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  4. MacKenzie v State of Queensland (Department of Employment, Small Business and Training) - [2023] QIRC 123

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MacKenzie v State of Queensland (Department of Employment, Small Business and Training)[2023] QIRC 123

MacKenzie v State of Queensland (Department of Employment, Small Business and Training)[2023] QIRC 123

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

MacKenzie v State of Queensland (Department of Employment, Small Business and Training) [2023] QIRC 123

PARTIES: 

MacKenzie, Christopher Frize

(Appellant)

v

State of Queensland (Department of Employment, Small Business and Training)

(Respondent)

CASE NO:

PSA/2022/907

PROCEEDING:

Public Sector Appeal – Appeal against a promotion decision

DELIVERED ON:

5 May 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

The appeal is dismissed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public sector appeal – appeal against a promotion decision – where appellant applied for internally advertised position – where appellant was unsuccessful for the position – decision fair and reasonable – appeal dismissed

LEGISLATION:

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

Public Sector Act 2022 Qld, s 44, s 45 and s 131

Directive 12/20 Recruitment and Selection, cl 7

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Christopher Frize MacKenzie is employed in the position of Senior Information Officer, Business Intelligence and Customer Reporting, Data and Analytics Branch, Strategy Division (A06) with the Department of Employment, Small Business and Training ('the Department'). 
  1. [2]
    In response to an internal job advertisement, Mr MacKenzie applied for the position of Manager, Business Intelligence (A08) with the Department. 
  1. [3]
    The successful appointee's promotion to the position was published by way of the Queensland Government Gazette on 26 August 2022.
  1. [4]
    By notice of appeal filed in the Industrial Registry on 16 September 2022, Mr MacKenzie appeals the promotion decision pursuant to s 131(1)(e) of the Public Sector Act (Qld) ('the PS Act') and relies on the following in support of his appeal, as relevantly summarised:
  1. the successful candidate did not provide her previous supervisor as a reference as he would ''provide a negative view of her work performance, skills and abilities'';
  1. that the recruitment process is flawed because the panel did not take into account the successful candidate's ''disgraceful treatment of team members under her supervision'';
  1. Mr Seabrook, who was a panel member during the interview process, was biased towards the successful candidate ''as he chooses to ignore her woeful history of HR issues while praising the products she has developed'';
  1. the panel only considered interview performance and failed to consider the work history, work experience and skills of the candidates;
  1. the panel ''under-assessed'' interview performance;
  1. the successful candidate's interview responses were an ''inflated account of her actual work performance'';
  1. the panel chair was sick with COVID-19 and so was not capable of assessing interview performance;
  1. the interviews were held via ''MS Teams'' which created ''a bias against interviewees who may have superior abilities to read body language and  non-verbal cues in a face-to-face setting''; and
  1. the interview questions asked were not ''fully reflective of the position's duties''.
  1. [5]
    On 19 September 2022, the Commission issued directions to the parties in relation to the provision of written submissions in support of their position with respect to the appeal. Both parties filed written submissions.
  1. [6]
    The appeal is made pursuant to s 134 of the PS Act, which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [7]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears.[1] An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[2]
  1. [9]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The recruitment and selection process

  1. [10]
    The recruitment and selection process[3] comprised of the following:

…

  • the position was advertised on Smart jobs for open merit selection
  • the selection panel comprised the director of the work unit to which the position reports, a director of another unit in the Data and Analytics branch, and a human resources representative
  • selection tools included a short statement, resume, interview and referee check
  • all selection tools were aligned to the requirements of the position including the role description
  • the selection panel agreed on the applicants to be interviewed
  • all interviewees were asked to respond to the same questions
  • the selection panel conducted moderation and assessment following the interviews
  • the selection decision was based on merit and the selection panel assessed applicants as meritorious (i.e. fully meeting the requirements of the position) or non-meritorious
  • the selection process was consistent with the Recruitment and Selection Directive 12/20 and recruitment and selection guides published on the Respondent’s Intranet (“oneDESBT”)
  • the selection panel’s recommendation was approved by the Executive Director, Data and Analytics Branch.

…

  1. [11]
    Seven (7) applications were received for the A08 position. Five (5) candidates were shortlisted for an interview, including Mr MacKenzie.
  1. [12]
    The selection panel consisted of:
  1. (a)
    Cassie Dransfield, Director, Business Intelligence and Customer Reporting, Data and Analytics Branch (Chair);
  1. (b)
    Adrian Seabrook, Director, Data Management and Planned Reporting, Data and Analytics Branch; and
  1. (c)
    Laura Tooley, Acting Principal HR Advisor, Human Resources.
  1. [13]
    The panel's decision regarding the successful candidate is set out in the Recruitment and Selection Report which was filed with the Respondent's submissions.

Relevant legislative provisions

  1. [14]
    Section 131 of the PS Act sets out decisions against which appeals may be made. Section 131 relevantly provides:
  1. 131
    Decisions against which appeals may be made
  1. (1)
    An appeal may be made against the following decisions—

…

(e) a promotion decision;

…

  1. [15]
    Section 562B(4) of the IR Act provides that:
  1. 562B
    Public service appeal to commission is by way of review

    …

  1. (4)
    For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission—
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.

   …

  1. [16]
    Section 44 of the PS Act provides that a person undertaking a recruitment and selection process must undertake the process in accordance with the following principles:
  1. 44
    Principles underpinning recruitment and selection

…

  1. (3)
    The principles are—
  1. (a)
    recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and
  1. (b)
    recruitment and selection processes must be fair and transparent; and
  1. (c)
    recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.

…

  1. [17]
    In deciding the eligible applicant best suited to a position, section 45 of the PS Act sets out the following considerations:
  1. 45
    Employment on merit for equity and diversity
  1. (1)
    A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.
  1. (2)
    In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity—
  1. (a)
    must consider each eligible applicant’s ability to perform the requirements of the position; and
  2. (b)
    may consider—
  1. (i)
    the way in which each eligible applicant carried out any previous employment; and
  1. (ii)
    the potential of each eligible applicant to make a future contribution to the entity; and
  1. (iii)
    the extent to which the proposed decision would contribute to fulfilment of the entity’s obligations under chapter 2, including, for example, the objectives, strategies and targets stated in the entity’s equity and diversity plan.

…

  1. [18]
    The purpose of Directive 12/20 Recruitment and Selection ('Directive 12/20') is to specify the requirements applying to the recruitment and selection of public service employees.
  1. [19]
    Clause 7 of Directive 12/20 deals with the decision-making process as follows:

…

  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
  2. (b)
    take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)
  3. (c)
    incorporate pre-employment checks including referee checking as per clause 8
  4. (d)
    measure the relative merit of each applicant, and
  5. (e)
    be consistent with the principles of employment equity and anti-discrimination.
  1. 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. 7.4
    Chief executives must determine the documentation required for selection decisions for non-advertised vacancies, having regard to the nature and duration of the vacancy.
  1. 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. 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.
  1. 7.7
    Selection decisions and notification of outcomes must take place in a timely manner. To facilitate this, panels should be formed and selection strategies determined prior or concurrent to advertising. A vacancy advertisement will lapse if no appointment is made within six months of the closing date of the vacancy.
  1. 7.8
    To promote integrity in recruitment, selection panel documentation must include a declaration from each panel member and the decision maker that identifies:
  1. (a)
    any actual, potential, or reasonably perceived conflicts of interest between the panel member or decision maker and applicants for the role, or
  2. (b)
    the absence of a conflict of interest between the panel member or decision maker and applicants for the role.

…

Consideration 

  1. [20]
    Mr MacKenzie contends that the decision is not fair and reasonable. Mr MacKenzie's written submissions are largely in the same terms as the written submissions that were attached to his appeal notice.
  1. [21]
    Mr MacKenzie's submissions in relation to the appeal have been categorised as follows:
  1. (a)
    that the successful candidate was not the most meritorious candidate ('Ground one'); and
  1. (b)
    that the recruitment process is flawed ('Ground two').

Ground one

  1. [22]
    Mr MacKenzie submits that the panel did not take into account the successful candidate's ''disgraceful treatment of team members under her supervision''. Further, Mr MacKenzie submits that Mr Seabrook, who was a member of the panel, chose to ignore the successful candidate's ''woeful history of HR issues'' and only considered the products she has developed.
  1. [23]
    Mr MacKenzie further submits that the successful candidate avoided including her previous supervisor from her referee list, as he would have provided negative feedback in relation to her work performance.
  1. [24]
    In his submissions, Mr MacKenzie also submits that the successful candidate made a complaint against her previous supervisor which caused unnecessary stress in the workplace as the complaint could have been easily resolved through alternative means. Further to this, Mr MacKenzie submits that the successful candidate also encouraged another employee to make a similar complaint against her former supervisor. Mr MacKenzie relies on these events as ''evidence'' that the successful candidate has ''poor communication'' skills and ''unprofessional behaviour''.
  1. [25]
    Mr MacKenzie also contends that the successful candidate engaged in bullying behaviour and has a tendency to ''blame team members when something goes wrong'' which supports the fact that the successful candidate has ''poor management'' skills and ''lacks leadership''.
  1. [26]
    Mr MacKenzie submits that the successful candidate does not ''follow best practice or proper coding protocols'' and that because the panel members do not have an understanding of the technical skills required to produce ''robust BI products'', they were unable to properly assess the successful candidate's skills.
  1. [27]
    The grounds of appeal relied on by Mr MacKenzie attack the character and work performance of the successful candidate as a basis to submit that she was not the most meritorious candidate. Such serious accusations should only be made in circumstances where such accusations are able to be supported by cogent and compelling evidence. Mr MacKenzie does not adduce any evidence in support of his position other than to baldly state those things about the successful candidate.
  1. [28]
    Mr MacKenzie also raises matters relating to other employees and attempts to suggest wrongdoing on the part of the successful candidate in her workplace interactions with these employees. There is no evidence as to the accuracy of the matters raised by Mr MacKenzie, or in fact whether he has the permission of the other alleged affected employees to raise matters pertaining to them. Again, it should be the case that such allegations should only be raised when they are supported by cogent and compelling evidence and only if they are relevant to the appeal.
  1. [29]
    In its submissions, the Department contends that the successful candidate is considered an effective manager and that there is no evidence of the successful candidate's unsatisfactory work performance. Moreover, the Department submits that Mr Seabrook has advised that the products developed by the successful candidate has received positive feedback from clients.
  1. [30]
    The Department submits that there is no evidence to support Mr Mackenzie's grounds of appeal. Relevantly, it submits that there is no record of the successful candidate reporting to the former supervisor since late 2018 and that there is no evidence that the successful candidate encouraged another employee to make a complaint against the former supervisor.
  1. [31]
    The Department submits that positive feedback has been received about the products developed by Ms Gilbert and that the selection strategy comprised a short statement, resumé, interview and referee check.
  1. [32]
    I am not satisfied that Mr MacKenzie has established that the successful candidate was not the most meritorious candidate for the role. Mr MacKenzie relies on unsupported and potentially scandalous accusations about the successful candidate and her work performance. In the absence of cogent and compelling material, Mr MacKenzie has failed to establish that the successful candidate was not the most meritorious.
  1. [33]
    Further, I am satisfied that the conclusions reached that the successful candidate was the most meritorious by the panel included in the Recruitment and Selection Report was available to be made on the material before the panel and was not unfair or unreasonable. 

Ground two

  1. [34]
    Mr MacKenzie submits that the recruitment process is flawed because the panel only considered interview performance rather than focusing on the interviewees' skills and work history. Further to this, Mr MacKenzie submits that the panel's use of ''prompting questions'' undermined the interviewees' ability to properly respond during the interview.
  1. [35]
    Mr MacKenzie further contends that because the panel chair, tested positive for  COVID-19, she was not fully capable of assessing interview performance. Further to this, Mr MacKenzie submits that the recruitment process is flawed because the interviews were held online which affected interviewees who may have ''superior abilities to read body language and non-verbal cues in a face-to-face setting''.
  1. [36]
    The Department submits that the panel conducted moderation and assessment following the interviews and considered the interviewees' short statements, resumés and interviews. Included in the Department's submissions is the Recruitment and Selection Report which provides a comparative assessment of the applicants. Further, the Department contends that although the panel chair tested positive to COVID-19, she only had minor symptoms. With respect to the interviews, the Department submits that all interviews were conducted under the same conditions and occurred on the same day.
  1. [37]
    On the material before me, it appears that the selection strategy comprised a short statement, resumé, interview and referee check.
  1. [38]
    The recruitment and selection report confirms that the selection strategy comprised the assessment techniques referred to in paragraph 37 above. There is no evidence before me that the panel only considered the interview process rather than also considering the interviewees' skills and work history. Rather, the evidence is that the selection strategy comprised of the assessment technique identified in the Recruitment and Selection Report.
  1. [39]
    Mr MacKenzie further submits that the panel's use of prompting questions undermined his ability to properly respond during the interview. Mr MacKenzie also submits that the panel chair negatively perceived that the questions asked of Mr MacKenzie was prompting.
  1. [40]
    From the interview notes, it appears that candidates, including Mr MacKenzie, were asked questions during the course of their interviews and such questions were, at least on some occasions, described in the interview notes as a prompt. There is no material before me that the putting of such questions were perceived by the panel chair as negative to the relevant interviewee.
  1. [41]
    There is no evidence before me that supports Mr MacKenzie's contention that the interview process was flawed because the panel asked candidates questions during the course of the interview, including by asking them further questions during the course of their responses. It appears that interviewees who were assessed favourably and given an order of merit were also asked questions (or prompts) during the course of their interviews.
  1. [42]
    I do not consider that the process was flawed because interviewees were asked questions during their response to interview questions.
  1. [43]
    Whilst it is confirmed that the panel chair had tested positive for COVID-19, there is no evidence before me that the chair was not ''fully capable of assessing interview performance'' because she had tested positive. Just because a person tests positive to a virus such as COVID-19 does not, in and of itself, suggest that they are not fully capable of performing tasks. The Chair clearly made an assessment that she was fit to conduct the interviews, albeit remotely. I am not satisfied that Mr MacKenzie's contention that the chair was not fully capable of assessing interview performance is made out on the material before me.
  1. [44]
    Mr MacKenzie further contends that the interview process was flawed because the interviews were conducted online. Mr MacKenzie argues that the online interview process affected interviewees who may have superior abilities to read body language and non-verbal cues in a face-to-face setting.
  1. [45]
    The fact that the interviews were conducted online is not a basis, without anything further, to contend that the interview process was flawed. Further, Mr MacKenzie does not contend that he personally was affected by the online interview.
  1. [46]
    In this recruitment process, all of the interviewees were interviewed online and consequently were each exposed to the same style of interview process. I do not consider that Mr MacKenzie has established that the interview process was flawed.

Miscellaneous matters

  1. [47]
    Mr MacKenzie raises further matters, particularly in his reply submissions, that go beyond his initial grounds of appeal.
  1. [48]
    In this regard, Mr MacKenzie argues that the interview questions did not cover the interviewees' level of IT technical expertise, software licensing knowledge, documentation experience and project management skills required for the role. Mr MacKenzie does not argue why the alleged failure to interview candidates about these matters lead to a flawed process. Relevantly, Mr MacKenzie does not contend that the questions that were put during the interview process were flawed and did not reflect the knowledge and expertise required for the role of Manager, Business Intelligence. Further, it is noted that the recruitment process included assessment tools including candidates' resumés and short statements which further address a candidate's knowledge and experience.
  1. [49]
    Mr MacKenzie also criticises the expertise of the panel and argues that the panel did not have the requisite technical skills to make a fair assessment between the candidates. The selection panel appears to be composed in accordance with the DESBT corporate HR document[4] and approved by the appropriate delegated officer. Relevantly, two of the panel, including the chair, held Director positions within the Data and Analytics Work Unit. I do not consider that the composition of the selection panel constituted a flawed recruitment process.

Application for suppression of names

  1. [50]
    Prior to these reasons being published, the Commission received an interlocutory application from Mr MacKenzie.
  1. [51]
    Mr MacKenzie sought a suppression order to prohibit the Commission from publishing the names of Departmental staff who were mentioned in the appeal submissions but who were not directly involved in the recruitment process. The application lists the names of the employees Mr MacKenzie seeks to be covered by the orders. The parties were invited to file written submissions with respect to the application.
  1. [52]
    Rather unhelpfully, the Department wrote to the Commission indicating it did not take a position with respect to the application and did not intend to file submissions in relation to the application.
  1. [53]
    On review of the names listed by Mr MacKenzie, together with a review of these reasons, I am satisfied that the reasons did not refer to by name the employees listed in the application. Accordingly, it is not necessary to make the orders sought in the application filed on 27 April 2023, and I decline to do so.

Order

  1. [54]
    Accordingly, I make the following order:

The appeal is dismissed.

Footnotes

[1] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

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

[3] As set out in the Department's submissions.

[4] Attachment 'H' to the Respondent's submissions.

Close

Editorial Notes

  • Published Case Name:

    MacKenzie v State of Queensland (Department of Employment, Small Business and Training)

  • Shortened Case Name:

    MacKenzie v State of Queensland (Department of Employment, Small Business and Training)

  • MNC:

    [2023] QIRC 123

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    05 May 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
1

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