HL v State of Queensland (Department of Education)
[2022] QIRC 458
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- Unreported Judgment
- HL v State of Queensland (Department of Education)[2022] QIRC 458
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HL v State of Queensland (Department of Education)[2022] QIRC 458
HL v State of Queensland (Department of Education)[2022] QIRC 458
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | HL v State of Queensland (Department of Education) [2022] QIRC 458 |
PARTIES: | HL (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/968 |
PROCEEDING: | Public Service Appeal – Transfer Decision |
DELIVERED ON: | 24 November 2022 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDER: | The decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – 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 AND INSTRUMENTS: | Department of Education State School Teachers' Certified Agreement 2019 cl 7 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 3, 24, 133, 134 Teacher Transfer Guidelines (Department of Education, 2021) cl 4, 5, 10 Teacher workforce mobility policy |
Reasons for Decision
- [1]Ms HL[1] (the Appellant) is a primary teacher at School A. On 8 September 2022, Ms HL received notice of required transfer from School A, South East Region to School B, South East Region.[2] Ms HL requested a review of that transfer and on 26 October 2022, Mr John Norfolk, Regional Director, South East Region wrote to Ms HL to inform her that the Teacher Transfer Review Panel had reviewed the required transfer and the panel recommended that the appeal against the transfer be dismissed.
- [2]Mr Norfolk said:
…After considering all information provided by you to the panel, and their subsequent recommendation, I believe that the proposed transfer is consistent with the provisions of section 133 of the Public Service Act 2008 and the Teacher Transfer Guidelines.
- [3]Mr Norfolk attached to the letter a summary of the factors that the panel considered when making its determination (Attachment 1).[3]
- [4]Attachment 1 sets out the matters raised by Ms HL in her request for review as follows:
- She fears this transfer and subsequent upheaval to adjust to a different school will sacrifice her wellbeing with negative consequences.
- [Ms HL] has advised that in 2011 she experienced a confirmed psychological injury whilst working in a school and resumed work at the beginning of 2012 on a graduated return to work plan at her current school location of [School A].
- [Ms HL] further states that a directive was provided by Education Queensland whereby she was informed that she would not be transferred to another school during her teaching career.
- Supporting documentation provided by [Ms HL] includes an email she forwarded to Evandale Practice requesting an appointment to see a Dr Bersin, and provided a GP Mental Healthcare Assessment from Dr Hassan Abdelkawy that identifies anxiety/depression as presenting issues in relation to being notified of her required transfer.
- [5]The review panel determined that the information provided by Ms HL in support of her request for review was 'insufficient to demonstrate that the required transfer decision is unfair or unreasonable or likely to adversely affect [Ms HL], for the following reasons':
- [Ms HL's] service and dedication to the students of [School A] is acknowledged however, transfers are undertaken following the Departmental policy, procedures and guidelines.
- Medical reasons are considered in line with the Guideline for assessment of compassionate circumstances which state that the staff member must provided documentation from a medical specialist articulating the reasons why they are required to work in a particular location, or why the existing and proposed location's environmental conditions are a catalyst for a chronic medical condition and the likely duration of this need.
In situations where the staff member's treating medical specialist is unable to provide this evidence, documentation from a registered medical practitioner or an allied health specialist will be considered.
- [Ms HL's] information regarding a psychological injury occurring in 2011 is acknowledged however, the supporting documentation [Ms HL] provided does not contain sufficient information to render the transfer unreasonable. Whilst it is stated she is suffering too much stress following the notification, this related to being informed of the required transfer decision, not to a current medical reason that would require her to continue to work in her current location, or why the proposed transfer location would be a catalyst for a chronic medical condition.
- [Ms HL] states she was provided information by Education Queensland whereby she was informed why would not be transferred to another school during her teaching career. No documentary evidence has been provided to support this information and as outlined in the Conditions of Employment, permanent teachers may be required to teach anywhere in the state and should also expect, as part of their teaching career, that they may be required to teach in locations not necessarily of their choice as all teachers are likely to be required to transfer at some stage. This requirement applies irrespective of whether they expressed restricted initial appointment location preferences on their application for teacher employment.
- The Teacher Transfer Guidelines state teachers permanently employed by the department may be required to teach at any location in the state. The department may require a teacher to transfer to meet the workforce planning needs of schools throughout the state or specific operational needs including to support school renewal, continuous improvement and innovation and generate vacancies for teachers seeking to transfer following rural and remote service.
- Teachers are expected to comply with a departmentally required transfer unless they can establish that reasonable grounds exist for the transfer not to occur. Reasonable grounds are established through the same criteria as compassionate transfers requests.
- [Ms HL's] transfer is a required transfer and required transfers were enacted to create vacancies in schools across the region to enable placements of teachers returning from rural and remote service, accommodate them returning from leave and/or enhance existing skills by providing a new teaching experience.
- While empathetic to [Ms HL's] situation, I believe that the circumstances outlined by [Ms HL] are not sufficient to support her review, and that the proposed transfer is consistent with the provisions of the Teacher Transfer Guidelines.
- [6]Attachment 1 lists the documents considered to reach the decision:
Teacher Transfer Request for Review, Required Transfer form dated 13 October 2022 with supporting documents:
- Email correspondence requesting a doctor's appointment and,
- Medical Certificate provided by Dr Hassan Abdelkawy
- Teacher Transfer Guidelines
- Guidelines for Assessment of Compassionate Circumstances
- [7]Ms HL filed her appeal against the internal review decision of Mr Norfolk on 3 November 2022, within the 21-day appeal period. I am satisfied that the appeal was filed in time.
- [8]For the reasons which follow, I have decided that the decision was fair and reasonable.
Ms HL's Grounds of Appeal
- [9]Ms HL says that she finds herself 'in the frustrating position of having to implore Education Queensland to recognise the mental health issues linked to my previous posting'.
- [10]Ms HL says that she suffered an accepted psychological injury in 2011 and that 'it has re-emerged within these last 4 weeks as a direct result of the requirement that I move schools'.
- [11]Ms HL says that the Transfer Review Panel appears unwilling to accept her medical practitioner's advice 'to avoid increasing her anxiety (and) keep her in the place where she is feeling comfortable'. Ms HL says:
This is clear medical evidence why an environmental change is more than likely to adversely affect my mental wellbeing. This was further underpinned by his statement that the stress was due to the subsequent decision and not due to being forced to adjust with a previously diagnosed 'adjustment disorder'.
- [12]Ms HL submits that the Panel's decision 'was shaped by a lack of judgment driven by an ignorance of the all-too-common struggle with mental illness'.
- [13]Ms HL says that she has visited her doctor on three separate occasions within 'this four-week timeframe' and that she was prescribed medication on 29 October 2022.
- [14]Ms HL says that 'Education Queensland has displayed a narrow view by asserting that I am only suffering stress due to the transfer decision and not to a current medical diagnosis'. Ms HL says that the mental toll and requirement for intervention in the form of medication is a clear indication that the decision is a catalyst for inflammation of her chronic medical condition.
- [15]Ms HL says that Education Queensland is 'showing an uneducated and outdated view in their refusal to acknowledge this "untouchable" illness by endorsing the decision' for her to transfer. Ms HL says that mental health has a 'direct correlation to our physical wellbeing' and yet she is expected to 'carry on with my full teaching load in the shadow of this directive'. Ms HL says that the impact of the transfer has been 'significant changes in both my sleeping and general eating practices'.
- [16]Ms HL says that she has already been diagnosed with mental illness in the workplace and that she has a heightened risk of this reoccurring in a new environment.
- [17]Ms HL seeks the transfer review decision to be set aside to 'allow me to continue to work in a facility which is demonstrated to be safe and supportive for my medical needs'.
Respondent's submissions
- [18]The Respondent filed submissions in reply to the appeal on 11 November 2022.
Background
- [19]
- [20]The Respondent says that clauses 4 and 5 of the Transfer Guidelines provide 'guidance and considerations regarding Respondent initiated transfers under section 133 of the Public Service Act 2008 (PS Act).'
- [21]The Respondent says that in order to identify teachers for a Required Transfer, a range of factors are taken into consideration including prior service in rural, remote and high priority locations and the teacher's length of service in their current location. The Respondent says that during 2022, 'preliminary criteria' were used by SER Human Resources (HR) in order to identify South East Region (SER) teachers for a potential Required Transfer as follows: 10 or more years at the current school; and no prior service in a school with a transfer rating 4 or above.[6]
- [22]The Respondent says that Ms HL is permanently employed with the Respondent under the Stream 1 – Classroom Teachers classification of the Department of Education State School Teachers' Certified Agreement 2019 (Teachers' Agreement). Having served at School A since January 2012 and not having served at a school with a transfer rating of 4 or above,[7] Ms HL appeared on the list for a potential Required Transfer.
- [23]The Respondent says that during Term 2, 2022, the Principal of School A held discussions regarding the possible requirement for Ms HL to be transferred to a different location.
- [24]On 8 September 2022, Ms Kirsty Payne, Director, HR Business Partnering, SER, decided that Ms HL would be transferred to School B on 19 January 2023.
- [25]Ms HL requested a review of that decision based on medical circumstances.[8]
- [26]The Department points to the Teachers' Agreement which specifies that it is a condition of employment that an employee could be required to work at any school location within the State.[9]
- [27]The Respondent says that the decision of Mr Norfolk complied with the PS Act, Teachers' Agreement, Mobility Policy and Guidelines, all of which apply to Ms HL as a permanent Stream 1 Classroom Teacher. The Respondent also confirms that Ms Payne and Mr Norfolk both hold the delegation, under the Respondent's HR Delegations Manual, to transfer a Classroom Teacher to another location, on behalf of the Chief Executive.
- [28]As explained above at [22]-[23], the Respondent says that Ms HL was eligible for a Required Transfer under the Transfer Guidelines and says further that genuine reasons exist for the recommended transfer in that SER is seeking to create vacancies for rural and remote teachers to return to SER, to accommodate those returning from leave and/or to enhance existing skills by providing a new teaching experience.
- [29]The Respondent says that the transfer to School B is a reasonable location under the Guidelines as it has an approximate driving time from Ms HL's place of residence of up to 50 minutes.
Respondent's reply to Ms HL's reasons for appeal
- [30]The Respondent says that relevantly, Ms HL does not contest that: she was eligible for a Required Transfer under the Guidelines; the eligibility criteria were fairly applied; that genuine reasons existed for the transfer; that Mr Norfolk is able to transfer her to a different location; that the transfer is reasonable with regard to her travel time; or that her stated grounds for review fell within the criteria of the 'medical circumstances' categorisation in the Compassionate Assessment Guideline.
- [31]The Respondent also notes that there is no apparent claim that the decision-making process leading up to the decision was not procedurally fair and there is no claim that Ms HL did not have the opportunity to present her case or have that information taken into account before the decision was made. Further, the Respondent says that Ms HL does not claim that Mr Norfolk was not an unbiased adjudicator.
- [32]The Respondent says that Ms HL's argument is that she did establish reasonable grounds for refusing the transfer, and that Mr Norfolk should have been satisfied that the advice from Ms HL's General Practitioner (GP) that her needs/main issue is 'to avoid increasing her anxiety and keep her in the place where she is comfortable' provided such reasonable grounds.
- [33]In support of its position that the decision of Mr Norfolk was fair and reasonable, the Respondent says, in summary:
- The scope, purpose and objective of the PS Act, is inter alia, to fix principles to guide public service management in order to promote the effectiveness and efficiency of a department, or part thereof, and provide rights and obligations for public service employees.[10]
- Section 133 of the PS Act helps the Respondent to achieve effective and efficient management by conferring it the power to transfer a public service officer to a different location.
- Section 134 of the PS Act confers an officer the right to raise an objection without prejudice, the Respondent's discretionary power to consider whether or not it is satisfied that the objection justifies cancelling the transfer and the officer's obligation to comply if it does not.
- [34]The Respondent says that its effectiveness and efficiency is underpinned by a mobile teaching culture which both incentivises teaching service in unpopular locations by rewarding such service with prioritised future postings, and increased stability, in popular locations, and enhances the skills of all permanent teachers through periodic placements at different schools. The Respondent says that required transfers, as provided by the PS Act (see above at [33]), are an essential part of the system.
- [35]The Respondent says that in balancing the rights and obligations of an officer who has been transferred, it is necessary that their grounds to refuse the transfer must, in the circumstances, override the effective and efficient management to be gained from the transfer and that this is a relatively high bar. The Respondent says that its approach is that it would be satisfied that an objection is reasonable if the officer's medical circumstances would cause them an unjustifiable hardship to be transferred to the proposed location.
- [36]The Respondent says it is relevant that it does not seek to transfer Ms HL back to her 2011 posting.
- [37]The Respondent says that the decision was open to Mr Norfolk on the information available to him at the time the decision was made.
Relevant Principles
- [38]The PS Act relevantly provides:
Part 3Transfers and redeployment
133Chief executive's power to transfer or redeploy
- (1)The chief executive of a department may transfer or redeploy a public service officer of the department within the department.
...
- (4)The transfer or redeployment of a public service officer under this section—
- (a)may involve a change in the location where the officer performs duties; and
- (b)if the officer is employed on contract—has effect despite anything in the contract.
134Consequence if transfer refused
- (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.
- (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.
- (3)If the officer establishes reasonable grounds to the chief executive's satisfaction—
- (a)the transfer is cancelled; and
- (b)the refusal must not be used to prejudice the officer's prospects for future promotion or advancement.
- [39]The Guidelines relevantly provide:
10.Required transfers
Teachers employed by the department may be required to teach at any location in the state. The department may require a teacher to transfer in the following circumstances:
- to meet the staffing needs of schools throughout the state
- to create a vacancy in a geographic area for a teacher with a high number of transfer points who is requesting a transfer to that location
- to provide a teacher with a range of teaching experiences and professional development opportunities
- when it is considered unreasonable for a particular teacher to serve longer in a particular location.
When considering the possibility of a required transfer, senior human resource consultants will:
- ensure that the proposed transfer is reasonable
- consider the teacher's full employment history with the department, including but not limited to service in rural and remote locations.
There is no mandatory maximum period of service at one particular location.
Techers 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 2008.
...
What Decisions can an Industrial Commissioner make?
- [40]In deciding this appeal, s 562C(1) of the IR Act provides that I may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
- (c)set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
Was the Decision Fair and Reasonable?
- [41]Ms HL stated her reasons for appeal in her appeal notice filed on 3 November 2022. Noting the nature of the matter and the desirability for all parties to have some certainty prior to the end of the school year, I issued a Directions Order on 4 November 2022 requesting that the parties file submissions on a slightly shorter timeline than usual.
- [42]The Respondent filed its submissions on 11 November 2022 as directed. The directions invited submissions from Ms HL by 18 November 2022. On 21 November 2022, the Respondent wrote to the Industrial Registry seeking advice as to whether Ms HL had filed submissions. Ms HL wrote to the Registry on 22 November 2022 to state that she did not wish to file written submissions as she was of the opinion that she had previously stated her reasons in her appeal notice and that there was no need to re-state her reasons in the form of a submission.[11]
- [43]Therefore, I am considering this appeal on the basis that, beyond the content of her appeal notice, Ms HL has not sought to disagree or respond to the Respondent's extensive submissions supporting its position that it complied with the PS Act, the Teachers' Agreement, the Mobility Policy, the Teacher Transfer Guidelines and the Guideline for Assessment of Compassionate Circumstances.
- [44]The question before me is whether Ms HL has established reasonable grounds for refusing the transfer and therefore Mr Norfolk's decision was not fair and reasonable. It is not debated that Ms HL made her request for review under medical circumstances. The relevant part of the Guideline for the assessment of compassionate circumstances is included in the reasons provided to Ms HL in the correspondence and reproduced at [5] above. The requirement is that Ms HL demonstrate that she has medical circumstances which mean the transfer will cause her unjustifiable hardship.
- [45]The Guideline states that the:
staff member must provide documentation from a medical specialist[12] articulating the reasons why they are required to work in a particular location, or why the existing or proposed location's environmental conditions are a catalyst for a chronic medical condition and the likely duration of this need.
- [46]It is agreed by the parties that Ms HL had an approved Workers' Compensation claim regarding a psychological injury in 2011. I note that the transfer does not seek to return Ms HL to that location. While Ms HL appeal notice states that her injury has re-emerged 'as a direct result of the requirement that I move schools', there is no medical evidence available to me that indicates that the transfer has caused the re-emergence of the injury Ms HL suffered in 2011.
- [47]It appears to me that Ms HL saw her GP because the notification that she would be transferred caused her distress. Ms HL's GP advised 'to avoid increasing her anxiety and keep her in a place where she is comfortable'. Ms HL has not provided the Respondent with a medical opinion explaining why she must specifically remain in her current location at School A. What the doctor appears to say is the Ms HL is comfortable in that school and a transfer may increase her anxiety. The doctor does not address the question of what it is about a move to School B that may be a catalyst for a chronic medical condition.
- [48]Ms HL writes in her appeal notice that she has needed to attend on her GP several times since the transfer and that she has been prescribed medication. I understand that Ms HL may be dismayed by the required transfer and distressed at the prospect of moving to another school after being at School A for 10 years. This was considered by the Transfer Review Panel which found that the stress Ms HL reported experiencing 'relates to being informed of the required transfer decision, not to a current medical reason that would require her to continue work in her current location...'.[13]
- [49]I understand that in her reasons for appeal, Ms HL provides some commentary or interpretation regarding what the remarks of the GP mean and says that the Respondent's decision is driven by an ignorance of mental illness. I do not find that the Respondent's decision was driven by an ignorance of mental illness, rather than by the determination of the Panel that the advice of Ms HL's doctor was not sufficient to establish that Ms HL's situation reflects the medical circumstances causing 'unjustifiable hardship' as required by the Guideline. Ms HL may hold a strong opinion about the impact of the transfer on her, however, it is the medical opinion which is to be considered by the Panel, not Ms HL's self-assessment.
- [50]Ms HL did not provide the Respondent with any evidence to support her claim that she was told that she would never be transferred to another school during her career. No new information has been put forward by Ms HL as part of her appeal. In the circumstances, and given the relevant industrial instrument, legislation and policies, I find it unlikely that such an assurance was provided. However, if Ms HL were to identify documentation to that effect, this is surely something the Respondent would consider with regard to its decision to transfer Ms HL.
- [51]I have reviewed the decision-making process and the decision of Mr Norfolk having had regard to the recommendation of the Transfer Review Panel. While I understand that Ms HL is aggrieved by the transfer, there is nothing before me that serves to demonstrate that the decision to transfer her was not fair and reasonable. As is extensively set out in its submissions and the attached documents, the Respondent is required to balance the needs and preferences of individual teachers with the requirements of the system.
- [52]The Respondent has demonstrated that it: has genuine reasons necessitating the transfer; properly identified Ms HL as a person who may be subject of a Required Transfer; informed Ms HL of her capacity to request a review of that decision; properly undertook a review of the decision; applied the correct guidelines and standard in reviewing the transfer decision; and provided detailed reasons for its decision to dismiss the request and require Ms HL to be transferred to the new location.
- [53]For the reasons given above, I have determined the decision was fair and reasonable.[14]
- [54]I order accordingly.
Order
The decision appealed against is confirmed.
Footnotes
[1]An alias has been used.
[2]Respondent's submissions filed 11 November 2022, Attachment D.
[3]Letter from Mr John Norfolk to Ms HL, 26 October 2022, Attachment.
[4]Respondent's submissions filed 11 November 2022, Attachment A.
[5]Respondent's submissions filed 11 November 2022, Attachment B.
[6]Each school is assigned a transfer rating of 1-7 which is determined by remoteness, access to and the level of community services, complexity of the school environment and organisational staffing requirements.
[7]Respondent's submissions filed 11 November 2022, Attachment C (Ms HL's service record).
[8]I do not have a copy of the Request for Review. Ms HL did not provide it and the Respondent says that as it contains medical information and documentation and was provided only to the Respondent for the purpose of the Request for Review, the onus is on Ms HL to provide it.
[9]Department of Education State School Teachers' Certified Agreement 2019 cl 7.5.2.
[10]Public Service Act 2008 (Qld) ss 3(1)(b), 3(1)(d), 24(1)(a).
[11]Email from Ms HL to the Industrial Registry, 22 November 2022 at 1.07 pm.
[12]Or in situations where the staff member's medical specialist is unable to provide this evidence, documentation from a registered medical practitioner or an allied health specialist will be considered.
[13]Letter from Mr John Norfolk to Ms HL, 26 October 2022, page 2 of Attachment.
[14]Industrial Relations Act 2016 (Qld) s 562B(3).