Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Main v State of Queensland (Department of Education) - [2022] QIRC 455

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Main v State of Queensland (Department of Education)[2022] QIRC 455

Main v State of Queensland (Department of Education)[2022] QIRC 455

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Main v State of Queensland (Department of Education) [2022] QIRC 455

PARTIES:

Main, Vicki Maree

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/943

PROCEEDING:

Public Service Appeal – Appeal against a transfer decision

DELIVERED ON:

24 November 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE APPEAL – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a transfer decision – where appellant required to transfer – where request made for review of transfer – where review confirmed transfer – whether decision fair and reasonable – decision confirmed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 194, s 197 and s 562

Public Service Act 2008 (Qld) s 133, s 134 and s 194

Department of Education Teacher Transfer Guidelines cl 4 and cl 7

Department of Education Guideline for Assessment of Compassionate Circumstances cl 3

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Ms Vicki Maree Main is employed by the State of Queensland (Department of Education) ('the Department') as a Teacher. Ms Main has taught at Arundel State School since 20 November 1999.
  1. [2]
    By letter dated 8 September 2022, the Department advised Ms Main that she had been selected for a required transfer to a teaching position at Pimpama State Primary College commencing on 19 January 2022.
  1. [3]
    On 16 September 2022, Ms Main requested a review of a decision to transfer her from Arundel State School. Ms Main's request was considered by the Teacher Transfer Review Panel.
  1. [4]
    On 6 October 2022, the Department notified Ms Main that they had confirmed the decision dated 8 September 2022 ('the decision'). 
  1. [5]
    By notice of appeal filed on 14 October 2022, Ms Main appeals the decision of the Department dated 6 October 2022. Ms Main relies on the following grounds, as relevantly summarised, in support of her appeal:
  1. (a)
    Ms Main was not provided with 'natural justice' because "the process around [her] transfer is flawed";
  2. (b)
    in deciding to transfer Ms Main, the Department failed to consider her personal circumstances; and
  3. (c)
    that the Teacher Transfer Review Panel were provided with false and misleading information.
  1. [6]
    On 17 October 2022, the Commission issued directions to the parties in relation to the provision of written submissions in support of their position with respect to the appeal. Both parties complied with the direction.
  1. [7]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [8]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1]  Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [9]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [10]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [11]
    In the decision, the decision maker provided the following reasons in support of its decision:

Determination was based on the following:

In Vicki's request for review she advised that:

  • She is appealing the proposed transfer on the basis the process has been flawed and she did not get an opportunity to explain her personal circumstances.
  • No supporting documentation has been provided by Vicki which would help to explain her personal circumstances as her request for review is about expressing it is unfair, and she was not provided an opportunity at natural justice or an opportunity to consult.

This information was considered and it has been determined by the review panel as insufficient to demonstrate that the required transfer decision is unfair or unreasonable or likely to adversely affect Vicki, for the following reasons:

  • Vicki's service and dedication to the students of Arundel State School is acknowledged however, transfers are undertaken following the Departmental policy, procedures and guidelines.
  • In Vicki's review request, she has stated that since being notified of her transfer, she met with the Principal and with a Deputy on several occasions however, at no time did she want to discuss the personal circumstances that may have supported her not being transferred. Opportunities existed for Vicki to provide relevant information to her schools leadership however, did not provide any detail which may have provided a consideration of compassionate circumstances.
  • Two email requests were sent to Vicki – 13/09/2022 and 16/09/2022 letter her know that a Senior Human Resources Consultant was available for her to discuss her personal circumstances. On 30.09.2022, Vicki called and stated that she has nothing further to discuss.
  • Personal circumstances are considered in line with the Guideline for assessment of compassionate circumstances which outlines the process of determining if a situation meets the criteria of compassionate circumstances and the documentary evidence required to assess and support this determination. No documentary evidence has been provided by Vicki that will support her review of this required transfer.
  • Vicki's transfer is a required transfer and a number of factors are taken into consideration when identifying teachers for a required transfer. Required transfers were enacted to create vacancies in schools across the region to enable placements of teachers returning from rural and remote service, accommodate those returning from leave and/or to enhance skills by providing a new teaching experience.

…

  • While empathetic to Vicki's request to review, I believe that the circumstances outlined by Vicki are not sufficient to support her review, and that the proposed transfer is consistent with the provisions of the Teacher Transfer Guidelines.

…

Relevant legislation and guidelines

  1. [12]
    Sections 133 and 134 of the PS Act relevantly provides:

Part 3 Transfers and redeployment

133 Chief executive's power to transfer or redeploy

  1. (1)
    The chief executive of a department may transfer or redeploy a public service officer of the department within the department.

…

  1. (4)
    The transfer or redeployment of a public service officer under this section—
  1. (a)
    may involve a change in the location where the officer performs duties; and
  1. (b)
    if the officer is employed on contract—has effect despite anything in the contract.

134 Consequence if transfer refused

  1. (1)
    If a public service officer is transferred under section 133, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer's chief executive.
  1. (2)
    If the officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive's satisfaction, the chief executive may terminate the officer's employment by signed notice given to the officer.
  1. (3)
    If the officer establishes reasonable grounds to the chief executive's satisfaction—
  1. (a)
    the transfer is cancelled; and
  1. (b)
    the refusal must not be used to prejudice the officer's prospects for future promotion or advancement

…

  1. [13]
    The Teacher Transfer Guidelines ('the Transfer Guidelines') sets out guidelines to assist teachers, principals and regional HR teams in relation to the Department's teacher transfer system and process.
  2. [14]
    Clause 4 of the Transfer Guidelines relevantly provides:

4 Transfer types that support state-wide mobility and eligibility criteria

…

Required Transfers

To meet the workforce planning needs of schools throughout the state or specific operational needs, the department may also require teachers to transfer.

…

When identifying teachers for a required transfer, school leaders and HR teams are to take the following into consideration:

  1. (a)
    breadth of teaching experience, including prior service in rural and remote locations (i.e. TR4 to 7) or other high priority locations
  2. (b)
    length of service in current location
  3. (c)
    professional development activities undertaken in the last 5 years (e.g. further education, additional responsibilities, relieving placements, secondments, special duties, courses, attendances or delivery at conferences or seminars) that either support the teacher in their current position or their longer-term career plans
  4. (d)
    the need to create vacancies for teachers seeking to transfer following rural and remote service
  5. (e)
    temporary organisational circumstances that preclude the teacher from moving from their current location
  6. (f)
    personal circumstances that preclude a teacher from moving either from their current location or residence.

…

Teachers are expected to comply with a departmentally required transfer unless they can establish that reasonable grounds exist for the transfer not to occur.

…

Objections may be made in accordance with section 134 of the Public Service Act and the department's transfer review and appeals process.

…

  1. [15]
    Clause 7 of the Transfer Guidelines identifies the process for transfer reviews and appeals as follows:

7. Transfer Reviews and Appeals

Teachers are to discuss concerns with a transfer decision with their base school principal in the first instance.

If the matter cannot be resolved following these discussions, the teacher may submit a written request for review to their base school principal when:

  • a request to transfer has not been granted or
  • the department requires a teacher to transfer, but the teacher believes that there are reasonable grounds to preclude the transfer*.

* Objections against a required transfer are made in accordance with section 134 of the Public Service Act 2008.

…

  1. [16]
    The Guideline for the Assessment of Compassionate Circumstances ('the ACC Guideline') establishes a governance framework for the fair and equitable disbursement of required transfers. Clause 3 of the ACC Guideline provides that an application for consideration of compassionate circumstances can be made where the permanent staff member:
  • has exceptional and compelling circumstances, beyond their or their manager's control
  • has a situation that cannot be suitably managed locally by alternative means
  • provides supporting documentation from an independent third party substantiating their compassionate circumstances
  • the supporting documentation justifies why the staff member should be working in a particular location
  • is not subject to a formal Managing Unsatisfactory Performance (MUP)
  • is not subject to formal conduct investigation or outstanding discplinary action.

…

Whether the decision was fair and reasonable

  1. [17]
    Ms Main submits that the decision of the Department was not fair and reasonable and relies on the following points, as relevantly summarised:
  1. (1)
    Ms Main contends that the required transfer is not fair and equitable;
  1. (2)
    Ms Main states that she has "very personal and private circumstances" and if she were required to be transferred, this could have a "detrimental impact" on herself and her immediate family;
  1. (3)
    Ms Main advised the Principal at Arundel State School that she had very personal and private circumstances that would not allow her to transfer schools before a decision was made, however this was ignored; and
  1. (4)
    Ms Main contends that she is willing to share further detail regarding her personal and private circumstances however was not provided with an opportunity to speak to someone who can 'influence' the required transfer.
  1. [18]
    The Department contends, for the reasons set out in their reply submissions, that the decision is fair and reasonable and rely on the following points, as relevantly summarised:
  1. (1)
    when a teacher is required to transfer to meet operational needs they are required to comply unless they can establish reasonable ground for the transfer not to occur – Ms Main did not establish reasonable grounds;
  1. (2)
    the Department refute Ms Main's argument that there was a lack of natural justice and highlights that Ms Main's submissions were evaluated and decided in accordance with the relevant frameworks; and
  1. (3)
    that the documentation provided by Ms Main did not establish reasonable grounds for the transfer to not occur as there was no evidence to support that the transfer would cause unjustifiable hardship within the meaning of the ACC Guideline. The Department provided two opportunities for Ms Main to speak with a Senior HR Consultant to discuss her personal circumstances, however she stated that she had nothing further to discuss.
  1. [19]
    Ms Main's grounds of appeal identify that she considers the decision making process associated with the making of the decision to be flawed.
  1. [20]
    As noted above, the Transfer Guidelines and ACC Guidelines apply to the proposed transfer of Ms Main which is a transfer initiated by the Respondent.
  1. [21]
    On 8 September 2022, Ms Main was notified that she had been selected for a required transfer. Clause 4 of the Transfer Guidelines provides that a teacher is expected to comply with a required transfer unless they can establish that reasonable grounds exist for the transfer not to occur. The onus clearly rests with the teacher to establish whether reasonable grounds exist.
  1. [22]
    Clause 7 of the Transfer Guidelines provides for a transfer review and appeal process. The process of review potentially involves two steps. The first step requires a teacher to discuss their concerns with their base school principal at first instance. If the matter can not be resolved following these discussions, the teacher may submit a written request for review. It is apparent that the purpose of the review process is to provide the teacher with an opportunity to furnish all relevant information with respect to their objection to the proposed transfer.
  1. [23]
    Ms Main contacted the base school principal, Mr Dare, by email on 15 September 2022 requesting a meeting to discuss her concerns and request a form for a formal appeal document. A telephone meeting took place between Ms Main and Mr Dare on 16  September 2022.
  1. [24]
    In schedule 2 to Ms Main's appeal notice, she summarises her recollection of the telephone meeting. After detailing her recollection of the call, Ms Main states:

Schedule 2

I went to great lengths during the telephone meeting to explain, the process was unfair, did not provide me with natural justice or any opportunity to consult and have my very personal circumstances taken into account and therefore is unreasonable, harsh and unjust, which all started with his failure to afford me the opportunity to have a formal meeting and he simply stated well you should put all of that into your appeal.

…

  1. [25]
    Relevantly, it does not appear that Ms Main disclosed to Mr Dare during the course of that discussion the "very personal circumstances" that she contends forms a reasonable basis for the transfer not to occur. This appears to be consistent with an email sent from Mr Dare to Ms Main following the meeting wherein he relevantly stated:

During our conversation this morning you did not outline the reason for your appeal. I would encourage you to please complete the attached appeal documentation outlining these concerns. I would also invite you to include any supporting documentation related to these personal circumstances.

…

  1. [26]
    Clearly Mr Dare was inviting Ms Main to provide information and documentation relating to her personal circumstances as part of the review process.
  1. [27]
    Relevantly, Ms Main addresses this email in the written request for the review and describes it as "yet another example of not being listen[ed] to…".
  1. [28]
    Whilst it appears that Ms Main addressed her concerns with the process and repeated her concerns that the process had been unfair and did not provide her with natural justice including by not taking into account her personal circumstances, Ms Main did not provide any information to support the substance of the reasons for the review.
  1. [29]
    The difficulty with accepting Ms Main's contention is that she had chosen not to disclose the particulars of her personal circumstances when there is a clear process in place which provides for the consideration of Ms Main's circumstances.
  1. [30]
    The completion of the Teacher Transfer Request for Review (Required Transfer) form ('the request form') was a further opportunity for Ms Main to provide supporting information and documentation in support of her review. Relevantly, on the front page of the request form, teachers seeking a review are advised as follows:

Section 134 of the Public Service Act 2008 requires you to establish that there are reasonable grounds for the transfer not to occur, so please ensure that you include these details for the review panel to consider. Before submitting your request, please take the time to read the Teacher Transfer Guidelines and ensure that you have completed the first stage of the review process by discussing your concerns with your principal and senior HR consultant.

  1. [31]
    The information is repeated in the Transfer Guidelines which relevantly states:

…The teacher's written request for a review must include sufficient information to enable their concerns to be resolved, including any action that the teacher would like to see taken.

  1. [32]
    In the request form, Ms Main relevantly states:

Of course, I am prepared to detail my very personal circumstances to the person who does have authority to make a determination in relating to this transfer, so that they can have full understanding of the physical, mental and emotional hardship that enforcing this transfer would have on myself and members of my family.

  1. [33]
    It is unclear why Ms Main chose not to disclose her personal information at any time up to and including providing it to the review panel as part of the review request. There can be no doubt that the review panel had authority to review the transfer decision. I am satisfied that not only was Ms Main provided several opportunities to provide the information, but she was also notified by Mr Dare's email and by the information included on the request form that she was to ensure that she provided all relevant information for the review panel to consider. I am satisfied that Ms Main did not provide the relevant information when she was provided several opportunities to do so.
  1. [34]
    Accordingly, the information which was before the review panel consisted of Ms Main's request form which focused on her criticism of the process in determining that she be transferred and was absent of any information which might support a conclusion that her personal circumstances were such as to be able to establish reasonable grounds for the transfer not to occur.
  1. [35]
    Further, no such information was proffered by Ms Main during the course of this appeal so it remains unclear what the nature of Ms Main's personal circumstances are and whether they would be able to establish a reasonable basis for the transfer not to occur.
  1. [36]
    On the material before me, I am satisfied that Ms Main was afforded natural justice, and, specifically, I am satisfied that Ms Main was provided with an opportunity during her discussion with Mr Dare and as part of the formal review process to provide information regarding her personal circumstances but that she did not do so. Ms Main criticises the decision for failing to have regard to her personal circumstances yet the obligation was on Ms Main to produce that information. The review panel had regard to the information Ms Main put before it which was absent any particularised information about her personal circumstances.
  1. [37]
    Finally, Ms Main contends that the panel was provided with false and misleading information. Relevantly, Ms Main contends that consideration was had to a false statement that Ms Main had been sent two emails on 13 and 16 September 2022 advising her that a Senior Human Resources Consultant was available for Ms Main to discuss her personal circumstances. Ms Main discloses the inclusion of the statement as "extremely concerning".
  1. [38]
    The allegation is obviously a serious one, however, it is unclear from Ms Main's submission the basis upon why she considers the statement to be false and what the consequences of that are. It is unclear whether Ms Main objects to what was said to be included in the emails or whether she denies receiving them.
  1. [39]
    From the material, it appears that prior to the decision being made on 6 October 2022, Ms Main did speak to a Senior Human Resources Consultant on 30 September 2022. Of significance, Ms Main did not provide any fresh or new material which was relevant to the panel's consideration of Ms Main's circumstances during the course of the discussion. Accordingly, it can not be said by Ms Main that she was not provided with an opportunity to speak to a Human Resources Consultant.
  1. [40]
    Whilst Ms Main clearly disagrees with her nomination as a required transfer she did not provide any relevant information or documentation to the relevant decision maker when she was given an opportunity to do so. Accordingly, the decision appropriately dealt with the information before the panel.
  1. [41]
    For the foregoing reasons, I do not consider that Ms Main has established that the decision of 6 October 2022 was not fair or reasonable.

Order

  1. [42]
    Accordingly, I make the following order:

The decision appealed against is confirmed.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

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

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Close

Editorial Notes

  • Published Case Name:

    Main v State of Queensland (Department of Education)

  • Shortened Case Name:

    Main v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 455

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    24 Nov 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
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
ST v State of Queensland (Department of Education) [2023] QIRC 42 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.