Snape v State of Queensland (Queensland Corrective Services)
[2022] QIRC 294
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- Unreported Judgment
- Snape v State of Queensland (Queensland Corrective Services)[2022] QIRC 294
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Snape v State of Queensland (Queensland Corrective Services)[2022] QIRC 294
Snape v State of Queensland (Queensland Corrective Services)[2022] QIRC 294
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Snape v State of Queensland (Queensland Corrective Services) [2022] QIRC 294 |
PARTIES: | Snape, Elizabeth (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO.: | PSA/2022/323 |
PROCEEDING: | Public Service Appeal – Promotion decision |
DELIVERED ON: | 4 August 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | The appeal is dismissed for want of jurisdiction. |
CATCHWORDS: | PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – public service appeal – appeal against a promotion decision – where the appellant unsuccessfully applied for a position – whether a promotion appeal can be made against a temporary position – appeal cannot be made against a temporary position – where appeal lodged out of time – whether extension of time should be granted – extension of time not granted – appeal dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B, 562C and 564 Public Service Act 2008 (Qld), ss 27, 28, 120, 194 and 195 |
CASES: | A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Chapman v State of Queensland [2003] QCA 172 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Mx Elizabeth Snape ('the Appellant') is employed by the State of Queensland (Queensland Corrective Services) ('the Respondent') as an AO3, Video Conferencing Coordinator at the Southern Queensland Correctional Centre.
- [2]By appeal notice filed on 25 February 2022, the Appellant appeals the promotion decisions of the Respondent, pursuant to ch 7 of the Public Service Act 2008 (Qld) ('the PS Act'), with respect to the following positions:
- (a)QLD/386074/21 – Permanent AO6 Senior Services Coordinator ('the permanent position'); and
- (b)QLD/396390/21 – Temporary AO6 Senior Services Coordinator ('the temporary position').
Appeal principles
- [3]The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [4]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the promotion decisions of the Respondent was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
Relevant legislative provisions and Directives
- [5]Section 562C(2) of the IR Act provides:
In deciding an appeal against a promotion decision, 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 Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act.
- [6]Section 194(1)(c) of the PS Act relevantly provides that a promotion decision may be appealed against:
194 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions—
…
- (c)a decision to promote a public service officer (a promotion decision);
…
- [7]Section 27 of the PS Act provides that the merit principle must be applied for an appointment or secondment as a public service employee:
27 The merit principle
- (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).
…
- [8]Section 28 of the PS Act sets out the merit criteria to be considered when applying the merit principle:
28 Merit criteria
In applying the merit principle to a person, the following must be taken into account—
- (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;
- (b)if relevant—
- (i)the way in which the person carried out any previous employment or occupational duties; and
- (ii)the extent to which the person has potential for development.
- [9]Directive 07/20 Appeals ('Appeals Directive') and Directive 12/20 Recruitment and Selection ('Recruitment and Selection Directive') are relevant to the determination of the appeal.
- [10]Clause 5.2(e) of the Appeals Directive provides that an appeal against a promotion decision may only be lodged if particular conditions are satisfied:
5.2 An appeal may only be lodged by the following persons:
…
- (e)for a decision under section 194(1)(c) of the PS Act (promotion decision)—a tenured general employee or public service officer aggrieved by the decision (an aggrieved officer), provided the following conditions are met:
- (i)the decision relates to the gazetted promotion of a public service officer or tenured general employee
- (ii)the aggrieved officer's application to the role being appealed was received on or before the deadline for the receipt of applications or in the case of continuous applicant pools, the application was received prior to the date of distribution to the selection panel for the relevant promotion
- (iii)the aggrieved officer has sought post-selection feedback in accordance with the provisions of the directive relating to recruitment and selection, and
- (iv)for an appeal against a promotion from a limited advertising process conducted in accordance with the directive relating to recruitment
- [11]The Recruitment and Selection Directive prescribes processes and sets conditions that must be satisfied during the recruitment and selection process, including:
- (a)the minimum requirements for vacancy advertising;[5]
- (b)the merit assessment processes to be observed;[6]
- (c)requirements relating to selection decisions including a requirement that they be clearly documented and able to be independently reviewed;[7]
- (d)standards relating to pre-employment checking including referee checks;[8]
- (e)
- (f)a requirement that applicants who request feedback must be given timely and constructive feedback.[10]
- [12]Clause 7.2 of the Recruitment and Selection Directive provides:
7.2 Assessment processes for advertised vacancies must:
- (a)incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants’ merit within the current context and duties of the role
- (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)
- (c)incorporate pre-employment checks including referee checking as per clause 8
- (d)measure the relative merit of each applicant, and
- (e)be consistent with the principles of employment equity and anti-discrimination.
- [13]Clause 7.3 of the Recruitment and Selection Directive provides:
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).
- [14]Clause 7.5 of the Recruitment and Selection Directive provides:
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.
- [15]Clause 7.6 of the Recruitment and Selection Directive provides:
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.
Grounds of Appeal
- [16]In the appeal notice, the Appellant acknowledges that the appeal against the permanent position was not lodged within the 21 day time limitation. The Appellant states that this delay was due to:
- (a)the post interview feedback being conducted on 15 November 2021;
- (b)the email which notified that the Appellant was unsuccessful in the permanent position was on 19 November 2021; and
- (c)the permanent position being readvertised on 25 November 2021.
- [17]The Appellant contends, with respect to both the permanent position and temporary position, that there was a significant amount of bias towards the Appellant, specifically:
- (a)affinity bias on the basis that both the successful applicants worked closely with the Panel Chair;
- (b)confirmation bias as the Appellant felt she was not judged on her merits and the information provided on the application and in the interview, instead, was judged based on previous unfounded allegations;
- (c)discriminatory advertisement language used being the interview questions were steered towards the successful applicants and indicated that there was no room for movement or inclusion of more information and were rigid, nor did they acknowledge answering anything or discuss or encourage the Appellant to discuss anything further; and
- (d)fundamental attribution bias due to the Appellant's association with an employee that was being counselled by the Panel Chair and the successful applicant for the permanent role.
The temporary position
- [18]The temporary position arose due to the successful applicant for the permanent position taking parental leave. The decision to employ another employee on secondment, on a temporary basis, was made pursuant to s 120 of the PS Act.
- [19]The PS Act defines the term 'promote' as meaning to employ a public service officer to a higher classification level, whether or not on different duties, other than temporarily. The term 'promotion decision' under s 194(c) of the PS Act therefore relates to a decision to promote an officer to a position at a higher classification level other than on a temporary basis.
- [20]The decision relating to the temporary position is not a promotion decision appealable under s 194(1)(c) of the PS Act and is not open to the Appellant to appeal as a fair treatment decision pursuant to s 195(3A)(c) of the PS Act.
The permanent position
- [21]I will first determine whether an extension of time should be granted for the Appellant to file a public service appeal with respect to the permanent position.
- [22]Section 564 of the IR Act provides for the time limit for appeal:
564 Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- [23]
On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:
"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."[13]
- [24]The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:
In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[14]
Explanation of delay
- [25]The successful applicant's appointment to the permanent position was gazetted on 3 December 2021 in accordance with s 128 of the PS Act and cl 11 of the Recruitment and Selection Directive. The appeal was filed on 25 February 2022 and is therefore, filed 63 days beyond the 21 day time limitation period. This is a significant delay beyond the statutory time period.
- [26]As outlined above, the Appellant acknowledged that the appeal with respect to the permanent position was lodged beyond the 21 day statutory time limitation. The Appellant submits that at there was a preliminary post interview feedback conducted on 10 November 2021, however, the Panel Chair was not 'fully prepared'. It is unclear how this contributed to the late filing of the appeal.
- [27]The Appellant submits that as the permanent position was readvertised as a temporary position on 25 November 2021, the Appellant decided not to appeal the promotion decision so as to focus on applying for the temporary position. The Appellant 'felt at this time to accept the decision' as she 'would be more than likely successful the second time round'.
- [28]The Appellant further made submissions with respect to the busy time of year and the fact that she also felt intimidated and anxious in the workplace. The Appellant submits that there was unconscious bias towards the Appellant as the Panel Chair and surrounding staff did not behave appropriately as the Appellant would expect in that they were 'distant and uncommunicative'.
- [29]The Respondent submits that the Appellant's explanation would not have, on any objective basis, inhibited her from filing an appeal within the 21 day appeal period. The Respondent further submits that the readvertisement of the permanent position on a temporary basis on 25 November 2021 would not have any material impact on the Appellant's ability to file a public service appeal.
- [30]The reasons provided as to why the appeal was filed outside of the 21 day period do not, in my view, form a reasonable explanation for the delay. The events outlined by the Appellant – the unsuccessful email notification, the provision of feedback and the advertising of the permanent position – all occurred prior to the commencement of the 21 day time period commencing on 3 December 2021. I also note the Respondent's submission that the Appellant accessed leave from 20 to 24 December 2021 and had the opportunity to lodge the appeal during this period. The Appellant's submissions confirm that she considered whether to apply for the temporary position or pursue an appeal and subsequently made a conscious decision not to pursue the appeal.
- [31]It is clear that the Appellant had the opportunity to appeal the decision but, after weighing up her options, determined that she would apply for the temporary role rather than appeal the promotion decision. Whilst this course of action was entirely reasonable, the consequence of choosing to not file an appeal within the timeframe is that the appeal is unlikely to be accepted.
- [32]The parliament has legislated a 21 day time period for an appeal to be filed. The existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter.
Prospects of success
- [33]A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
- [34]
…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…[16]
- [35]The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[17] Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below.
- [36]In order to successfully appeal against a promotion decision, the Appellant must demonstrate that the recruitment and selection process was deficient.[18] The basis upon which the Appellant has appealed, in summary, are:
- (a)the panel exhibited bias against the Appellant's application;
- (b)unsubstantiated allegations were considered as part of the process;
- (c)interview questions were tailored towards the successful applicant; and
- (d)selection decisions were not based on an assessment of relative merit.
- [37]The Appellant raised other issues in submissions in reply that were not raised in the appeal notice or first submissions.
- [38]The allegations of bias are not supported by evidence in support of this claim. The Appellant contends that her application was not judged on its merits due to various forms of bias, yet these assertions are not supported by evidence.
- [39]The Appellant contends that unsubstantiated allegations were considered as part of her application process, however there is no evidence before me to support that contention.
- [40]The interview questions allowed the panel to assess the relative merit against the requirements of the role through the use of workplace scenario and behaviour based interview questions. The scenarios presented appear to be relevant to the role description and skills required to perform the role. The Appellant has not demonstrated the basis upon which the interview questions could be considered inappropriate or tailored toward a particular candidate.
- [41]The selection report outlined detailed assessments of each shortlisted applicant's responses against the role description and identified indicators. As required by the Recruitment and Selection Directive, the selection report outlines the processes through which applicants were able to demonstrate merit and how the panel determined the relative merit of the applicants.[19] There is no evidence that the selection decision was not a result of an assessment of relative merit.
- [42]On the basis of the above reasons, this appeal appears to have limited prospects of success.
Justice of the case
- [43]The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit in order to progress with the recruitment and selection process.
- [44]The prejudice to the Appellant will be that the appeal against the promotion decision with respect to the permanent position will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited.
- [45]In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe.
Conclusion
- [46]After consideration of the material before the Commission, I do not consider that there is a reasonable ground to extend the time for the appeal against the promotion decision regarding the permanent position. Further, the temporary position is not a promotion decision which is appealable pursuant to s 194(1)(c) of the PS Act.
Order
- [47]I make the following order:
The appeal is dismissed for want of jurisdiction.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
[4] IR Act s 562B(3).
[5] Recruitment and Selection Directive cl 6.
[6] Ibid cl 7.2.
[7] Ibid cl 7.3.
[8] Ibid cl 8.
[9] Ibid cl 9.
[10] Ibid cl 10.
[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[12] [2019] ICQ 16.
[13] Ibid 2.
[14] Ibid.
[15] [2003] QCA 172.
[16] Ibid [3].
[17] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35.
[18] IR Act s 562C(2).
[19] Recruitment and Selection Directive cl 7.3.