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  4. Pettinger v State of Queensland (Office of Industrial Relations) - [2022] QIRC 235

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Pettinger v State of Queensland (Office of Industrial Relations)[2022] QIRC 235

Pettinger v State of Queensland (Office of Industrial Relations)[2022] QIRC 235

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pettinger v State of Queensland (Office of Industrial Relations) [2022] QIRC 235

PARTIES:

Pettinger, Stephen John

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO.:

PSA/2021/381

PROCEEDING:

Public Service Appeal - Appeal against promotion decisions

DELIVERED ON:

21 June 2022

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decisions appealed against are confirmed.

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – PUBLIC SERVICE APPEAL – Appellant a former sworn police officer with considerable police experience – since 2014, Appellant a Compliance Investigator, classification AO5, employed by the State of Queensland in the Queensland Building and Construction Commission – Appellant applied to be appointed to one of four advertised positions of Principal Inspector, classification AO6, in the Labour Hire Licensing Compliance Unit of the Office of Industrial Relations – Appellant not shortlisted and not interviewed – appeal by Appellant against decisions to appoint two persons to the advertised positions – Appellant contends the decisions to appoint the two persons involved the selection panel abandoning merit – whether selection panel failed to apply the merit principle, as provided for in s 28 of the Public Service Act 2008, in deciding which applicants were shortlisted to be interviewed – no failure by the selection panel to apply the merit principle in deciding which applicants were to be shortlisted for interview – decisions appealed against fair and reasonable – decisions appealed against confirmed

LEGISLATION:

Directive: 12/20 - Recruitment and selection, cl 7

Industrial Relations Act 2016, s 562B and s 562C

Industrial Relations (Tribunals) Rules 2011, r 97

Labour Hire Licensing Act 2017, s 15

Public Service Act 2008, s 27, s 28, s 194, s 197 and s 201

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Mr Stephen John Pettinger is employed by the State of Queensland in the position of Senior Inspector, classification AO5, within the Queensland Building and Construction Commission ('QBCC').
  1. [2]
    On 30 July 2021, four vacant, permanent positions of Principal Inspector, classification AO6, within the Labour Hire Licensing Compliance Unit ('LHLCU'), Office of Industrial Relations ('OIR') were advertised ('the positions'). A total of 44 applications were received. Mr Pettinger applied to be appointed to one of the positions. Mr Pettinger was not shortlisted and was not interviewed.
  1. [3]
    Two of the successful applicants were:
  • Ms A, who, at the time of her application, was employed on a full-time, fixed term temporary basis in the position of Principal Inspector, classification AO6, LHLCU, OIR; and
  • Ms B,[1] who, at the time of her application, was employed on a full-time, fixed term temporary basis in the position of Principal Inspector, classification AO6, LHLCU, OIR ('the two successful applicants').
  1. [4]
    Ms A's substantive position was that of Executive Officer, classification AO4, LHLCU, OIR. Ms B's substantive position was that of Senior Compliance Officer, classification AO5, Office of Fair Trading, Liquor Gaming and Fair Trading, Department of Justice and Attorney-General.
  1. [5]
    Public notification, in the Queensland Government Gazette, of the appointments of Ms A and Ms B to the positions occurred on 28 October 2021 ('the decisions').
  1. [6]
    By appeal notice filed on 5 November 2021, Mr Pettinger, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act') appealed against the decisions. Section 194(1)(c) of the PS Act provides that an appeal may be made against a decision to promote a public service officer. The OIR does contend Mr Pettinger's appeal is incompetent.
  1. [7]
    Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Queensland Industrial Relations Commission. The principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions in s 562B(2) and s 562B(3) of the IR Act.[2]
  1. [8]
    In general terms, Mr Pettinger contends that the OIR selection panel, that recommended the appointment of the successful applicants to the relevant delegate, abandoned merit-based selection. The basis of this contention is Mr Pettinger's extensive investigative and prosecutorial experience in the Queensland Police Service, compared to the experience of Ms A and Ms B at their substantive classifications of AO4 and AO5 respectively.[3]
  1. [9]
    I must decide the appeal by reviewing the decision appealed against.[4] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision-making process associated therewith.[5] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[6] The issue for my determination is whether the decisions appealed against were fair and reasonable.[7]
  1. [10]
    The relief that can be ordered for a successful appellant to a promotion appeal is to set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the Public Service Commission chief executive under the PS Act that this Commission considers appropriate.[8]
  1. [11]
    Section 562C(2) of the IR Act provides that in deciding a promotion appeal, the Commission may set the decision aside only if the Commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the PS Act, a regulation or a directive of the Public Service Commission chief executive under the PS Act.[9] Such a directive has been made by the Public Service Commission chief executive, namely, Directive: 12/20 - Recruitment and selection ('the Directive').
  1. [12]
    In my view, the operative effect of s 562C(2) of the IR Act is that in deciding whether a promotion decision appealed against was fair and reasonable, the issue for determination is limited to whether the process complied with the PS Act, a regulation or the Directive.
  1. [13]
    For the reasons that follow, I find that the decisions were fair and reasonable. As a consequence, I will confirm the decisions.

Background

The relevant legislative provisions

  1. [14]
    Section 27(1) of the PS Act provides that the selection, under the PS Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone, referred to as the 'merit principle'.
  1. [15]
    Sections 28 and 29 of the PS Act provide:

28  Merit criteria

In applying the merit principle to a person, the following must be taken into account-

  1. (a)
    the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  1. (b)
    if relevant-
  1. (i)
    the way in which the person carried out any previous employment or occupational duties; and
  1. (ii)
    the extent to which the person has potential for development.

29  Directives about applying the merit principle

  1. (1)
    A directive of the commission chief executive may provide for how selection, under the merit principle, for a stated type of appointment or secondment must be carried out.
  2. (2)
    A selection for an appointment or secondment must comply with any relevant directive under subsection (1).
  1. [16]
    Clause 7 of the Directive relevantly provides:

7.  Merit assessment and decisions

7.1  Merit assessment must occur irrespective of whether a vacancy is advertised or not. Subject to clause 7.2, chief executives are responsible for determining the activities required to assess merit.

7.2  Assessment processes for advertised vacancies must:

  1. (a)
    incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants’ merit within the current context and duties of the role
  1. (b)
    take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)
  1. (c)
    incorporate pre-employment checks including referee checking as per clause 8
  1. (d)
    measure the relative merit of each applicant, and
  1. (e)
    be consistent with the principles of employment equity and anti-discrimination.

7.3  Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants).

The selection process adopted by the OIR

  1. [17]
    The selection panel convened by the OIR consisted of:
  • Mr Adam Low, Lead Inspector, LHLCU, who was the panel chair;
  • Ms Courtney Blomfeld, Principal Inspector, LHLCU; and
  • Ms Jane Davies, an external Recruitment Consultant from Merit Solutions.
  1. [18]
    After the closing date for applications, the following relevant events, which are not disputed by Mr Pettinger, occurred:
  • on 1 and 2 September 2021, the selection panel convened to shortlist the applicants, with ten applicants being shortlisted including Ms A and Ms B;
  • on 6 September 2021, Mr Pettinger re-submitted his application; and
  • on 7 September 2021, the selection panel met and agreed to review Mr Pettinger's re-submitted application and to discuss whether he should be shortlisted, and it was decided that Mr Pettinger would not be shortlisted.
  1. [19]
    The selection panel's reasoning for its decision to shortlist 10 of the 44 applicants for the position is set out in the selection panel's shortlisting matrix ('the matrix').[10]
  1. [20]
    Following the shortlisting of the 10 applicants, the following events occurred:
  • on 9, 10 and 13 September 2021, the selection panel conducted interviews with the shortlisted applicants;
  • between 14 September 2021 and 17 September 2021, referee checks of shortlisted applicants were performed;
  • between 16 September 2021 and 17 September 2021, final deliberations were undertaken by the selection panel;
  • on 20 September 2021, the recruitment and selection report was signed by the selection panel;
  • on 24 September 2021, the recruitment and selection report was approved by the relevant Delegate;
  • on 28 September 2021, Mr Pettinger sought feedback from the selection panel; and
  • on 29 September 2021, Mr Low provided verbal feedback to Mr Pettinger.
  1. [21]
    Mr Pettinger's application did not proceed past the shortlisting stage. As a consequence, in reviewing the decisions to determine if they were fair and reasonable, by virtue of s 562C(2) of the IR Act, consideration must be given to whether or not the selection process complied with the PS Act, a regulation or the Directive at the point the selection panel made its shortlisting decisions.
  1. [22]
    For the reasons I give below, the specific issue for determination is whether, in making the decisions not to shortlist Mr Pettinger and to shortlist Ms A and Ms B, the selection panel applied the merit principal in s 28 of the PS Act as required by s 27 of the PS Act.

Mr Pettinger's submissions

  1. [23]
    Given the directions I made in this matter, Mr Pettinger filed and served two sets of written submissions, being written submissions he filed on 9 December 2021('Mr Pettinger's principal submissions') and supplementary written submissions, which were in response to the principal written submissions of the OIR, filed by Mr Pettinger on 1 February 2022 ('Mr Pettinger's further submissions').
  1. [24]
    In his principal submissions, Mr Pettinger stated:

I submit that the panel, in this instance has abandoned merit-based selection. The panel has not properly read all my documents and misdirected themselves in the notion of merit. I respectfully submit that staff at AO4 and AO5 level do not possess my experience and skill sets as outlined in my application (resume and two-page statement). I do not believe it is possible to equate their skill level and experience with mine as my level was equivalent to an AO8. I take to the position substantial skills which I have, not which I will/might acquire. I was a member of the Queensland police service between 1973 and 2013.

  1. [25]
    The remaining part of Mr Pettinger's principal submissions is a summary of all of his investigative, prosecutorial, project management and leadership experience in the Queensland Police Service over that 40 year period.
  1. [26]
    Mr Pettinger's further submissions particularised his general contention that the selection panel, in respect of his application, abandoned merit-based selection and that it misdirected itself in the notion of merit.
  1. [27]
    By way of summary, in Mr Pettinger's further submissions, he relevantly contends:
  • the position is a senior position in a regulatory agency with a significant investigative requirement, therefore, any of the investigations or audits may ultimately result in a prosecution;
  • hence, investigations, evidence gathering, statement taking and handling of exhibits must be carried out to obtain admissible evidence;
  • missing from the assessment process is an examination of the mechanical component of an investigation, such as the Justices Act 1886, the Evidence Act 1977 and the Criminal Code 1889, which assists in guiding an investigation methodology; and
  • the two appointees offered no evidence of an understanding of how an investigation should proceed either directly, through identified training or even by inference.
  1. [28]
    Mr Pettinger concluded by submitting:
  1. I refer to paragraph 19 of the response by the Respondent. It says inter alia: The Delegate did this by independently reviewing all of the recruitment and selection documentation to ensure compliance with the PS Act, Directive and Standard of Practice. On this basis the Delegate was satisfied that Mr Pettinger was not the most meritorious candidate. (My emphasis) I don't find it plausible that the delegate reviewed all of the documentation in relation to 44 applicants.
  1. The information I provided to the panel outlined my extensive experience within the Police Service at a higher level than this position which I applied for. I did not outline my experience at the Queensland Building and Construction Commission as I would be linking my activities to an A05 level.
  1. I submit that my extensive experience within the policing environment gives me greater meritorious claim to the positions the subject of this review. The panel has abandoned merit and recommended the appointees who have significantly less merit that I do. There is no evidence either direct or inferred that the appointees have sufficient court experience to prepare documents for court.

The OIR's submissions

  1. [29]
    In its submissions in reply to Mr Pettinger's further submissions, the OIR submitted that:
  • the decisions were fair and reasonable because;

-all applicants were made aware of how their merit would be assessed, had equal access to instructions about how to prepare their written application and that the criteria within the Position Description were broad enough that all applicants would have had an ample opportunity to highlight skills, experiences and capabilities where relevant;

-all members of the selection panel assessed Mr Pettinger's application including his work history and experience, and unanimously agreed that he should not be shortlisted for interview; and

-the selection panel's assessment documentation outline how the applicants had been differentiated based on their application with a number of other candidates demonstrating higher capabilities than Mr Pettinger who were shortlisted for interview; and

  • in respect of the shortlisting process:

-the matrix provided as part of the recruitment and selection documentation detailed the considerations of each applicant's application, and that matrix, along with other documentation included in the selection report, provided adequate information to the decisionmaker to consider the recommendations following the interview process;

-while Mr Pettinger's work history and experience was considered, it was open to the selection panel to explore whether applicants possessed the requisite capabilities, by measuring written applications against the knowledge, skills and experience ('KSEs') drawn from the Position Description for the position;

-the shortlisting process, including the assessment method adopted by the selection panel, was consistent with the Directive in that it involved reviewing written applications so the selection panel could evaluate applicants against the five key capability set out in the Position Description;

-key capabilities are linked to key responsibilities of the position, are determinants of an applicant's suitability for the role and on which an applicant is assessed; and

-Mr Pettinger had the task of demonstrating his merit for the role and the selection panel had the task of assessing his merit.

  1. [30]
    The OIR concluded by submitting that:
  • there was a comprehensive and fair assessment of the applicants, including merit within the context of the duties and functions of the role;
  • it was open to the selection panel to reach its conclusion with respect to their assessment of Mr Pettinger's application and the shortlisting for interview; and
  • the fact that Mr Pettinger may hold a different view of his experience and capabilities does not mean that the selection panel's decision was not fair and reasonable.

The decisions were fair and reasonable

How must I determine whether or not the decisions appealed against were fair and reasonable?

  1. [31]
    Mr Pettinger's principal contention is that the selection panel, in respect of his application, abandoned merit-based selection and that it misdirected itself on the notion of merit.
  1. [32]
    In my opinion, the central issue thrown up by Mr Pettinger's appeal, and by his principal contention, is whether the selection panel complied with s 28 of the PS Act.
  1. [33]
    That is to say, the issue is whether, in making the decision not to shortlist Mr Pettinger, the selection panel failed to take into account:
  • the extent to which, relevant to carrying out the duties in question, Mr Pettinger had the:

-abilities;

-aptitude;

-skills;

-qualifications;

-knowledge;

-experience; and

-personal qualities; and

  • where relevant:

-the way in which Mr Pettinger carried out any previous employment or occupational duties; and

-the extent to which he has potential for development.

  1. [34]
    Mr Pettinger's argument that the selection panel failed to take into account these matters in respect of him proceeds by way of the selection panel's assessment of the merit of Ms A and Ms B compared to the selection panel's merit assessment of him.
  1. [35]
    The only material assessment, by the selection panel, of the merit of Mr Pettinger and of Ms A and Ms B occurred at the shortlisting stage.
  1. [36]
    As a consequence, the time at which I must consider whether or not the selection panel complied with s 28 of the PS Act is at the time the selection panel made its decisions about which applicants it would shortlist.

The selection panel took into account the relevant matters referred to in s 28 of the PS Act in respect of Mr Pettinger

  1. [37]
    In my view, in deciding not to shortlist Mr Pettinger and to shortlist Ms A and Ms B, the selection panel did take into account the relevant matters contained in s 28 of the PS Act in respect of Mr Pettinger.
  1. [38]
    There are three reasons for this:
  • the shortlisting criteria reasonably reflected the criteria against which applicants would be assessed as set out in the Position Description;
  • the selection panel objectively compared Mr Pettinger's written application to the shortlisting criteria; and
  • the selection panel compared its assessment of Mr Pettinger to the assessment of Ms A and Ms B.

The shortlisting criteria reasonably reflected the criteria against which applicants would be assessed as set out in the Position Description

  1. [39]
    The Position Description for the positions relevantly provided:

Our contribution

The Labour Hire Licensing Compliance Unit (LHLCU) is established under the Labour Hire Licensing Act 2017 (the Act) and is located within the Industrial Relations Division of the Office of Industrial Relations. The Labour Hire Licensing Compliance Unit contributes to the Office of Industrial Relations' obligations by providing regulatory, compliance, information and client services for Queensland's labour hire licensing laws.

Your contribution

Contribute to Labour Hire Licensing Compliance Unit operations by monitoring compliance with the Labour Hire Licensing Act 2017, investigate and where necessary take action to deal with alleged contraventions of the Act, and inform providers and workers of their rights and obligations under the Act.

…

Key responsibilities

  1. Conduct complex and sensitive investigations or audits to ensure compliance with the Labour Hire Licensing Act 2017.
  1. Produce quality case files and reports and provide advice on their progression.
  1. Provide authoritative and professional information on labour hire legislation and conduct community education for labour hire businesses, workers, industrial organisations, the legal and accounting professions and the public.
  1. Provide leadership, training and mentoring for other members of the Labour Hire Licensing Compliance Unit.
  1. Interpret the Labour Hire Licensing Act 2017 and relevant laws to provide advice about the operation of the Act and identify and determine-novel issues.
  1. Recognise and analyse compliance risk on a case and systemic level and use evidence to make recommendation about risk treatment.

How you will be assessed

We'll assess your merit for this role by looking at what you've done previously - the knowledge, skills and experience you've built, your potential for development and your personal qualities. We'll consider how well you:

  1. Demonstrated ability to conduct quality audits and investigations.
  1. Demonstrated communication, interpersonal skills as evidenced by the ability to effectively liaise with employers and employees within the private sector, deliver presentations and prepare and present detailed submissions and reports.
  1. Proven ability to interpret legislation and sound knowledge of contemporary issues, legislation and policies relating to labour hire and other relevant laws.
  1. Well-developed analytical, research skills including the capacity to assess compliance risk, interrogate data and make recommendations for appropriate compliance strategies to address risk.
  1. Proven leadership and mentoring skills with the ability to respond to and/or initiate strategies for continued improvement to business performance, and commitment to the cultural values of OIR.

Mandatory requirements / special conditions

The successful applicant for this role must possess a current Class C Queensland Driver's Licence or equivalent.

  1. [40]
    The shortlisting criteria were set out on the first page of the matrix. The criteria were:
  • Sound ability to conduct high quality complex audits and investigations (and/or relevant non-Inspectorate experience)
  • Solid ability to interpret legislation
  • Advanced analytical skills - financial analysis desirable
  • Able to acquire mentoring and coaching skills
  • Solid interpersonal and rapport building skills
  • Team focused and agile
  • Advanced writing skills - technical drafting skills (administrative decisions, prosecution briefs) desirable
  1. [41]
    Mr Pettinger submitted:
  1. I have both an academic knowledge base of legislation and a demonstrated understanding of the investigative process which is supported by years of practical experience in the police. In providing examples of experience Ms [B] has used two examples of undertaking daily tasks which do not demonstrate an ability to conduct complex investigations and audits.
  1. It appears that all processes were committed to memory and no personal or group notes were taken. The panel has not demonstrated any strategy to award a YES, MAYBE or NO in the shortlisting process. I find it difficult to comment on the process adopted by the panel when the panel does not disclose the process. Paragraph 24 of the Respondent's submission provides "The Panel determined the most appropriate evaluation method to shortlist applicant was to develop a series of KSE (Knowledge, skills and experience) drawn from the role requirements…….. " The KSE which were used during shortlisting have not been provided by the Respondent. I believe the respondent would have provided all of the documentation they held. A reasonable conclusion is that the KSE were not provided to the Commission by the panel. Hence, the selection process did not align with what the Commission has said they did - the KSE document was not created as a benchmark. There was no shortlisting criteria established.
  1. [42]
    However, as I understand the OIR's principal submissions, the shortlisting criteria in the matrix are the 'KSEs' or knowledge, skills and experience and they were drawn from the Position Description. In this regard, the OIR submitted:
  1. OIR's Standards of Practice require Panels, at a minimum, to '...shortlist based on the initial submission which may include resume, covering letter, submission addressing key attributes or written response to the selection criteria...' The shortlisting process involved the Panel reviewing written applications comprising of a resume and statement and evaluating each applicant against the key capabilities set out in the PD under the section titled 'How you will be assessed'. The Panel determined the most appropriate evaluation method to shortlist applicants was to develop a series of 'KSEs' (knowledge, skills and experience) drawn from the role requirements, which were then utilised to shortlist the applicants (Attachment 6).
  1. To differentiate the candidates, the Panel determined the level of capability required for the role. The Panel measured the relative merit of each applicant to determine whether they adequately demonstrated the KSEs for each capability to progress to the interview stage. The following assessment scale was used:

Yes =  Adequately demonstrates the key capability and should be considered further

No =  Inadequately demonstrates the key capability ...skills and experience are not at the level required

Maybe = Has not clearly demonstrated the key capability. More information is required.

  1. [43]
    The Position Description provided that the OIR would assess the applicants' merit by, in respect of five specific abilities and skills mentioned, looking at what the applicants had done previously in respect of the knowledge, skills and experience they had built and the applicants' potential for development and personal qualities.
  1. [44]
    In my opinion, the five abilities and skills referred to in the Position Description reasonably matched up with the shortlisting criteria set out in the matrix, as demonstrated by the table set out below:

Position Description – Knowledge, skills and experience

Shortlisting criteria

Demonstrated ability to conduct quality audits and investigations

Sound ability to conduct high-quality complex audits and investigations (and/or relevant non-Inspectorate experience)

 

Demonstrated communication, interpersonal skills as evidenced by the ability to effectively liaise with employers and employees within the private sector, deliver presentations and prepare and present detailed submissions and reports

Solid interpersonal and rapport building skills

 

Advanced writing skills - technical drafting skills (administrative decisions, prosecution briefs) desirable

 

Proven ability to interpret legislation and sound knowledge of contemporary issues, legislation and policies relating to labour hire and other relevant laws

 

Solid ability to interpret legislation

 

Well-developed analytical, research skills including the capacity to assess compliance risk, interrogate data and make recommendations for appropriate compliance strategies to address risk

 

Advanced analytical skills - financial analysis desirable

Proven leadership and mentoring skills with the ability to respond to and/or initiate strategies for continued improvement to business performance, and commitment to the cultural values of OIR

 

Able to acquire mentoring and coaching skills

 

Team focused and agile

 

  1. [45]
    The purpose of the shortlisting criteria was just that; for the selection panel to make a value judgement of the knowledge, skills and experience built up by the applicants in their previous roles, and of their potential for development, by having regard to their written applications. That is to say, the shortlisting process and the comparison of the applicants' written applications as against the shortlisting criteria was not to come to a final determination about who would be recommended to be appointed to the positions, but to come to a determination about who would be interviewed. It was part of the screening device used to allow an objective assessment of the 44 applicants so as to select a smaller number of applicants to be interviewed.
  1. [46]
    For the reasons given below, by having regard to the matrix, it seems to me that the selection panel objectively considered the shortlisting criteria against the information provided by Mr Pettinger in his application and that it did the same in respect of the information provided in the applications by Ms A and Ms B.

The selection panel objectively compared Mr Pettinger's written application to the shortlisting criteria

  1. [47]
    Mr Pettinger submitted:
  1. The selection report provides inter alia at paragraph 7: 'they would be assessed and that OIR would assess their merit for the role by "looking at" what an applicant had done previously, the knowledge, skills and experience they had built, and their potential for development and personal qualities' I respectfully submit that the panel did not apply this rule to my application. For example the panel noted that Ms [B] had more than six years of regulatory compliance, investigations enforcement and leadership experience, My application cited experience as a regulator from October 2014 until the time of the application and my extensive experience in the judicial system as a police officer. That information was mentioned in the shortlisting notes, then ignored.
  1. The merit of Ms [B] was determined (I would think) by an examination of her two page submission and her Experience. I noted that in the Experience document that Ms [B] had simply copied and pasted the Key Responsibilities from this Position Description rather than outline her achievements in a one month period. I noted that other 'positions' she held were 'cut' and 'paste' from Position Descriptions in a similar manner. I also note that she has omitted the period from November 2020 to July 2021 her substantive position, The panel cannot find any development of skill sets for that period because no information was provided.
  1. The panel has embellished Ms [B's] experience. She had one month experience at AO6 level before this position was advertised and periodic relieving as an AO6 in the Office of Fair Trading. The periods of relieving are unknown. The work experience of Ms [B] between November 2020 and July 2021 does not appear in any of the documentation, The exact experience of Ms [B] at Fair Trading is silent. Ms [B] does not provide any information about her substantive position for two years July 2018 to November 2020. I do not see how the panel could extrapolate her experience to be three years AO6 compliant specific experience based on the information she provided. Ms [A] has only 5 months experience at the level applied for in 2021. Prior work experience does not include investigative/ enforcement/regulatory work.
  1. Both appointees do not demonstrate significant court experience or at least sufficient training and understanding of the admissibility of evidence, statement taking, continuity of possession etc. A reasonable conclusion is that both appointees are not able to gather admissible evidence, take statements and prepare a full brief of evidence.
  1. I have both an academic knowledge base of legislation and a demonstrated understanding of the investigative process which is supported by years of practical experience in the police. In providing examples of experience Ms [B] has used two examples of undertaking daily tasks which do not demonstrate an ability to conduct complex investigations and audits.

…

  1. With respect to [Ms A] there is no indication in her Resume that she had any involvement in investigative work until her current relieving position which began in March 2021, This position was advertised on 4 August 2021. A reasonable person might conclude the appointee had no experience with investigations, statement taking, evidence admissibility and court processes prior to her appointment to this position [sic] she was an appointed AO4. Her Resume supports this position.[11]
  1. [48]
    The OIR submitted that:
  • all applicants were made aware of how their merit would be assessed, and equal access to instructions about how to prepare their written application and that criteria within the Position Description were broad enough that all applicants would have had ample opportunity to highlight their skills, experiences and capabilities (where relevant);
  • all members of the selection panel assessed Mr Pettinger's application including his work history and experience, and unanimously agreed that he should not be shortlisted for interview; and
  • the selection panel's assessment documentation outlined how the applicants had been differentiated based on their application with a number of other candidates demonstrating higher capabilities than Mr Pettinger, who were shortlisted for interview.[12]
  1. [49]
    The OIR also submitted that there was nothing in the submissions made by Mr Pettinger to suggest that the selection panel ignored the merit principle. In particular, the OIR submitted that:
  • the investigations conducted by the Queensland Police Service, as referred to by Mr Pettinger in his submissions, are different from investigations conducted in a regulatory framework;
  • on his own admission, Mr Pettinger did not include his experience from the QBCC and to the extent he relied heavily on his experience with the Queensland Police Service, investigations are only part of the responsibilities of a police officer;
  • while Mr Pettinger's work history and experience were considered, it was open to the selection panel to explore whether applicants possessed the requisite capabilities, by measuring written applications against the KSEs drawn from the Position Description;
  • the shortlisting process involved reviewing written applications so the selection panel could evaluate applicants against the five key capabilities set out in the Position Description and the key capabilities are linked to 'Key responsibilities' of the role which are the determinants of an applicant's suitability for the role and upon which an applicant is assessed;
  • Mr Pettinger had the task of demonstrating his merit for the role and the selection panel had the task of assessing the applicants' merit;
  • the selection panel did not share Mr Pettinger's view that he was far more superior and more meritorious than Ms A and Ms B and that it was not uncommon for 'recent experience' to be considered more favourably than experience that is less recent in particular roles and that, ultimately, Ms A and Ms B were shortlisted because in addition to demonstrated ability to conduct quality audits and investigations, each demonstrated stronger claims to the role; and
  • the selection panel did not shortlist Mr Pettinger because:

-he seemed to heavily rely on his historical experience from the Queensland Police Service, which was some seven years ago, and he did not detail any of his recent investigative and audit experience which were key responsibilities of the role, making the differentiation between Ms A and Ms B and Mr Pettinger reasonable;

-Mr Pettinger conceded he did not include examples from his most recent employment experience with QBCC; and

-Mr Pettinger's writing skills, which are relevant to the ability to produce quality case files and reports, was considered poorer than the other applicants, noting that there were typographical and grammatical errors and his style was assessed as verbose.[13]

  1. [50]
    In the matrix, in respect of Mr Pettinger, the selection panel stated:
  • Significant QPS experience a detective level, currently AO5 compliance investigator at QBCC
  • Statement contains some examples but is not well mapped to the PD, writing of the statement is confusing
  • Has significant criminal investigation experience and some civil experience with disciplinary matters (though this appears to be some time ago) & QBCC
  • Has leadership experience
  • Complexity of experience in dealing with financial cases/making administrative decisions having regard to compliance with a range of relevant civil and criminal laws is unclear.
  • Has been with the QBCC since 2014, however most examples drawn from QPS experience. Given QBCC is a regulatory agency, experience within that division might have been helpful to explain.
  • Typos, grammatical errors, and verbose writing
  • Cites [name deleted], but he is not a referee.
  • There are stronger more aligned candidates
  1. [51]
    I accept the submissions made by the OIR that Mr Pettinger had the task of demonstrating his merit for the role. It was up to Mr Pettinger to demonstrate to the selection panel, at all stages of the recruitment and selection process, that he had the demonstrated and proven abilities and skills to be able to perform the key responsibilities of the position. That demonstration started with Mr Pettinger's written application for the positions.
  1. [52]
    I have read Mr Pettinger's written application for the positions.
  1. [53]
    Mr Pettinger has not been employed by the Queensland Police Service since 2014. From that time, to the date of his application, he has been employed by the QBCC in the position of Compliance Investigator, classification AO5. In the 17 paragraphs of his written application for the positions, all of those paragraphs refer to his considerable experience in the Queensland Police Service. The only part of his application where he refers to his position within the QBCC is in his resume. Apart from paragraph 8, Mr Pettinger does not tie any of his experience within the Queensland Police Service back to the key responsibilities of the positions set out in the Position Description.
  1. [54]
    Having regard to the matrix, it is abundantly clear that the selection panel did take into account Mr Pettinger's experience as a Detective and Commissioned Officer when he was employed within the Queensland Police Service.
  1. [55]
    However, for the reasons given by the selection panel as set out in the matrix, they did not assess that experience as being more or equally meritorious to the experience set out by Ms A and Ms B in their applications.

The selection panel compared its assessment of Mr Pettinger to the assessment of Ms A and Ms B

  1. [56]
    In my view, having regard to the shortlisting criteria and to Mr Pettinger's written application and those of Ms A and Ms B, the assessment made by the selection panel was open to them.
  1. [57]
    In the matrix, in respect of Ms A, the selection panel stated:
  • Since March has been acting in this role and has direct and relevant experience in investigations and audits. Previously in the unit for several years as an Executive Officer, with AO5 A/Team Leader experience for five months. Has been with the department since 1994 across various administration roles.
  • Has an immersive knowledge of the Office of Industrial Relations.
  • Outlines research and analytical skills and provides concrete examples and explained recommendation linkages to risk assessment and approach
  • Resume aligns to this role and has good relevant experience
  • Gave specific relevant examples to the PD
  1. [58]
    In the matrix, in respect of Ms B, the selection panel stated:
  • Strong relevant experience within LHLCU, OFT and OLGR, and provides examples that sets out the issues, steps taken on outcomes.
  • More than six years of regulatory, compliance, investigations, enforcement, and leadership experience in the Office of Fair Trading with A/Principal investigator opportunity since July 2021.
  • Three years AO6 compliance specific experience
  • Alignment to criteria with concrete examples
  • Has transferable skills and should be interviewed.
  • Business qualifications
  1. [59]
    The experience of Ms A and Ms B, and the assessment of the content of their written applications as against the shortlisting criteria as contained in the matrix, is self-explanatory.
  1. [60]
    Mr Pettinger's policing experience was taken into account, however, the selection panel assessed as more meritorious the more recent, albeit not as long, experience of Ms A and Ms B compared to that of Mr Pettinger. The selection panel did not come to the view that, in 2021, Mr Pettinger's years of experience as a police officer should be assessed as equal or as more favourable to the experience of Ms A and Ms B. However, that does not mean the merit principle was abandoned by the selection panel. There are three clear reasons for this conclusion.
  1. [61]
    First, Mr Pettinger, in his submissions, emphasised his significant court experience, his training and understanding of the rule of evidence, his experience in statement taking and in the continuity of the possession of evidence compared to that of Ms A and Ms B. However, those abilities did not expressly form part of the shortlisting criteria. Further, they were not listed, in the Position Description, as key abilities or key responsibilities.
  1. [62]
    The fact that Ms A and Ms B did not have the same experience of Mr Pettinger in those matters cannot lead to a conclusion that their experience has been overstated or embellished by the selection panel as contended by Mr Pettinger. Again, this is because experience in those specific skills is not an inherent requirement of the positions.
  1. [63]
    The result may have been different if the Position Description provided that the litigation experience and skills (of the kind had and developed by Mr Pettinger) were specifically required in the position. However, the principal key responsibilities in the Position Description concerned the conduct of complex and sensitive investigations or audits to ensure compliance with the Labour Hire Licensing Act 2017 and the production of quality case files and reports and to provide advice on their progression.
  1. [64]
    Secondly, in the assessment of Mr Pettinger's experience in the Queensland Police Service as against the shortlisting criteria (as recorded by the selection panel in the matrix), the selection panel took into account the relevant matters referred to in s 28 of the PS Act. That objective assessment relevantly took into account his skills, knowledge and experience as well as his personal qualities as against the shortlisting criteria. In making the shortlisting decision, the selection panel also took into account the way in which Mr Pettinger carried out his previous employment. The same was done in respect of Ms A and Ms B.
  1. [65]
    In this regard, as stated by the selection panel, a distinguishing feature of Mr Pettinger's application was his failure to refer to, in any detail, his most recent experience as a Compliance Investigator with the QBCC. On any reasonable view, that more recent experience would have been relevant experience, albeit at a different classification level, that may have had a closer connection with the shortlisting criteria and a closer connection to the key responsibilities of the positions set out in the Position Description. Mr Pettinger made a deliberate decision not to emphasise that experience compared to his experience within the Queensland Police Service up to 2014.
  1. [66]
    Furthermore, as stated by the selection panel in the matrix, Mr Pettinger did not make it clear how his experience in the Queensland Police Service had relevance to his experience in dealing with financial cases and making administrative decisions having regard to compliance. On my reading of Mr Pettinger's application, it was open to the selection panel to come to that view.
  1. [67]
    Mr Pettinger submitted that the selection panel noted that Ms B had more than six years of regulatory compliance, investigations enforcement and leadership experience, yet his cited experience '… as a regulator from October 2014 until the time of the application and my extensive experience in the judicial system as a police officer', while noted in the matrix, was ignored. I cannot accept this submission. Mr Pettinger only mentioned service in the QBCC as from 2014, he did not detail the work he had done with QBCC and he did not attempt to state why that service was relevant to the key responsibilities of the positions. Further, having regard to the selection panel's reasoning in the matrix, it did not ignore his extensive police experience, but stated that Mr Pettinger did not make clear how that policing experience (in civil and criminal laws) was relevant to the key responsibilities of the position.
  1. [68]
    Mr Pettinger submitted that he had both an academic knowledge base of legislation and a demonstrated understanding of the investigative process which was supported by years of practical experience in the police. Mr Pettinger then submitted that in providing examples of experience, Ms B has used two examples of undertaking '… daily tasks which do not demonstrate an ability to conduct complex investigations and audits.'
  1. [69]
    I cannot accept this submission.
  1. [70]
    In my view, having regard to Ms B's written application, the two examples are those on the last two pages of that application. The first example concerned an allocated task to conduct an audit on an applicant to determine if that applicant should be granted a labour hire licence under s 15 of the Labour Hire Licensing Act 2017. While this may have been an example of a daily task Ms B performed when she had been acting in the position the subject of the vacancies, it was direct and material experience relevant to the first key responsibility set out in the Position Description. If Mr Pettinger had experience of doing audit work, of a similar nature - in Queensland Police Service or in the QBCC - to demonstrate he could do audits and investigations of the nature as referred to in the first key responsibility in the Position Description (for example, to audit an applicant to assess if a licence should be granted under an Act), then he should have set that out. I cannot see where Mr Pettinger has been that specific in his application.
  1. [71]
    The second was an example of work Ms B performed in the Office of Fair Trading in the investigation of whether a trader had contravened the Australian Consumer Law, and the fact Ms B started a prosecution against that trader which resulted in a conviction and fine. This was experience that specifically addressed the first and second shortlisting criteria and which was directly relevant to the first key responsibility in the Position Description. While, in paragraph 2 on page 1 of 3 of his written application, Mr Pettinger refers to his experience in investigating and prosecuting serious crime, he did not, so far as I can see, specifically refer to work he undertook as a police officer and then attempt to link that specific work back to the first key responsibility contained in the Position Description.
  1. [72]
    Viewed this way, I cannot accept the criticisms Mr Pettinger makes of the shortlisting process.
  1. [73]
    Mr Pettinger also submitted that with respect to Ms A:
  • there was no indication in her resume that she had any involvement in investigative work until her current relieving position which began in March 2021, although the positions were advertised on 4 August 2021; and
  • a reasonable person might conclude that Ms A had no experience with investigations, statement taking, evidence admissibility and court processes prior to her appointment to this position when her position was classified AO4.
  1. [74]
    Again, in my view, knowledge of the rules of evidence and of court processes are not inherent requirements of the position. Conducting investigations and audits are. While Ms A may have short experience in conducting investigations (limited to between March and August 2021), between April 2018 and March 2021, in the position of Executive Officer, classification AO4, LHLCU, she did have experience conducting desk audits of labour hire licence applications and preparing audit reports. That experience was relevant to the abilities and key responsibilities in the Position Description.
  1. [75]
    The selection panel also assessed their differing experience in investigations. For the reasons given in the matrix, the panel did not assess Mr Pettinger's as more closely aligned to the requirements of the Position Description. This is entirely understandable given the way Mr Pettinger referred to his policing experience. Again, while Mr Pettinger set out his police criminal investigation experience, he did not link it back to the required abilities or key responsibilities in the Position Description. It is as if Mr Pettinger assumed that the selection panel would accept, without the need for explanation, that his police criminal investigation work was investigative work of the same kind or involved the exercise of the same skills as required for the positions. Mr Pettinger needed to say why that was the case. He did not. For these reasons, the selection panel's value judgements, as set out in the matrix, in respect of the way it assessed the disclosed investigation experience of Mr Pettinger and Ms A and Ms B is not evidence that it failed to apply the merit principal.
  1. [76]
    Thirdly, there was another reason given by the selection panel, in the matrix, as to why Mr Pettinger was not selected for interview. That concerned the presentation of his written application. That assessment was relevant to the last shortlisting criterion. In this regard, the selection panel also made an objective assessment.
  1. [77]
    For these reasons, I cannot form the view that the selection panel, in making the shortlisting decisions it made, abandoned the merit principle as contained in s 28 of the PS Act.

Conclusion

  1. [78]
    The questions in this case were whether the decisions to appoint Ms A and Ms B were fair and reasonable.
  1. [79]
    For the reasons I have given, those decisions were fair and reasonable.
  1. [80]
    The decisions appealed against are confirmed.

Order

  1. [81]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decisions appealed against are confirmed.

Footnotes

[1] Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011, I have anonymised the names of the successful applicants because they are not respondents to this appeal.

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 ('Morison'), [4]-[5].

[3] Mr Pettinger's written submissions filed on 9 December 2021, para. 1.

[4] Industrial Relations Act 2016 s 562B(2).

[5] Morison (n 2) [6].

[6] Industrial Relations Act 2016 s 562B(3).

[7] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[8] Industrial Relations Act 2016 s 562C(1)(b).

[9] Industrial Relations Act 2016 s 562C(2).

[10] The Office of Industrial Relations' written submissions filed on 13 January 2022, Attachment 6.

[11] Footnotes omitted.

[12] The Office of Industrial Relations' written submissions filed on 15 February 2022, ('the OIR's further submissions'), para. 3.

[13] The OIR's further submissions, paras. 8-11.

Close

Editorial Notes

  • Published Case Name:

    Pettinger v State of Queensland (Office of Industrial Relations)

  • Shortened Case Name:

    Pettinger v State of Queensland (Office of Industrial Relations)

  • MNC:

    [2022] QIRC 235

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    21 Jun 2022

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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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