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Laurenson v State of Queensland (Queensland Health)[2022] QIRC 288

Laurenson v State of Queensland (Queensland Health)[2022] QIRC 288

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Laurenson v State of Queensland (Queensland Health) [2022] QIRC 288

PARTIES:

Laurenson, Rikki Bain

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/382

PROCEEDING:

Public Service Appeal – Promotion Decision

DELIVERED ON:

29 July 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

Final submissions received 3 May 2022

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE CLASSIFICATION, PROMOTION OR TRANSFER appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where appellant applied for advertised position – where appellant merit listed but not the successful applicant – where another candidate appointed – whether the recruitment and selection process was deficient – where successful candidate 'shadowed' retiring staff member – whether recruitment and selection process predetermined – whether recruitment and selection process fair and reasonable – decision confirmed

LEGISLATION AND

INSTRUMENTS:

Directive 12/20 Recruitment and selection cls 4.1, 7

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld) ss 27, 28, 197

Queensland Health Human Resources Policy B1 Recruitment and Selection ss 9, 11.2

CASES:

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

Reasons for Decision

  1. [1]
    Mr Rikki Bain Laurenson is substantively employed by the State of Queensland through Queensland Health ('the Department') as a Senior Systems Integrator (AO6). He is employed within the Systems Integration Team ('SIT'), Digital Application Services, eHealth Queensland.
  2. [2]
    Between the period 11 February 2019 and 27 March 2022, Mr Laurenson undertook a higher duties acting position in the role of Principal Systems Integrator (AO7).
  3. [3]
    In late 2021, Mr Laurenson unsuccessfully applied for the position of Principal Systems Integrator (AO7) (position 30472920) (JAR QLD/396016) ('the AO7 position'). The AO7 position is a different position to the one in which Mr Laurenson was acting in higher duties at the time, and arose as a result of the retirement of the substantive position holder.
  4. [4]
    By appeal notice filed 18 March 2022, Mr Laurenson seeks to challenge the outcome of the recruitment and selection process under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  5. [5]
    For an appeal against a promotion decision, I must decide the appeal having regard to the evidence available to the decision-maker when the decision was made.[4] However, I may take into account other evidence if I consider it appropriate.[5]
  6. [6]
    In my view, the recruitment and selection process was fair and reasonable.
  7. [7]
    My reasons follow.

Background

  1. [8]
    Within SIT there are four Principal Systems Integrator roles which perform identical functions. Those four roles include the AO7 position which is the subject of this appeal, as well as the position in which Mr Laurenson acted in higher duties between February 2019 and March 2022.
  2. [9]
    As mentioned above, the AO7 position became vacant due to the retirement of the substantive position holder, Mr Len Farlow. However, prior to Mr Farlow's retirement, another staff member within SIT, Ms Swati Aggarwal was provided the opportunity to 'shadow' Mr Farlow.
  3. [10]
    Ms Aggarwal was ultimately selected as the successful candidate for the AO7 position.

The Recruitment and Selection Process

  1. [11]
    The Department advertised the position on 17 November 2021, and Mr Laurenson lodged his application two days later.
  2. [12]
    The vacancy was purportedly advertised and recruited according to the PS Act, Directive 12/20 Recruitment and selection ('the Directive') and Queensland Health Human Resources Policy B1 Recruitment and Selection ('the Policy'). The recruitment process comprised the following selection tools:
  1. (a)
    the acceptance of a resume and cover letter which was then assessed by the selection panel against the 'key responsibilities' and 'how you will be assessed' sections of the role description (shortlisting);
  2. (b)
    a structured interview with the selection panel for shortlisted candidates; and
  3. (c)
    referee reports on the most meritorious candidates.
  1. [13]
    Four applications were received for the AO7 position, and three candidates, including Mr Laurenson, were shortlisted for interview.
  2. [14]
    The selection panel consisted of:
  1. (a)
    Mr Farlow, Principal Systems Integrator and subject matter expert;
  2. (b)
    Ms Vanessa Perry, Manager Systems Integration and line manager for the AO7 position; and
  3. (c)
    Mr Michael Constantine, Applications Manager and external panel member.
  1. [15]
    The interview consisted of five questions, with the responses relied on to assess the practical skills, and behavioural and situational experience of the candidates against the key attributes required for the role. Each candidate was assessed on a scale of 1 to 5, where 1 equalled 'did not meet criteria' and 5 equalled 'exceeds expectations'.
  2. [16]
    Candidates required a score of at least 15/25 to be considered for the order of merit. For those that did score 15/25 or above, the selection panel sought referee checks which were then reviewed to assess team fit and soft skills in accordance with the Policy.
  3. [17]
    Mr Laurenson was deemed to be meritorious and was included in the order of merit, however, he was not the most meritorious candidate.
  4. [18]
    The appointment of the successful candidate was advertised in the Queensland Government Gazette.
  5. [19]
    Mr Laurenson subsequently sought feedback on why he was unsuccessful for the AO7 position.

Grounds of Appeal

  1. [20]
    Mr Laurenson appeals on the following grounds:
  1. (a)
    the recruitment and selection process was deficient because the selection panel did not consider Mr Laurenson's previous work history in the role; and
  2. (b)
    there was potential bias in the recruitment and selection process because Ms Aggarwal was given the opportunity to shadow Mr Farlow for six months.

Relevant Principles

  1. [21]
    The PS Act relevantly provides:

27 The merit principle

  1. (1)
    The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).

...

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.
  1. [22]
    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 antidiscrimination.

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).

7.4 Chief executives must determine the documentation required for selection decisions for non-advertised vacancies, having regard to the nature and duration of the vacancy.

7.5 If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended applicant is considered to be more meritorious than the next in the order of merit, must be provided.

7.6 In approving an appointment, the decision maker must be satisfied the proposed appointee is the most meritorious and, where applicable the selection process complies with the PS Act and this directive.

7.7 Selection decisions and notification of outcomes must take place in a timely manner. To facilitate this, panels should be formed and selection strategies determined prior or concurrent to advertising. A vacancy advertisement will lapse if no appointment is made within six months of the closing date of the vacancy.

7.8 To promote integrity in recruitment, selection panel documentation must include a declaration from each panel member and the decision maker that identifies:

  1. (a)
    any actual, potential, or reasonably perceived conflicts of interest between the panel member or decision maker and applicants for the role, or
  1. (b)
    the absence of a conflict of interest between the panel member or decision maker and applicants for the role.
  1. [23]
    The Policy relevantly provides:

9 Merit

Section 27 of the Public Service Act 2008 requires the selection for appointment of public service or health service employees to be based on merit alone (the merit principle).

Organisational fit is a key dimension of merit (i.e. the skills, personal qualities, etc. necessary for the appointee to operate effectively in the specific organisational environment) and must be assessed along with role related requirements.

...

11.2 Assessment process

The panel is to determine the form of assessment and set the standards for all assessment related activities. Qualitative or quantitative methods of assessment may be used. When assessing applicants, the panel must consider each applicant's personal qualities and behaviours and, if relevant, potential against the key attributes.

While panel members may differ in their assessment, wide variations are to be scrutinised and consensus reached on which applicant best meets the requirements of the role. Where a clear recommendation and decision cannot be reached, the selection information must be reviewed and additional selection techniques used to separate applicants.

What Decision can an Industrial Commissioner make?

  1. [24]
    In deciding an appeal against a promotion decision, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and return it to the decision-maker with a copy of my reasons and any directions I am empowered to make and that I consider appropriate.
  1. [25]
    However, I may set the decision aside only if I am satisfied the recruitment or selection process was deficient having regard to the requirements under the PS Act and the Directive.[6]

Mr Laurenson's Submissions[7]

  1. [26]
    Mr Laurenson's submissions, albeit quite brief, include his contention that the recruitment process was deficient because the selection panel did not consider his previous work history in the role. Further, he argues he was assessed according to his performance in the application process rather than his merit for the role. He submits this was confirmed during his feedback interview when he was informed by Ms Perry the selection panel had not considered his twenty years in SIT and three years acting in the role of Principal Systems Integrator.
  2. [27]
    He submits he has never been advised to perform his role differently, or that he was underperforming. Rather, he submits he has been commended for 'taking up the slack' and 'going the extra mile' to ensure work was completed and goals met.
  3. [28]
    Further, Mr Laurenson contends the recruitment process was biased because Ms Aggarwal was afforded the opportunity to shadow Mr Farlow for six months prior to the recruitment and selection process. Mr Laurenson submits no other person has been afforded a similar opportunity to shadow another team member in the twenty years he has been with SIT. Consequently, he argues Ms Aggarwal was chosen for the role prior to the interview.

Department's Submissions

  1. [29]
    The Department contends the recruitment and selection process adhered to the Directive and criteria prescribed in ss 27 and 28 of the PS Act.[8] In this respect, it notes both the Directive and Policy require that the appointment of public service employees be based on merit, as prescribed under the PS Act, alone.[9]
  2. [30]
    It submits the selection report identified that the resumes for all the shortlisted candidates contained the key skills required to perform the role.[10] However, during the interview, it submits Mr Laurenson was unable to demonstrate:
  1. (a)
    some of the key skill requirements without prompting;
  2. (b)
    a solid understanding of the role active listening plays in negotiation and promoting collaboration and compromise; and
  3. (c)
    a solid understanding of the end-to-end testing process and the artefacts required.[11]
  1. [31]
    It argues the comparative statements in the selection report provide a detailed analysis of how it was determined Ms Aggarwal was the most meritorious candidate, having regard to the key attributes of the role, and the other shortlisted candidates.[12] Consequently, it argues the selection panel conducted a fair and reasonable process in order to identify the most meritorious candidate.[13]
  2. [32]
    Finally, it submits Ms Perry, as the line manager for the team, was aware of the previous work history of all the candidates shortlisted for interview.[14]

Was the Decision Fair and Reasonable?

Was the recruitment and selection process deficient?

  1. [33]
    Appointments within the public service must be based on merit alone.[15] In assessing whether a person meets merit, the person or body making the appointment must consider the extent to which a person has the abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question.[16]
  2. [34]
    Section 11.2 of the Policy provides that, in making its assessment, the panel must consider each applicant's personal qualities and behaviours and, if relevant, potential against the key attributes.
  3. [35]
    Clause 7.2 of the Directive sets out the required assessment process which relevantly provides as follows:

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. (d)
    measure the relative merit of each applicant, and

...

  1. [36]
    Clause 7.3 requires that selection decisions for relevant vacancies must be clearly documented and able to be independently reviewed, and the selection report must include a statement explaining the basis on which the selection panel concluded the recommended appointee is the most meritorious. That is, it must state how the successful candidate demonstrated superior merit against the key attributes of the role compared to other candidates.
  2. [37]
    Mr Laurenson argues the recruitment and selection process was deficient because he was assessed according to his performance in the application process and not his merit. Specifically, he argues the panel did not consider his previous work history in the role.
  3. [38]
    For its part, the Department submits it complied with the PS Act, the Directive and the Policy and argues the selection panel made its decision based on merit as required. It also notes the resumes of the three shortlisted candidates demonstrated that each possessed the key skills required for the role.
  4. [39]
    The selection report for the AO7 position contains a section titled 'Comparative Statement against other applicants and key attributes of the position'.[17] That section is repeated in respect of each of the shortlisted candidates.
  5. [40]
    Relevantly, it provides a detailed and reasoned assessment of each candidate and their respective merit. Specifically, in each case it provides a clear statement of how the candidate performed at interview, directly compares the candidate to the other two candidates and states whether the panel considers the person should be recommended for appointment, merit listed or otherwise.
  6. [41]
    With respect to Ms Aggarwal, the selection report clearly identifies where she excelled such that she was considered to be the most meritorious having regard to the other candidates. For example, the comments within the selection report provide:

...in the areas of collaboration and negotiation between multiple stakeholders [Ms Aggarwal] exceeded panel's expectations compared to the other candidates demonstrating a solid understanding the role active listening plays in negotiation, the ability to resolve disputes, develop rapport with peers and customers, promoting collaboration and compromise ... [Ms Aggarwal] was able to clearly provide practical examples demonstrating different approaches depending on circumstance and achieving positive outcomes from the approach used.

  1. [42]
    Whereas the comments in respect of Mr Laurenson provide:

...in the area of collaboration and negotiation between multiple stakeholders [Mr Laurenson] meet[s] the panel's expectations however compared to the preferred candidate did not demonstrate a solid understanding of the role active listening plays in negotiation or promoting of collaboration and compromise. However he was able to provide solid examples with the ability to resolve disputes, develop rapport with peers and customers and deliver suitable outcomes.

  1. [43]
    The comparative statements reflect that the responses of the candidates extended to providing practical examples in answer to the interview questions, which were no doubt drawn from each individual's previous experience and knowledge of the role. As confirmed by the Department, Ms Perry was also aware of each candidate's previous work history as the line manager for the AO7 position.
  2. [44]
    In this regard, I am satisfied the selection panel has conducted an adequate analysis of each candidate's merit for the position, as informed by their performance and responses during the interview and knowledge of the AO7 position, as understood from their work history and experience
  3. [45]
    Although Mr Laurenson argues he was assessed according to his performance during the application process, and not on merit, the obligation was on Mr Laurenson to demonstrate his merit for the role throughout the recruitment and selection process.
  4. [46]
    He was provided the opportunity to do so through giving practical examples and demonstrating his knowledge as gained from his previous work history. However, the Department identified that during the interview Mr Laurenson was unable to answer certain questions without prompting and did not demonstrate the requisite knowledge expected of the position. This is confirmed in the comments made in the selection report.
  5. [47]
    To be fair to Mr Laurenson, it cannot be said that he performed poorly at interview. Mr Laurenson was considered to be the second most meritorious candidate and it is clear the observations made by the selection panel in respect of his performance were largely very positive. Unfortunately for Mr Laurenson, this is a case where he performed well and may have otherwise been successful in obtaining the AO7 position but for the appointed candidate who simply performed better and demonstrated a greater understanding of the role.
  6. [48]
    Further, I am not persuaded Mr Laurenson's prior history in the role was not considered, particularly in circumstances where an assessment was made, having regard to the resume he submitted, that determined he possessed the key skills necessary for the role, along with the other shortlisted candidates.
  7. [49]
    I am satisfied that, having regard to the requirements set out under the PS Act, the Directive and the Policy, the recruitment and selection process was not deficient and the appointment was made on merit alone.

Was there bias in the recruitment and selection of the successful candidate?

  1. [50]
    Mr Laurenson contends there was potential bias in the recruitment and selection process because Ms Aggarwal shadowed Mr Farlow for a period of six months prior to the position becoming vacant, although it is not entirely clear from his submissions when and how this occurred. Consequently, he argues she was 'chosen for the role'.
  2. [51]
    The Department did not address this ground other than to state there is no evidence to support Mr Laurenson's claim the process was predetermined.
  3. [52]
    It is understandable why Mr Laurenson would hold some concern regarding the arrangement, particularly in circumstances where he was not aware of it until after he had interviewed for the AO7 position.
  4. [53]
    However, I am not persuaded the fact Ms Aggarwal shadowed Mr Farlow meant the process was predetermined or there was potential bias in her appointment.
  5. [54]
    Part of the difficulty in accepting Mr Laurenson's submissions is the limited information he has provided in respect of the arrangement undertaken by Ms Aggarwal.
  6. [55]
    Although Mr Laurenson has characterised it as 'shadowing' Mr Farlow, there is no information before the Commission regarding the extent to which she undertook the AO7 role, if at all, and the specific tasks or work she completed during this time.
  7. [56]
    I do, however, note that included within Mr Laurenson's submissions is an excerpt of a Microsoft Teams conversation between Mr Laurenson and Mr Raamon Vaccaro. Mr Laurenson explains that Mr Vaccaro is responsible for assigning work within SIT according to who has the best capacity to perform the work. That conversation was as follows:

Mr Laurenson: Do you know when [Ms Aggarwal] started shadowing [Mr Farlow]?

Mr Vaccaro:I believe her first stuff was sidelining/assisting with the West Moreton HHS Karisma Implementation

Mr Laurenson:What date was that?

Mr Vaccaro:I'll see if I can find any doco on that, might have been verbal

 [Ms Aggarwal] to work with [Mr Farlow] through Analysis phase

 She started with ESISS work some time later. Essentially [Ms Perry and Mr Farlow] wanted to make sure that someone else was across [Mr Farlow's] work for handover, because we could see those 2 packages wouldn't finish before [Mr Farlow] retired (today).

 Couldn't really split the load on those big work packages on the few remaining analysts. there wasn't capacity for that. You know how flat strap yourself, Allan and Rod were

  1. [57]
    From the above, I am satisfied Mr Vaccaro provided a reasonable explanation for why Ms Aggarwal shadowed Mr Farlow. Specifically, he advised Mr Laurenson that Ms Perry and Mr Farlow wanted to ensure another employee was across Mr Farlow's work in circumstances where it was apparent two items of work would not be completed before his retirement. Mr Vaccaro also explained that it was not feasible to split that work among multiple staff members because 'there wasn't capacity for that' as other members of SIT were 'flat strap'.
  2. [58]
    In my view, it was not unreasonable for the Department to take steps to ensure there was adequate resourcing and expertise in place to manage existing projects and workloads. Planning of this kind is certainly not uncommon, particularly in project based roles.
  3. [59]
    Notwithstanding the fact I consider such an arrangement to be acceptable in the circumstances, I am unable to identify any comments within the selection report which suggests the selection panel had regard to the arrangement in making its decision.
  4. [60]
    Further, in circumstances where Mr Laurenson was acting in an AO7 role at the time, albeit in another position, it is difficult to understand what advantage Ms Aggarwal might have obtained over Mr Laurenson. This is particularly so where Mr Laurenson submits the roles are 'identical'.[18]
  5. [61]
    Consequently, I am not persuaded Ms Aggarwal was 'chosen for the role' or that the eventual outcome of the recruitment process was predetermined before Mr Laurenson applied or interviewed for the AO7 position.

Conclusion

  1. [62]
    As mentioned above, I may set aside the decision to appoint the successful candidate only if I am satisfied the recruitment and selection process was deficient. The onus is on Mr Laurenson to satisfy me that is the case.
  2. [63]
    However, having regard to the process undertaken by the selection panel and the parties' submissions, I am unable to identify any deficiency in that process that would allow me to set aside the decision to appoint Ms Aggarwal.
  3. [64]
    Although I accept this must certainly be disappointing for Mr Laurenson, he has not satisfied the onus placed on him in making his appeal.
  4. [65]
    For the reasons given above, I consider the recruitment and selection process was fair and reasonable.

Order

  1. [66]
    I order accordingly.

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

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[4] Ibid s 562B(4)(a).

[5] Ibid s 562B(4)(b).

[6] Public Service Act 2008 (Qld) s 562C(2).

[7] Mr Laurenson's submissions filed 4 April 2022.

[8] Department's submissions filed 3 May 2022, [20].

[9] Ibid [14]-[15]; referring to Queensland Health Human Resources Policy B1 Recruitment and Selection s 9; Directive 12/20 Recruitment and selection cl 4.1.

[10] Ibid [17].

[11] Ibid [18].

[12] Ibid [19].

[13] Ibid [24].

[14] Ibid [23].

[15] Public Service Act 2008 (Qld) s 27.

[16] Ibid s 28.

[17] Selection report filed 28 July 2022.

[18] Mr Laurenson's submissions filed 4 April 2022.

Close

Editorial Notes

  • Published Case Name:

    Laurenson v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Laurenson v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 288

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    29 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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