Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2023
  4. Coultis v State of Queensland (Department of Education) - [2023] QIRC 118

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Coultis v State of Queensland (Department of Education)[2023] QIRC 118

Coultis v State of Queensland (Department of Education)[2023] QIRC 118

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Coultis v State of Queensland (Department of Education) [2023] QIRC 118

PARTIES:

Coultis, Sarah-Jane

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/1018

PROCEEDING:

Public Sector Appeal – Transfer Decision

DELIVERED ON:

28  April 2023

MEMBER:

Knight IC

HEARD AT:

Conference

On the papers

ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against transfer decision – where appellant requested a compassionate transfer – where respondent agreed to compassionate transfer to nominated geographic area – where request made for review of transfer  – where appellant dissatisfied with location of school – whether respondent adequately considered medical evidence – whether protection order was considered during review – where review confirmed original transfer decision – whether decision fair and reasonable

LEGISLATION AND

INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld)

Human Rights Act 2019 (Qld) s 26

Industrial Relations Act 2016 (Qld)

Public Sector Act 2022 (Qld) s 161

Work Health and Safety Act 2011 (Qld) ss 19, 47

DoE Staff: Wellbeing Framework – Department of Education

Guideline for the assessment of compassionate circumstances – Department of Education

Reasonable adjustments procedure 4.2 – Department of Education 

Teacher Transfer Guidelines – Department of Education

Workplace rehabilitation procedure 4.3 – Department of Education

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Reasons for Decision

Introduction

  1. [1]
    Ms Sarah-Jane Coultis is employed by the State of Queensland as a Senior Teacher with the Department of Education ('the Department').
  2. [2]
    In a letter dated 5 December 2022, Ms Lois Craig advised Ms Coultis she had accepted a Teacher Transfer Review Panel recommendation to reject a request to alter an earlier compassionate transfer outcome.[1]
  3. [3]
    Ms Coultis appeals the Decision under Ch 3 pt 10 of the Public Sector Act 2022 (Qld) ('the PS Act'). 
  1. [4]
    Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein. 
  2. [5]
    Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.
  3. [6]
    In my view, the decision was fair and reasonable.
  4. [7]
    My reasons follow. 

Background

  1. [8]
    The Department has established a scheme to manage the transfer of Queensland State School Teachers.
  2. [9]
    The Teacher Transfer Guidelines ('Transfer Guideline') and the Guidelines for the Assessment of Compassionate Circumstances ('ACC Guideline') establish the framework for managing compassionate transfers.[2]
  3. [10]
    To obtain a compassionate transfer, a teacher is required to apply for an assessment of their compassionate circumstances, which is undertaken in accordance with the ACC Guideline, whereafter they are required to submit a request for a compassionate transfer in accordance with the Transfer Guideline. 
  4. [11]
    On 14 June 2022, Ms Coultis applied for an assessment of her compassionate circumstances. At the time, she was working as a teacher at the Tullawong State High School (TSHS).[3] 
  5. [12]
    On 21 June 2022, a Compassionate Assessment Review Panel concluded Ms Coultis was eligible to apply for a compassionate transfer. 
  6. [13]
    On 29 June 2022, Ms Coultis applied for a Compassionate Transfer in accordance with the Transfer Guideline, nominating the Moreton Bay Geographic Area as her only preferred area for placement.[4] 
  7. [14]
    Within the application, Ms Coultis listed 'Clearwater Street' in Newport as her address. The TSHS Principal, Ms Kerrie Scott endorsed the application noting:

I endorse the applicants (sic) request due to her medical situation causing fatigue and the requirement for her to be closer to her workplace for travel (see attached documents provided by Sarah).[5] 

  1. [15]
    The medical information provided to the Department for consideration during the transfer application process included a work capabilities checklist completed by Dr Nanette Verde, confirming Ms Coutlis was 'fully fit for work' and capable of performing all teacher activities other than any duties in the sun, due to an ongoing medical condition.[6] 
  2. [16]
    In the same checklist, Dr Verde observed Ms Coultis reported feeling 'lethargic after having a cycle of chemotherapy and feels drowsy with prolonged driving'.[7] She expressed the view that it would be beneficial if Ms Coultis could be transferred to another school 'which entails short distance driving'.[8] 
  3. [17]
    As part of the application process, Ms Coultis signed a declaration acknowledging she would update her online application in the event her circumstances changed.[9]
  4. [18]
    Deception Bay State High School (DBSHS), Redcliffe State High School (RSHS) and Clontarf Beach State High School (CBSHS) are the three state high schools located on the Redcliffe Peninsula.[10] 
  5. [19]
    On or about 11 July 2022, Ms Coultis was advised her application for a Compassionate Transfer had been successful, with the Compassionate Assessment Review Panel recommending a transfer to one of the three schools listed in [18].[11] 
  6. [20]
    On 1 August 2022, Ms Coultis commenced a temporary secondment to RSHS while she awaited a suitable permanent vacancy at one of the schools. The secondment was surplus to capacity.[12]
  7. [21]
    On 24 October 2022, the Department notified Ms Coultis it had identified a suitable permanent vacancy at DBSHS, with a commencement date in late January 2023.[13] 
  8. [22]
    On 25 October 2022, Ms Coultis changed her address, nominating a principal place of residence located at Margate, Queensland.
  9. [23]
    On 9 November 2022 and 15 November 2022, Ms Coultis lodged a Teacher Transfer Request for Review form, requesting a review of the decision to transfer her from TSHS to DBSHS.[14]
  10. [24]
    In addition to the original transfer application and other supporting materials, Ms Coultis submitted a medical certificate prepared by Dr Sheryl Tweddell.
  1. [25]
    As the comments within the certificate are quite brief, it is convenient to set them out in full (albeit redacted in some areas for privacy reasons):

To whom it May concern, 

Dear Sir/Madam, 

RE:   Sarah-Jane Alcock ...

Due to extreme fatigue as a result of undergoing chemotherapy, Miss Alcock is still advised to drive no more than 10 minutes to go to/from work.

Yours sincerely

...

DR SHERYL TWEDDELL 

SENIOR REGISTRAR

ONCOLOGY

(for Dr Boris Chern – Medical Oncologist)[15]

  1. [26]
    A review of the original transfer decision was undertaken by a Teacher Transfer Review Panel ('the Panel') in late November.[16]
  2. [27]
    On 5 December 2022, a decision (the subject of this Appeal) was made to confirm the 24 October 2022 decision to transfer Ms Coultis to DBSHS.[17] 

The Decision Letter

  1. [28]
    After setting out a summary of the materials considered by the Panel, along with the matters raised by Ms Coultis in her request for review, the decision-maker confirmed:
    • Ms Coultis was permanently appointed as a Teacher in February 2005 at Clontarf Beach State High School. Ms Coultis was transferred to Tullawong State High School in January 2019. 
    • Ms Coultis submitted a transfer application in the 2022 – 2023 teacher transfer cycle, through the Compassionate Teacher Transfer Process. Ms Coultis' application was deemed Compassionate by the Statewide Compassionate Review Panel and determination made the Moreton Bay Geographical Area Regional Human Resource Team would work on an appropriate placement at one of the 3 Secondary Schools on the Redcliffe Peninsula. 
    • The Teacher Transfer Guidelines state that transfers are subject to the availability of suitable vacancies in relation to both teaching areas and geographic preferences, the relative priority order of teacher transfer requests is determined by considering transfer points, guaranteed return applicants and applicants with compassionate circumstances, and consideration of compassionate circumstances may be required when a staff member has existing medical, environmental or personal circumstances which impact on their ability to perform the inherent requirements of their role in their current location. 
    • Ms Coultis' transfer application was considered based on the findings of the Statewide Compassionate Review Panel, in consideration of her professional skills, assist in the management of her medical constraints and support her personal circumstances. 
  • Ms Coultis was successful in gaining a transfer from Tullawong State High School to Deceptional Bay State High School, a secondary high school on the Redcliffe Peninsula commencing January 2023. 
  • The Regional Human Resources team responsible for the Moreton Bay Geographic Area were conscious of Ms Coultis' transfer to not return to Tullawong State High School and medical advice provided to support a transfer to an alternative school site. 
  • A teaching vacancy was identified at Deception Bay State High School and Ms Coultis was advised of a transfer to the school for the commencement of the 2023 school year on 14 October 2022. The decision to transfer Ms Coultis to Deception Bay State High School aligns to the Compassionate Transfer outcome and is consistent with the transfer request submitted.[18]
  1. [29]
    In reaching its decision, the Review Panel considered the following documents:
  1. (a)
    2023 Teacher Transfer Application and supporting documentation
  1. (b)
    Teacher Transfer Request for Review 
  1. (c)
    Medical certificate from Dr Nanette Verde 
  1. (d)
    Medical certificate from Dr Sheryl Tweddell on behalf of Dr Boris Chern – 03/11/22
  1. (e)
    Medical letter from Dr Roderick Borrowdale 
  1. (f)
    Letter from Alison Stainkey, Senior Social Worker 
  1. (g)
    Medical Assessment aligned to Tullawong SHS, Dr Nanette Verde – 20/04/22
  1. (h)
    Protection Order – 09/11/22
  1. (i)
    Medical certificate, Dr Nanette Verde – 14/09/22
  1. (j)
    Specialist medical certificate, Dr Sheryl Tweddell, 03/11/22

Grounds of Appeal

  1. [30]
    Within her appeal notice, Ms Coultis sets out her grounds of appeal as follows:
  1. (a)
    the medical evidence was not adequately considered when making the decision. 
  1. (b)
    factors which were not included in the decision were considered which resulted in the decision-maker not aligning with the medical specialists’ recommendation. 
  1. (c)
    despite receiving a successful compassionate transfer notification, based on medical requirements in the June holidays of 2022, the requirements around this 'have not been given due consideration and that as a result there has been little to no transparency given in this process'. [19]

Relevant Principles 

  1. [31]
    The PS Act relevantly provides:

Division 3  Transfers and redeployment

161 Chief executive's power to transfer or redeploy

  1. (1)
    The chief executive of a public service entity (the first entity) may—
    1. (a)
      transfer or redeploy a public service officer of the first entity within the first entity; or 
    2. (b)
      with the approval of the chief executive of another entity, transfer or redeploy a public service officer of the other entity to the first entity, 
  2. (2)
    However, a redeployment may be made only with the public service officer's consent. 
  3. (3)
    A transfer or redeployment of a public service officer under this section—   (a)  may involve a change in the location where the officer performs duties; and 

(b) if the officer is employed on contract—has effect despite anything in the contract.[20]

  1. [32]
    The Guideline for the assessment of compassionate circumstances relevantly provide:

Medical circumstances

   Medical circumstances causing unjustifiable hardship may include:

  • Serious medical illness or injury, and/or 
  • Disability; affecting the applicant, their partner, spouse or dependent child. 

The staff member must provide documentation from a medical specialist articulating the reasons why they are required to work in a particular location, or why the existing or proposed location's environmental conditions are a catalyst for a chronic medical condition and the likely duration of this need.

...

Circumstances not considered

   Circumstances that are generally not considered as exceptional or compelling include: 

  • medical applications that are not supported with documentation or evidence that substantiate compassionate circumstances in relation to work location

...

  • distance of travel to and from current school/location (with the exception of travel times for teachers that exceed reasonable travel time stipulate in Teacher Transfer Guidelines)
  • financial difficulties due to travel from place of residence and associated issues.[21]  [33] The Transfer Guideline relevantly provide:

Compassionate circumstances 

Consideration of compassionate circumstances may be required when a staff member has existing medical, environmental or personal circumstances which impact on their ability to perform the inherent requirements of their role in their current location. 

...

Reasonable travel time

A transfer (requested, compassionate or required) to a designated base location of up to 50 minutes driving time from a teacher's place of residence is considered reasonable. Time is calculated according to the nearest trafficable route, but should take into account factors such as road and traffic conditions. Electronic trip planners such as www.googlemaps.com.au or www.mydrive.tomtom.com may be used as a guide to determine approximate driving time.[22]

Parties' Submissions

  1. [34]
    Ms Coultis maintains, for the reasons set out in her submissions, that the transfer to DBSHS should be set aside.[23] Instead, Ms Coultis submits she should be transferred  to CBSHS.
  2. [35]
    Relying on the medical certificate prepared by Dr Tweddell on 3 November 2022, Ms Coultis submits the limitation to drive no more than ten minutes either way when she is fatigued due to chemotherapy, could be addressed through a transfer to CBSHS.[24]
  3. [36]
    Ms Coultis maintains the Department has the ability to create a suitable vacancy at CBSHS, if one does not already exist.[25] 
  4. [37]
    She is also concerned the Department has relied upon the Protection Order ('the Order') that was in place in respect of her former partner and stepchildren, who either work or are enrolled at CBSHS, as a reason to reject her request during the review process.
  5. [38]
    Ms Coultis submits that although a version of the Order remains in place, the conduct that resulted in the Order, was due to a one-off medical episode caused by medications, which she no longer takes.[26]
  6. [39]
    Ms Coultis contends that reliance by the Department on the Order also constitutes a breach of the Anti-Discrimination Act 1991 (Qld)[27] in circumstances where her impairment and the consequent driving limit of ten minutes has not been duly considered. 
  7. [40]
    Ms Coultis questions whether DBSHS is capable of establishing adequate arrangements to accommodate her medical circumstances[28] and maintains the transfer to DBSHS, would lead to a breach of the Work Health and Safety Act 2011 (Qld), namely:[29] 

Division 2 Primary duty of care

19  Primary duty of care

...

  1. (2)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. 

...

  1. (3)
    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable —

...

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

...

Division 2 Consultation with workers

 47  Duty to consult workers

  1. (1)
    The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

 Maximum penalty—200 penalty units.  

  1. (2)
    If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
  2. (3)
    The agreed procedures must not be inconsistent with section 48.[30]
  1. [41]
    Ms Coultis is concerned that if she is unable to safely travel to and from work, her only option will be to cease teaching, either permanently or through the taking of unpaid leave.   
  2. [42]
    Ms Coultis further submits the Decision will have a significant impact on herself and her children and in turn their human rights, namely:[31]

 26  Protection of families and children 

  1. (1)
    Families are the fundamental group unit of society and are entitled to be protected by society and the State.
  2. (2)
    Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[32]

The Department's Submissions

  1. [43]
    After setting out a brief background to the appeal, the Department acknowledges that although Ms Coultis has been advised to drive no more than ten minutes, DBSHS is an 18-minute drive from her residence and she is not precluded from utilising alternative modes of transport such as public transport, ride share, or carpool.[33] 
  1. [44]
    While the Order was duly considered by the Department, it submits the Order was not persuasive nor relied upon for the Decision. This is explained on the basis that the three individuals on the Order were not located at DBSHS.
  2. [45]
    The Department notes that DBSHS was the proposed location under review.[34] 
  3. [46]
    In response to Ms Coultis' concerns regarding DBSHS' ability to cater to her medical needs, the Department maintains it is confident a safe work environment can be provided.[35] 

What Decisions can an Industrial Commissioner make?

  1. [47]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Was the Decision Fair and Reasonable?

  1. [48]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors.[36]
    1. The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
    2. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. 
    3. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. 
    4. The pluarity in Li said: 

. . . when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful . . . 

. . . there is an area within a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision-maker . . . 

. . . it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object . . . The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to  

construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power have been abused. 

. . . Unreasonable is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.[37] 

  1. [49]
    In simper terms, where it is determined by the Commission that a decision was reasonably open to a decision maker, the decision ought not to be disturbed, irrespective of whether the Commissioner hearing the appeal may have made a different decision had they been the original decision-maker.
  2. [50]
    Ms Coultis is seeking to have her compassionate transfer to DBSHS set aside and replaced with a different transfer decision, specifically a transfer from TSHS to CBSHS.
  3. [51]
    Ms Coultis' maintains the medical evidence provided to the Department during an internal review process was not adequately considered. 
  4. [52]
    Ms Coultis has also raised concerns that an existing Protection Order relating to her former partner and her partner's children, who either work at or are enrolled at CBSHS, led to the rejection of her request during the internal review process to transfer to CBSHS. Moreover, she submits the Department has not been transparent about the extent to which the Order has influenced the review outcome.  
  5. [53]
    Subsequent submissions filed in the Commission by Ms Coultis highlight additional concerns in relation to the ability of DBSHS to create a safe working environment and potential breaches of the Anti-Discrimination Act 1991 (Qld) and Human Rights Act 2019 (Qld) by the Department. 

Consideration

  1. [54]
    Section 3 of the Transfer Guideline, under the heading 'Transfer location preferences' stipulates it is important teachers only nominate transfer locations within which they are willing to work. In this regard, applicants, including teachers applying for a compassionate transfer may specify up to three geographic area locations in their transfer application.[38]
  2. [55]
    The Teacher Transfer Application also requires teachers to nominate a geographic area, rather than a specific school when requesting a compassionate transfer.
  3. [56]
    In her original compassionate transfer application, Ms Coultis nominated the Moreton Bay Geographic Area as her only preference.  
  1. [57]
    Section 5 of the Transfer Guideline, under the heading 'Teacher transfer placement process and considerations' relevantly provides:

Transfers are subject to the availability of suitable vacancies in relation to both teaching areas and the geographic area preferences.[39] 

  1. [58]
    DBSHS, RSHS and CBSHS are the three state high schools located in Ms Coultis' nominated geographic location of preference.[40] 
  2. [59]
    Section 5 of the Transfer Guideline, under the sub-heading, 'Compassionate Circumstances' relevantly provides:

Consideration of compassionate circumstances may be required when a staff member has existing medical, environmental or personal circumstances which impact on their ability to perform the inherent requirements of their role in their current location.[41] 

Adequate consideration of medical evidence

  1. [60]
    In the decision, which is now the subject of this appeal, the Department listed the documents which were considered during the review process, as outlined above in [29]. 
  2. [61]
    Included in the list of documents considered by the review panel, was the medical certificate prepared by Dr Sheryl Tweddell dated 3 November 2022, multiple medical certificates prepared by Dr Nanette Verde and a letter from a senior social worker. 
  3. [62]
    In her appeal notice, Ms Coultis refers to not being placed at the school which her medical specialists have deemed as 'best fit'. 
  4. [63]
    In the reasons for decision, the Department stated:

The Teacher Transfer Guidelines state that transfers are subject to the availability of suitable vacancies in relation to both teaching areas and geographic preferences, the relative priority order of teacher transfer requests is determined by considering transfer points, guaranteed return applicants and applicants with compassionate circumstances, and consideration of compassionate circumstances may be required when a staff member has existing medical, environmental or personal circumstances which impact on their ability to perform the inherent requirements of their role in their current location. 

Ms Coultis' transfer application was considered based on the findings of the Statewide Compassionate Review Panel, in consideration of her professional skills, assist in the management of her medical constraints and support her personal circumstances.  

Ms Coultis was successful in gaining a transfer from Tullawong State High School to Deception

Bay State High School, a secondary high school on the Redcliffe Peninsula commencing January 2023.[42] 

  1. [64]
    In submissions, Ms Coultis argues her medical evidence should be adhered to and that she should be placed in a school within ten minutes of her home. Further, that the Department has the capacity to create a position at CBSHS, where one does not already exist.
  2. [65]
    The difficulty with this appeal ground is that transfers are subject to the availability of suitable vacancies in relation to both teaching and geographic area preferences. 
  3. [66]
    Although there is clearly an obligation on the Department to consider compassionate circumstances, including medical or other circumstances which impact an applicant's ability to perform the inherent requirements of the role, there appears to be no specific provision within the Transfer Guideline which allows a medical specialist or applicant to nominate which school is the 'best fit'. 
  4. [67]
    Nor does the Transfer Guideline specifically require the Department to create a position where one does not already exist. 
  5. [68]
    In any event, Dr Tweddle has not nominated a specific location or school. Instead, she confirms Ms Coultis can perform her role as a teacher and then goes on to describe the fatigue Ms Coultis has reported when undergoing chemotherapy, recommending she not drive more than ten minutes to and from work when she becomes fatigued.
  6. [69]
    Although I have immense sympathy for Ms Coultis and her personal circumstances, I am not persuaded the medical evidence provided during the review process was overlooked or disregarded by the decision-maker. The materials are clearly listed in the reasons for decision and reference is made to the management of her medical circumstances. 
  7. [70]
    Ms Coultis' situation, in my view, is best described as one where she is presently suffering from a serious personal illness which although not necessarily preventing her from undertaking her teaching duties;[43] can impact her capacity to drive to work, following a cycle of chemotherapy. 
  8. [71]
    The medical evidence provided to the Commission indicates Ms Coultis receives ongoing chemotherapy treatment every three weeks.[44] As best I understand, it is intended the treatment will continue indefinitely. 
  9. [72]
    Although I appreciate it would be more convenient for Ms Coultis to be based at CBSHS, I am unable to identify any deficiencies in the Department's application of the guidelines or its consideration of the medical evidence such that could objectively lead to a determination to set the review decision aside on the basis that it was unfair or unreasonable for the Department to not accede to her request to transfer to CBSHS.
  10. [73]
    I further note that Department has developed a DoE Staff: Wellbeing Framework as well as Reasonable Adjustment and Workplace Rehabilitation Procedures that provide guidance for employees who are experiencing a serious personal illness.[45]  It seems to me the fatigue issues raised by Ms Coultis, along with the medical and driving safety concerns highlighted within her submissions, could be raised and potentially resolved by accessing these procedures.   

Protection Order

  1. [74]
    In her appeal notice, Ms Coutlis alluded to other factors which may have been relied on by the Department to dismiss her request to transfer to CBSHS.
  2. [75]
    In subsequent submissions and during the conference proceedings, Ms Coultis disclosed that a Protection Order is presently in place in respect of her former partner and her partner's children, who either work at or are enrolled at CBSHS. Ms Coultis' position is that her request during the review process, to be transferred to CBSHS, was dismissed because of the Protection Order.
  3. [76]
    Certainly, it is not in dispute that a Protection Order is presently in place. Ms Coultis is the nominated Respondent. Her former partner is noted as the Aggrieved party, with two of her children listed as being protected by the Order. Her former partner continues to work at CBSHS. Several Orders have been issued since 2023.
  4. [77]
    Representatives of the Department, albeit at different levels and within the relevant region, appear to have been kept apprised of developments in respect of an Order that was originally made in March 2022, preventing Ms Coultis from remaining at, entering or attempting to enter or approach to within 100 metres, premises where her former partner and her partner's children either lived or worked.[46] 
  5. [78]
    The Respondent submits the most recent Order was duly considered by the decisionmaker, but maintains it was not persuasive and not relied on during the internal review process.
  6. [79]
    The most recent Order, which was made on 9 November 2022,[47] appears to have been significantly downgraded to the extent that the prohibition on Ms Coultis being within 100 metres of her former partner has been lifted, with a direction she exhibit good behaviour towards her former partner and her children. 
  7. [80]
    According to Ms Coultis, she and her former partner currently enjoy a constructive and friendly relationship.[48] 
  1. [81]
    Ms Coultis' position is that the Order in its current form is no longer a barrier to her request for a compassionate transfer to CBSHS. 
  2. [82]
    The difficulty with Ms Coultis' argument is that the three individuals protected from her by the Order were not located at DBSHS. This is relevant given DBSHS was the proposed transfer location under review. 
  3. [83]
    I accept the Department's submissions that although the Order may well have been provided as part of the process and duly considered, it was not relied on when determining whether the original transfer decision was fair and reasonable.
  4. [84]
    I also consider there is insufficient evidence before the Commission to prove the Order  was a meaningful factor in the decision-makers' determination to confirm the original compassionate transfer to DBSHS, particularly in circumstances where DBSHS was the nominated transfer location and where Ms Coultis  grounds for the internal review were primarily directed towards her medical condition, the travel time to DBSHS and the impact of the transfer on her ability to care for and retain custody of her children.
  5. [85]
    For the reasons set out above, I am unable to determine the decision is unfair or unreasonable having regard to this ground of appeal.  

Other matters

  1. [86]
    Ms Coultis has raised concerns about the impact the review decision will have on her children, submitting the Department has failed to consider its obligations under section 26 of the Human Rights Act.[49]
  2. [87]
    Section 26 of the Human Rights Act provides:

26  Protection of families and children

  1. (1)
    Families are the fundamental group unit of society and are entitled to be protected by society and the State, 
  2. (2)
    Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.[50]
  1. [88]
    Unfortunately, aside from an assertion the Department has failed to consider the impact of the review decision on the human rights of both herself and her children, Ms Coultis' submissions do not provide any detail as to how her or her children’s human rights have been impacted by the decision.
  2. [89]
    In the absence of any other further evidence or detail in respect of this point, I’m not persuaded this ground of appeal could lead to a conclusion the review decision is unfair or unreasonable.  
  3. [90]
    Similarly, Ms Coultis' maintains the Respondent has not adhered to the AntiDiscrimination Act 1991 (Qld) and has contravened 'the prohibition on impairment discrimination'. However, it is not clear from the submissions how or why Ms Coultis considers the Department’s actions constitute discrimination. 
  4. [91]
    Again, in the absence of any other further evidence or detail in respect of this point, I’m not persuaded this ground of appeal could lead to a conclusion the review decision is unfair or unreasonable.  
  5. [92]
    Separately, I note the Department has an established Reasonable Adjustments Procedure which identifies a process which can be followed in circumstances where employees experience changes in a medical condition during their employment, which may impact on their ability to perform the inherent requirements of their role or where a medical condition may be impacting their performance.[51]    

Conclusion

  1. [93]
    I understand the distress Ms Coultis must be experiencing in light of her current medical and personal challenges. However, in the absence of any evidence the decision-maker has erred in applying the guidelines, disregarded significant medical evidence or considered other extraneous factors, I am unable to conclude the review decision is unfair or unreasonable.
  2. [94]
    Ms Coultis was successful in her application for a compassionate transfer to the Moreton Bay Regional Area, albeit not to her preferred school.
  3. [95]
    The Department considered the medical evidence Ms Coultis provided during the review process but determined that the original compassionate transfer decision to DBSHS was fair and reasonable. 
  4. [96]
    While I am unable to set the decision aside, I am satisfied the Department has well established procedures designed to accommodate employees such as Ms Coultis who are suffering from a personal illness, particularly where ongoing treatment and other associated symptoms may impact their ability to perform elements of their role from time to time.  
  5. [97]
    For the reasons given above, I consider the review decision was fair and reasonable.

Order

 1.  The decision appealed against is confirmed. 

Footnotes

[1]  Appeal notice filed 13 December 2023, Attachment 1.2.

[2]  The Department's submissions filed 23 December 2022, Teacher Transfer Guidelines – Department of Education, Guideline for the assessment of compassionate circumstances – Department of Education.

[3]          The Department's submissions filed 23 December 2022 [8].

[4]          Ibid [9] – [10].

[5]          Ms Coultis' supporting documents filed 19 December 2023, Application for Teacher Transfer.

[6]  Ibid, Work capabilities checklist: Teachers, issued by Dr Verde.

[7]  Ibid.

[8]  Ibid.

[9]  Ibid, Application for Teacher Transfer.

[10]  The Department's submissions filed 23 December 2022 [11].

[11]  Ibid.

[12]  Ibid.

[13]  Ibid [14].

[14]  Ms Coultis' supporting documents filed 19 December 2023, Teacher Transfer Request for Review.

[15]  Ibid, Letter issued by Dr Tweddell on behalf of Dr Chern.

[16]  The Department's submissions filed 23 December 2022 [16].

[17]  Ibid [17].

[18]  Appeal notice filed 13 December 2022, Attachment 1.2.

[19]  Ibid, Part C.

[20] Public Sector Act 2022 (Qld) s 161.

[21]  The Department's submissions filed 23 December 2022, Guideline for the assessment of compassionate circumstances - Department of Education 2, 3.

[22]  The Department's submissions filed 23 December 2022, Teacher Transfer Guidelines – Department of Education.

[23]  Ms Coultis' submissions filed 3 January 2023.

[24]  Ibid [16].

[25]  Ibid [9].

[26]  Ibid, Appendix A.

[27]  Ibid [30].

[28]  Ibid [12].

[29]  Ibid [20].

[30] Work Health and Safety Act 2011 (Qld) ss 19, 47.

[31]  Ms Coultis' submissions filed 3 January 2023 [32].

[32] Human Rights Act 2019 (Qld) s 26.

[33]  The Department's submissions filed 23 December 2022 [18].

[34]  Ibid [19].

[35]  Ibid [23].

[36] Gilmour v Waddell & Ors [2019] QSC 170.

[37] Gilmour v Waddell & Ors [2019] QSC 170; (emphasis added, citations removed). 

[38]  The Department's submissions filed 23 December 2023, Teacher Transfer Guidelines – Department of Education.

[39]  Ibid.

[40]  Ibid [11].

[41]  Ibid, Teacher Transfer Guidelines – Department of Education.

[42]  Appeal Notice filed 13 December 2022, Attachment 1.2.

[43]  Ms Coultis' supporting documents filed 19 December 2023, Work capabilities checklist: Teachers issued by Dr Verde.

[44]  Ibid, Treatment and medication schedule.

[45] Reasonable adjustments procedure 4.2 – Department of Education filed 27 January 2023; Workplace rehabilitation procedure 4.3 – Department of Education filed 28 April 2023; DoE Staff: Wellbeing Framework – Department of Education filed 28 April 2023.

[46]  Ms Coultis' reply submissions filed 3 January 2023, Protection Order issued 15 March 2022.

[47]  Ms Coultis' supporting documents filed 19 December 2023, Protection Order issued 9 November 2022.

[48]  Ms Coultis' reply submissions filed 3 January 2023, Appendix A.

[49] Human Rights Act 2019 (Qld) s 26(1)-(2).

[50]  Ibid.

[51] Reasonable adjustments procedure 4.2 – Department of Education filed 27 January 2023.

Close

Editorial Notes

  • Published Case Name:

    Coultis v State of Queensland (Department of Education)

  • Shortened Case Name:

    Coultis v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 118

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    28 Apr 2023

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
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.