Green v State of Queensland (Queensland Health)
[2021] QIRC 396
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- Unreported Judgment
- Green v State of Queensland (Queensland Health)[2021] QIRC 396
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Green v State of Queensland (Queensland Health)[2021] QIRC 396
Green v State of Queensland (Queensland Health)[2021] QIRC 396
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Green v State of Queensland (Queensland Health) [2021] QIRC 396 |
PARTIES: | Green, Charles Frederick (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/327 |
PROCEEDING: | Public Service Appeal – Appeal of fair treatment decision |
DELIVERED ON: | 23 November 2021 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against fair treatment decision – decision regarding recruitment or selection process of public service employee – no jurisdiction |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562A, 562B, 562C Public Service Act 2008 (Qld) ss 194, 195 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 1 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
Reasons for Decision
Background
- [1]Mr Charles Frederick Green is substantively employed as an Occupational Violence Prevention Coordinator/Trainer (AO4) within Work Health & Safety, People and Engagement with Queensland Health ('the Department').
- [2]The temporary position of Coordinator Security Services within Central Queensland Hospital and Health Service ('CQHHS') was advertised on SmartJobs with the vacancy reference number RK1G379368.
- [3]A recruitment process was undertaken which included an application and interviews conducted by a panel, consisting of a chair and two other staff members.
- [4]Mr Green obtained an interview for the temporary position (vacancy reference number RK1G379368).
- [5]During the recruitment process the Department identified that the role was incorrectly advertised as requiring a mandatory qualification. The process was finalised with no appointment made and Mr Green was advised via telephone of the reason and that he could reapply for re-advertised position.
- [6]The role was readvertised on 16 August 2021 on SmartJobs without the mandatory qualification, with new vacancy reference number RK1H383913. The panel for the new recruitment process comprised of the same panel chair but two different staff members.
- [7]Mr Green did not obtain an interview for the new recruitment process (vacancy reference number RK1H383913) and was advised of the outcome of the process via email on 7 September 2021. The email was as follows:
Dear charles green,
I am writing on behalf of the selection committee for the role of Coordinator Security Services, Job Advertisement Reference Number: QLD/RK1H383913.
I wish to advise that on this occasion you have not been successful in obtaining the position.
The time and effort you have taken in applying for the role is appreciated. If you would like to receive post-selection feedback, please contact Corinne Miles on telephone number (07) 4932 5097.
We hope that you will consider applying for other Queensland Health positions in the future and wish you every success for your career.
- [8]In response to the decision, Mr Green filed an Appeal Notice on 9 September 2021. In his appeal, he contended that:
- He reapplied for the role which was exactly the same as the initial job advertisement except that the mandatory requirement for holding a current Qld security officer licence had been removed;
- His new application had the same responses to the first application as the questions had not changed;
- He should have been successful in obtaining an interview for the new recruitment process as he had been successful in securing an interview in the first process as nothing had changed;
- Upon contacting the panel chair, he submits he was informed that by removing the mandatory requirement, the fresh application pool relegated his application as being unsuccessful in securing an interview; and
- He questions how he could be meritorious in the initial process in obtaining an interview and not for the second after the mandatory requirement was removed, and raises issues regarding credibility and transparency.
Nature of appeal and statutory framework
- [9]The Industrial Relations Act 2016 (Qld) ('the IR Act') grants jurisdiction to the Queensland Industrial Relations Commission to review the decision under appeal.[1] The term 'review' will take its meaning from the context in which it appears.[2] It is not a rehearing of the matters that are the subject of the complaint, but rather, it is a review of the decision and the decision-making process.[3]
- [10]The matter for my determination in public service appeals is whether the decision under review was fair and reasonable.[4]
- [11]Section 562C(1) of the IR Act limits the powers granted to the Commission with respect to such appeals. The Act allows me to make an order in the following terms, I can:
- (a)confirm the decision appealed against; or
- (b)for 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 considered appropriate; 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 legislative provisions
- [12]At the outset of considering this appeal it was apparent that the decision under appeal was a decision relating to recruitment or selection. Accordingly, the relevant provisions of the Public Service Act 2008 (Qld) ('the PS Act') for consideration in this appeal are set out below.
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions—
…
- (2)However—
- (a)if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); and
- (b)an appeal can not be made against a decision if section 195 applies to the decision.
195 Decisions against which appeals can not be made
…
(3A) A person can not appeal against a fair treatment decision—
…
- (c)relating to the recruitment or selection of a public service employee; or
…
Parties' submissions
- [13]The Department filed written submissions in accordance with a Directions Order issued on 10 September 2021. In those submissions the Department identified a jurisdictional issue with respect to Mr Green's appeal.
Submissions of the Department filed 12 October 2021
- [14]The Department contended inter alia that Mr Green is unable to appeal a decision relating to the recruitment and selection process of a public service employee pursuant to sections 194 and 195(3A) of the PS Act.
Mention on 19 October 2021
- [15]As a consequence of this submission, the matter was listed for mention on 19 October 2021. The basis of the Department's jurisdictional objection was explained to Mr Green at the mention. Mr Green was given a period of time to consider his position and advise whether he wished to press his appeal in light of the jurisdictional objection, or whether he wished to concede the point and withdraw his appeal.
- [16]In addition to this, it was pointed out to Mr Green that the jurisdictional argument relied on by the Department was a compelling one, and Mr Green was specifically directed to the provisions of s 562A of the IR Act. Mr Green was informed that if he intended to press his appeal he would need to address me on the issue of his appeal being misconceived or lacking in substance etc.[5]
- [17]Amended directions were subsequently issued and Mr Green was required to provide submissions on these matters by 8 November 2021.
Reply submissions of Mr Green
- [18]Mr Green contends, for reasons set out in his reply submissions that, contrary to the Department's submission, two different staff members were used on the second process, however the chair of the panel advised Mr Green that only one panel member had been replaced.
- [19]He also noted that contrary to the selection techniques used in the second recruitment process, his referees provided were not contacted.
- [20]Mr Green's submissions entirely fail to respond to the jurisdictional challenge posed by the Department or to address the matters that were raised with him at the mention pertaining to s 562A of the IR Act.
Consideration
- [21]The essence of the grievance held by Mr Green is that he was declined an interview in a recruitment process. He is aggrieved by this because he had previously been offered an interview for the vacant position when the role had been incorrectly advertised and the candidate pool was much smaller.
- [22]Whatever the reasons might be for the decision to not offer Mr Green an interview for the position in the second recruitment process, that decision is a decision in relation to the 'recruitment or selection of a public service employee' and is of the type of decision that is explicitly excluded from appeals that may be made under the PS Act.[6]
Conclusion
- [23]Mr Green is appealing against a decision relating to the recruitment or selection process of a public service employee. This is a decision which is specifically excluded from being appealed against pursuant to s 195(3A) of the PS Act.
- [24]In these circumstances and having given Mr Green the opportunity to make submissions on the matter, I decline to hear the appeal pursuant to s 562A(3)(b) of the IR Act as the appeal is misconceived or (by virtue of s 195(3A)) is a matter that the Commission does not have jurisdiction to hear.
Order
- [25]In all of the circumstances, I make the following order:
- Pursuant to sections 562A(3)(b)(ii) & (iii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B(2); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[5] T1-4, LL 30-46.
[6] Public Service Act 2008 (Qld) ss 194(2) & 195(3A).