it is not operationally feasible for the decision-maker to attend every office. Nevertheless, working with the employee to find a solution can be undertaken over the telephone or via email and there is no evidence before me that this occurred. Certainly this type of request warrants discussion so that both parties can understand the position of the other. It also warrants an investigation into elements that the decision-maker is unfamiliar with. For example, arguing that WFH would affect face to face interactions with clients warrants investigation into the volume of face to face interactions the employee has, identification of any complaints or previous issues and feedback from those clients. 
  1. [57]
    Mr Lenssen contends that neither Ms Jones nor Mr Sinclair had any meetings or formal discussions with him to find a solution. The absence of consultation directly with Mr Lenssen or evidence of investigation supports the conclusion that the Decision was not fair and reasonable.
  1. [58]
    Mr Lenssen referred to an email from Ms Hodges which stated that staff were to make return to the workplace "the default arrangement unless a Flexible Working Agreement is in place." I disagree with Mr Lenssen that this statement indicates a compromise of management's obligation to reasonably consider an applicant's individual personal circumstances. Rather, the email appears to indicate, for clarity and completeness, that employees are to return to work but may request and enter into a FWA for alternative arrangements. That is completely reasonable because if it were the contrary, the Department would not know what days the employee would be attending work and the system would be quite disorganised.
  1. [59]
    For the reasons outlined above, I find that the benefits of attending work and consideration of Mr Lenssen's personal circumstances were not reasonably or fairly balanced. It follows that it was not fair or reasonable to rely upon that balance as a ground to partially approve Mr Lenssen's request.

Concerns regarding the workplace

  1. [60]
    Mr Lenssen raised concerns regarding the size of the work office and argued it is too small to accommodate four staff members under the correct guidelines. The Department's Manager of Health Safety and Wellbeing was engaged to assess whether physical distancing can be achieved in the space and he expressed support of "the view that workers are able to maintain the 1.5m physical distancing in the office after reviewing the current set-up."[20] The Department has supported their defence with an assessment from the Manager of Health Safety and Wellbeing and I accept their contention in this regard. Mr Lenssen contends that an assessment carried out by the Manager of Health, Safety and Wellbeing was based on photographs of the office, not a site visit. That factor does not detract from the assessment in my view.
  1. [61]
    The Department also engaged the Manager of Health Safety and Wellbeing to assess the issue of construction noise. Mr Carrick concluded that "This practice is a concern and all works should be communicated to the onsite workers prior. On days where known works are going to occur, flexibility should be considered."[21] I agree with Mr Carrick that Mr Lenssen ought to be permitted to WFH on days where construction will cause noise as the disturbance could clearly affect Mr Lenssen's productivity and wellbeing. However, this issue is not one that warrants approval of a long term permanent FWA. It would not be reasonable to grant the arrangement sought by Mr Lenssen by virtue of construction noise that will inevitably cease in the future. Mr Carrick advised in his email correspondence that he was following up with the WHS Manager to ensure all works that may impact workers in the office are clearly communicated prior to commencement.

Ms Jones

  1. [62]
    Both parties presented submissions regarding Ms Jones' conduct. In determining this appeal, I am considering whether the Decision, being Mr Sinclair's decision as outlined in the 6 August 2021 correspondence, was fair and reasonable. Ms Jones did not make the decision subject of this appeal. Therefore. I am unconvinced that submissions regarding her conduct tend to support that a decision made by another individual was or was not fair and reasonable.

Conclusion

  1. [63]
    For the reasons outlined above, the grounds relied upon by the Department in granting Mr Lenssen's request in part were not reasonable. 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.

What decision should be substituted?

  1. [64]
    For the reasons outlined above, I have concluded there were no reasonable grounds for the Department to grant Mr Lenssen's request in part. Having considered the operational and team requirements, benefits of attending work and Mr Lenssen's personal circumstances, I will substitute the Decision to grant Mr Lenssen's request to work from home two weeks in every three and physically attend the workplace one week in every three. That new arrangement shall commence within 14 days of the release of this Decision.
  1. [65]
    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. 1.The appeal is allowed;
  2. 2.The decision that Mr Lenssen's flexible working arrangement request be partially approved is set aside and another decision is substituted; and
  3. 3.Mr Lenssen's flexible working arrangement be adjusted to allow him to work from home two weeks in every three weeks.

Footnotes

[1] Flexible working arrangements - Application and agreement form, submitted 21 May 2021, p 1.

[2] Director, Supply Operations Southern, Department of Health.

[3] Flexible working arrangements - Application and agreement form, submitted 21 May 2021, p 2.

[4] Executive Director, Covid-19 Supply Chain Surety Division, Queensland Health.

[5] Appeal Notice filed 26 August 2021, p 3 states "The date I received the Agency's decision is: 06/08/2021." This corresponds with the email issued by Mr D. Sinclair to Mr J. Lenssen on 6 August 2021.

[6] Appeal Notice filed 26 August 2021, Annexure A: Letter addressed to Commissioner.

[7] Directive 11/20 Individual employee grievances cls 6.2-6.3.

[8] Flexible working arrangements - Application and agreement form, submitted 21 May 2021, p 2.

[9] Email from Mr D. Sinclair to Mr J. Lenssen, 6 August 2021.

[10] Email from Mr D. Sinclair to Mr J. Lenssen, 6 August 2021.

[11] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

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

[13] Ibid p 9.

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

[15] Ibid p 3.

[16] Ibid.

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

[18] Ibid.

[19] Ibid p 3.

[20] Email from Mr T. Carrick (Manager Health Safety and Wellbeing, Queensland Health) to Ms. T Davies, 10 August 2021.

[21] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Lenssen v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Lenssen v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 347

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    13 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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