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  4. Wyer v State of Queensland (Department of Education) - [2022] QIRC 408

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Wyer v State of Queensland (Department of Education)[2022] QIRC 408

Wyer v State of Queensland (Department of Education)[2022] QIRC 408

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wyer v State of Queensland (Department of Education) [2022] QIRC 408

PARTIES:

Wyer, Nathan

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/19

PROCEEDING:

Public Service Appeal – appeal against a promotion decision

DELIVERED ON:

25 October 2022

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. The appeal is allowed.
  1. The promotion decision is set aside.
  1. The matter is returned to the Department of Education with a copy of this decision.
  1. Within one month of the date of this decision, the Chief Executive is to revoke the appointment that is the subject of this appeal and publish a Gazette Notice that the appointment is revoked.
  1. Subject to the ongoing operational need for the role, the Chief Executive is to commence a fresh recruitment and selection process within 3 months of the date of this decision.
  1. In the event that a fresh recruitment and selection process is commenced, a new selection panel is to be formed constituted by Departmental personnel other than those who previously served on the panel responsible for the appointment that is the subject of this appeal.   

CATCHWORDS:

PUBLIC SERVICE – APPEAL – appeal against promotion decision – jurisdictional objection – whether decision can be appealed against – where the Respondent alleges non-appealable promotion decision – where appellant alleges appointee unsuitable for the  role – where appellant alleges selection panel conflict of interest – whether decision appealed against fair and reasonable – decision appealed against set aside – appeal allowed

LEGISLATION:

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

Public Service Act 2008 (Qld) ss 194, 195

Directive 07/20 Appeals cl 7

Directive 11/20 Individual Employee Grievances

Directive 12/20 Recruitment and Selection Directive

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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

Reasons for Decision

Background

  1. [1]
    Mr Nathan Wyer is employed by the Department of Education ('the Department') as Guidance Officer ('GO') at Urangan State High School – Hervey Bay Area – North Coast Region.
  1. [2]
    Mr Wyer appeals a decision by the Department to appoint another employee ('the appointee') to the position of Senior Guidance Officer (0.5 FTE) ('the SGO role'). Mr Wyer had been an applicant for the SGO role and was informed by email on 26 November 2021 that he was unsuccessful.
  1. [3]
    On or about 8 December 2021 Mr Wyer and four of his colleagues lodged a joint grievance about the decision to appoint the appointee ('the grievance').[1] The grievance cited a number of concerns about the appointment including extensive concerns regarding the lack of skills demonstrated by the appointee in the workplace. The grievance also noted the lack of experience as GOs of the majority of the selection panel, and also alludes to personal relationships between panel members and the appointee, suggesting a possible conflict of interest.
  1. [4]
    Incredibly, a decision maker charged with considering the extensively detailed grievance apparently elected to take no action.[2] At a mention of this matter on 20 June 2022, I raised concerns with the Department about the serious nature of the matters raised in the grievance and indicated that I wanted to be informed about the Department's response.[3] In submissions filed on 18 July 2022 the Department advised the grievance had never been actioned because it  failed to comply with a technical requirement of the relevant Directive.[4] I will deal further with this issue later in these reasons.
  1. [5]
    Mr Wyer filed his appeal against the decision to appoint the appointee to the SGO role ('the promotion decision') on 12 January 2022. The details of the appointment decision were published in the Queensland Government Gazette No. 12, page 66 ('the Gazette') on 28 January 2022.

Nature of appeal

  1. [6]
    Under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the role of the Commission is to review the decision appealed against.[5] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[6]
  1. [7]
    An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,[7] but rather, it is a review of the decision and the decision-making process.[8] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[9]
  1. [8]
    Further, in respect of an appeal against a promotion decision, the Commission may take into account other evidence that was not before a decision maker at the time a decision was made if the Commission considers it appropriate.[10]

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
  1. (c)
    for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Jurisdiction

  1. [10]
    Section 194 of the Public Service Act 2008 (Qld) ('the PS Act') sets out decisions against which appeals may be made:

194 Decisions against which appeals may be made

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

…

  1. (c)
    a decision to promote a public service officer (a promotion decision);

…

  1. [11]
    Section 195 of the PS Act relevantly provides:

195 Decisions against which appeals can not be made

  1. (1)
    A person can not appeal against any of the following decisions—

…

(k) a non-appealable appointment.

…

(5)In this section—

non-appealable appointment means an appointment—

  1. (a)
    for which the commission chief executive is satisfied merit in selection processes is sufficiently protected by ways other than an appeal under this part; and
  1. (b)
    that the commission chief executive has declared by gazette notice, or a directive for this part, to be an appointment against which an appeal may not be made.

…

The Directive

  1. [12]
    Directive 07/20 Appeals ('the Appeals Directive') outlines non appealable decisions at clause 7:

7.Decisions that cannot be appealed

7.1Decisions listed in section 195 of the PS Act (Appendix C) cannot be appealed.

7.2Section 195(1)(k) of the PS Act states that non-appealable appointments cannot be appealed. A non-appealable appointment is an appointment:

  1. (a)
    that is not a promotion
  1. (b)
    to a role remunerated in excess of the maximum salary applicable to the AO8 classification within the relevant Department
  1. (c)
    to a role which is exempt from advertising in accordance with the directive relating to recruitment and selection, or
  1. (d)
    to a role which is entry level as defined by the directive relating to recruitment and selection.

…

(Emphasis added)

Submissions – jurisdictional objection

The Department's submissions on jurisdiction

  1. [13]
    The promotion decision was listed in the Gazette under 'APPOINTMENTS PART II – NON APPELABLE. The Department submits that the promotion decision cannot be appealed against.
  1. [14]
    The Department contends the question to determine whether the decision is appealable in the circumstances is whether, pursuant to clause 7.2(b) of the Appeals Directive, the appointee's appointment to the SGO role was an appointment to a role renumerated in excess of the maximum salary applicable to the Administrative Officer Level 8, pay point 4 ('AO804') classification.
  1. [15]
    On 1 January 2022, a salary increase took effect which increased the SGO role to an annual salary of $135,384.
  1. [16]
    On 19 January 2022, the promotion decision took effect. At this time, under appendix 2A of the Department of Education Certified Agreement 2019 the maximum salary applicable to the AO804 classification was $131,461 per annum.
  1. [17]
    The Department submits that on 19 January 2022, the Date of the Appointment, the SGO role was renumerated in excess of the AO804 classification.
  1. [18]
    The Department further submits if in the alternative, the date of the appeal being 12 January 2022, or the Gazette date of 28 January 2022 were to be utilised to determine the question, the appointment would remain in excess of the minimum salary applicable to the AO804 classification.
  1. [19]
    It is for these reasons the Department submits that the Promotion Decision is a non-appealable appointment. As it is a non-appealable appointment, the Department contends that Mr Wyer has no standing to appeal the Decision and subsequently the Commission has no jurisdiction to determine the appeal.

Mr Wyer's submissions on jurisdiction

  1. [20]
    Mr Wyer submits the promotion decision is appealable. Mr Wyer contends that the advertised salary for the role was not more than the minimum AO804 rate at the time because the position was advertised as permanent part time and as such was remunerated at an amount well below the full time equivalent.
  1. [21]
    Mr Wyer also submits the unique full-time equivalent would also be appealable as the collective salary would not be in excess of the AO804 salary.
  1. [22]
    Mr Wyer submits that the Department has not consistently applied the 'in excess of AO804 salary' to other promotional appointments. Subsequently, Mr Wyer says it is appropriate for the Commission to make a ruling on the Decision.

Consideration - jurisdictional objection

Background

  1. [23]
    This matter has had something of complicated beginning. Following the filing of the appeal by Mr Wyer, directions were issued on 13 January 2022 requiring the Department to file its submissions by 10 February 2022.
  1. [24]
    Before their submissions were filed it seems that an officer of the Department made a submission directly to Mr Wyer via email on 1 February 2022 about the jurisdictional issue. The Commission was not included in that correspondence, which was wholly appropriate.
  1. [25]
    On 6 February 2022 Mr Wyer responded to the email submission sent privately to him by the Department except, in replying, Mr Wyer also included the Commission in his email. Mr Wyer's email of 6 February 2022 was an extensive response about the jurisdictional point which had not been raised with the Commission at that time. Further, Mr Wyer's email of 6 February 2022 descended (at great length) into a discussion about the broader aspects of the facts and his appeal.
  1. [26]
    In order to clarify why Mr Wyer felt the need to be off loading extensive and unsolicited submissions to the Commission outside of the direction that had been issued, the matter was listed for mention to ensure that Mr Wyer understood the nature of the proceedings he had commenced, and the rules for conducting such proceedings. The matter was listed for mention on 28 February 2022.
  1. [27]
    The listing notice prompted further emails from Mr Wyer in which he continued to make extensive unsolicited submissions about his appeal.
  1. [28]
    Due to a significant weather event in Brisbane in late February 2022 the mention was postponed until 17 March 2022.

Section 562A question

  1. [29]
    At the mention on 17 March 2022, the Commission had already had the benefit of reviewing the submissions of the Department filed on 10 February 2022. Those submissions dealt exclusively with the jurisdictional objection raised by the Department pursuant to inter alia clause 7.2(b) of the Appeals Directive.
  1. [30]
    As a consequence of the somewhat alluring arguments made by the Department on the jurisdictional issue, Mr Wyer was given notice by the Commission at the mention on 17 March 2022 that consideration was being given to not dealing with the appeal under s 562A of the IR Act. Mr Wyer was invited to provide submissions to demonstrate he had an arguable case. Mr Wyer subsequently filed those submissions on 31 March 2022.
  1. [31]
    Having now had regard to the submissions of Mr Wyer (and contrary to my preliminary views) I am satisfied that he has an arguable case. In those circumstances I will now deal  with the jurisdictional objection raised by the Department.

A 'non-appealable appointment'  

  1. [32]
    The Department's submissions appear to exclusively rely on clause 7.2(b) of the Appeals Directive. There are two significant problems with the arguments made by the Department.
  1. [33]
    Firstly, the Department appears to ignore the full definition of 'non-appealable appointment' as it appears in s 195(5) of the PS Act. The provision is very clear:

non-appealable appointment means an appointment—

  1. (a)
    for which the commission chief executive is satisfied merit in selection processes is sufficiently protected by ways other than an appeal under this part; and
  1. (b)
    that the commission chief executive has declared by gazette notice, or a directive for this part, to be an appointment against which an appeal may not be made.
  1. [34]
    The definition is in two parts and both parts must be satisfied. The submissions of the Department fail entirely to address s 195(5)(a). The submissions of the Department fail to demonstrate how the commission chief executive is '…satisfied merit in selection process is sufficiently protected…'.
  1. [35]
    Even if the Department is correct in its arguments under clause 7.2(b) of the Appeals Directive, the Appeals Directive does not displace the PS Act. The Appeals Directive must be read in conjunction with the definition at s 195(5) of the PS Act. I hasten to add that the fact the commission chief executive has issued the Appeals Directive (in accordance with s 195(5)(b)) is in no way an express or implied indication that they are satisfied for the purposes of s 195(5)(a).
  1. [36]
    While I appreciate this may be an oversight in the submission by the Department, they have had ample opportunity to address all relevant matters.  In circumstances where the Department has failed to make a submission or demonstrate how the decision under review relates to a non-appealable appointment as defined by s 195(5)(a) of the PS Act, their jurisdictional objections must fail.
  1. [37]
    Secondly, if I am incorrect in my reading of s 195(5), then I also consider that the Department's reliance on clause 7.2(b) is misconceived. When considered in the context of clause 7.2 and the Appeals Directive as a whole, the proper construction is readily apparent.
  1. [38]
    The context in which clause 7.2(b) must be read is as follows:

7.2 Section 195(1)(k) of the PS Act states that non-appealable appointments cannot be appealed. A non-appealable appointment is an appointment:

  1. (a)
    …
  1. (b)
    to a role remunerated in excess of the maximum salary applicable to the AO8 classification within the relevant Department            

(Emphasis added)

  1. [39]
    The function of clause 7.2 of the Appeals Directive is to exclude appeal rights under the PS Act in respect of certain appointments. The exclusion of appeal rights prescribed by clause 7.2(b) applies to 'an appointment to a role remunerated in excess of the maximum salary applicable to the AO8 classification'. In the absence of any express definitions, these terms are to be given their ordinary meaning.[11]
  1. [40]
    The appointee in this instance was appointed to 'a role' which was advertised as a 'part time role'. The advertisement included a document headed 'Role Description'.[12] That role description describes a role that is '0.50 FTE' i.e., part time. The role to which the appointee in this instance was appointed was remunerated at '$61858 - $65127 per annum' and as such, it is a role remunerated below the maximum salary applicable to the AO8 classification.
  1. [41]
    The construction contended by the Department is not consistent with the ordinary meaning of the language of clause 7.2(b) of the Appeals Directive. It is a reading of the clause that requires the addition of the words 'on a full-time basis' after the word 'remunerated' or some other principle allowing for the limit to be applied e.g.. on a pro rata basis. There is simply no principle of construction by which such a meaning can be arrived at, having regard to the very plain and unambiguous language used in the clause.
  1. [42]
    In those circumstances I reject the construction of clause 7.2(b) argued by the Department. I consider the promotion decision is an appealable decision pursuant to s 194(1)(c) of the PS Act, and the Commission has jurisdiction to hear it.

Submissions - the Appeal

  1. [43]
    Mr Wyer's Appeal Notice was comprehensive and incorporated extensive submissions and attachments.
  1. [44]
    Upon completion of my consideration of the submissions regarding the jurisdictional point and s 562A of the IR Act it was noted that the Department's submissions filed on 10 February 2022 did not include any alternative submissions to address the substantive appeal issues raised by Mr Wyer.  
  1. [45]
    In the circumstances fairness necessitated that the Department have an opportunity to make such alternative submissions and, following mention on 20 June 2022, the Department filed submissions on 18 July 2022 addressing the substantive aspects of Mr Wyer's appeal.
  1. [46]
    Mr Wyer filed further submissions in response on 12 August 2022.

Mr Wyer's Appeal notice

  1. [47]
    The grounds of appeal relied on by Mr Wyer in the appeal notice are that:
  1. (a)
    the appointee has a lack of demonstrated capability, skills and experience for the role, including an inability to provide technical and clinical supervision of guidance services, maintain and promote networks and a lack of the breadth and depth of experience required for the role;
  1. (b)
    the appointee has not demonstrated or gained experience to fulfil the SGO role description;
  1. (c)
    in appointing the appointee, the panel has indicated their inexperience in recruiting for an SGO, their inability to follow due process and enquire as to the appointees' capabilities, and brings into question the panel relationships and conflicts of interest of the panel and the appointee;
  1. (d)
    a group grievance was lodged by a group of experienced guidance officers who agree that the appointee does not have the capability, skills, knowledge or experience in technical and clinical supervision of psychoeducational assessment and intervention required for the role; and
  1. (e)
    Mr Wyer was not shortlisted or given an interview for the position, however, was interviewed for several other SGO roles within the 2021 Queensland school year, suggesting a deficit in the panel's shortlisting criteria.[13]
  1. [48]
    The grievance (referred to above) was also attached to the appeal notice. It was completed by Mr Wyer, and four of his guidance officer colleagues ('the authors'). While the grievance post-dated promotion decision, I consider it is 'other evidence' within the meaning of s 562B(4)(b) of the IR Act that is appropriate to be considered. My reasons for this are set out in my consideration below.
  1. [49]
    The authors initiated the grievance seeking an investigation of the selection and recruitment process and the appointment of the appointee. The grievance listed the collective and extensive concerns of the authors about the appointee's suitability for the SGO role and included allegations of conflict of interest with respect to members of the selection committee.
  1. [50]
    It would seem the grievance was lodged in a manner that was technically non-compliant with the applicable Directive or other instrument and as such, it was simply dismissed without any consideration of its content.[14]

The Department's further submissions

  1. [51]
    The Department's further submissions note the SGO role was advertised in accordance with the PS Act and Directive 12/20 Recruitment and Selection ('the Recruitment Directive').
  1. [52]
    The Department notes that four applicants applied for the position, including Mr Wyer. The Department says the appointee was the only applicant shortlisted for an interview, on the basis of her written application and experience. The appointees experience includes acting in the role of SGO from 21 January 2021, being employed with the Department since 1992, performing a number of roles including deputy principal, experienced senior teacher and guidance officer, as well as having mandatory qualifications being current full registration as a teacher in Queensland and a Masters of Education majoring in guidance and counselling.
  1. [53]
    The Department submits that Mr Wyer was not deemed suitable for the position for the following reasons:
  • Mr Wyer's application did not demonstrate an understanding of how to work in a team; and
  • Mr Wyer's application failed to appropriately address the leadership and strategic planning requirements of the role.
  1. [54]
    The Department's submissions then address the two main contentions of Mr Wyer in his appeal notice, namely the skills and experience of the appointee, and the alleged conflicts of interest held by the selection panel.

Appointee suitability

  1. [55]
    The Department submits that Mr Wyer's assertion as to the lack of skills and experience held by the appointee is anecdotal evidence and his own opinions as to the appointee's skills and experience.
  1. [56]
    The Department notes that the role description for the position states:

Demonstrated competency to acquire skills in clinical and technical supervision in the areas of psychoeducational assessment and intervention, counselling and support for schools in behaviour management practices as these apply to the achievement of quality educational outcomes for all students.

  1. [57]
    The Department submits that this only requires for the selection panel to be satisfied that the appointee could demonstrate the competency to acquire the skills, rather than possessing them prior to commencing in the position.
  1. [58]
    The Department submits that the appointee possessed the relevant skills of developing effective relationships and establishing productive partnerships through the clear and appropriate examples provided during her interview.
  1. [59]
    The Department notes the specific duty of designing and implementing training programs for guidance officers in training and induction and supervisory programs for guidance officers on probation does not directly align with any one selection criteria for the role. The Department submits the selection panel was satisfied that the appointee met all the applicable selection criteria because of the appointee's experience in acting in the SGO role, as well as experience in other leadership roles including deputy principal, and the appointee gave adequate examples of capability development and effective supervision of team members.

Conflict of interest

  1. [60]
    The Department outlines that it has a 'panel conflict of interest declaration fact sheet' as a resource to assist selection panels in determining if a conflict of interest exists. The Department also notes they have an online recruitment and selection training resource, and a 'conflicts of interest declaration form' which all selection panel members completed.
  1. [61]
    The Department notes three of the four panel members knew the appointee in a professional capacity or had an awareness of who the appointee was and contends that in the circumstances it would have been open to the relevant panel members to determine there was no 'perceived' conflict of interest since the extent of the relationships with the appointee were confined to that of a professional nature. Despite this, the Department notes the members selected 'perceived' conflict of interest on the form as a matter of caution. This was considered by the delegate and panel chair as appropriate, and they made the conclusion that there was no need for anyone to be withdrawn because they believed the relevant professional relationships were not of a type that would compromise the recruitment process.
  1. [62]
    In relation to Mr Wyer's previous submission that he was previously shortlisted for interviews in other SGO processes, the Department notes a selection panel is not immediately bound to shortlist a candidate for an interview merely because they have been previously shortlisted in other processes for the same role. The Department submits that Mr Wyer not being shortlisted does not indicate the panel was compromised by a hidden agenda deriving from a conflict of interest.
  1. [63]
    The Department also notes that the request for internal review document attached to Mr Wyer's appeal notice states:

David Burns, Katrina Clarry and Lisa Cooper were all on the panel together in term 4, 2021 to interview for a GO in Maryborough. As such we query the personal relationship between these parties and potential conflict of interest.

  1. [64]
    The Department submits this selection process referred to occurred after the promotion decision and contends the constitution of the selection panel was compliant with the recruitment directive. The Department contends the decision not to shortlist Mr Wyer and to recommend the appointment of the appointee is not evidence of an experience shortfall or an improperly constituted selection panel.

Mr Wyer's further submissions

  1. [65]
    Mr Wyer's further submissions contend the recruitment selection decision was unfair and unreasonable because of deficiencies in the process and concerns about the panel chairs comments, referee reports claims, and the lack of evidence supplied by the Department to support the appointees' skills in technical and clinical supervision of guidance officers.
  1. [66]
    Mr Wyer submits that the additional submissions of the Department do not address how the internal grievance was handled.
  1. [67]
    Mr Wyer contends that the unfair and unreasonable deficiencies in the recruitment and selection process include merit determination, panel conflicts and referee reports. Mr Wyer also contends that the capabilities of clinical and technical supervision were not evaluated by the panel, as required in clauses 7.2(a) and 8.2 of the Recruitment Directive.
  1. [68]
    Mr Wyer submits the Department did not provide any comparative assessment of the four applicants, and that the mandatory qualifications have not been checked off the selection report by the panel chair. He also submits that the panel chair should have proceeded with caution in relation to the conflicts of interest identified, and that the reference check should have been more comprehensive to improve the integrity of the recruitment and selection process and address the appointee's technical and clinical skills and ability to supervise other guidance officers.
  1. [69]
    Mr Wyer contends that he was contacted by the panel chair on 26 November 2021 in relation to feedback he sought, however he disputes the description of the feedback conversation supplied by the Department. Mr Wyer provides a precis of the conversation which, if it were accepted, would be unsatisfactory.
  1. [70]
    Mr Wyer further submits that the panel avoided examining the appointee's skills of technical and clinical supervision, and the provision of exemplary guidance and counselling service in an education environment.
  1. [71]
    Mr Wyer closes his submissions by requesting a finding to be made that the promotion decision was unfair and unreasonable because the selection panel failed to incorporate techniques to provide a comprehensive assessment and evaluation of the appointee's abilities.

Consideration of the Appeal

Appointees qualifications and suitability for the role

  1. [72]
    The material filed by Mr Wyer extensively critiques what he considers to be a multitude of inadequacies displayed by the appointee for the SGO role. However, when considered in isolation of the other candidates, it is objectively clear is that the appointee has the requisite minimum qualifications and experience for the role. The appointees suitability by comparison to the other candidates is another matter.
  1. [73]
    In the circumstances where the appointee was (at least) in possession of the minimum qualifications for the role I do not intend to step, item by item, through Mr Wyer's subjective opinions about the alleged shortcomings of the appointee. I accept the submission of the Department from their 18 July 2022 submissions where it was submitted that Mr Wyer's opinions in respect of the appointee do not, on their own immediately render the conclusions reached by the selection panel as invalid or flawed.
  1. [74]
    The appointee's possession of the minimum qualifications and experience for the role in isolation is one thing. But commentary by contemporaries might well add a complexion to this impression to better demonstrate Mr Wyer’s point. Caution must be exercised though as opinions about suitability of any person for any role will always vary, especially amongst unsuccessful candidates for the same role, and those who will be subordinate to an incoming appointee.
  1. [75]
    Mr Wyer's submissions were, in general, replete with opinion and speculation. Further, they were intensely verbose and often difficult to decipher, so much so that the best points of his appeal were (almost) entirely lost amidst the volumes of often unnecessary commentary. However, one important aspect penetrated through his submissions: it seems that Mr Wyer's opinions are shared by a group of four of his colleagues.
  1. [76]
    Each of the grievance authors are Guidance Officers working in the relevant district. Many of the concerns expressed in the grievance are drawn from their personal experiences working with the appointee and disclose (if true) some very concerning deficits in the skills and knowledge of the appointee. Had it just been Mr Wyer complaining I might have more readily dismissed his concerns as 'sour grapes'. But the views of his colleagues add significant weight to his submissions.
  1. [77]
    The nature of appeals under Chapter 11 of the IR Act restricts the extent to which I can consider evidence. It is not a merits review and as such, based on the grievance alone,  I cannot reliably or fairly reach any conclusion as to the suitability of the appointee for the role the subject of this appeal.
  1. [78]
    However, having regard to the grievance lodged by Mr Wyer and his colleagues, I am sufficiently satisfied that there is evidence before me that suggests that some aspect of the recruitment process has potentially miscarried. The fact that five relevantly qualified Guidance Officers joined together to produce such an extensive and detailed grievance based on personal working experiences with the appointee is a very compelling fact which causes me to question the efficacy of the decision. While the grievance is not proof of the problems it purports to complain of, it is most definitely a 'red flag' worthy of thorough investigation. 
  1. [79]
    My concerns about the promotion decision that arise from the grievance might have been wholly assuaged if the Department had properly responded to the extensive and serious concerns raised by Mr Wyer and his colleagues. But it seems that the grievance was dismissed out of hand on a technicality by (according to Mr Wyer) a Departmental employee on the verge of retirement. While the technicalities disqualifying the grievance might be entirely legitimate, the failure by the Department to have any regard to the contents of grievance in the circumstances is very concerning.
  1. [80]
    The grievance was thorough, thoughtful, and quite expertly worded. It was not in the nature of the type of frivolous or vexatious rantings one sees lodged by disgruntled or unreasonable employees from time to time. Moreover, it was signed and lodged by five Guidance Officers expressing their collective concerns.
  1. [81]
    In those circumstances the failure of the Department to investigate the serious concerns raised on the basis of a mere technicality is bureaucratic rigidity at its worst. But as I have noted above, I consider it appropriate to have regard to the content of the grievance.
  1. [82]
    While the grievance post-dates the decision under review[15], I consider it sufficiently proximate to the events relevant to this appeal. It certainly pre-dates the formal appointment of the appointee and the Gazette notification[16] and as such it could (and should) have been a basis for delaying the appointment (made on 19 January 2022) while a proper investigation of the matters it raised was conducted.
  1. [83]
    The failure by the Department to have any regard to the matters raised in the grievance and proceed to make the appointment renders the decision unfair and unreasonable in my view.   

Conflict of interest

  1. [84]
    While Mr Wyer's submissions about conflict of interest amongst members of the selection panel largely rely on speculation there are, in my view, some objective facts which give rise to a reasonable perception of some bias in the recruitment process.
  1. [85]
    Firstly, it seems incredible that out of four candidates who applied for the role, only one was selected for an interview. The appointee was acting in the role already, so it does not appear that there was any urgency associated with the recruitment process requiring the selection committee to truncate the process.
  1. [86]
    While little is known about the skills and suitability of the other two candidates and the reasons why they were not selected for interview, it is difficult to distinguish why the appointee alone was chosen for an interview but not Mr Wyer, given his qualifications for the role.
  1. [87]
    The submissions of the Department seeking to explain his exclusion in this regard are all too brief, lacking in proper particulars, and unsatisfactory in my view.[17] Comments to the effect that he  'failed to demonstrate an understanding of working in a team' are the quintessential nebulous 'one liners' so often communicated to unsuccessful applicants as a means of deflecting a question unable to be meaningfully answered. One wonders how Mr Wyer's written application could, by itself, so comprehensively convey such a deficit or (if it did) why he was not given the benefit of an interview where he might have explained himself better.  
  1. [88]
    While the nature of this appeal is such that I cannot make a factual finding about the feedback, Mr Wyer's submissions about the conversation he had with the panel chair  (to whatever extent it might be accurate) only adds to my concerns about the failure to interview other candidates.[18]
  1. [89]
    Secondly, the Department is at pains to point out that each member of the panel was careful to complete the conflict-of-interest declaration form. The Department refers to the Panel Conflict of Interest Declaration Fact Sheet and adopts its content to the effect that 'a professional relationship does not necessarily constitute a conflict of interest; however, each case should be considered individually'.[19]
  1. [90]
    The Department also attaches a copy of the conflict-of-interest declaration form ('the Conflict Form') completed by the panel members responsible for the appointment in this instance. The Department relies on this exhibit to support a submission that the panel members were cognisant of the need to avoid a conflict of interest (or even the perception of one).
  1. [91]
    The Department submits that even though each panel member had only a professional relationship with the appointee, they were suitably cautious to ensure that they disclosed this under the description 'perceived' conflict of interest. Three of the four panel members made such a disclosure.
  1. [92]
    The Department relies on a 'face value' reading of the Conflict Form. In my view, the Conflict Form is far more informative from what it does not say.
  1. [93]
    The Conflict Form is set out in a 'grid' style table that identifies each of the panel members and each of the candidates for the role. When one has regard to the Conflict Form, what is immediately apparent is that the only candidate who got an interview out of the four was also the only candidate out of the four who was known (albeit professionally) to three of the four panel members. On visual examination of the Conflict Form the inclusion of disclosures made by each panel member presents a stark contrast with the empty boxes across the grid for all other candidates and panel members.
  1. [94]
    While this might be a coincidence, in my view it is an overt pattern capable of arousing a degree of concern to an objective observer, especially in the context that no other candidate was offered an interview. I accept that the existence of a professional relationship alone does not prima facie point to a conflict of interest, but it does not exclude it either. Further, an existing professional relationship can equally be a source of positive bias.
  1. [95]
    While there is no evidence that could support a conclusion of an actual conflict of interest, I am not required to reach such conclusion in order to find that the decision was unfair or unreasonable. Further, while I consider that the pattern evident on an objective examination of the Conflict Form arguably gives rise to a perceived conflict, even that finding is not necessary to conclude that the decision was unfair or unreasonable.  
  1. [96]
    There might be any number of explanations for the rationale of how the appointee was the only candidate selected for interview. It is imprudent to speculate, except to say that there are explanations other than a conflict of interest that would still render the process and the decision unfair and unreasonable. 
  1. [97]
    For example, the fact that the appointee was the incumbent in the role (albeit in an acting capacity) probably made her a convenient choice for the panel members. The fact that the appointee had been performing the role for the previous twelve months without any problems (that they were aware of) in all probability produced a positive bias (conscious or unconscious) in the minds of the panel.
  1. [98]
    Further, an expeditious decision and appointment might have been attractive to the panel members because e.g., it relieved them of the likely time-consuming task of processing and interviewing three other candidates.[20]
  1. [99]
    Whatever the explanation might be, I consider the Conflict Form reveals that, in all probability, the panel members were affected by some degree of bias (conscious or unconscious) because of their existing relationships with the appointee.
  1. [100]
    In the circumstances I consider this reasonable perception of bias also renders the decision unfair and unreasonable.

Conclusion

  1. [101]
    For all of the reasons set out above I consider the promotion decision was unfair and unreasonable.
  1. [102]
    In summary, the failure by the Department to action the very comprehensive grievance authored by five Guidance Officers is confounding. Despite a no doubt valid technical barrier allowing it to be ignored, given the compelling content, the Department ought to have had regard to the grievance and ought to have paused the appointment process while the complaint was examined.
  1. [103]
    The Department's failure in this regard is no small matter. What cannot be forgotten is that Guidance Officers deal with the most vulnerable students in schools operated by the Department. The Department has a duty to ensure the quality of the people it employs to fill these roles (or to manage others in these roles).
  1. [104]
    While it might be easy to dismiss this dispute as a mere skirmish with disgruntled or unreasonable employees, the Department could not legitimately reach that conclusion without first objectively examining the (potentially) significant complaints about the skills and experience of the appointee that were raised by five of her professional contemporaries.
  1. [105]
    Further, The Conflict Form very clearly points to a reasonable perception of bias (conscious or unconscious) on the part of three of the four panel members. Had it been the case that Mr Wyer or another candidate had been interviewed in addition to the appointee I would have been less inclined to this conclusion. And while the objective facts of this matter considered individually may not (of themselves) justify an adverse conclusion, this is very much a case where 'the whole is greater than the sum of its parts'.
  1. [106]
    To be clear, nothing about my conclusions ought to be construed as an endorsement for Mr Wyer for the contested role. Neither should my conclusions be interpreted as diminishing the appointee's paramount suitability for the role. But fairness dictates that the recruitment process should commence afresh, with a new selection panel.
  1. [107]
    Finally, I propose to make orders vacating the appointment of the appointee. The effect of this will negate the matters raised by the grievance. While I do not have jurisdiction in this appeal to address those matters in this decision or my orders, it would seem prudent that those matters be properly investigated if or when consideration is being given by the Department to appointing the appointee a second time, but only if the authors of the grievance continue to hold those concerns.   

Orders

  1. [108]
    In the circumstances I make the following Orders:
  1. The appeal is allowed.
  1. The promotion decision is set aside.
  1. The matter is returned to the Department of Education with a copy of this decision.
  1. Within one month of the date of this decision, the Chief Executive is to revoke the appointment that is the subject of this appeal and publish a Gazette Notice that the appointment is revoked.
  1. Subject to the ongoing operational need for the role, the Chief Executive is to commence a fresh recruitment and selection process within 3 months of the date of this decision.
  1. In the event that a fresh recruitment and selection process is commenced, a new selection panel is to be formed constituted by Departmental personnel other than those who previously served on the panel responsible for the appointment that is the subject of this appeal.

Footnotes

[1]Attachment 6 to the Appeal Notice filed 12 January 2022.

[2]Paragraph 4 of the submissions of Mr Wyer filed 12 August 2022.

[3]T 1-4, ll 5-30.

[4]Paragraph 3 of the submissions of the Department filed 18 July 2022.

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

[6]Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[7]Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[8]Ibid.

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

[10]Industrial Relations Act 2016 (Qld) s 562B(4)(b).

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

[12]See Attachment ‘A’ to the submission of the Department filed 18 July 2022.

[13]Appeal notice filed 12 January 2022, Part C.

[14]See paragraph 3 of the Department’s submissions filed 18 July 2022.

[15]It was lodged on 8 December 2021.

[16]19 and 28 January 2022 respectively.

[17]See paragraph 11 of the submissions of the Department filed 18 July 2022.

[18]See paragraph 12(g) of the submissions of Mr Wyer filed 22 August 2022.

[19]See paragraph 23 of the submissions of the Department filed 18 July 2022.

[20]I note the decision was made within 4 weeks of applications closing.

Close

Editorial Notes

  • Published Case Name:

    Wyer v State of Queensland (Department of Education)

  • Shortened Case Name:

    Wyer v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 408

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    25 Oct 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
1 citation
Jump To
Cite 1 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
3 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Cite 3 - [1995] HCA 10

Cases Citing

Case NameFull CitationFrequency
Scarff v State of Queensland (Department of Education) [2024] QIRC 1652 citations
Walsh v State of Queensland (Queensland Police Service) [2025] QIRC 1772 citations
Wyer v State of Queensland (Department of Education) [2024] QIRC 1406 citations
1

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