Pocock v State of Queensland (Department of Education)
[2021] QIRC 355
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- Unreported Judgment
- Pocock v State of Queensland (Department of Education)[2021] QIRC 355
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Pocock v State of Queensland (Department of Education)[2021] QIRC 355
Pocock v State of Queensland (Department of Education)[2021] QIRC 355
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Pocock v State of Queensland (Department of Education) [2021] QIRC 355 |
PARTIES: | Pocock, Jade (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2020/341 |
PROCEEDING: | Public Service Appeal – Transfer Decision |
DELIVERED ON: | 22 October 2021 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: | The decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against transfer decision – request for transfer – decision not to transfer public service officer – whether decision fair and reasonable |
LEGISLATION: | Department of Education Teacher Transfer Guidelines Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 194(1)(d) |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
Reasons for Decision
Background
- [1]Ms Jade Pocock is employed as a teacher at Richmond Hill State School ('the school') in Charters Towers, North Queensland with the Department of Education ('the Department').
- [2]On 12 October 2020, Ms Pocock requested a review of the decision not to grant her request for a transfer from the school to the Gold Coast, Redland or Scenic Rim geographic areas.
- [3]On 3 November 2020, Ms Pocock received correspondence from Ms Colette Wasson, Director, Human Resources Business Partnering, North Queensland Region of the Department. The correspondence advised Ms Pocock that a review of the decision had been conducted.
- [4]Ms Pocock was advised that a review had been undertaken by a panel and her request for a review of the decision not to grant her transfer had been dismissed ('the decision').
- [5]The reasons for the decision were set out as follows:
The Teacher Transfer Guidelines state that all transfers are affected in priority order on the basis of the number of points accumulated, subject to the availability of vacancies across teaching areas and expressed geographic preferences.
It has been determined that Ms Pocock submitted a requested transfer in the 2020/21 teacher transfer cycle with a preference in Primary-General. Ms Pocock listed the following geographic areas.
Prf | Location | Subject |
1 | Gold Coast Geographic Area | Primary – General |
2 | Redland Geographic Area | Primary – General |
3 | Scenic Rim Geographic Area | Primary – General |
It has been determined and acknowledged that Ms Pocock has 9.98 points.
Ms Pocock's regions of preference have reported that during this transfer cycle to date, the transfer point closure for each of the (sic) Ms Pocock's areas of preference and subject areas for the 2020/21 transfer cycle are as follows:
Geographic Area | Sector & Subject | Points Closure |
Gold Coast Geographic Area | Primary – General | 10.00 |
Redland Geographic Area | Primary – General | 10.77 |
Scenic Rim Geographic Area | Primary – General | Did not open (DNO) |
Ms Pocock did not have sufficient points or subject areas to have transferred to any of the geographic areas of preference.
The Panel acknowledged the reasons attached to Ms Pocock's Request for Review of Requested Transfer – Not Granted. Ms Pocock included a personal statement with her Request for Review. The reasons were outlined below:
- Ms Pocock's partner is required to help run the family business due to family illness
- Ms Pocock's need to provide respite care for her father who is caring for her mother
List of documents considered to reach decision
- 2021 Teacher Transfer Application
- Curriculum Vitae for Ms Pocock
- Teacher Transfer Request for Review – Requested Transfer (request not granted)
- Letter from Mr Mark Duncan dated 17/09/2020
- Centrelink medical certificates for Ms Pocock's mother and father
- 2020 Primary and Secondary Transfer Cut-Off Points
- [6]In response to the decision, Ms Pocock filed an Appeal Notice on 23 November 2020 pursuant to s 194(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act'). In her appeal, she contended that the decision to refuse her transfer is unfair and unreasonable. In summary:
- She has extenuating family health conditions which require her to be close to her family. Her father-in-law is receiving cancer treatment and will require assistance with his family busines. Her mother has a heart condition which has caused side effects such as a stroke and has recently undergone a major operation which meant she is unable to walk for a period of time. She is required to assist her father in caring for her mother;
- The Department's response is contrary to its claim that it supports the wellbeing and mental health of staff. The decision and dispassion have caused herself, her partner and her family a great deal of stress due to the uncertainty; and
- She understands that 10 points are required, however she has 9.98 and believes her family requirements should take priority over the missing 0.02 points.
Nature of appeal
- [7]
- [8]
- [9]The issue for my determination in the matter before me is whether the decision to refuse to review the decision not grating the transfer was fair and reasonable.[6]
- [10]For the reasons set out below, I have determined that the decision was fair and reasonable.
What decisions can the Industrial Commissioner make?
- [11]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
- (b)for an appeal against a promotion decision – set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
- (c)for another appeal – set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Relevant sections of the Teacher Transfer Guidelines ('TTG')
- [12]The relevant provisions of the TTG for consideration in this appeal are set out below.
- [13]Clause 9 of the TTG relevantly provides:
9.1 Eligibility criteria
To be eligible to apply for a transfer, teachers are required to:
- be employed on a permanent basis (either full time or part time)
- have completed the specified minimum service period in one school:
- 2 years minimum service period for remote (transfer rating 7) schools
- 3 years minimum service for all other schools (transfer rating 1 – 6).
Notwithstanding the above, teachers may apply for a transfer before completing the specified minimum service period in a school if the transfer is:
- to a location with a higher transfer rating
- between transfer rating 4 to 7
- on compassionate grounds or due to domestic and family violence
- operationally required by the department.
…
- [14]Clause 11 of the TTG relevantly provides:
11 Compassionate transfers
Teachers may seek a transfer for compassionate reasons (exceptional hardship or pressing personal circumstances) without meeting the minimum service requirements of their base location. Applications for a compassionate transfer are made to the regional HR team through the principal as the relevant circumstances arise. The application remains active unless the circumstances leading to the application change.
Relevant documentation must be provided in support of the application. Sensitive information is treated confidentially and is not disclosed to parties who are not involved in administering the transfer request. Further documentation is to be submitted as circumstances change.
11.1 Exceptional hardship
Teachers may apply for a compassionate transfer because of exceptional hardship in respect to themselves or a member of their immediate family. Exceptional hardship includes:
- serious medical circumstances and/or disabilities of a teacher and/or a member of their immediate family
- demonstrated hostile environment arising from factors such as potential religious, racial or sexual persecution or harassment.
Supporting specialist medical evidence is essential for requests on exceptional hardship grounds and medical evidence from a general medical practitioner is not considered sufficient. Examples of relevant supporting documentation include written specialist evidence regarding a medical condition that requires a teacher to live in a particular location or documented specialist medical evidence that the existing locations environmental conditions are a catalyst for a chronic medical condition.
The department reserves the right to contact a specialist medical practitioner directly, subject to the teacher’s agreement.
Exceptional hardship requests are assessed on a case by case basis outside of the annual transfer process. Transfer points are not taken in account.
Applications are submitted through the regional HR team for consideration by the central Compassionate Transfer Review Panel. If the Compassionate Transfer Review Panel determines that exceptional hardship has been established, the transfer request is negotiated and put into effect as soon as practical.
Transfer expenses are not provided to a transfer applicant in these circumstances.
11.2 Pressing personal circumstances
Teachers may apply for a compassionate transfer because of pressing personal circumstances, including:
- separation from partner
- lengthy travel arrangements arising from a departmental transfer over an extended period
- medical conditions that do not meet the definition of exceptional hardship
- partner’s relocation for employment purposes.
Supporting specialist medical evidence is essential for requests due to pressing personal circumstances and medical evidence from a general medical practitioner is not considered sufficient. Examples of relevant supporting documentation include written specialist evidence regarding a medical condition that requires a teacher to live in a particular location or other official documentation supporting the request, such as partner’s employment documentation or custody arrangements.
Applications are assessed by the regional HR team. Where pressing personal circumstances have been established, the teacher may lodge a transfer application as part of the department’s transfer process without meeting the minimum service requirement. The request is considered in the context of the transfer cycle along with other transfer applications. Transfer points are taken into consideration. If the teacher has met the minimum service period, the transfer is treated as a requested transfer.
A teacher may request that the Compassionate Transfer Review Panel review the decision reached by the regional HR office.
Transfer expenses will only be granted if the teacher has completed the minimum service period required at their current base location prior to transferring.
(underlining added)
Submissions
- [15]The parties filed written submissions in accordance with a Directions Order dated 25 November 2021.
- [16]Ms Pocock contends, for the reasons set out in her submissions filed on 3 December 2021 that her request for a transfer should be granted on compassionate grounds. In summary, she submitted that:
- She has worked at the school in a rural area for the past three years;
- Extenuating family health circumstances requires her to be closer to her parents and father-in-law. Her mother experiences chest pain and bradycardia which has resulted in a stroke, and recent major foot surgery has left her unable to walk for a long period of time. Her father requires assistance in caring for her mother due to him having osteoarthrosis which limits his movement. Her father-in-law has been diagnosed with cancer and will need assistance with his care and business while he undergoes the treatment and recovery process;
- The family health crisis should be taken into consideration when recognising that she has 9.98 of the total 10 points required to obtain a transfer; and
- The transfer would substantially help alleviate the stress and uncertainty of being unable to care for her family and she would cover the associated transfer expenses.
- [17]The Department contends, for the reasons set out in their submissions filed on 15 January 2021, that Ms Pocock is ineligible for a transfer. In summary, it submits that:
- The teacher transfer process is performed by each region annually following the TTG;
- Her requested geographic areas in the South East Queensland Region of Redlands, Scenic Rim and Gold Coast areas are highly sought after and reduces her opportunities for transfer;
- The transfer cut offs for the regions were 10.00 for the Gold Coast and 10.77 for Redlands. The Scenic Rim had no permanent vacancies. Ms Pocock has a teacher transfer rating of 9.98 and was unable to gain a transfer to her preferred locations;
- Ms Pocock lodged a transfer application based on compassionate grounds which removes the need to adhere to the service period criteria of her base location at the school;
- The application was considered in adherence with the defined transfer ranking process, which remains subject to the availability of vacancies within the geographic preference and teaching area. No permanent vacancies were available within the Gold Coast, Redlands and Scenic rim areas for a position with transfer points below 10.00;
- She was included as part of the transfer ranking process however, she does not receive additional points due to the compassionate grounds; and
- By email on 9 November 2020, Ms Pocock added Logan to her preference areas (the points required were 5.7), however at this time all placements in the Logan area had been completed.
Consideration
- [18]Ms Pocock's application on compassionate grounds sought transfer to the Gold Coast, Redlands or Scenic Rim regions. Each of these regions required a transfer cut off in excess of 10.00, though I note the Scenic Rim was not in contention. While certain prerequisite conditions for transfer can be waived for a transfer on compassionate grounds, the accumulation of sufficient transfer points and a vacancy in the nominated transfer region continue to be determinative factors before a transfer can be accommodated.
- [19]There was no challenge by the Department to the grounds relied on by Ms Pocock to support her request for a compassionate transfer. This was so even though those grounds were supported by medical evidence from two General Practitioners only. I note the TTG expressly state such evidence is not sufficient.[7]
- [20]The decision-maker has adopted the appropriate procedure set out in the guideline and evaluated Ms Pocock's request in the context of her accumulated transfer points and the roles available in the nominated regions. Ms Pocock does not submit that the TTG was misapplied in any way, or that relevant evidence was disregarded or not properly considered. The essence of Ms Pocock's complaint is largely indignance at the perceived injustice of a refusal of her request when she was 0.02 points short of the qualifying number of transfer points.
- [21]While I have some degree of sympathy for Ms Pocock, her request and now her appeal are no more than a plea to the Department to depart from well recognised rules that apply to all teachers.
- [22]I entirely understand the pressure and strain Ms Pocock must be under in these circumstances. However, in the absence of any evidence that the decision-maker has somehow erred in applying the guidelines or overlooking critical evidence, I am unable to identify how the decision is objectively unfair or unreasonable.
- [23]As an aside, I note that Ms Pocock made a request for a transfer to Logan on 9 November 2020 i.e. 6 days after the decision. As this event post-dates the decision it is not a matter I am required to consider in this appeal. I would however observe that Ms Pocock expressly did not nominate the Logan region to be an option in her application. There is no explanation from Ms Pocock as to why Logan region was excluded from her initial application.
- [24]I note that Logan is broadly no more or less proximate to the Gold Coast than either Redlands or Scenic Rim. It is difficult to understand why Ms Pocock would not have nominated Logan region given the pressing nature of her personal circumstances and the fact that she had more than sufficient transfer points to achieve a transfer to Logan, subject to availability.
- [25]Indeed, the Department confirms in their submissions that Ms Pocock's circumstances would likely have qualified her for transfer to Logan had she applied in time. It is clear that the Department could and likely would have accommodated Ms Pocock were it not for her oversight. Unfortunately, by the time Ms Pocock made her interest known, the transfers placements for Logan had been completed.
- [26]Notwithstanding that the Department considered and accepted the compassionate grounds cited by Ms Pocock, they were unable to accede to her request due to a lack of available positions in the regions she nominated. Despite how Ms Pocock characterises the Department's actions as 'dispassionate', they did everything they were required to do in considering her request but were simply unable to accommodate her.
- [27]In all of the circumstances I consider that the decision was fair and reasonable.
Order
- [28]In the circumstances I make the following order:
- The decision appealed against is confirmed.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B.
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Ibid.
[5] Industrial Relations Act 2016 (Qld) s 562B(3).
[6] Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[7] Clause 11.1 and 11.2 specify that evidence of a medical specialist is required.