Hardy v State of Queensland (Department of Environment and Science)
[2022] QIRC 480
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hardy v State of Queensland (Department of Environment and Science)[2022] QIRC 480
- Add to List
Hardy v State of Queensland (Department of Environment and Science)[2022] QIRC 480
Hardy v State of Queensland (Department of Environment and Science)[2022] QIRC 480
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480 |
PARTIES: | Hardy, Carol (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) |
CASE NO: | PSA/2022/563 |
PROCEEDING: | Public Service Appeal – Fair treatment decision |
DELIVERED ON: | 8 December 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: | The decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – fair treatment decision – where appellant requested a flexible working arrangement to work from home three days a week – where request was not approved – where appellant encouraged to apply for a flexible working arrangement to work from home five days per fortnight for a three-month period – where appellant submits that the decision is unfair and unreasonable – decision is fair and reasonable. |
LEGISLATION | Directive 11/20 Individual Employee Grievances Industrial Relations Act 2016 (Qld) ss 4, 27, 28, 562B, 562C Public Service Act 2008 (Qld) s 137 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Flynn v State of Queensland (Queensland Health) [2021] QIRC 390 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland [2018] QSC 319 Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53 |
Reasons for Decision
Background
- [1]Ms Carol Hardy is substantively employed as a Senior Environmental Officer with the Department of Environment and Science ('the department') on a full-time basis. She has been employed with the department since 16 January 2012.
- [2]On 11 March 2022, Ms Hardy submitted a request for a flexible working arrangement ('FWA') to Ms Melissa Wells, Executive Director pursuant to s 27 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). In the request, Ms Hardy sought a flexible arrangement to work from home three days per week. Her primary reasoning for the FWA relates to her daily commute from Gympie to Maryborough, which she contends is unnecessary. Ms Hardy submits the FWA will improve her health and wellbeing through assisting with fatigue management and providing her with more free time to spend with her family.
- [3]On 19 April 2022, the department advised Ms Hardy that her FWA was not approved. The reasons relevantly provided:
Ideally, based on the unit needs and practicality of you being able to provide in-person support to your manager and colleagues in a timely manner, any longer-term FWA agreement to work from home or alternative work location would need to factor in the long-term imposition on the team and the actual flexibility being achieved through the request.
- [4]The reasons also identify that Ms Hardy’s role profile refers to 'undertaking compliance audits, advising, negotiating and consulting with industry, government and the community on environmental issues'.
- [5]Ms Hardy appeals that decision on the basis that the process was not fair and reasonable. Ms Hardy specifically contends the decision:
- was not made in accordance with the department's flexible work policy or other associated policies, the departmental and Public Service Commission guidelines for FWAs, or in accordance with a directive from internal review of a decision made about her individual employee grievance;
- did not show that it complied with the flexible work policy including to consider her application on its individual merits or to consult/negotiate; and
- does not show that the decision-maker considered many of the key reasons for Ms Hardy's application or explain how she has considered the impact of declining the request.
Statutory framework for public service appeals
- [6]Chapter 11 of the IR Act provides the Queensland Industrial Relations Commission with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld) ('the PS Act').
- [7]The IR Act provides that appeals are dealt with by way of review. That is to say, it is not a rehearing of the matter in the form of a hearing de novo.[1] The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[2] The task of the Commission is to review the decision of Ms Wells to determine if it was fair and reasonable.[3]
- [8]It follows that if the Commission considers a decision was reasonably open to the decision maker, then the decision ought not to be disturbed regardless of whether the Commissioner hearing the appeal would have decided the matter differently.
- [9]Chapter 11 of the IR Act also limits the orders that the Commission can make in such appeals. The IR Act relevantly provides that the commission, having heard an appeal, may make one of the following orders:[4]
- confirm the decision appealed against; or
- …
- 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
Relevant Legislation
- [10]Sections 27 and 28 of the IR Act relate to flexible working arrangements and relevantly provide:
27 Request for flexible working arrangements
- An employee may ask the employee’s employer for a change in the way the employee works, including—
- the employee’s ordinary hours of work; and
- the place where the employee works; and
- a change to the way the employee works, for example, the use of different equipment as a result of a disability, illness or injury.
- The request must—
- be in writing; and
- state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and
- state the reasons for the change.
28 Decision about request for flexible working arrangements
- The employer may decide to—
- grant the request; or
- grant the request in part or subject to conditions; or
- refuse the request.
- The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.
- The employer must give the employee written notice about its decision within 21 days after receiving the request.
- If the employer decides to grant the request in part or subject to conditions or to refuse the request, the written notice about the decision must state—
- the written reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal; and
- that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6.
Submissions of the parties
- [11]The parties filed written submissions in accordance with directions issued from my chambers on 12 May 2022.
The Department
- [12]The department relies on the principles of unreasonableness established in Gilmour v Waddell & Ors.[5] The department notes for a decision to be unreasonable it must lack evidence and intelligible justification, and where a decision may be reasonably justified it is not an unreasonable decision, even if a reviewing court may disagree with it.[6] The department submits its decision of 19 April 2022 sets out their considerations and provides intelligent justification for the decision to decline the appellant's flexible working arrangement request.
- [13]The department notes the appeal notice refers to a history of flexible working arrangements and associated decisions, however, submits that these are not relevant to the decision under appeal.
- [14]The department refutes Ms Hardy's claim that the decision was not made in accordance with policies. The department submits the decision clearly demonstrates consideration of Ms Hardy's request in line with the Flexible Work Policy ('FWP'), in the context of her role as a Senior Environmental Officer, including:
- Desk based work including meetings;
- Proactive inspections;
- Reactive compliance work including urgent circumstances; and
- Maintaining relationships, attendance in meetings and training.
- [15]The department submits that the statement of reasons demonstrates the delegate considered and addressed the individual circumstances of Ms Hardy. The statement of reasons considers the impact of the decision on Ms Hardy, and further provided her with an option to consider a flexible working arrangement that includes working from home five days per fortnight for a three-month period.
- [16]The department submits that pursuant to s 28(1) of the IR Act, the delegate may grant, grant in part, or subject to conditions, refuse a flexible working arrangement request. There are no restrictions on the delegate to suggest an option for Ms Hardy to consider. The department also notes the timeframe and review period referenced in the suggested alternative is consistent with clause 10 of the FWP.
- [17]The department submits that Ms Hardy submitted extensive material with her FWA request. The department contends that from previous interactions, Ms Hardy has demonstrated that she wanted a decision on the specific request she had made and was not open to negotiation about the flexible working arrangements.
- [18]The department notes it was not obliged to detail every aspect of Ms Hardy's request in its decision; it is only obliged to ensure the decision addresses any mandatory considerations, which the department submits was done so adequately by the decision maker.[7]
- [19]The department also notes the decision appropriately reflects a consideration of the operational requirements as the department refines its operational activities following the pandemic, including the importance of regular reviews to ensure arrangements remain appropriate for the unit and individuals.[8]
Ms Hardy
- [20]Ms Hardy submits that other employees were permitted to work from home for one, two or two and a half days respectively each week. Ms Hardy contends that the reasons provided to her when the FWA was rejected have not been applied to her colleagues.
- [21]Ms Hardy submits that she disagrees with the department's contention that her history of FWA requests and associated decisions are not relevant to this appeal. She cites clause 8.2 of Directive 11/20 Individual Employee Grievances. She submits that the individual employee grievance, FWA application and decisions made in relation to the grievance are relevant to the appeal. Ms Hardy also notes an internal review found the decision in relation to the original individual employee grievance not fair and reasonable and some of the grounds were subsequently re-used in the decision of 19 April 2022.
- [22]Ms Hardy submits the department did not meet the mandatory requirements for assessing her FWA application because her fatigue concerns were not addressed in the decision.
- [23]Ms Hardy contends that the department considered documents which are not policies or referred to in the FWP, including the procedural guide named 'DES Procedural Guide Incident Response 1/18 Incident response vehicle type and usage' and 'ESR WHS Risk Register – date December 2021'.
- [24]Ms Hardy submits the department listed participating in the after hours on call roster as a limiting factor to approving the FWA, which is not an intelligible justifiable reason to refuse her FWA as she has previously participated in the roster whilst living in Gympie. She also submits that the department incorrectly states in their submissions that the department sometimes immediately mobilises to assist Queensland Fire and Emergency Services. Ms Hardy contends they never mobilise immediately.
- [25]Ms Hardy submits the following in respect of the statement of reasons provided by the department:
- [8]At [17] b. The Respondent says that the ‘Statement of Reasons’ explicitly considers the impact of the decision on me. I submit that simply stating “I have given consideration of the reasons for your request and the potential impact on you for this request to be declined”, is not actual consideration of the potential impacts. The ‘Statement of Reasons’ does not identify which impacts have been considered, how any impacts have been considered, or even acknowledge key reasons for my application, including: being part of family life with my children and spending more time with my grandchildren in Gympie and Brisbane, time to relax and unwind after work as well as mange living tasks, unnecessary fatigue and improved travel safety, improved productivity; and specific details of improved work-life balance e.g. time to exercise and prepare healthy meals.
- [26]In addressing the negotiations that did or did not occur in relation to the FWA request, Ms Hardy submits:
- last time she applied for a FWA on terms proposed by the department it was subsequently revoked with no grounds provided for the decision;
- she believes the time for discussing alternatives to her application was prior to the department’s decision to not grant her application;
- the alternative arrangement outlined in the decision was not genuine because Ms Hardy applied for the proposed three-month FWA to work from home 50 per cent of the pay cycle to manage fatigue, and the respondent rejected three work from home day proposals Ms Hardy put forward;
- it is the respondent who has not been open to negotiation, not Ms Hardy.
- [27]Ms Hardy submits that the department did not make an effort to engage in a two way discussion when she asked for grounds for the decision, rather that they reiterated the view of operational need being the basis of the original decision, and that there was a preference to transition compliance staff back to the office for most days of the week.
- [28]Ms Hardy states she is distressed and expected her response letter to the delegate on
30 September 2021 to be the last step in the process. She reiterates that most members of her team work from home anywhere between one and two and a half days per week. She closes her submissions by requesting that the original decision is set aside, and a new decision is made allowing her to work up to three days per week from home.
Consideration
- [29]Section 4(k) of the IR Act outlines one of the purposes of the IR Act as being to promote diversity and inclusion in the workforce, including by providing a right for employees to request FWA's to assist with balancing their work and family responsibilities. As outlined above, the IR Act also makes provision for employees to request FWA's and what the employer may do in responding to FWA requests.[9]
- [30]The decision outlines the detailed documents which were reviewed in considering the flexible work request, as well as the key responsibilities in the role profile of the Senior Environmental Officer. The decision maker outlines how the FWA fits within Ms Hardy's accountabilities and responsibilities outlined in her position description, and highlights that her position is a compliance role, with a key function of the role being to undertake compliance activities in the field.
- [31]Further to this, the department relied on the fact that Ms Hardy’s work relies from time to time on the use of a departmental vehicle and assets (including camera, GPS, spot tracker and appropriate personal protective equipment). While Ms Hardy had submitted that she could be available to be mobilised from home, the department noted that this would require the garaging of a department vehicle and storage of necessary equipment at Ms Hardy’s home on her work from home days. A consequence of this would be to either deprive the Maryborough office of these assets or outlay funds for the purchase of additional items to cover the gaps in availability created by Ms Hardy e.g. garaging a vehicle at her home.
- [32]The department's decision refers to the specific aspects of the accountabilities and responsibilities outlined in the position description and outlines how the FWA applied for impacts those accountabilities and responsibilities. The decision also considers statements made by Ms Hardy in her FWA application, and directly responds to these.
- [33]Further, the decision maker states:
As an option for your consideration, you may wish to apply for a FWA that includes 5 days a fortnight working from home for a period of three months.
It is reasonable that for a three-month period the work unit can accommodate 50% working from home for you.
- [34]This suggestion is consistent s 28(2) of the IR Act and with clause 3.5 of the Departments Flexible Work Policy (CHC/2018/4180) which states:
3. Principles
…
- 5.Employees should generally attend their workplace (including non-home based alternative work locations) for at least half of their work week (more onsite attendance may be required due to business needs), with representation by the team across all days of the week to ensure an even spread and maintain effective service delivery. Balancing team attendance across the week should be determined by discussing with team members to ensure mutually beneficial outcomes for all.
- [35]There is no doubt that Ms hardy’s right to ask for FWA is enshrined in the IR Act. But beyond the obligation to consider the request and not unreasonably refuse it, there is certainly no obligation for a request to be granted.
- [36]It is patently obvious from the reasons provided by the department in the decision that there has been careful and genuine consideration given to Ms Hardy’s request. It is further obvious that there are very real practical and logistical barriers to accommodating her request in a way that does not impose limitations or restrictions on the department and Ms Hardy’s colleagues. There is no lack of evidence and intelligible justification in this instance.[10]
- [37]Despite this, with all of those matters justifiably weighing against granting Ms Hardy’s request, the department has (very generously in my view) recommended that Ms Hardy apply for a FWA to work from home for 5 days per fortnight for a period of 3 months. And yet, Ms Hardy has rejected this reasonable suggestion without even making an attempt at an application in those terms. While it is mere speculation on my part, it would seem likely the suggestion by the department was in fact, in reality, a counter-proposal.
- [38]I am at a loss to identify any unfairness or unreasonableness in the way in which the department has treated Ms Hardy’s request. Fundamentally, pursuant to s 28(2) of the IR Act, the discretion open to the department is limited only in that they cannot unreasonably refuse a request. In my view, they have not. On the contrary, it is my impression that Ms Hardy misunderstands the power and effect of the statutory and policy provisions that allow her to ask for FWAs. Ms Hardy’s rights in that regard do not extend to a right to make unfettered demands.
- [39]No doubt the ‘work from home’ arrangements necessitated by the pandemic have given some employees the impression that such arrangements can be permanently adopted. In some cases this will be true, although it will rarely be the case that an employee can demand the variation. But there will be many other cases, such as this, where the nature of the health emergency outweighed the practical operational requirements for a time, but where those requirements will become paramount once again now that the emergency has largely passed.
- [40]In the circumstances I would observe that Ms Hardy’s vigorous pursuit of the FWA and the somewhat ‘entitled’ tone of her submissions are misplaced.
- [41]Moreover, it must be remembered that the genesis of Ms Hardy’s problem is the fact that she chooses to live in Gympie while being employed in Maryborough. As a consequence of her choice to live in Gympie, Ms Hardy has to endure a significant daily commute which is in turn giving rise to the fatigue she complains of, and also impacts on her time with her family.
- [42]Further, it seems that since she commenced with the department 12 years ago, Ms Hardy’s personal and family circumstances have changed including that she now desires to travel more frequently to Brisbane to see grandchildren.
- [43]Ms Hardy is free to choose to live wherever she wants, but her choice will invariably have consequences. One such consequence is the lengthy commute to Maryborough. Another consequence is that it is becoming less convenient for her due to changing family needs. But these consequences of Ms Hardy’s personal choice do not create a reciprocal obligation on the department to accommodate her demands.
- [44]In all of the circumstances I consider the decision was fair and reasonable.
Order
- [45]In all of the circumstances, I make the following order:
The decision appealed against is confirmed.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland [2018] QSC 319, 5.
[2] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.
[3] Industrial Relations Act 2016 (Qld) s 562B(3).
[4] Ibid s 562C.
[5] [2019] QSC 170.
[6] Ibid 209.
[7] Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53, 33.
[8] Flynn v State of Queensland (Queensland Health) [2021] QIRC 390, 76.
[9] Industrial Relations Act 2016 (Qld) ss 27, 28.
[10] Gilmour v Waddell & Ors [2019] QSC 170.