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McWaters v State of Queensland (Queensland Corrective Services) QIRC 286
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
McWaters v State of Queensland (Queensland Corrective Services)  QIRC 286
State of Queensland (Queensland Corrective Services)
Public Service Appeal – Promotion decision
29 July 2022
On the papers
The appeal is dismissed.
PUBLIC SERVICE – classification, promotion or transfer – jurisdictional objection – where the appellant did not seek post-selection feedback – where the appellant is not a person who may appeal the promotion decision
Appeals Directive 07/20 cl 5
Industrial Relations Act 2016 s 562A
Public Service Act 2008 ss 194, 196
Recruitment and Selection Directive 12/20 cls 5, 10
Reasons for Decision
- Mr Paul McWaters (the Appellant) is employed by the State of Queensland (Queensland Corrective Services) as a Correctional Supervisor at Borallon Training and Correctional Centre (BTCC).
- Mr McWaters applied for the position of AO7 Correctional Manager, Prisoner Services, BTCC and was unsuccessful. Following the recruitment and selection process, the two successful candidates (the Appointees) were appointed to the positions. The appointments were published in the Queensland Government Gazette on 1 April 2022.
- Mr McWaters appeals the decision to appoint the Appointees and filed his appeal against the promotion decision on 22 April 2022. I accept that the decision is one that may be appealed and that it was filed within the 21-day legislative timeframe. I note however, that the Respondent raises a jurisdictional objection.
- The grounds for appeal relied on by Mr McWaters as summarised from the appeal notice are:
- That the feedback received from the chair of the selection panel (Melissa Sykes) indicated that my response had been of a high enough standard to have warranted a meritorious progression to the final stages of the process.
- That the decision to not continue my involvement in the process was premised on personal opinion (of panel members) and not born of a meritorious assessment of my response.
- That the panel was constructed in an improper manner.
Jurisdictional objection - is Mr McWaters a person who may appeal against the decision?
- The Respondent filed submissions in response to the appeal on 12 May 2022. In those submissions, the Respondent submits that Mr McWaters is not a person who can appeal against the Decision pursuant to section 196(c) of the Public Service Act 2008 (the PS Act) and therefore the Commission does not have jurisdiction to hear the appeal.
- Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(1)(c) of the PS Act provides that an appeal may be made against a decision to promote a public service officer (a promotion decision).
- Section 196 of the PS Act sets out who may appeal a promotion decision. Relevantly, s 196(c) states 'for a promotion decision - a public service officer aggrieved by the decision who is entitled to appeal under a directive of the commission chief executive.'
- The Department refers to the relevant directive, the Public Service Commission Chief Executive Directive: Appeals (Directive 07/20) (the Appeals Directive). Clause 5.2(e) of the Appeals Directive provides a list of mandatory conditions that must be met for a person to be entitled to lodge an appeal pursuant to s 194(1)(c) of the PS Act. Clause 5.2(e)(iii) of the Appeals Directive provides that to be a person who may appeal, 'the aggrieved officer' must have 'sought post-selection feedback in accordance with the provisions of the directive relating to recruitment and selection'.
- The Department says that while Mr McWaters has referenced verbal feedback claimed to be provided by Ms Melissa Sykes (then acting Deputy General Manager, BTCC and Panel Chair), that communication was on 3 February 2022.
- In Schedule 1 to his appeal notice, Mr McWaters says
That the feedback received from the chair of the selection panel (Melissa Sykes) indicated that my response had been of a high enough standard to have warranted a meritorious progression to the final stages of the process.
That the decision to not continue my involvement in the process was premised on personal opinion (of panel members) and not born of a meritorious assessment of my response. This is evidenced by the feedback I received from the chair of the selection panel (Melissa Sykes) as below.
(Summary/Paraphrased) That my response to the interview question (which was provided and answered in written format) was deemed to be of a good (even excellent) standard, however certain panel members felt that my answer was in conflict with the current Senior Management Team (of BTCC). The feedback was (by choice of the chair of the panel) provided in verbal format.
- The Department says that the process was not finalised until 28 February 2022, when the delegate confirmed the selection process and the decision of the panel and therefore Mr McWaters' conversation with the Panel Chair on 3 February was not 'post-selection feedback' as contemplated by the Directive. The Department says that the feedback discussed on 3 February 2022 was: provided prior to any selection being made; only to inform the Appellant of the outcome following the submission of his work test as part of the process; and only for the purpose of discharging the Respondent's requirement under cl 10.1 of the Recruitment and Selection Directive 12/20 (Directive 12/20) to inform Mr McWaters that as an applicant, he may request post-selection feedback.
- The Department submits that as Mr McWaters has 'not at any time sought post-selection feedback in accordance with cl 5(e)(iii) of the Appeals Directive, he has not complied with the requirements set out in the Appeals Directive' and therefore he is not a person who is entitled to appeal the decision.
- Mr McWaters says that he received the feedback from Ms Sykes at the 'point in time that the decision was communicated to me that I was not being short-listed for an interview and therefore my application for the role was not being progressed any further in the selection process'. Mr McWaters believes that the decision not to select him for a shortlisted group of applicants to be interviewed, is the type of selection decision that he is able to seek post-selection feedback on.
- Mr McWaters says that as he was to have no further involvement in the selection process after that time, the post-selection feedback would not have changed from the point in time it was provided to him by the Panel Chair, or if it would have been provided at a later stage of the process like when the position was gazetted.
- Mr McWaters disagrees with the Department's submission that the purpose of the conversation was to inform Mr McWaters that he was able to seek post-selection feedback. Mr McWaters says that the conversation was to provide him with feedback as to why he was not being selected for interview.
- Mr McWaters says that had he been advised that he was able to seek further post-selection feedback, he 'certainly would have done so' as he remains 'genuinely concerned about the procedural deficiencies I have identified about this process'. Mr McWaters says that as the feedback received was immediately after the decision not to progress his application further in the selection process, he believes he has met the requirement of cl 5.1(e)(iii) of the Appeals Directive.
- In reply to Mr McWaters submissions regarding the jurisdictional objection, the Department submits that according to Directive 12/20, post-selection feedback is feedback to '…explain the panel's recommendation and the decision maker's decision'. The Department stresses that at the time Mr McWaters received the feedback of 3 February 2022, the panel could not yet have made a recommendation in circumstances where the interviews did not occur until 4 February 2022 and the Selection Report had not been submitted until 21 February 2022. The Department says that the delegated decision-maker had not yet made a promotion decision and this occurred on 28 February 2022 when the decision-maker signed the Selection Report.
- The Department says that any feedback Mr McWaters received on 3 February 2022 could not possibly be considered post-selection feedback within the meaning of Direction 12/20 in circumstances where the Panel had not made a recommendation nor had the decision maker made a promotion decision that could be explained at that time.
Mr McWaters is not a person who may appeal the promotion decision
- I understand that Mr McWaters is of the opinion that any post-selection feedback he would have received would 'not have changed' from that provided to him in the conversation regarding the decision not to shortlist him on 3 February 2022. However, the feedback regarding the decision not to shortlist Mr McWaters was not 'post-selection feedback'. As the Department has pointed out, it could not have been post-selection feedback in circumstances where the selection had not occurred.
- The purpose of the post-selection feedback which is requested after the selection process has concluded is to 'explain the panel's recommendation and the decision maker's decision'. I find it unlikely that post-selection feedback, had it been requested by Mr McWaters, would have simply been a rehearsal of the feedback provided to Mr McWaters about why he was not short-listed for interview. Post-selection feedback would have involved a broader discussion about the decision of the panel and that of the decision-maker.
- When Mr McWaters was informed that he was not being shortlisted and identified concerns about the process, it was a matter for him to inform himself about the process for initiating an appeal against the decision. In consulting the relevant sections of the PS Act and the two relevant Directives, Mr McWaters would have become aware of the requirements he needed to fulfil to enable him to appeal the decision. One of these requirements was that Mr McWaters seek post-selection feedback.
- Even on Mr McWaters own version of the events, he did not seek post-selection feedback. The discussion regarding his shortlisting clearly occurred some weeks before the selection report had been submitted and the decision-maker had made the decision to appoint the recommended candidates.
- Pursuant to Industrial Relations Act 2016 (Qld) s562A (the IR Act), the Commission may consider not dealing with certain appeals pursuant to s 562A of the IR Act and may also dismiss appeals where there is a demonstrated lack of jurisdiction for the Commission to deal with them.
- I understand that Mr McWaters is aggrieved with the decision and submits that the process was deficient. However, Mr McWaters is not a person who may appeal pursuant to s 196(c) of the PS Act as he has not fulfilled the requirements of Directive 07/20 cl 5.2(e) and is therefore not entitled to appeal under that directive.
- For the foregoing reasons, I have determined that the Commission does not have jurisdiction to hear Mr McWaters' appeal.
- The appeal is dismissed for want of jurisdiction.
- The appeal is dismissed.
- Published Case Name:
McWaters v State of Queensland (Queensland Corrective Services)
- Shortened Case Name:
McWaters v State of Queensland (Queensland Corrective Services)
 QIRC 286
29 Jul 2022