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  4. Dale v State of Queensland (Office of Industrial Relations) - [2022] QIRC 8

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Dale v State of Queensland (Office of Industrial Relations)[2022] QIRC 8

Dale v State of Queensland (Office of Industrial Relations)[2022] QIRC 8

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dale v State of Queensland (Office of Industrial Relations) [2022] QIRC 008

PARTIES: 

Dale, Allan

(Appellant)

v

State of Queensland (Office of Industrial Relations)

(Respondent)

CASE NO.:

PSA/2021/164

PROCEEDING:

Public Service Appeal – Promotion decision

DELIVERED ON:

13 January 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – public service appeal – appeal against a promotion decision – where the appellant unsuccessfully applied for a position – decision was fair and reasonable – appeal dismissed

HUMAN RIGHTS – QUEENSLAND – OTHER MATTERS – whether the recruitment and selection process breached the Human Rights Act 2019 (Qld) – recruitment process did not breach appellant's human rights

LEGISLATION:

Human Rights Act 2019 (Qld), ss 15, 17, 21, 23, 25, 58 and 59

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 27, 28 and 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Taunoa v Attorney-General [2008] 1 NZLR 429

Certain Children v Minister for Families and Children [No 2] [2017] VSC 304; (2017) 52 VR 441

Reasons for Decision

Introduction

  1. [1]
    Mr Allan Dale ('the Appellant') is employed by the State of Queensland (Office of Industrial Relations) ('the Respondent') as an AO6, Principal Inspector within the Labour Hire Licensing Compliance Unit ('LHLCU'), Business Services Unit ('BSU').
  1. [2]
    On 16 December 2020, the position of AO7, Lead Inspector, within the LHLCU, BSU ('the position') was advertised on the SmartJobs and Careers website. Applicants were requested to submit their resume and a two-page written statement outlining their suitability to the position.
  1. [3]
    The selection panel ('the panel') for the position consisted of the following panel members:
  1. (a)
    Ms Eimear Moran, Manager, LHLCU (panel Chair);
  1. (b)
    Mr Ben Christiansen, Manager Work, Electrical Safety Policy; and
  1. (c)
    Ms Delia Ambroselli-Domanti, external Recruitment Consultant, Hays Recruitment.
  1. [4]
    The Appellant applied for the position and on 25 February 2021, it was determined by the Respondent that the successful applicants for the position were Ms Diane Law and Mr Greg McAndrew (collectively, 'the Appointees').
  1. [5]
    By appeal notice filed on 5 May 2021, the Appellant appeals the promotion decision of the Respondent to promote the Appointees to the position, pursuant to Chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act').

Appeal principles

  1. [6]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2]  An appeal under chapter 11, part 6, division 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3]  but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the promotion decision to promote the Appointees was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [8]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the PS Act that the Commission considers appropriate.
  1. [9]
    Section 562C(2) of the IR Act provides:

In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act.

Relevant legislative provisions and Directives

  1. [10]
    Section 194(1)(c) of the PS Act relevantly provides that a promotion decision may be appealed against:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

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

…

  1. [11]
    Section 27 of the PS Act provides that the merit principle must be applied for an appointment or secondment as a public service employee:

27     The merit principle

  1. (1)
    The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).

…

  1. [12]
    Section 28 of the PS Act sets out the merit criteria to be considered when applying the merit principle:

28      Merit criteria 

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. [13]
    Directive 07/20 Appeals ('Appeals Directive') and Directive 12/20 Recruitment and Selection ('Recruitment and Selection Directive') are relevant to the determination of the appeal.
  1. [14]
    Clause 5.2(e) of the Appeals Directive provides that an appeal against a promotion decision may only be lodged if particular conditions are satisfied:

5.2  An appeal may only be lodged by the following persons:

…

  1. (e)
    for a decision under section 194(1)(c) of the PS Act (promotion decision)—a tenured general employee or public service officer aggrieved by the decision (an aggrieved officer), provided the following conditions are met:
  1. (i)
    the decision relates to the gazetted promotion of a public service officer or tenured general employee
  1. (ii)
    the aggrieved officer's application to the role being appealed was received on or before the deadline for the receipt of applications or in the case of continuous applicant pools, the application was received prior to the date of distribution to the selection panel for the relevant promotion
  1. (iii)
    the aggrieved officer has sought post-selection feedback in accordance with the provisions of the directive relating to recruitment and selection, and
  1. (iv)
    for an appeal against a promotion from a limited advertising process conducted in accordance with the directive relating to recruitment
  1. [15]
    I am satisfied that the requirements of cl 5.2(e) of the Appeals Directive are met and that this matter may proceed to appeal.
  1. [16]
    The Recruitment and Selection Directive prescribes processes and sets conditions that must be satisfied during the recruitment and selection process, including:
  1. (a)
    the minimum requirements for vacancy advertising;[5]
  1. (b)
    the merit assessment processes to be observed;[6]
  1. (c)
    requirements relating to selection decisions including a requirement that they be clearly documented and able to be independently reviewed;[7]
  1. (d)
    standards relating to pre-employment checking including referee checks;[8]
  1. (e)
    the requirement to present adverse information to an applicant;[9] and
  1. (f)
    a requirement that applicants who request feedback must be given timely and constructive feedback.[10]
  1. [17]
    Clause 7.2 of the Recruitment and Selection Directive provides:

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. [18]
    Clause 7.3 of the Recruitment and Selection Directive provides:

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).

  1. [19]
    Clause 7.5 of the Recruitment and Selection Directive provides:

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.

  1. [20]
    Clause 7.6 of the Recruitment and Selection Directive provides:

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.

Grounds of Appeal

  1. [21]
    In summary, the Appellant submits that the promotion decision was not fair and reasonable as:
  1. (a)
    the Appellant's skills and experience are far superior to that of the Appointees;
  1. (b)
    there was a lack of objective assessment to the Appellant's application, including merit;
  1. (c)
    the panel Chair did not consider the Appellant's resume; and
  1. (d)
    the panel Chair had a predetermined outcome of the selection process.

Respondent's Submission

  1. [22]
    In response to the Appellant's appeal notice, the Respondent submits, in summary, that:
  1. (a)
    the Respondent complied in all respects with the provisions of the Recruitment and Selection Directive, the Respondent's 'Recruitment and Selection' Standard of Practice ('the Standard of Practice') and that the decision of the delegate was made in accordance with the merit principle. It is further submitted that merit includes considerations such as 'potential for development' and personal qualities' of an applicant, relevant to the role;
  1. (b)
    the decision to appoint the Appointees were made on the basis that the delegate concurred with the recommendations of the panel that the Appointees were the more meritorious applicants;
  1. (c)
    it was within the delegate's authority to determine the most meritorious candidate after having regard to all of the merit information available;
  1. (d)
    it is evident from the shortlisting assessment, the panel documented their assessment of all the candidates who they determined met merit, and the reasons the Appellant did not demonstrate high level skills, experience and the appropriate knowledge to meet the requirements of the key capabilities for the position in their written application;
  1. (e)
    the delegate independently reviewed all the recruitment and selection documentation to ensure compliance with the PS Act, Recruitment and Selection Directive and the Standard of Practice and was satisfied that the Appellant was not the most meritorious candidate;
  1. (f)
    to differentiate the candidates, the panel determined the level of capability required for the role. Ms Moran, in her panel planning notes sets out what candidates must be able to demonstrate. The panel then measured the relative merit of individual applicants to determine whether or not they adequately demonstrated the key capability in order to progress to the interview stage;
  1. (g)
    there is no requirement in the PS Act or Recruitment and Selection Directive for a panel to score an applicant's ability nor are there any limitations around using another assessment rating for shortlisting. It was open to the panel to reach a conclusion on whether or not an applicant possessed the requisite capability in those capability areas which were identified as being necessary to perform the role;
  1. (h)
    it was not the opinion of the panel, nor that of the delegate that the Appellant was 'far superior and more meritorious' than the Appointees. It was open to the Respondent to explore whether applicants possess the requisite capability being sought, by measuring written applications against a set of criteria which clearly reflect the capabilities listed in the original advertisement;
  1. (i)
    the Appellant had the task of demonstrating their merit for the role and the panel had the task of assessing the merit of applicants against the key attributes of the role. The panel and the delegate gave the Appellant's work history their full consideration and applied the merit principle accordingly;
  1. (j)
    the panel's assessment documentation sufficiently outlined how the Appellant and successful applicant had been differentiated based on their application. The Appellant did not demonstrate the level of competency required for the position, nor in his written application did he demonstrate to the panel that he possessed the relevant knowledge, skills, experience, personal qualities and potential for development;
  1. (k)
    the panel and the delegate acknowledged the Appellant's work history and experience, and this knowledge and expertise was recognised by the panel during the selection process;
  1. (l)
    there were no deficiencies in the recruitment and selection process to the extent that it involved an insufficient consideration of the Appellant's or other applicants' relevant knowledge, skills, experience and qualifications, having regard to the duties and functions of the position;
  1. (m)
    there is no requirement in the Recruitment and Selection Directive for a panel member to specifically mention a candidate's resume, but only to provide feedback on their written application. However, it is considered that the feedback provided by Ms Moran to the Appellant was timely, specific and constructive, as required by Recruitment and Selection Directive and appropriate in the circumstances; and
  1. (n)
    post-selection feedback does not form part of the decision making process and the quality of feedback does not render a recruitment and selection process deficient.

Appellant's submissions

  1. [23]
    The substance of the Appellant's submissions can be summarised as an extensive recount of the post selection feedback the Appellant received from Ms Moran. The Appellant submits that the feedback provided by Ms Moran was of no assistance for the Appellant in understanding the decision of the panel. The Appellant further submits that the written report of the feedback meeting provided by Ms Moran further demonstrates that the recruitment process was not objective and was unreasonable and unfair.
  1. [24]
    The Appellant submits that the recruitment process was flawed and not conducted in accordance with the Recruitment and Selection Directive and the Standard of Practice on the following basis:
  1. (a)
    the panel did not score the Appellant's application and simply decided whether to shortlist the Appellant for interview on the basis of 'yes, no or maybe'. The Appellant submits that this was not a sufficiently comprehensive assessment of the Appellant's merit within the current context and duties of the role;
  1. (b)
    the panel did not measure the Appellant's relevant merit due to Ms Moran not making mention or reference to the Appellant's resume in her feedback and short listing for interview on the basis of 'yes, no, or maybe';
  1. (c)
    the recruitment process for the position was not conducted in a way that is consistent with principles of employment equity, in that the Appellant was not treated fairly; and
  1. (d)
    the written materials provided to the panel, resume and response to criteria, show that the Appellant is more meritorious than the Appointees who were interviewed and subsequently promoted to the position, and that the recruitment process failed to ascertain that due to the flawed process.
  1. [25]
    The Appellant submits that, in failing to be treated fairly in the recruitment process and by failing to conduct the recruitment process in accordance with the Recruitment and Selection Directive and the Standard of Practice, the Respondent has breached the Appellant's human rights, in that:
  1. (a)
    the Appellant was not afforded the recognition and equality before the law as entitled under s 15 of the Human Rights Act 2019 (Qld) ('the HR Act');
  1. (b)
    the Appellant was not afforded protection from being humiliated under s 17 of the HR Act, in that published comments were made stating that the Appellant was 'distressed' and 'crestfallen';
  1. (c)
    Ms Moran, in stating that the Appellant did not have approval to use her comments in the Appellant's application, impacts upon the Appellant's right to freedom of expression under s 21 of the HR Act;
  1. (d)
    due to the unfair treatment and the failure to properly conduct the recruitment process which denied the Appellant the opportunity to be interviewed for, and potentially be successful for the position, the Respondent has denied the Appellant the right to take part in public life under s 23 of the HR Act; and
  1. (e)
    by publishing comments that the Appellant was 'distressed' and 'crestfallen', the Respondent has unlawfully attacked the Appellant's reputation in contravention of s 25 of the HR Act.

Respondent's submissions in reply

  1. [26]
    In reply, the Respondent relies on its initial submissions and further submits that:
  1. (a)
    there is no requirement in the PS Act or the Recruitment and Selection Directive for a panel to quantitatively score an application, nor are there limitations on using other shortlisting assessment methods; and
  1. (b)
    the post selection feedback did not deviate from the requirements set out in the Recruitment and Selection Directive and the Standard of Practice. Constructive feedback was provided by Ms Moran intended to assist the Appellant in future applications and she was genuinely concerned for the welfare of the Appellant.
  1. [27]
    In response to the Appellant's submissions regarding the Respondent's breach of the HR Act, the Respondent submits that:
  1. (a)
    the Appellant has not met the requirements of the 'piggyback clause' in s 59 of the HR Act to agitate a human right's claim in the Commission. The Appellant has based his appeal on 'unfairness' and not an independent ground of 'unlawfulness' as required by s 59; and
  1. (b)
    the rights under ss 15, 17, 21, 23 and 25 of the HR Act have not been engaged as:
  1. (i)
    the Appellant has not alleged discrimination on the basis of any attribute, such that the right to equality and nondiscrimination under s 15 is not engaged;
  1. (ii)
    section 17 of the HR Act is directed to serious conduct such as torture and 'conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances'.[11] Clearly, the Appellant has not been treated in this way;
  1. (iii)
    it is not clear how the Appellant alleges his right to freedom of expression under s 21 has been limited, as he was not prevented from expressing himself in the way he wished by referring to Ms Moran's comments in his written application;
  1. (iv)
    the Appellant was not unfairly treated and the panel promoted rather than limited the right under s 23 by focusing on the merit principle, in that:
  1. the Recruitment and Selection Directive focuses attention on the merit principle,[12] which coheres with the right of equal access to the public service under s 23(2)(b) of the HR Act;
  1. the Selection Report demonstrates that the panel was focused on merit, fulfilling the right in s 23(2)(b) and Ms Moran's file note of the feedback she gave to the Appellant demonstrates she took into account his 'best interests' including his mental health, promoting his right to bodily and mental integrity, as an aspect of the right to privacy in s 25(a) of the HR Act as well as his career progress through 'coaching and mentoring' in the future; and
  1. the panel could not have acted differently or it would have breached the merit principle contrary to s 27 of the PS Act, and thus the relevant acts and decisions were mandated by law. Accordingly, the exception in s 58(2) of the HR Act applies; and
  1. (v)
    the right to reputation under s 25(b) contains an internal limitation of lawfulness, meaning that the Appellant would have to contend that providing the feedback notes to the Commission in response to his appeal was somehow unlawful, when there was no practical choice but to provide that material to the Commission. The Respondent submits that the notes have not been provided elsewhere.

Further submissions of the parties

  1. [28]
    Both parties sought and were granted leave to provide further submissions with respect to the appeal.

Appellant's further submissions

  1. [29]
    The Appellant disputes that Ms Moran was concerned for the Appellant's mental state and that at no time did Ms Moran ask if the Appellant was okay if she genuinely held such concerns.
  1. [30]
    The Appellant further submits, with respect to the recruitment and selection of the position, that:
  1. (a)
    while it may have been open to the panel to explore whether applicants possessed the requisite capabilities, by measuring written applications against the knowledge, skills and experience drawn from the Position Description for the position, the panel failed to do so in a way that was fair and/or reasonable;
  1. (b)
    the Respondent merely explains a shortlisting process, however, submits no evidence of how a measurable and definitive comparison was made between the Appointees and the Appellant;
  1. (c)
    the Respondent has not provided selection assessment reports and/or notes from the other two panel members, Mr Christiansen and Ms Ambroselli-Domanti;
  1. (d)
    in the notes provided by Ms Moran, the main focus was on leadership which, with respect to the Appellant's application, was incorrectly reported, and if properly considered, outweighs the Appointees;
  1. (e)
    the Appointees relieved as a Lead Inspector within the LHLCU for very short periods of time of two to four weeks, which does not sufficiently demonstrate leadership qualities apart from 'mentoring others', as stated by Ms Moran; and
  1. (f)
    it is unfair for Ms Moran to make an assessment based on the fact there were limited opportunities for Lead Inspector relieving in just three years of operations.
  1. [31]
    The Appellant outlines his work history with the Respondent and previous work experiences and submits that the panel had ignored Government policy regarding age-diverse workplaces.
  1. [32]
    The Appellant submits that the Appellant is entitled to have his human rights protected under the HR Act pursuant to s 58 of the HR Act and that human rights protected under the HR Act must be interpreted broadly according to the lead agency, the Queensland Human Rights Commission.

Respondent's further submissions

  1. [33]
    The substance of the Respondent's further submissions appears to reiterate its previous submissions and also maintains that:
  1. (a)
    there were no deficiencies in the recruitment and selection process and that the process was conducted in a way that was open, fair and consistent, and the promotion decision was free from bias or influence; and
  1. (b)
    the shortlisting process including the assessment method adopted by the panel was consistent with the Recruitment and Selection Directive and published recruitment and selection advice.
  1. [34]
    The Respondent submits that no additional material in the Appellant's reply submissions suggests the panel ignored the merit principle and contends that the panel gave the Appellant's written application their full consideration, having regard to the components of merit and the principles of employment equity and anti-discrimination. The Respondent submits that all relevant documentation related to the selection decision has been provided to the Appellant as part of this appeal process.
  1. [35]
    The Respondent further submits that the post selection feedback provided by Ms Moran was timely, specific and constructive, as required by the Recruitment and Selection Directive. Ms Moran provided comments on the Appellant's performance against the key requirements of the position and aspects of his application where the panel perceived the strengths and weaknesses.
  1. [36]
    The Respondent submits that the Appellant's references to Government policy regarding age-diverse workplaces relates to the Queensland Public Sector Inclusion and Diversity Strategy 2021-2025 and related webpages on the Queensland Government website. In response, the Respondent submits that a person's lack of recent experience is unrelated to their age. Accordingly, treating the lack of recent experience as relevant does not engage any policy relating to age-diverse workplaces, nor does it constitute direct or indirect discrimination under the Anti-Discrimination Act 1991 (Qld), or under ss 15 or 23 of the HR Act.

Appellant's further submissions in reply

  1. [37]
    Similar to the Respondent's further submissions, the Appellant's further submissions in reply also appears to reiterate submissions made in previous submissions and further submits, in summary, that:
  1. (a)
    it is factually incorrect for the Respondent to contend that treating the lack of recent experience as relevant does not engage any policy relating to age-diverse workplaces and implies that the Appellant has no recent experience and was unable to demonstrate that to the panel. Further, the Appellant submits that to suggest a person's past experiences and demonstrated skills and abilities is 'too old' engages Government policy regarding age-diverse workplaces;
  1. (b)
    the Appellant's application provided good examples and demonstrated the Appellant's skills and experiences during his three years at the LHLCU;
  1. (c)
    the Appellant has not been provided with all relevant documentation as the Appellant has not been provided with notes from Mr Christiansen and Ms Ambroselli-Domanti; and
  1. (d)
    the Respondent's recruitment and selection process breached the Standard of Practice by failing to complete a shortlisting assessment sheet, by all panel members failing to ensure the integrity of record keeping during the process and failed the requirement that panel members must provide all handwritten notes and electronic records upon completion of the selection process.

Consideration

  1. [38]
    The determination of this appeal requires an assessment of whether the recruitment and selection process was deficient and hence not fair and reasonable. It is important to note that a process does not have to be perfect in order to be considered reasonable.
  1. [39]
    I note the original grounds of appeal appear to have evolved in the Appellant's subsequent submissions, with matters raised in final submissions that were not outlined in the original appeal notice. To ensure procedural fairness both parties were given leave to provide further submissions, however an appeal is not permitted to evolve in subsequent submissions from the original grounds of appeal. Whilst I will briefly address these matters, the appeal is to be determined on the basis of the grounds of appeal as outlined in the notice.
  1. [40]
    The major ground of appeal is the Appellant's contention that there was a lack of objective assessment of his application on the basis of merit. The Appellant submits that this process was flawed as the panel did not score each application. The Recruitment and Selection Directive and the PS Act do not prescribe the process to be utilised for shortlisting and there is no requirement that applications be scored or ranked. The panel determined the relevant requirements in terms of experience, skills and capabilities for the role. The panel Chair outlined in her planning notes the necessary requirements that candidates must be able to demonstrate as reflected in the position advertisement. The panel measured the relative merit of individual candidates to determine whether they demonstrated each capability and marked the applications as 'Yes', 'No' or 'Maybe'. The external panel member and panel Chair assessed all applications, with the internal panel member acting as a moderator reviewing a sample set of applications. The Respondent submits that this moderation, including assessment of the Appellant's application, occurred to ensure consistency across the assessments of candidates' applications.
  1. [41]
    The Appellant submits that he was 'far superior and more meritorious' than the Appointees, however the panel did not share this view. The panel's assessment documentation outlined how the applicants had been differentiated based on their application. The panel assessed that there were significant differences in the applications of the shortlisted applicants and the Appellant based on their assessment of the leadership, relationship management and stakeholder engagement capabilities. The panel made notes on each applicant on the shortlisting assessment matrix, with the notes on the Appellant confirming their assessment that the Appellant had not demonstrated leadership during almost three years with his current Unit or demonstrated the strategic thinking/awareness of deliverables.
  1. [42]
    It is clear from the panel's notes that the Appellant's work history and experience were taken into consideration as part of the process. The panel's shortlisting assessment matrix indicates that the panel determined that a number of other candidates demonstrated higher capabilities than the Appellant and were subsequently shortlisted for interview.
  1. [43]
    The Appellant submits that the Respondent has not provided notes from the other two panel members, Mr Christiansen and Ms Ambroselli-Domanti and a shortlisting assessment sheet. The Standard of Practice state that the panel must provide adequate information for the decision maker to consider the recommendations 'regardless of format'. The format of any documentation put forward to the decision maker is not prescribed. The Respondent provided the shortlisting assessment matrix which details the considerations of each applicant's application along with other documentation. I note that the matrix contains notes from the panel Chair and the external panel member, Ms Ambroselli-Domanti. As noted above, the internal panel member acted as a moderator reviewing a sample set of applications. The process must provide adequate information to consider the recommendations made to the decision maker and I am satisfied that the shortlisting matrix provided that information. The other documentation, including the selection report, provided adequate information to the decision maker to consider the recommendations following the interview process. 
  1. [44]
    The qualitative comments on the shortlisting assessment matrix, whilst beneficial in outlining the strengths and weaknesses of each application, make the comparison between applicants a challenge. I recognise, however, that the process of shortlisting applicants from over 50 applications is not a simple task. A numerical assignment to each applicant against the relevant criteria may have provided an easier mechanism by which the applicants could be compared, however this would not have assisted the Appellant in ascertaining the reason he was not shortlisted. The comments provide a more transparent explanation despite the difficulty in comparative considerations.
  1. [45]
    The Appellant made a number of submissions relating to alleged contraventions of the HR Act, although I note that these were not raised as grounds in the notice of appeal. As noted above, the grounds of appeal are not permitted to 'evolve' over the course of submissions, however for the sake of completeness I will briefly address the Appellant's contentions.
  1. [46]
    The Appellant submits that he was not afforded recognition and equality before the law as entitled under s 15 of the HR Act. This submission was not expanded upon and appears to be unfounded on the basis that the Appellant was given equal opportunity to apply for the position along with the other applicants and was assessed through a fair and equal process.
  1. [47]
    The Appellant submits that he was not afforded protection from being humiliated under s 17 of the HR Act in that published comments were made stating that the Appellant was 'crestfallen' and 'distressed'. These comments were contained in the feedback file note as a record of the feedback provided and the note was provided to the Commission as required pursuant to this appeal. The Respondent confirmed that the note was not provided elsewhere. Section 17 of the HR Act provides that a person must not be tortured or treated in a way that is cruel, inhuman or degrading. No reasonable interpretation of this section of the HR Act could extend to circumstances in which a panel Chair's recollection of a feedback discussion is recorded and relied upon as evidence of the selection process.
  1. [48]
    The Appellant contends that his right to reputation was contravened pursuant to s 25(b) of the HR Act. This section provides that a person has a right not to have their reputation unlawfully attacked. The Appellant did not particularise how the file note 'attacked' his reputation or how the provision of the file note was unlawful. The provision of the file note recording the panel Chair's feedback was consistent with the lawful process of a proceeding before the Commission.
  1. [49]
    The Appellant submits that the panel Chair stated that the Appellant did not have her approval to use her previous comments in his application, and that this contravened his right to freedom of expression under s 21 of the HR Act. The Appellant did use Ms Moran's comments in his application and there was no restriction placed upon how he chose to express himself throughout the process. The Appellant's right to freedom of expression has not been contravened.
  1. [50]
    The Appellant's submission that he was denied the right to take part in public life in contravention of s 23 of the HR Act is not supported on the basis that he was given the opportunity to take part in a selection process in a fair and equitable manner. The panel was able to demonstrate compliance with the Recruitment and Selection Directive and the merit principle which is imperative in ensuring individuals are not denied the right to have access to public office.
  1. [51]
    The Appellant made submissions that the panel's contention that he lacked recent experience ignored Government policy regarding age-diverse workplaces by choosing to dismiss his contribution as being 'too old'. I accept the Respondent's submission that a person's lack of recent experience is unrelated to their age. It is not uncommon for 'recent experience' to be considered more favourably than experience that is less recent in particular roles. The age of the applicant is entirely irrelevant when considering this criterion.
  1. [52]
    Feedback was provided to the Appellant in accordance with clause 10 of the Recruitment and Selection Directive. The Appellant submits that the feedback provided by the panel Chair was of no assistance in understanding the decision of the panel.
  1. [53]
    The file note outlining the feedback was sufficiently detailed, with the Appellant confirming in his submissions that the feedback occurred over an hour-long meeting. The Appellant's submission that the feedback indicated that the panel Chair had predetermined the outcome of the selection process is not persuasive. The file note outlined that the panel Chair suggested other examples in the Appellant's work history that could be used more effectively in applications. This does not support the contention that the panel Chair had a predetermined outcome of the selection process.
  1. [54]
    The Appellant submits that some of the feedback provided by the panel Chair 'was directed at her own achievements' and that he found this to be of no relevance. It is clear from the file note of the feedback that the panel Chair was providing an example to the Appellant of work examples that she may have used earlier in her career, but that she would not use now as the examples are no longer recent. This was clearly intended to highlight to the Appellant the importance of using recent examples of his capabilities for future applications, however the Appellant has dismissed this as being 'pretty much a fail' in terms of the process. That is an unfortunate interpretation of this feedback.
  1. [55]
    In my view, the feedback was adequate as well as timely, specific and constructive as required by the Recruitment and Selection Directive. There is no requirement that feedback must make reference to an Appellant's resume, or any specific part of the application. I also note that inadequate feedback would not render the selection process deficient.
  1. [56]
    I am satisfied that the decision was made in accordance with the Recruitment and Selection Directive, the Standard of Practice and the merit principle pursuant to s 27 of the PS Act. Whilst not reaching the interview stage is undoubtedly disappointing for the Appellant, the panel's determination that the Appointees were more meritorious does not mean that the process was deficient.

Conclusion

  1. [57]
    After consideration of the material before the Commission, I determine that the process of recruitment and selection was conducted in accordance with the Recruitment and Selection Directive and the PS Act.
  1. [58]
    As no deficiency in the process was identified, I am satisfied that the process was fair and reasonable

Order

  1. [59]
    I make the following order:

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

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

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

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] Recruitment and Selection Directive cl 6.

[6] Ibid cl 7.2.

[7] Ibid cl 7.3.

[8] Ibid cl 8.

[9] Ibid cl 9.

[10] Ibid cl 10.

[11] Taunoa v Attorney-General [2008] 1 NZLR 429, 500 [170], 501-2 [176]-[177] (Blanchard J), 544 [340] (McGrath J agreeing), quoted with approval in Certain Children v Minister for Families and Children [No 2] [2017] VSC 304; (2017) 52 VR 441, 518 [245] (Dixon J).

[12] Clauses 4.1 and 7.1 to 7.6.

Close

Editorial Notes

  • Published Case Name:

    Dale v State of Queensland (Office of Industrial Relations)

  • Shortened Case Name:

    Dale v State of Queensland (Office of Industrial Relations)

  • MNC:

    [2022] QIRC 8

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    13 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441
2 citations
Jump To
Cite 1 - (2017) 52 VR 441
Cite 2 - (2017) 52 VR 441
Certain Children v Minister for Families and Children [No 2] [2017] VSC 304
2 citations
Jump To
Cite 1 - [2017] VSC 304
Cite 2 - [2017] VSC 304
Taunoa v Attorney-General [2008] 1 NZLR 429
2 citations
Jump To
Cite 1 - [2008] 1 NZLR 429
Cite 2 - [2008] 1 NZLR 429

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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