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  4. Hollis v State of Queensland (Queensland Health) - [2021] QIRC 404

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Hollis v State of Queensland (Queensland Health)[2021] QIRC 404

Hollis v State of Queensland (Queensland Health)[2021] QIRC 404

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hollis v State of Queensland (Queensland Health) [2021] QIRC 404

PARTIES: 

Hollis, Paul John

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/303

PROCEEDING:

Public Service Appeal – fair treatment decision

DELIVERED ON:

1 December 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against be set aside.
  1. I direct that the matter be returned to the decision maker with a copy of these Reasons for Decision and that a fresh review be completed within 21 days of the date of this decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –  public service appeal – appeal against a fair treatment decision – where appellant made a request for a flexible work arrangement – where respondent partially approved request – where decision maker did not have meaningful regard to appellant's personal circumstances in its decision or decision-making process – where decision maker did not have regard to consultation requirements under the relevant policy – where decision and decision-making process not fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 27, 562B(2), s 562B(3)

Public Service Act 2008 (Qld) s 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Reasons for Decision

Introduction

  1. [1]
    Mr Paul Hollis ("Mr Hollis") is employed by the Sunshine Coast Hospital and Health Service, State of Queensland (Queensland Health) ("the Department"), as an AO3 Purchasing Officer within the COVID-19 Supply Chain Surety Division. Mr Hollis appeals a decision which he considers to be unfair and unreasonable pursuant to
    s 194(1)(eb) of the Public Service Act 2008 (Qld) ("PS Act") ("a fair treatment appeal").
  1. [2]
    Mr Hollis has been employed in the position of AO3 Purchasing Officer since November 2019 and has been employed in the public service since 2003.
  1. [3]
    On 21 May 2021, Mr Hollis submitted a flexible working arrangement ("FWA") request pursuant to s 27 of the Industrial Relations Act 2016 (Qld) ("the IR Act"). The request submitted by Mr Hollis sought that he be permitted to "continue the current working from home arrangement" which had been put in place by the Department in response to the coronavirus pandemic.
  1. [4]
    The arrangement the Department had put in place with respect to Mr Hollis was that
    Mr Hollis would work from home for two weeks and then return to the office for one week, as part of a rotating roster within the Purchasing Team.[1]
  1. [5]
    On 2 July 2021, Ms Lynette Jones ("Ms Jones") Director, Supply Chain Operations, determined to partially approve Mr Hollis' FWA request and provided the following reasons for the decision ("the administrative decision"):

Since the Department’s recall of staff to the office we are assessing all flexible working arrangement requests by applying a considered, fair and equitable approach with each application – finding a balance between the Department’s directive, business needs and staff’s preferences.  All of our purchasing staff work in a team environment and there are many gains to being present in the office.  When part of the team is absent from the workplace, we lose the benefit of spontaneous group discussion in regard to problem solving, training, information transfer, potential productivity and general social interactions.  For staff present on a day to day basis I see the amount of interactions that occur. 

We have approved staff who have applied for flexible work arrangements in all other purchasing hubs to work from home one day per week.  Your situation is a little different due to your current accommodation status.  We are still actively looking for extended accommodation for the team so I will consider a continuance of an approved working from home arrangement for the Sunshine Coast Team with the following conditions:

  1. -
    The provided roster 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.
  1. -
    Office desk phones are transferred through to a home phone contact (either land line or mobile) on the WFH days;
  1. -
    Work hours to cover span of established office hours 7:00 – 4:30 (with the continuance of ADO accrual time incorporated)
  1. [6]
    The administrative decision also determined that the abovementioned arrangements were to be reviewed on a monthly basis.
  1. [7]
    On 16 July 2021, Mr Hollis sought a review of the administrative decision in accordance with cl 3 of the Department's Human Resources Policy Flexible Working Arrangements (C5 QH-POL-342) ("the FWA policy").
  1. [8]
    On 6 August 2021, the decision maker determined to uphold the administrative decision which partially approved Mr Hollis' FWA request subject to certain conditions ("the decision").
  1. [9]
    On 25 August 2021, Mr Hollis filed an appeal against the decision, stating that the decision was not fair and reasonable on the following grounds:
  1. (a)
    Mr Hollis believes his productivity is improved when working from his home office as he has improved focus and concentration due to lack of office related distraction;
  1. (b)
    Mr Hollis can better manage personal health issues when working from home, including his mental health and work life balance;
  1. (c)
    Mr Hollis, over the past 15 months, has demonstrated that he does not need to be in the office to perform his role to a high standard;
  1. (d)
    during his tenure as a Purchasing Officer, Mr Hollis has not been required to attend any face to face or external meetings with clients, and apart from the initial two-week training, Mr Hollis has not been required to attend any in house training events; and
  1. (e)
    the Department has not followed their own relevant policy and guidelines in not approving Mr Hollis' FWA request.
  1. [10]
    The appeal is made pursuant to s 197 of the PS Act which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission ("the Commission").
  1. [11]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [12]
    I must decide the appeal by reviewing the decision appealed against.  The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing, but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [13]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

The decision

  1. [14]
    By email dated 6 August 2021, the decision maker confirmed the administrative decision and provided the following reasons:

…

I note that you had requested a flexible working arrangement specifically to continue to work from home in the same manner in which you did during the COVID pandemic (15 month odd period). I understand from your email and from Attachment 4 of your email that specifically you are requesting to continue with the team roster arrangement that represents a 50% occupancy within the office (‘Original Roster from 2020’ detailed in the Attachment 4 email).

You have detailed within your request that your role does not require you to attend face to face meetings, that you have been productive whilst working from home during the pandemic including working outside of hours and a willingness to work extra hours, there are financial impacts for you associated with working from home as well as to the Government with respect to office space, and finally you have provided details of a medical condition whereby you have indicated you would benefit from a working from home arrangement.

You have also detailed concerns relating to the Nambour office space, specifically the size and that it is close by construction which creates noise and odours.

I note from Attachment 4 of your email, three different roster patterns:

  1. Original Roster from 2020 representing you working from home a total of two weeks in every three and from the workplace one week in every three;
  2. Current Roster representing you working from home 14 days in a four-week period, and the remaining six days in the workplace; and
  3. Three staff in the office roster representing 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 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 acknowledge that despite their being discussions amongst the team and with Ms Jones and your supervisors around your (and others) flexible working arrangement requests, a formal decision was not provided to you within the required 21-day response period and I pass on my apologies for this oversight.

HR Policy C5 (the Policy) Flexible Working Arrangements provides that flexible working options are to be considered in an equitable manner for the whole work unit and are not to compromise client service. The Policy also details that flexible working arrangements should be reviewed on a regular basis e.g. every three months to ensure ongoing suitability for the employee, the work team and the organisation.

…

I wish to advise that I have determined to support the implementation of roster 3, which represent 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.

In reaching this decision, I have considered the details you have included as the basis for your request as well as the operational [sic] requirements. I consider that this roster pattern represents a balance of providing flexibility for you to work from home which enables you to focus on your mental health and wellbeing including managing your medical condition, but also is considerate of the operational and team requirements. With respect to your medical condition, I would further note that should additional ad hoc arrangements be beneficial, then I would encourage these be discussed, for example, if you experience a flare up of your condition then it may be appropriate to increase your working from home days as an ad hoc arrangement.

Your role is a client / customer interfacing role which requires regular interactions with other colleagues, teams, and clients both internal and external. Whilst this can be maintained via Microsoft Teams and other mediums, I do agree with Ms Jones that there are considerable benefits in attending the workplace including increased opportunities to interact and improve through team dynamics. Working from the workplace environment enables you to hear other colleagues, and your supervisors, interactions and to engage in sporadic conversation of mutual learning and benefit.

…

Relevant legislation and policy

  1. [15]
    Section 194 of the PS Act identifies the type of decision against which an appeal can be made:

194 Decision against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

(eb)  a decision a public service employee believes is unfair and unreasonable (a   fair  treatment decision);

  1. [16]
    The FWA policy commenced in June 2020 and applies to all Queensland Health employees.
  1. [17]
    Clause 3 of the FWA policy outlines the process for submitting a request to access flexible working arrangements as follows:

Requests for flexible work should be made in accordance with section 27 of the Industrial Relations Act which requires that the request:

  1. (a)
    be in writing; and
  2. (b)
    state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and
  3. (c)
    state the reasons for the change.

Decisions are to be made within 21 days of receipt of the request and communicated to the employee in writing (refer section 28 of the Industrial Relations Act).

The approving delegate may approve a request in its entirety, in part, subject to specific conditions or decline the request.

In cases where the delegate approves a request in its entirety, the delegate must clearly outline the flexible working arrangement/s that have been approved (e.g. approval has been granted for the employee to work from 7.30am to 2.30pm, 5 days per week), within the written decision provided to the employee.

Any decision to grant a request in part or subject to conditions, or to refuse a request, is to be made only on reasonable grounds and communicated to the employee in writing, and must:

  • contain details of the part approval and/or conditions (e.g. timeframe for the arrangement to be reviewed)
  • provide clear reasons as to why a part approval or condition has been applied, or the reason for refusal
  • state the employees’ entitlement to lodge an industrial dispute with the Queensland Industrial Relations Commission.

Section 29 of the Industrial Relations Act notes that if the employer does not give the written notice within 21 days after receiving this request, the employer is taken to have decided to refuse the request. The Queensland Industrial Relations Commission has jurisdiction to hear and decide a dispute over the request.

  1. [18]
    Clause 5 of the FWA policy provides for the appeal rights of employees as follows:

Employees have a right to appeal based on grounds for the decision and/or the process followed.

They may appeal the decision or any unreasonable future repeal of the arrangement by:

  • taking the matter to the delegate’s supervisor for fresh consideration and response
  • lodging a complaint in accordance with the Employee Complaints HR Policy E12 or
  • lodging direct with the Queensland Industrial Relations Commission.
  1. [19]
    Attachment One to the FWA policy provides for key principles which underpin all flexible working arrangements and should be considered by the delegate, employee and team members:
  • Flexibility can take many forms and be for many reasons.
  • Start from the position of ‘how can we make this work?’
  • Be creative and solutions focused.
  • Understand the operational benefits and outcomes.
  • Ensure arrangements are compliant with applicable industrial instruments.
  • Promote a ‘guilt-free’ attitude to requests and implementation.
  • Cultivate an open and trusting environment.
  • No one size fits all—everybody and every situation is different.
  1. [20]
    Clause 2.1 of Attachment One to the FWA policy also sets out a number of considerations that the delegate should or must take into account when considering a request for a flexible working arrangement. These considerations are as follows:

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 or wellbeing.

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

Whether the decision was fair and reasonable

Mr Hollis' medical condition

  1. [21]
    The details of Mr Hollis' FWA request contained in his written application included a reference to his medical condition as follows:

Finally, I refer to my ongoing medical condition. In 1998 I was diagnosed with colitis which is a debilitating bowel conditions. The symptoms of this condition or both painful and embarrassing especially embarrassing in an office environment. My symptoms have been steadily declining, and as a result I require sole access to bathroom facilities which I currently have at home. I have spoken with my GP and he has provided me with a letter of support which can be provided.

  1. [22]
    It can be inferred from the above that, Mr Hollis' medical condition did not interfere with Mr Hollis working from the workplace prior to the commencement of the working from home arrangements as a result of the coronavirus pandemic.
  1. [23]
    There is no information before the Commission which would allow a determination to be made about the extent to which, if any, Mr Hollis' medical condition is a basis to grant his request for a FWA.
  1. [24]
    However, it is clear from the terms of the decision, that the decision maker did not refer, in any meaningful way, to Mr Hollis' medical condition, or the fact that Mr Hollis sought to include it as a basis to support his FWA request. Given that the medical condition was raised and was said by Mr Hollis to be "steadily declining", I consider it was incumbent upon the decision maker to consider Mr Hollis' request for a FWA in the context of him suffering from the medical condition, and to enquire as to what Mr Hollis meant when he described his medical condition as "steadily declining". This may have required the decision maker to request further information from Mr Hollis in order for the matter to be properly considered.
  1. [25]
    It is not apparent in the reasons for the decision, or on the information before me in this appeal, as to the factual basis for the decision maker's conclusion that the decision struck a balance between providing Mr Hollis flexibility to work from home to focus on his medical condition, but also considers the operational and team requirements. I am not satisfied that the decision  maker had all of the relevant information regarding Mr Hollis' medical condition before him to form such an assessment. Further there is no evidence that the decision maker sought to gather such information.
  1. [26]
    Further, I am unable to determine on the material before me, why the decision maker considered that it may be appropriate to manage Mr Hollis' medical condition by way of an "ad hoc arrangement". Again, there is an absence of reasoning in the decision, and on the information before me in this appeal, which provides a reasonable factual basis for such a proposal.
  1. [27]
    The failure by the decision maker to meaningfully consider these matters in the decision, and in the decision-making process, renders the decision as being not fair and reasonable.
  1. [28]
    On 28 September 2021, the Department provided further written submissions which relevantly, inter alia, stated:

In relation to the Appellants medical condition, the Respondent submits that it will take action to ensure reasonable adjustments are made in accordance with Human Resource (HR) Policy G3 titled ‘Reasonable Adjustment’

  1. [29]
    Whilst the submission acknowledges that action will be taken to ensure reasonable adjustments are made with respect to Mr Hollis' medical condition in the future, that does not remedy the failure by the decision maker to consider Mr Hollis' request for a FWA in the context of Mr Hollis suffering from a medical condition which he described as "steadily declining".
  1. [30]
    As no meaningful information was sought from Mr Hollis with respect to his medical condition in the context of his request for a FWA, I am unable to make an assessment on the material before me with respect to those matters.
  1. [31]
    Further, I am of the view that there was limited consultation with Mr Hollis and his team members as prescribed by the FWA Policy. The FWA Policy prescribes that "[t]he delegate must be able to demonstrate they worked with the employee and the larger team to find solutions that meet work, team and personal needs." The decision does not disclose any reference to such a process taking place.

Conclusion

  1. [32]
    Accordingly, I have determined that the decision did not have regard to Mr Hollis' personal circumstances, including the potential impact of his medical condition in circumstances where it was described as "steadily declining".
  1. [33]
    Further, there is no evidence that the delegate worked with Mr Hollis or his team to find the best solution to meet the work, team and personal needs of all involved.
  1. [34]
    For this reason, I have determined that the decision, and the decision-making process, was not fair and reasonable.
  1. [35]
    As I consider that the decision-making process was flawed, I have determined to set aside the decision and return the matter to the decision maker in order to consider Mr Hollis' request for a FWA on its terms and in accordance with the requirements of the FWA Policy. This will require a proper consideration of the needs of Mr Hollis, his team and the work to be performed.

Orders

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against be set aside.
  1. I direct that the matter be returned to the decision maker with a copy of these Reasons for Decision and that a fresh review be completed within 21 days of the date of this decision.

Footnotes

[1] Respondent's submissions filed 9 September 2021.

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Close

Editorial Notes

  • Published Case Name:

    Hollis v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Hollis v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 404

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    01 Dec 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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