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  4. Henning v State of Queensland (Queensland Treasury) - [2022] QIRC 487

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Henning v State of Queensland (Queensland Treasury)[2022] QIRC 487

Henning v State of Queensland (Queensland Treasury)[2022] QIRC 487

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487

PARTIES:

Henning, Peter Grant

(Appellant)

v

State of Queensland (Queensland Treasury)

(Respondent)

CASE NO:

PSA/2022/611

PROCEEDING:

Public Service Appeal - Appeal against a promotion decision

DELIVERED ON:

16 December 2022

MEMBER:

Hartigan DP

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 – appeal against a promotion decision – where appellant applied for internally advertised position – where appellant was unsuccessful for the position – where appellant argued panel held a conflict of interest – where appellant argued interview process deficient – whether the recruitment and selection process deficient – decision fair and reasonable – appeal dismissed.

LEGISLATION:

Industrial Relations Act 2016 Qld s 562B and s 562C

Public Service Act 2008 Qld s 27, s 28 and s 194

Directive 12/20 Recruitment and Selection cl 7

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

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

Reasons for Decision

Introduction

  1. [1]
    Mr Peter Henning is employed in the position of  Senior Designer (A06) with Queensland Treasury ('the Department').
  1. [2]
    In response to an internal job advertisement, Mr Henning applied for the position of Manager, Visual Communications, Strategic Communications, Strategic Policy, Brisbane (A08) with the Department. 
  1. [3]
    On 27 May 2022, Mr Henning was advised by the Department that he had been unsuccessful in his application for the position.
  1. [4]
    The successful appointee's promotion to the position was published by way of the Queensland Government Gazette on 10 June 2022. 
  1. [5]
    By notice of appeal filed in the Industrial Registry on 13 June 2022, Mr Henning appeals the promotion decision pursuant to s 194(1)(c) of the Public Service Act 2008 (Qld) ('the PS Act') and relies on the following in support of his appeal:

I have been in the Treasury Design area for 22 years. My IP included a wealth of knowledge, experience, and contacts inside and outside government. I have backfilled the A08 managers role seamlessly, many times in the past. I am appealing this decision on the grounds that Steve Keating has employed a conscious bias towards State Development people (even though he insisted that these appointments were purely coincidental). These appointments are a conflict of interest.

  1. [6]
    On 15 June 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 filed written submissions.
  1. [7]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [8]
    Sections 562B(2) and (3) of the Industrial Relations act 2016 (Qld) ('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 takes 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 recruitment and selection process

  1. [11]
    The recruitment and selection process[4] comprised of the following:
  1. (a)
    advertising the Manager role to the public sector;
  1. (b)
    analysis of written applications and shortlisting candidates based on merit;
  1. (c)
    a structured interview for the shortlisted candidates before the Selection Panel, with the candidates asked to deliver a 45-minute presentation on the following topics;
  1. i.
    the best example of a creative campaign they had led (and why they considered it their best);
  2. ii.
    what they believed was the best example of a creative government work which they had seen and why; and
  3. iii.
    bot they lead would improve the external profiling og Queensland Treasury;
  1. (d)
    a referee report for the most meritorious candidate;
  1. (e)
    completion of Nomination Report (Attachment 2); and;
  1. (f)
    offer of permanent employment.

…

  1. [12]
    Eight (8) applications were received for the A08 position. Three (3) candidates were shortlisted for an interview, including Mr Henning.
  1. [13]
    The selection panel consisted of:
  1. (a)
    Steve Keating, General Manager, Strategic Communication, Queensland Treasury;
  1. (b)
    Trent Venables, Digital Strategy Implementation Lead, Department of Resources; and
  1. (c)
    Deirda Leigh, Media Director, Strategic Communications, Queensland Treasury.
  1. [14]
    The panel's decision regarding the successful candidate is set out in the Nomination Report which was filed with the Respondent's submissions.

Relevant legislative provisions

  1. [15]
    Section 194 of the PS Act sets out decisions against which appeals may be made. Section 194 relevantly provides:
  1. 194
    Decisions against which appeals may be made
  1. (1)
    An appeal may be made against the following decisions—

…

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

  1. [16]
    Section 562B(4) of the IR Act provides that:
  1. 562B
    Public service appeal to commission is by way of review

…

  1. (4)
    For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission—
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [17]
    Section 27 of the PS Act provides that the appointment or secondment of an eligible person as a public service employee must be based on the merit principle alone.
  1. [18]
    Section 28 stipulates the merit criteria that is to be considered as follows:
  1. 28
    Merit criteria

In applying the merit principle to a person, the following must be taken into account –

  1. (a)
    the extend to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  2. (b)
    if relevant –
  1. (i)
    the way in which the person carried out any previous employment or occupational duties; and
  2. (ii)
    the extent to which the person has potential for development.

…

  1. [19]
    The purpose of Directive 12/20 Recruitment and Selection ('Directive 12/20') is to specify the requirements applying to the recruitment and selection of public service employees.
  1. [20]
    Clause 7 of Directive 12/20 deals with the decision-making process as follows:
  1. Merit assessment and decisions

7.1 Merit assessment must occur irrespective of whether a vacancy is advertised or not. Subject to clause 7.2, chief executives are responsible for determining the activities required to assess merit.

7.2 Assessment processes for advertised vacancies must:

  1. (a)
    incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants’ merit within the current context and duties of the role
  2. (b)
    take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)
  3. (c)
    incorporate pre-employment checks including referee checking as per clause 8
  4. (d)
    measure the relative merit of each applicant, and
  5. (e)
    be consistent with the principles of employment equity and anti-discrimination.

7.3 Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants).

7.4 Chief executives must determine the documentation required for selection decisions for non-advertised vacancies, having regard to the nature and duration of the vacancy.

7.5 If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended applicant is considered to be more meritorious than the next in the order of merit, must be provided.

7.6 In approving an appointment, the decision maker must be satisfied the proposed appointee is the most meritorious and, where applicable the selection process complies with the PS Act and this directive.

7.7 Selection decisions and notification of outcomes must take place in a timely manner. To facilitate this, panels should be formed and selection strategies determined prior or concurrent to advertising. A vacancy advertisement will lapse if no appointment is made within six months of the closing date of the vacancy.

7.8 To promote integrity in recruitment, selection panel documentation must include a declaration from each panel member and the decision maker that identifies:

  1. (a)
    any actual, potential, or reasonably perceived conflicts of interest between the panel member or decision maker and applicants for the role, or
  2. (b)
    the absence of a conflict of interest between the panel member or decision maker and applicants for the role.

Appellant's grounds of appeal

  1. [21]
    Mr Henning's written submissions in relation to the appeal relies on the following grounds, as relevantly summarised:
  1. (a)
    that the selection panel were biased and nepotistic because the majority of the selection panel (Steve Keating and Deidra Leigh) were recently employed by the Department of State Development, Infrastructure, Local Government and Planning and this resulted in the panel choosing a candidate who was also employed with the same department; ('ground one')
  1. (b)
    that the interview process was 'flawed in that it was not based on written quantifiable responses to selection criteria'; ('ground two') and
  1. (c)
    that Mr Henning was the most meritorious candidate ('ground three').

Ground one

  1. [22]
    Mr Henning contends that the promotion decision was infected by nepotism. The Macquarie Dictionary defines nepotism as:

Noun  patronage bestowed in consideration of family relationship and not on merit

  1. [23]
    There is no suggestion of a familial relationship between any member of the panel and the successful candidate. Accordingly, I do not find that the decision was infected by nepotism.
  1. [24]
    Alternatively, Mr Henning contends that as members of the panel formerly worked at the Department of State Development, Infrastructure, Local Government and Planning and so had the successful candidate, that the panel members had a conflict of interest.
  1. [25]
    Such an allegation is serious and should not be made without cogent evidence to support such a claim. Mr Henning's submissions in support of the allegation are vague and laden with imprecise inferences in support of his claim of a conflict of interest. Relevantly, other than the panel members and the successful candidate formerly working in the same department, there is no further particularisation of the conflict of interest claim.
  1. [26]
    The fact that the panel members may have previously worked in the same department as a successful candidate, does not, without anything further, establish a conflict of interest. Relevantly, the panel members disclosed and acknowledged a prior working relationship with both the successful candidate and Mr Henning (as at the time of the selection process some of the panel members worked with Mr Henning in the department) and determined that no conflict of interest arose.
  1. [27]
    Mr Henning has failed to establish how a conflict of interest has arisen and further that the decision was infected by such a conflict of interest.
  1. [28]
    Accordingly, ground one does not support a conclusion that the decision was not fair and reasonable.

Ground two

  1. [29]
    Mr Henning further contends that the interview process was flawed in that it was not based on written quantifiable responses to selection criteria. Mr Henning continues that, rather, the interview process was a 45-minute presentation based around three topics. Two of which he argues were open to interpretation and opinion. Mr Henning indicated that he understood that approval for this interview process had been gained from Human Resources but that if there was any documentation that compared applicants, he was unaware of it.
  1. [30]
    As noted above, the interview process included a structured interview for the shortlisted candidates wherein the candidates were asked to deliver a 45-minute presentation on the following topics:
  1. (a)
    the best example of a creative campaign they had led (and why they considered it their best);
  1. (b)
    what they believed was the best example of creative government work which they had seen and why; and
  1. (c)
    how their leadership would improve the external profiling of Queensland Treasury (including the Treasurer).
  1. [31]
    The applicants were advised of the topics in advance of the interview to allow them to prepare a presentation addressing the three topics during the interview.
  1. [32]
    Included in the Department's submissions is the Nomination Report which provides a comparative statement between Mr Henning and the successful applicant. In addition to that document, also attached to the submissions were Mr Henning's written application and Mr  Venables' (one of the panel members) written notes taken during the interview with Mr Henning and his written notes taken during the interview with the successful applicant.
  1. [33]
    Whilst the interview process was not based on written quantifiable responses from the applicants, it was a consistent process wherein each of the applicants were invited to respond to the three interview topics and answer questions from the interview panel.
  1. [34]
    Having regard to the roles and responsibilities of the position. included in the role description for the position (which is attached to the material), I consider that the selection technique adopted allowed the panel to assess the merit of each of the applicants, having regard to the relevant duties and responsibilities.
  1. [35]
    Further, it is not a case that the applicants were taken by surprise with respect to the interview process methodology because they were provided with advance notice of the expectations regarding the interview and given a comparable opportunity to prepare their responses. This gave each of the three shortlisted applicants an opportunity to prepare their presentation having regard to the relevant duties and responsibilities of the position. The material indicates that the panel preferred the successful candidate's presentation and interview response.
  1. [36]
    I do not consider that ground two supports a finding that the decision was not fair and reasonable.

Ground three

  1. [37]
    Mr Henning contends that he was the most meritorious candidate.
  1. [38]
    Further, Mr Henning contends that no consideration was given to his 22 years of experience at Queensland Treasury, as well as his private sector experience and that he has, on many occasions, in the past backfilled the AO8 managers role. In addition, Mr Henning states that his IP includes a wealth of knowledge, experience, contacts inside and outside government, and that he is consistently training and upskilling.
  1. [39]
    However, on consideration of the material it appears that Mr Henning's qualifications, experience and skills were considered, as Mr Henning was one of three (out of a total of eight applicants) who were shortlisted to be interviewed. 
  1. [40]
    Whilst Mr Henning's experience and skills may have provided him with an opportunity to be interviewed with respect to the role, it is clear, that following the interview process, he was not considered to be the more meritorious candidate for the role.
  1. [41]
    The Nomination Report identifies that the unanimous conclusion of the panel was that the successful candidate was the "clear pick for the position". Further, from the Nomination Report and the supporting documentation this conclusion appears to have been made having regard to the presentation and performance of the candidates at the interview.
  1. [42]
    For instance, Mr Venables' notes of the interview with Mr Henning identify that he considered that, Mr Henning's presentation was lacking in passion and that he did not push boundaries. Mr Venables also noted that Mr Henning could have come across as more professional and regard was had to Mr Henning's concession to not "being a PowerPoint expert". The role description identifies that to be successful in the role a candidate will need to have, inter alia, strong experience and be highly competent in the use of, inter alia, Microsoft applications particularly, PowerPoint and Word. Mr Venables' interview notes state that he would expect a manager to be proficient in PowerPoint. The interview notes supplement the Nomination Report and provide a greater understanding with respect to why, in the circumstances of this matter, the successful candidate was considered to be more meritorious.
  1. [43]
    I do not consider that ground three establishes that the decision was not fair and reasonable.

Miscellaneous matters

  1. [44]
    Mr Henning’s submissions in reply raise matters that do not fall neatly within either ground one, two or three. I will address those matters further below.
  1. [45]
    Mr Henning queries what resources the Department is using to support Mr Keating in this process and whether similar resources would be available to him. That is not a matter that the Commission is able to address on the material, although it is noted that the Respondent in this matter is the Department and not Mr Keating.
  1. [46]
    Further, Mr Henning contends that the Nomination Report was brief and unspecific and did not properly comply with section 7.3 of the Directive. Whilst I accept that some of the language used in the Nomination Report was brief and adopted unsophisticated terminology, for instance, the successful candidate was the "clear pick", I am ultimately satisfied that the recruitment process was clearly documented and able to be independently reviewed as required by the Directive.
  1. [47]
    Mr Henning also criticises the statements made by Mr Venables in his interview notes as lacking meaning and/or as being unsupported statements. The notes made by Mr Venables are an expression of his opinion as a member of the panel while observing Mr Henning. The notes made are consistent with the conclusions ultimately formed by the panel and the matters raised by Mr Henning do not disturb the decision,
  1. [48]
    For the reasons referred to above, I find that the decision was fair and reasonable. The appeal is dismissed.

Order

  1. [49]
    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).

[4] As set out in the Respondent's submissions.

Close

Editorial Notes

  • Published Case Name:

    Henning v State of Queensland (Queensland Treasury)

  • Shortened Case Name:

    Henning v State of Queensland (Queensland Treasury)

  • MNC:

    [2022] QIRC 487

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    16 Dec 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
1 citation
Jump To
Cite 1 - [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
Chen v State of Queensland (Queensland Health) [2025] QIRC 1224 citations
Haycock v State of Queensland (Queensland Health) [2025] QIRC 782 citations
Henning v State of Queensland (Queensland Treasury) [2023] ICQ 96 citations
Lambinon v TAFE Queensland [2025] QIRC 2472 citations
Walsh v State of Queensland (Queensland Police Service) [2025] QIRC 1772 citations
1

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