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  4. Parmar v State of Queensland (Queensland Health) - [2023] QIRC 150

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Parmar v State of Queensland (Queensland Health)[2023] QIRC 150

Parmar v State of Queensland (Queensland Health)[2023] QIRC 150

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Parmar v State of Queensland (Queensland Health) [2023] QIRC 150

PARTIES:

Parmar Yajuvendrasinh

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2023/41

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

29 May 2023

HEARING DATE:

12 May 2023

MEMBER:

Power IC

HEARD AT:

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 05 April 2023 and Appellant's written submissions filed on 19 April 2023

ORDER:

  1. Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a decision pursuant to s 132 of the Public Sector Act 2022 (Qld) – where the appeal relates to the recruitment or selection of a public sector employee – where decision can not be appealed 

LEGISLATION:

Crime and Corruption Act 2001, s 15

Industrial Relations Act 2016, s 562

Public Interest Disclosure Act 2010

Public Sector Act 2022 (Qld), ss  39, 131 and 132

CASES:

Green v State of Queensland (Queensland Health) [2021] QIRC 396

Steinberg v State of Queensland (Department of Education) [2021] QIRC 201

APPEARANCES:

Mr Y. Parmar as self-represented.

Ms S. Robinson of Crown Law and Mr C. Carter of Queensland Health, for the Respondent.

Reasons for Decision

Background

  1. [1]
    Mr Yajuvendrasinhis Parmar ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') within the Metro North Hospital and Health Service as a Scientist at the Caboolture Hospital.
  1. [2]
    On 25 May 2022, an advertisement was published on 'SmartJobs, GovNet, and Seek' initiating a recruitment process for the position of Medical Laboratory Scientist (Multiskilled) with a classification of HP3 based at the Sunshine Coast University Hospital in Birtinya.
  1. [3]
    The Appellant applied and was shortlisted for the position, however was ranked third in order of merit. Subsequently, on 12 July 2022, Mr Michael Hill (Mr Hill), Supervising Scientist, Haematology and Transfusion, emailed the Appellant advising that the Appellant's application was unsuccessful.
  1. [4]
    On 12 July 2022, the Appellant responded to Mr Hill's email acknowledging the response. Some seven months later, on 24 February 2023, the Appellant sent Mr Hill a complaint email alleging that his application was unsuccessful due to his skin colour.
  1. [5]
    Between the period of 12 July 2022 and 24 February 2023, there were no complaints to Mr Hill from the Appellant.
  1. [6]
    On 27 February 2023, the Appellant was referred by Mr Hill to Pathology Queensland Human Resources ('PQHR') to seek a review process. Consequently, the Appellant emailed a complaint to the Ethical Standards Unit ('ESU') with his concerns about alleged race and age discrimination in the recruitment process.
  1. [7]
    On 10 March 2023, ESU concluded that the recruitment process did not demonstrate evidence of discrimination or unconscious bias directed towards the Appellant, and that the concerns raised did not satisfy the definition of corrupt conduct as defined in s 15(1) of the Crime and Corruption Act 2001. Additionally, ESU concluded that the concerns did not amount to public interest disclosure in accordance with the Public Interest Disclosure Act 2010.
  1. [8]
    On 17 March 2023, the Appellant was informed of the outcome of ESU's assessment and was advised that his complaint was referred to PQHR for consideration under their grievance policy.
  1. [9]
    On 18 March 2023,  the Appellant emailed ESU with his view of corrupt conduct within the meaning of Crime and Corruption Act 2001.
  1. [10]
    By email on 20 March 2023, ESU advised the Appellant that their assessment has not changed and advised that PQHR had carriage of the matter. 
  1. [11]
    On  20 March 2023 the Appellant filed an appeal notice, appealing against the decision dated 17 March 2023 pursuant to s 131(1)(d) of the Public Sector Act 2022 ('PS Act').

Legislative Provisions

  1. [12]
    Section 131 of the PS Act provides the following:

131Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
  1. (a)
    a conversion decision;
  1. (b)
    a directive decision;
  1. (c)
    a disciplinary decision;
  1. (d)
    a fair treatment decision;
  1. (e)
    a promotion decision;
  1. (f)
    a suspension without pay decision;
  1. (g)
    a transfer decision;
  1. (h)
    a work performance direction decision;
  1. (i)
    a decision about anything else against which another Act allows a person to appeal.
  1. (2)
    However, if an appeal may be made under this section against a decision, other than under subsection (1)(d), the appeal can not be made under subsection (1)(d).
  2. (3)
    This section is subject to section 132.
  1. [13]
    Section 562A of the Industrial Relations Act 2016 ('IR Act') provides the following:

562ACommission may decide not to hear particular public service appeals

  1. (1)
    The commission may decide it will only hear an appeal against a directive decision, a fair treatment decision or a transfer decision under the Public Sector Act 2022 if the commission is satisfied—
  1. (a)
    the appellant has used the procedures required to be used by the employee in relation to the decision under a directive under that Act, including a directive made under section 110 of that Act; and
  1. (b)
    for a fair treatment decision under the Public Sector Act 2022—it would not be unreasonable to require the appellant to comply with the procedures mentioned in paragraph (a).

…

  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—
  1. (a)
    the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
  1. (b)
    the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
  1. (i)
    is frivolous or vexatious; or
  2. (ii)
    is misconceived or lacks substance; or
  3. (iii)
    should not be heard for another compelling reason.

Grounds of appeal

  1. [14]
    The Appellant provided the following reasons for appeal:
  • the recruitment process was unfair as the committee selected an 'unskilled person over a suitable candidate';
  • The Appellant utilised the procedure required to be used in accordance with 'Individual Employee Grievance Policy – E12 and the Individual Employee Grievance – Directive 11/20'. The Appellant highlights the following:

…The first complaint was made on 27th  February 2023, as per the grievance policy E12(QH-POL-140) outcome should be given within 14 days if an internal review is required as per policy but here exceeded the time limit and the appellant has not yet received an outcome or update which can be appealed…. The Commissioner therefore not decline to hear and accept the appeal under section 4(c) and 131(1)(d) of the PS Act and do not consider section 562A(1) or 562A(3)(b)(iii) of the IR Act which was sought by the respondent.

Respondent's submissions

  1. [15]
    The Respondent submits the Appellant's appeal is invalid and that the lodgement of the appeal is 'premature' as the Appellant is yet to receive an outcome regarding his 'employee grievance'.
  1. [16]
    The Respondent referred to Green v State of Queensland (Queensland Health)[1] and submits that the decision about a recruitment or selection process and the appeal was not heard pursuant to s 562A(3)(b)(ii) and (iii) of the IR Act on the grounds that the appeal was misconceived.
  1. [17]
    The Respondent submits that it would be open to the Commission to exercise discretion and decline to hear and determine the appeal due to the compelling reason of the Appellant's failure to await the outcome of their grievance.
  1. [18]
    The Respondent further submits that the decision based on the Appellant's respective merit was entirely fair and reasonable. 

Jurisdictional Objections

  1. [19]
    The Respondent outlines that the Commission should decline and to hear and determine the Appeal for the following reasons:
  • The Appeal is about a decision in relation to recruitment and selection process of a public sector employee. The Respondent further highlights the following:

...that being a decision that explicitly excluded from being appealed against as fair treatment decision, pursuant to section 132(4)(c) of the PS Act and therefore, because of the Commission's lack of jurisdiction, the appeal is misconceived and should be declined to be heard pursuant to section 562A(3)(b)(ii) or (iii) of the Industrial Relations Act 2016 (IR Act).

  • That the concerns raised by the Appellant did not satisfy the definition of the Crime and Corruption Act 2001 and there is no obligation to report the matter to the Crime and Corruption Commission. The ESU also concluded that the concerns did not amount to a public interest disclosure within the meaning of the Public Interest Disclosure Act 2010.
  • The Appellant failed to utilise the procedures required to be used prior to filing the appeal notice pursuant to s 562A(1) of the IR Act and failed to await the outcome of the Appellant's grievance pursuant to the Individual Employee Grievance – Directive 11/20.
  1. [20]
    The Respondent submits that it would be unreasonable for the Appellant to comply with the grievance policy as any outcome would contain the Appellant's rights for a review of the decision.
  1. [21]
    The Respondent highlights that the grievance process is paused during the Appeal proceedings.
  1. [22]
    The Respondent referred to Steinberg v State of Queensland (Department of Education)[2] noting that the Commission declined to hear that appeal pursuant to s 562(A)(1)(a) and(b) of the IR Act.

Appellant's submissions

  1. [23]
    The Appellant submits that the Respondent's submission focused on selection and recruitment matters related to s 132(4)(c) of the PS Act and submitted the following:

…the appeal is not related to the recruitment and selection process but related that the ESU decision favouring Queensland Health official that based on a report which is prepared by a person alleged for suspect corruption conduct and not investigating which is not a fair treatment to the appellant and it covers more sections which include sections 1, 4(c), 24(1(c), 39(2)(b)(c), 39(3)(e), 40(3)(a)(i)(c), 44(2 and 3), 45(1 and 2), and 91(5)(a) of the PS Act, under them appellant right for fairness and equality for review.

  1. [24]
    The Appellant opposes the Respondent's submissions that the Commission should decline to hear the appeal, submitting that the appeal is a 'simple request' to the Commissioner to ask ESU to investigate corrupt conduct and ensure for a fair investigation.
  1. [25]
    The Appellant submits that the Respondent did not mention the selection criteria advertised for the appeal.
  1. [26]
    The Appellant submits that the Respondent failed to provide information that the selected candidate was not a multidisciplinary scientist at the time of the interview ‘which means that the selected candidate never had experience as a multi-skilled scientist.’
  1. [27]
    The Appellant submits that the Respondent failed to provide information that the advertised criteria and selection process was not based on merit but based on 'personal advantage or to provide advantages to others' by not selecting the best suited candidate.
  1. [28]
    The Appellant submits that the email sent by Mr Hill on 12 July 2022 highlighted that the 'selected candidate did not have a multi-skilled experience, whilst the appellant had more than four-year experience as a multi-skilled scientist.'
  1. [29]
    Consequently, the Appellant submits that the Respondent's following reply was misleading:

…"Unfortunately, you were not the successful applicant for this position. The position was highly competitive though you did well at the interview."

  1. [30]
    The Appellant referred to s 39(2)(c) and s 39(3)(e) of the PS Act submitting that the decision was based on racial background.
  1. [31]
    The Appellant submits that ESU refused to consider the matter for suspected corrupt conduct on emails sent by ESU on 17 March and 20 March 2023.
  1. [32]
    The Appellant highlighted the Recruitment and Selection Directive 12/20 ('the Directive') highlighting the following:
  1. (a)
    incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicant's 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 check 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. [33]
    The Appellant alleges the Respondent contravened clause 7.2(a) of the Directive, submitting that the selection process failed to follow the Directive due to suspected corruption.
  1. [34]
    The Appellant further submits that the panel members failed to declare a conflict of interest regarding a complaint made by the Appellant.
  1. [35]
    The Appellant submits that, when determining the decision, the decision maker should not decline to hear and accept the appeal under s 131(1)(d) and 132(4)(c) of the PS Act and to not consider s 562A(1) or s 562A(3)(b)(iii) of the IR Act as sought by the Respondent.
  1. [36]
    The Appellant requests that consideration be given to fairness for the Appellant who believes he was never treated fairly in the selection and recruitment process.

Consideration

  1. [37]
    The substance of the Appellant's appeal is that he is aggrieved by the appointment of a candidate to the position of Medical Laboratory Scientist at the Sunshine Coast University Hospital. The Appellant is of the view that an inferior candidate was appointed to the role due to allegedly corrupt conduct. He is also of the view that his application was not successful due to discrimination and unconscious bias.
  1. [38]
    The difficulty for the Appellant is that s 132(4)(c) of the PS Act clearly states that this decision cannot be appealed.

132Decisions against which appeals can not be made

…

  1. (4)
    A person can not appeal against a fair treatment decision –

    …

  1. (c)
    relating to the recruitment or selection of a public sector employee;
  1. [39]
    I note that the Appellant has attempted to escalate his grievance through the ESU and submits that this appeal is against the ESU decision. The practical reality is that the grievance to the ESU solely related to the appointment of the candidate to the relevant position, which is a decision about the recruitment or selection of a public sector employee. To consider this appeal would require an assessment of the Appellant's claims regarding the process of selecting the successful applicant. To do so would be inconsistent with the legislative intention that such an assessment not be included within the appellate processes under the PS Act.
  1. [40]
    Section 132(4)(c) does not only prohibit an appeal against the actual decision to select a public sector employee, but it also prohibits an appeal against any decision relating to the recruitment or selection of a public sector employee. The ESU decision is one that relates to the selection of the successful candidate in this matter and is thus a non-appealable decision.
  1. [41]
    As required by s 562A(3)(b), I have given the Appellant the opportunity to make both written and oral submissions in support of his appeal. On the basis that I consider s 132(4)(c) to be an insurmountable hurdle for the Appellant, I have determined that the appeal will not be heard pursuant to s 562A(3)(b)(ii) of the IR Act.

Order

  1. [42]
    I make the following order:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard.

Footnotes

[1] [2021] QIRC 396.

[2] [2021] QIRC 201.

Close

Editorial Notes

  • Published Case Name:

    Parmar v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Parmar v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 150

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    29 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
Green v State of Queensland (Queensland Health) [2021] QIRC 396
2 citations
Jump To
Cite 1 - [2021] QIRC 396
Cite 2 - [2021] QIRC 396
Steinberg v State of Queensland (Department of Education) [2021] QIRC 201
2 citations
Jump To
Cite 1 - [2021] QIRC 201
Cite 2 - [2021] QIRC 201

Cases Citing

Case NameFull CitationFrequency
Parmar v State of Queensland (Queensland Health) [2024] ICQ 142 citations
1

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