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  4. Clare v State of Queensland (Department of Education) - [2022] QIRC 492

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Clare v State of Queensland (Department of Education)[2022] QIRC 492

Clare v State of Queensland (Department of Education)[2022] QIRC 492

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clare v State of Queensland (Department of Education) [2022] QIRC 492

PARTIES: 

Clare, Gayle

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/952

PROCEEDING:

Public Service Appeal – Appeal against promotion decision

DELIVERED ON:

22 December 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed 22 November 2022 and 13 December 2022

Respondent's written submissions filed 1 November 2022 and 6 December 2022

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – PUBLIC SERVICE APPEAL – Appeal against a promotion decision – where the Appellant unsuccessfully applied for a position – decision was fair and reasonable – appeal dismissed

LEGISLATION AND

OTHER INSTRMENTS:

Industrial Relations Act 2016 s 562C

Public Service Act 2008 ss 27, 28, 29, 194

Recruitment and Selection Directive 12/20 cls 5, 6, 7, 9, 10, 11

CASES:

Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361

Cleary v State of Queensland (Department of Resources) [2022] QIRC 416

Reasons for Decision

Introduction

  1. [1]
    Ms Gayle Clare (the Appellant) is employed by the State of Queensland (Department of Education) (the Respondent) as an Administration Officer, classification AO2, at Kawana Waters State College (KWSC).
  1. [2]
    Ms Clare appeals the decision made by the Respondent to promote the successful Appointee from the position of AO2 Administration Officer at KSWC to the vacancy of AO3 Industry Liaison Officer at KSWC on a permanent part-time, 0.6 full-time equivalent (FTE) basis. The successful Appointee was appointed to the vacancy on 23 May 2022 and retained 0.4 FTE of her AO2 position.
  1. [3]
    In March 2022, the vacant position of Industry Liaison Officer was publicly advertised. Ms Clare, along with ten other applicants, applied for the position. A recruitment and selection panel convened for the purpose of making a recommendation to the relevant delegate for an applicant to be appointed to the position.
  1. [4]
    The selection panel reviewed the written applications and shortlisted two candidates: the Appointee and the Appellant. The shortlisted applicants were subsequently interviewed and on 29 March 2022, a referee report was obtained for the recommended candidate.
  1. [5]
    On 28 April 2022, the selection panel completed a Selection Report which unanimously recommended the Appointee's appointment. On 13 May 2022, the decision-maker made the promotion decision and on 23 May 2022 the Appointee was appointed to the vacancy.
  1. [6]
    By appeal notice filed on 21 October 2021, the Appellant appealed the promotion decision.
  1. [7]
    After Ms Clare lodged her appeal, the Respondent identified that due to an administrative oversight, the promotion decision had not been gazetted. Subsequently, on 4 November 2022, the promotion decision was notified in the Queensland Government Gazette.

Is the Appellant entitled to appeal?

  1. [8]
    Section 194 of the Public Service Act 2008 (the PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(c) provides that an appeal may be made against a decision to promote a public service officer (a promotion decision).
  1. [9]
    Ms Clare filed her Appeal Notice with the Industrial Registry on 1 November 2022. In her Appeal Notice, Ms Clare requested an extension of time to lodge her appeal after 5:00 pm on the 21st day after the appointment was publicly notified.
  1. [10]
    I issued a Directions Order on 25 October 2022 requesting that the parties make submissions regarding the Appellant's request for an extension to lodge her appeal.
  1. [11]
    In its submissions of 1 November 2022, the Respondent advised the Commission that the appointment had not been publicly notified due to an administrative oversight and submitted the following:

The Respondent respectfully submits that, if it pleases the Commission:

  1. a.
    The Directions Order dated 25 October 2022, requiring the Appellant to reply to the Submissions of the Respondent regarding the Appellant's Application and the Appealability of the Appointment, is vacated;
  1. b.
    The Appeal is held in abeyance until the Appointment is Gazetted;
  1. c.
    The parties are in the Commissions [sic] hands as to whether a new appeal notice needs to be filed within 21 days after the appointment was Gazetted or the current Appeal can stand as is, despite having been lodged before the appointment was Gazetted;
  1. d.
    The parties monitor the 2022 Gazette listings and advise the Commission and the other party when the Appointment has been Gazetted by providing the Registry a copy of the page of the gazette relevant to the Appeal; and
  1. e.
    Thereafter, a further Directions Order is issued directing the parties to each file and serve written submissions regarding this Appeal.
  1. [12]
    On 4 November 2022, the Respondent wrote to the Industrial Registry to advise that the appointment had since been gazetted and provided a copy of the relevant page of the gazette.
  1. [13]
    I determined to hear the appeal without requiring the Appellant to file a fresh Appeal Notice and issued a Further Directions Order on 8 November 2022 requesting that the parties make written submissions addressing the promotion decision.
  1. [14]
    Accordingly, I am satisfied that the decision is one that may be appealed against and that Ms Clare is a person who may appeal.
  1. [15]
    For completeness, I note Ms Clare's dissatisfaction with the length of time it took to confirm that the appointment had been gazetted, thus enabling her appeal rights. The Respondent submits that the 'imperfection' resulting from the oversight in not gazetting the decision within one month of the appointment 'is not a deficiency that would lead to a conclusion that the Promotion Decision was not fair and reasonable and ought to be set aside'. The delay in gazetting the promotion is not ideal, however, I agree that this non-compliance which occurred following the completion of the process does not serve to make the promotion decision not fair and reasonable.  Further, the delay has not interfered with Ms Clare's right to appeal the decision.

Appeal Principles

  1. [16]
    Section 562C(2) of the Industrial Relations Act 2016 (the IR Act) provides that in deciding a promotion appeal, the Commission may set the decision aside where the Commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the PS Act, a regulation or a directive of the Public Service Commission chief executive under the PS Act.[1]Recruitment and Selection Directive 12/20(the Directive) is such a directive.
  1. [17]
    The issue for determination is limited to whether the process complied with the PS Act, a regulation or the Directive.
  1. [18]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the promotion decision was fair and reasonable.
  1. [19]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal.
  1. [20]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. …
  1. (c)
    for another appeal—set the decision aside,  and substitute another decision or return the  matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative Provisions

  1. [21]
    Clause 5 of the Directive relevantly states:
  1. 5.
    Role evaluation
  1. 5.1
    Unless an alternative is approved by the Commission Chief Executive (CCE), a role evaluation for the purpose of determining the work value and applicable classification level must be undertaken in accordance with the Queensland public sector job evaluation management system.
  1. 5.2
    A role evaluation is not required to be undertaken for levels 1 and 2 of the professional and technical streams as these levels exist for the purpose of fulfilling education and training requirements prior to appointment to the level of practising professional or technical officer.
  1. [22]
    Clause 6.4 of the Directive goes on to state:

6. Vacancy advertisement and exemptions from advertising

…

6.4 The following information must be provided when a vacancy is advertised:

  1. (a)
    a description of the duties to be undertaken and the key capabilities  against which applicants’ merit will be assessed
  1. (b)
    any mandatory qualifications or conditions including, if a chief executive has designated a role as an identified role, the mandatory attribute(s) applicants must possess to be eligible for appointment
  1. (c)
    the location and duration of the vacancy or vacancies (e.g. permanent, fixed term temporary)
  1. (d)
    any pre-employment checks including disciplinary history and criminal history that may be undertaken
  1. (e)
    any probationary period which may apply
  1. (f)
    information regarding the obligations of newly appointed public service employees to disclose employment as a lobbyist and any previous serious disciplinary history.
  1. [23]
    Furthermore, s 27(1) of the PS Act provides that the selection of an eligible person for an appointment or secondment as a public service employee must be based on merit alone, referred to as the 'merit principle'.
  1. [24]
    Sections 28 and 29 of the PS Act provide:
  1. 28
    Merit criteria
  1. In applying the merit principle to a person, the following must be taken into account-
  1. (a)
    the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  1. (b)
    if relevant-
  1. (i)
    the way in which the person carried out any previous employment or occupational duties; and
  1. (ii)
    the extent to which the person has potential for development.
  1. 29
    Directives about applying the merit principle
  1. (1)
    A directive of the commission chief executive may provide for how selection, under the merit principle, for a stated type of appointment or secondment must be carried out.
  1. (2)
    A selection for an appointment or secondment must comply with any relevant directive under subsection (1).
  1. [25]
    Clause 7 of the Directive relevantly provides:
  1. 7.
    Merit assessment and decisions
  1. 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.
  1. 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
  1. (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)
  1. (c)
    incorporate pre-employment checks including referee checking as per clause 8
  1. (d)
    measure the relative merit of each applicant, and
  1. (e)
    be consistent with the principles of employment equity and anti-discrimination.
  1. [26]
    Clause 9 relevantly states:
  1. 9.
    Dealing with adverse information that may affect the selection outcome
  1. 9.1
    The selection panel is responsible for assessing the relative merit of applicants based on the information available to them. In some instances, this may include adverse information, as a result of a pre-employment check or through panel members’ pre-existing knowledge of an applicant. Where adverse information is taken into account by the panel and it adversely affects the proposed selection outcome i.e. recommendation for appointment, the information must be put to the applicant for response. Any response from the applicant must be documented and considered by the panel ahead of making their final recommendation.
  1. [27]
    Clause 10 of the Directive provides:
  1. 10.
    Post selection feedback
  1. 10.1
    Subject to clause 10.2 all applicants are to be advised that they may request feedback.
  1. 10.2
    Graduate applicants who are interviewed are to be advised they are entitled to request feedback.
  1. 10.3
    Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel sufficient to explain the panel’s recommendation and the decision maker’s decision.
  1. [28]
    Clause 11 of the Directive provides:
  1. 11.
    Gazette notification
  1. 11.1
    The following appointments must be notified in the gazette within one month of the appointment decision:
  1. (a)
    all senior executive and senior officer appointments from an advertised vacancy
  1. (b)
    promotions of tenured public service officers from an advertised vacancy
  1. (c)
    promotions of tenured public service officers arising from the use of the recurring vacancy provision.

Ms Clare's appeal

  1. [29]
    Ms Clare's Appeal Notice addresses her reasons for appeal:

I have concerns regarding the recruitment process and reasons for my appeal are:

  • Verbal feedback from 2 of the panel members (Business Manager and Deputy Principal) from my interview was:
  1. –My application was very good.
  2. –The outcome was close.
  3. –I was unable to demonstrate my capacity to form strategic partnerships.
  4. –I was unable to demonstrate that I would have an on-campus presence.
  5. –Some of my responses were not detailed enough.
  • The capacity to form strategic partnerships was not an identified responsibility of the role.
  • My response to having an on-campus presence was that I was available to have an on-campus presence and in the first instance I would liaise with the AO3 ILO equivalent at the respective facility.  The feedback which I received was the expectation was the ILO is required to liaise with the Senior Schooling staff.
  • No requests for clarity regarding answers or the above tasks were provided by the panel.
  • My previous extensive experience undertaking the core ILO duties was not taken into consideration.
  • The tasks undertaken by the Kawana Waters State College AO3 Industry Liaison Officer are inconsistent with the AO3 ILO role description.  This applies to the temporary AO3 ILO position filled in early 2019 until the present time. Current duties of the role undertaken by the position holder do not include core aspects of the advertised role description.
  • I am concerned that the panel was recruiting to a position different to that advertised.
  1. [30]
    Ms Clare filed submissions in support of her appeal on 22 November 2022. Ms Clare says that the KWSC AO3 ILO position (0.2 FTE) was created in 2018 specifically to support a cohort of Health staff and students only in the Health Unit and the position was filled by contract staff until 2021.
  1. [31]
    Ms Clare says that the KWSC Health Unit delivers health certificate courses to Years 10, 11 and 12 KWSC and external secondary school students who attend the facility one day a week. Only one health course (Assistant in Nursing) requires students to undertake work experience in 2022.

Summary of the recruitment and selection process

  1. [32]
    The Respondent sets out a summary of the recruitment and selection process in its submissions filed 6 December 2022.  The key dates and steps of the process are set out above.
  1. [33]
    Two applicants were shortlisted for interview. In the interviews, the selection panel sought a response to three questions around the key capabilities of an Appointee to the vacancy. The Respondent says that these questions were drawn from the 'How you will be assessed' section of the role description:
  • Question 1 – Explain to the Panel how you would establish and maintain effective networks and work collaboratively with business and industry groups to build strong and vibrant links that promote the Health Education Unit at KWSC. [Key capabilities 1 – Supports strategic direction and 2 – Achieves results];
  • Question 2 – [The] Role at KWSC requires a significant amount of interaction with Staff (teaching and non-teaching), Parents and the Community.  Explain the steps you would use to build positive and productive relationships with all groups and individuals. [Key capabilities 3 – Supports productive working relationships and 5 – Communicates with influence]; and
  • Question 3 – Due to the wide and diverse range of duties to be carried out in a high school, staff employed at our school are required to work with limited supervision and direction.  For this position we are looking for someone who can make valuable partnerships with Key Stakeholders in the Health Sector. This will include facilitating placements and the required paperwork.  Please provide an example of where you have been successful. [Key capability 4 – Displays personal drive and integrity].

Submissions of the parties

  1. [34]
    I intend to work through the submissions of the parties as they pertain to each aspect of appeal raised in Ms Clare's submissions. The Respondent's submissions are helpfully written in reply to matters raised by Ms Clare and so it is convenient to consider all submissions together and come to a conclusion regarding each ground of appeal.  Ms Clare's reply included some additional submissions and material, but also restated some of the arguments made in her appeal notice and initial submissions.  I have read and considered all material and submissions, even if I do not make specific reference to it.

Verbal feedback received by Ms Clare

  1. [35]
    Ms Clare sets out the verbal feedback she received on 28 April 2022 and explains why that feedback makes her believe that she was disadvantaged in the process. Ms Clare groups these submissions under three headings pertaining to the feedback:

That I did not have the ability to demonstrate my capacity to form strategic partnerships

I believe that I was disadvantaged as it was not a requirement of the position prior to 2022 and was not specified as a role responsibility in the role description nor was there an expectation that the ILO undertook this responsibility. Forming strategic partnerships had not been undertaken by the Industry Liaison Officer at Kawana Waters State College.  This concern was not discussed with me at interview.

Inability to demonstrate that I would have an on-campus presence

I believe that I was disadvantaged as this was not a requirement of the position prior to 2022.  This interview question pertained to promoting the Health Unit to Schools.  My response to having an on-campus presence was that I was available to undertake this task and in the first instance I would liaise with the A03 ILO equivalent at the respective facility.  The feedback which I received was that the expectation was the ILO is required to liaise with the Senior Schooling staff at schools even though this was previously undertaken by teaching staff.  This was also not in the role description.

Some of my responses weren't detailed enough

I wasn't advised which questions and responses this feedback pertained to. During the interview, the panel members did not request further information of clarity regarding these responses.

The interview questions did not explore the scope of experience required for the position as per the role description.

  1. [36]
    The Respondent says that on 28 April 2022, it provided timely, specific and constructive feedback.[2]
  1. [37]
    The Respondent disputes Ms Clare's claim that 'forming strategic partnerships' is not specified as a responsibility in the role description. The Respondent points to the role description which describes that the ILO will:
  • Establish and maintain effective networks and work collaboratively with business and industry groups to build strong and vibrant links that promote School Based Apprenticeships as a career pathway for students;
  • Form connections and develop partnerships between school and employers that will assist students to transition to employment and make effective career choices; and
  • Work directly with schools, government, industry, business and community groups to form productive partnerships and develop networks to position School based Apprenticeships as a career pathway choice for students in the region [Emphasis added]
  1. [38]
    The Respondent says that the responsibilities listed in the duties involve synonyms for the words 'forming' and 'partnerships' and words relating to the identification of overall aims or designed to achieve a particular purpose and therefore indicative of the duties being done in a 'strategic manner'.
  1. [39]
    The Respondent disagrees with Ms Clare's submission that the requirement to liaise with the Senior Schooling staff was not in the role description.  The Respondent says the role description describes the responsibility to 'Work in collaboration with the Senior Schooling team to monitor and track students achievement and outcomes'.
  1. [40]
    In her reply submissions, Ms Clare maintains that the partnerships described in the role description are 'industry partnerships' not 'strategic partnerships'. Ms Clare also makes reference to 'success partnerships'. Further, Ms Clare says that she understands the reference to schooling staff in the role description to be about 'monitoring and tracking student achievements and outcomes' and that there is no relationship between this and an expectation to liaise with senior schooling staff in other ways.
  1. [41]
    Ms Clare's concerns arising from the verbal feedback she received are dealt with below in her grounds of appeal as I have identified them. However, it is convenient here to address Ms Clare's submission that the role description does not specify 'forming strategic partnerships' or 'liaising with Senior Schooling staff' as responsibilities for the role description.
  1. [42]
    I agree with the Respondent's submission that the elements set out at [38] combine to reflect that 'forming strategic partnerships' is an aspect of the role.  Even if the words are not used, any written or interview responses Ms Clare provided that addressed the elements at [38] would have been considered by the panel as evidence of an ability to form strategic partnerships. I do not think the terms 'industry partnerships', 'success partnerships' or 'strategic partnerships' are mutually exclusive. Indeed, I do not think an Appointee could perform the role description successfully if they did not form strategic partnerships.  The role description also clearly states a responsibility of the role as working in collaboration with the Senior Schooling team. I accept that Ms Clare may have held a view about the requirements of the role with regard to communication with Senior Schooling staff, but I do not accept her submission that such a requirement was not part of the role description.

Ground of Appeal: The selection technique was designed to recruit to a role not reflected in the role description and duties of the role

  1. [43]
    Ms Clare says that she believes the recruitment process did not meet the standards in the relevant Directive at cl 7.2(a) as it appears the selection techniques were designed to recruit to a role other than that in the position description.    
  1. [44]
    Ms Clare says that she was the acting incumbent in the AO3 ILO position from February to November 2021.  Ms Clare says that the core duties of the KWSC Industry Liaison Officer role from 2019 to 2021 were:

Processing work experience agreements, submitting Disability Worker Screening and Blue Card applications, assisting some students find work experience placements, debt collection, data entry and non-ILO administrative support to the Health Unit teaching staff.

  1. [45]
    Ms Clare points to the role description for the Industry Liaison Officer for vacancy QLD/NCR408910/22P and says that the duties being undertaken in the role from 2019 to 2021 are not consistent with those listed in that role description.
  1. [46]
    Ms Clare says:

I believe the panel was recruiting to a position different to that advertised as the tasks currently undertaken by the KWSC AO3 ILO are inconsistent with the AO3 ILO role description.  The 2022 KWSC ILO position was advertised as per the Education Queensland AO3 role description which implied that the successful candidate would be responsible for the range of duties outlined in the role description across the KWSC Campus. The job advertisement on Smart Jobs and role description did not identify that the position was to support the Health Unit only and that the duties and responsibilities would only pertain to supporting Health Unit students and staff.

  1. [47]
    In her reply submissions, Ms Clare lists a number of duties from the role description which she says are not core duties or the role. Ms Clare says that one of the interview questions made reference to promoting the HEU as a preferred choice for students seeking to undertake certificates in health and that the role description does not include a responsibility to promote and market school VET courses to other schools.
  1. [48]
    Ms Clare also says that 'promoting and marketing the College Health Education program sits within the realm of a higher classification', being the AO4 marketing officer. 
  1. [49]
    The Respondent submits that it has complied with cl 6.4(a) of the Directive which requires provision of a description of the duties to be undertaken in the advertised role.
  1. [50]
    The Respondent notes that Ms Clare has provided information about several tasks she has previously provided in an ILO role (see [37] above). However, the Respondent says that it is the duties 'to be undertaken' in the role that must be described.[3]The Respondent points to the role description which describes such duties as: 'Develop and manage the work experience program, including monitoring students in the workplace, arranging visits where required and managing the preparation, collection and storage of records and data as required by policy'.
  1. [51]
    The Respondent says that the interview questions encompassed the main themes of building and maintaining relationships with both external industry and internal stakeholders, facilitating placements and preparing paperwork and that all of these themes were contained in the role description.
  1. [52]
    The Respondent says that the panel is not required to step through and ask a direct question on each and every duty and competency, rather it is the applicant's role to answer the questions asked as effectively as possible.[4]Further, the Respondent says that any answers to interview questions were considered in conjunction with the written applications and that this negates the need to go over every competency, duty and responsibility in the interview.[5]
  1. [53]
    I have considered all of the material available to me and I do not find that the role description or advertisement failed to reflect the role that was being recruited for or the content of the questions asked in the interview. I do not understand a reference to maintaining relationships to build links that promote the Health Education Program to mean that the role is solely responsible for the promotion of the program.  I understand that reference to mean that there is an expectation that the successful employee will undertake their work in a way that supports or promotes the program.  Ms Clare may have a personal view, albeit based on her experience, about what the role entailed and the key aspects of the role going forward, however ultimately it is the role description which identifies the relevant aspects of the role.
  1. [54]
    I am unable to identify a deficiency in the role description and therefore this ground of appeal has not been made out. 

Appeal Ground: Failure to state that the position was to support the KWSC Health Education Unit (HEU)

  1. [55]
    Ms Clare says that KWSC failed to disclose to candidates that the position was to support the Health Unit. However, Ms Clare says that she recently 'located' a publicly available document posted on the KWSC website earlier in the year and that it clearly identifies  the position, the requirements of the position and the entity the position supports.[6]
  1. [56]
    The Respondent says that the advertisement and role description combine to correctly list the work unit as KWSC in North Coast Region, State Schools Division, located in the Sunshine Coast, specifically at Bokarina. The Respondent says whilst the HEU is not specifically referenced in the advertisement or role description, the HEU and Health Sector were specially referenced in the interview questions.  The Respondent says that this allowed the shortlisted candidates to further understand the context of the vacancy, tailor their responses accordingly and ask any questions they may have in response, as part of the overall process.
  1. [57]
    The Respondent also says it is relevant that Ms Clare referenced the HEU, and its staff and students, in her written application.[7]Further, the Respondent says, 'the fact the HEU was not specifically referenced in the advertisement or role description is not a deficiency with respect to compliance with Directive 12/20'.
  1. [58]
    I have reviewed Ms Clare's application and agree that it makes several references to her work with the HEU.
  1. [59]
    I note that the Directive requires the 'location and duration of the vacancy or vacancies' be provided when a vacancy is advertised.  I confirm that the advertisement and role description make the location of the role clear. That the role description and advertisement did not specify where exactly within the location the role would be situated does not reveal a deficiency in the process or compliance with the Directive. 

Ground of Appeal: the recruitment process relied solely on the interview and Ms Clare's previous experience was not taken into consideration by the panel

  1. [60]
    Ms Clare says that recruitment process did not meet the standards in the relevant Directive at cl 7.2(b) because it appears to rely solely on the interview.
  1. [61]
    Ms Clare also points to her 'previous extensive experience' undertaking the core ILO duties and says that this experience meets the requirements of the position as outlined in the role description but was not taken into consideration.
  1. [62]
    With reference to her application and resume, Ms Clare says that she detailed her experiences and outcomes specifically relating to the ILO duties which she had undertaken over a 5-year period. Ms Clare says that with respect to the role description, 'there is an inferred expectation that the successful candidate has knowledge and experience pertaining to the ILO responsibilities'.  Ms Clare says that the section of the role description titled 'How you will be assessed' requires that the ideal applicant provides relevant details and examples of each capability within the context of the role responsibilities.
  1. [63]
    The Respondent refers to the Shortlisting Grid,[8]which it says was completed based on Ms Clare's written application which outlined her experience. That grid demonstrates that Ms Clare was rated as either 5 [Excellent] or 4 [Good] on all criteria.  Ms Clare gained a total score of 22, equal in merit with the Appointee.
  1. [64]
    Further, the Respondent says the fact that particular skills or experiences are not mentioned in the selection report does not indicate that they were not considered.[9]The Respondent says that it is an accepted historical and contemporary practice across the public and private sector to determine the first round of selections based upon written applications and when the most meritorious candidates have been identified, conduct interviews or other selection processes.[10]
  1. [65]
    The Respondent says that given Ms Clare and the Appointee were on equal footing based on their written applications, the comparison between candidates and the feedback provided to Ms Clare would focus on the interview. The Respondent says that the emphasis on the interview in the feedback does not render the selection process deficient in circumstances where the written application was also taken into account in accordance with clause 7.2(b) of Directive 12/20.
  1. [66]
    There is also no evidence that Ms Clare's previous experience and the material she provided in her written application was not taken into account, in fact, it led to her being one of only two of ten applicants shortlisted for the position.
  1. [67]
    While a selection report should be a decent record of the deliberations of the panel and the reasons for their assessment, it is not intended to be a transcript of their deliberations or the responses provided by applicants.
  1. [68]
    The decision of the panel was unanimous and the merit assessment provided a detailed comparative assessment of both Ms Clare and the Appointee.  The final merit assessment, while numerically close (Total 37 for the Appointee and 32 for Ms Clare), evidenced a clear outcome and it was fair and reasonable for the panel to recommend the Appointee for the role.
  1. [69]
    There is no evidence before me to suggest that the selection process or the final decision of the panel was based solely on the interview. It is natural that the interview ended up being decisive in circumstances where Ms Clare and the Appointee were rated exactly the same following the shortlisting process. This ground of appeal has not been made out.

Ground of Appeal: Ms Clare says she was not given an opportunity to respond to concerns about her demonstrated ability

  1. [70]
    Ms Clare believes the recruitment process did not meet the standard set out at cl 9.1 as she says she was not given an opportunity to respond to concerns that she has not demonstrated an ability to form strategic partnerships nor made aware that this was a requirement of the role.
  1. [71]
    As stated above with regard to the feedback provided, Ms Clare says that 'During the interview, the panel members did not request further information of clarity regarding these responses' or raise any concerns about the answers she provided.
  1. [72]
    The Respondent says that the panel is not required to prompt interviewees to expand, explain or clarify their responses. The Respondent says that it is the applicant's role to answer the questions as effectively as possible and that the panel is not required to give 'real-time feedback' regarding an interviewee's performance during or at the conclusion of the interview.
  1. [73]
    With regard to Ms Clare's submission that she did not have a chance to respond to 'adverse information' per cl 9.1, the Respondent says that the 'adverse information' referred to in cl 9.1 is a particular type of adverse information – being information gained from a source other than directly from the applicant themselves – that must be put to the applicant for a response. 
  1. [74]
    A decision of a panel following an assessment of an applicant's written response or interview that the applicant has not sufficiently responded to a particular question or requirement of the role may indeed be adverse to the applicant's prospects of success.  However it does not form adverse information for the purposes of cl 9.1.
  1. [75]
    A panel is entitled to expect that an applicant has taken care in their preparation of a written application and their readiness to put their best foot forward in an interview.  While panels can create as relaxed an atmosphere as possible and formulate questions which give the best opportunity to find out whether the applicant is meritorious for the position, it is not their responsibility to ensure the applicant effectively answers each question.
  1. [76]
    Ms Clare has not demonstrated any deficiency with regard to cl 9.1.

Ground of Appeal: The evaluation of the role

  1. [77]
    Ms Clare says that the role description that was advertised is not reflective of the duties currently undertaken by KWSC AO3 ILO.  Ms Clare says that the position was advertised with a specific focus on school-based apprenticeships and traineeships and that these are not integral to the Health Unit education program as school-based apprenticeships and traineeships in Health are not offered to the KWSC and external health students.
  1. [78]
    In her reply submissions, Ms Clare maintains that the role 'from 2019 to the present day does not fulfil the responsibilities outlined in the role description'.  Ms Clare says, 'this has been confirmed by myself and Sue Seymour who filled the position from 2019 to 2020'.  In support of this submission, Ms Clare attaches an email from Ms Seymour dated 17 December 2020.  This appears to be a 'handover' document where Ms Seymour writes 'some notes on the role to the best of my recollection'.  The email appears to be operational and is clearly an individual's recollection of matters that need to be attended to rather than a formal role description.  I do not find this email to be particularly useful in establishing that the job evaluation or role description is in some way deficient.
  1. [79]
    The Respondent refutes Ms Clare's submission that the role description is not reflective of the duties because it outlines responsibilities pertaining to school-based apprenticeships and traineeships. The Respondent says that the role description relevantly refers to 'Australian School Based Apprenticeships (ASBAs) which are also known as School-based Apprenticeships and Traineeships (SATs).  The Respondent says that SATs allow high school students, usually in years 10, 11 or 12, to earn a wage, train towards a nationally recognised qualification and study towards their Queensland Certificate of Education at the same time. Further, the Respondent says that students who are enrolled in the HEU courses can complete a Certificate II Health Support Services; Certificate III in Health Services Assistance; or Certificate III in Health Services Assistance (Assisting in nursing work in acute care). The Respondent says that the Registered Training Organisation delivering these certificates provides students the opportunity to get a school-based traineeship, or structured work placement in a clinical setting, while completing these certificates.
  1. [80]
    Ms Clare says that structured work placements in clinical settings undertaken by HLT33115 Certificate III Health Service Assistance (Acute) students are coordinated by KWSC staff and not by the Registered Training Organisation. Further, Ms Clare says that the Appointee hasn't undertaken any duties pertaining to SATs as SATs are managed by another staff member.
  1. [81]
    It is clear that SATs are or can be an option available to students via the HEU courses.  I am not persuaded that the reference in the role description to school-based apprenticeships and traineeships when demonstrates any kind of deficiency in the recruitment and selection process.
  1. [82]
    While it appears to be an 'outcome sought', rather than a ground of appeal, Ms Clare requests that I order the Respondent to evaluate the position in accordance with cl 5 of Directive 12/20 to ensure the role recruited for and the position description align.  The Respondent states that the role description contains Job Evaluation Number '18519' supporting the work value and classification level of AO3 has been determined in accordance with the Queensland public sector job evaluation management system (JEMS). 
  1. [83]
    There is no evidence before me that the role has not been properly evaluated or that the role recruited for and the position description do not align. 

Ground of appeal: Ms Clare's concerns about the work being undertaken by the appointee

  1. [84]
    Ms Clare is concerned that the KWSC AO3 ILO 'now manages the whole of Campus Social Media accounts which in accordance with the role description does not comply with "Other duties, consistent with the duties and responsibility of the position as directed by the Principal or nominated delegate"'.
  1. [85]
    Ms Clare also says that the KWSC AO3 ILO hours have been increased to full time but does not expand on why she believes this makes the promotion process deficient.  Ms Clare further submits that 'the Appointee's responsibilities have been updated and a 2023 role description has been circulated to staff'.
  1. [86]
    The Respondent's position is that these matters are outside the scope of this appeal, however it has provided a response to these matters. The Respondent says that the Appointee has retained 0.4 FTE of her Administrative Officer AO2 position and that this may explain Ms Clare's concern that ILO work is being undertaken by an AO2.  Further, the Respondent confirms that the Appointee had her hours in the ILO, AO3 position temporarily increased to 1 FTE for Term 4, 2022 and that the Appointee is currently performing some work around social media.
  1. [87]
    These complaints Ms Clare raises are not relevant to my determination as to whether the promotion process was in some way deficient with respect to compliance with the PS Act or Directive rendering the promotion decision not fair and reasonable. As such, I will not consider them further.

Conclusion

  1. [88]
    Having considered all material and submissions before me, I find that Ms Clare has not demonstrated a deficiency in the selection process or any non-compliance with the relevant Directive and legislation which would serve to make the promotion decision not fair or reasonable.

Order

  1. [89]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Industrial Relations Act 2016 s 562C(2).

[2] A copy of the panel's record of the verbal feedback provided is Attachment C to the Respondent's submissions filed 6 December 2022.

[3] Recruitment and Selection Directive 12/20 cl 6.4(a).

[4] Cleary v State of Queensland (Department of Resources) [2022] QIRC 416, [51] ('Cleary').

[5] Ibid [50].

[6] Kawana Waters State College Investing for Success Agreement 2022 makes reference to 'Appointment of Industry Liaison Officer at .6 FTE to support the Health Education Unit regarding placement and community partnerships. $47 000'.

[7] Appellant's submissions filed 22 November 2022, Attachment 2, page 2, [2], [6].

[8] Respondent's submissions filed 6 December 2022, Attachment A.

[9] Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361, [25].

[10] Cleary (n 4) [36].

Close

Editorial Notes

  • Published Case Name:

    Clare v State of Queensland (Department of Education)

  • Shortened Case Name:

    Clare v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 492

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    22 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
Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361
3 citations
Jump To
Cite 1 - [2022] QIRC 361
Cite 2 - [2022] QIRC 361
Cite 3 - [2022] QIRC 361
Cleary v State of Queensland (Department of Resources) [2022] QIRC 416
3 citations
Jump To
Cite 1 - [2022] QIRC 416
Cite 2 - [2022] QIRC 416
Cite 3 - [2022] QIRC 416

Cases Citing

Case NameFull CitationFrequency
Chen v State of Queensland (Queensland Health) [2025] QIRC 1224 citations
Green v State of Queensland (Department of Environment, Tourism, Science and Innovation) [2025] QIRC 1513 citations
Haycock v State of Queensland (Queensland Health) [2025] QIRC 784 citations
Walsh v State of Queensland (Queensland Police Service) [2025] QIRC 1772 citations
1

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