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  4. Barber v State of Queensland (Department of Education) - [2023] QIRC 151

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Barber v State of Queensland (Department of Education)[2023] QIRC 151

Barber v State of Queensland (Department of Education)[2023] QIRC 151

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Barber v State of Queensland (Department of Education) [2023] QIRC 151

PARTIES:

Barber, David

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/32

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

29 May 2023

HEARD AT:

MEMBER:

On the papers

Pidgeon IC

ORDERS:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant employed by the respondent as a Senior Teacher – where the appellant appeals an internal review decision upholding a decision to not offer or extend his higher duties arrangement following a period of long service leave – decision fair and reasonable – decision appealed against confirmed

LEGISLATION:

Appointing a public service employee to a higher classification level (Directive 13/20) (repealed)

Directive 05/20: Paid Parental Leave cl 9

Higher Duties (Directive 04/20) cl 13

Individual employee grievances (Directive 11/20) cl 8

Industrial Relations Act 2016 (Qld) ss 64, 71, 189, 562B, 562C

Long Service Leave (Directive 11/18)

Paid Parental Leave (Directive 05/20) cls 9, 10

Public Sector Act 2022 (Qld) ss 120, 129, 131, 132, 133, 289

Public Service Act 2008 (Qld) (repealed) ss 149C, 195

Review of acting or secondment at higher classification level (Directive 03/23)

CASES:

Bode v State of Queensland (Queensland Health) [2022] QIRC 450

Reasons for Decision

Introduction

  1. [1]
    Mr David Barber (the Appellant) is employed by the State of Queensland (Department of Education) (the Respondent) as a Senior Teacher (General) based at Chancellor State College.
  1. [2]
    Mr Barber appeals the internal review decision of Ms Rachel Borger, Executive Director, Integrity and Employee Relations dated 14 February 2023 to uphold the earlier local action decision of Mr Lois Craig, Director Human Resources (HR) Business Partnering, North Coast Region on 6 December 2022, received by the Appellant on 7 December 2022.

The Internal Review Decision

  1. [3]
    On page two of Ms Borger’s letter informing Mr Barber of the internal review decision, Ms Borger outlines the substance of Mr Barber’s grievances submitted on 20 June 2022 and 1 July 2022 to Mr McKay:

In summary, you are aggrieved by an administrative decision, you believe is unfair and unreasonable to not offer or extend your higher duties arrangement resultant to you being on a period of long service leave. You advise the reason to take long service leave was to provide care following the birth of your child.

You refer to several conversations between yourself and Ms Victoria Anstey, the then Secondary Campus Principal, Chancellor State College, where incorrect or no information was provided regarding your:

  • higher duties arrangement end date;
  • offer of future higher duties extensions;
  • reasoning as to why you were ‘demoted’; and
  • your conversion from temporary to permanent employment.

Scope of the internal review

  1. [4]
    Ms Borger then refers to the Stage 1 local action decision of 6 December 2022 regarding Mr Barber’s higher duties arrangement. Ms Borger identifies that Mr Barber’s internal review request has not clearly stated the reasons for dissatisfaction for grievances 1, 4 and 5 of the local action decision. Ms Borger explains that as a result, she has not considered those aspects of the decision and has only addressed grievances 2, 3 and 6.
  1. [5]
    On pages two and three of her letter, Ms Borger refers to Ms Craig’s local action written decision with regard to grievances 2, 3 and 6:

Grievance 2:That you were not informed you would not be returning to your acting role of HOD Senior Schooling QCAA prior to taking Long Service Leave.

In response to grievance 2, Ms Craig states … you may not have been explicitly told that you were not returning to that position, I am satisfied the action taken by Ms Anstey is not unfair or unreasonable and on that basis propose to take no further action…

Grievance 3:Your service statement/contract for higher duties was ceased at the end of 2021 without any formal communication to yourself, and you were unaware this had occurred.

In response to grievance 6, Ms Craig states the position you were in at the time is what would be listed, regardless of whether or not the higher duties amount was still being paid. As such, your statement of service will reflect your substantive position rather than your higher duties position.

Grievance 6:Ms Anstey communicated inaccurate information to numerous parties regarding your commitment to the role which was used as justification as to why you were not being reappointed to the acting HOD role.

With regard to grievance 6, Ms Craig states On the balance of probabilities, I am unable to substantiate the allegation you have made that the conversations referred to did not take place. On that basis, I propose to take no further action in relation to this aspect of your grievance.

In response to your resolution principles, Mr Craig states I have confirmed that Ms Anstey is agreeable to participating in mediation with you either immediately prior to, or as soon as is reasonably practicable after, her return to her substantive position at Chancellor State College. This will be arranged by Ms Dillon once a return date is confirmed. Ms Craig then decided to implement a range of local management actions to remedy the incorrect advice provided to you.

  1. [6]
    Ms Borger then turns to the Stage 2 internal review request. Ms Borger confirms that she has been delegated the authority to complete the internal review. Ms Borger confirms that she has no prior knowledge of Mr Barber’s matter to ensure him of the integrity of the internal review decision. Ms Borger identifies that as stated in Individual Employee Grievances (Directive 11/20), the purpose of an internal review is ‘to determine whether the decision made through local action was fair and reasonable in the circumstances.’ Ms Borger notes that ‘the test is not whether the decision could have been undertaken in a manner that was fairer or reached a decision that was more reasonable, simply whether it was ‘fair and reasonable in the circumstances’.  Ms Borger clarifies that processes do not need to be perfect or ideal to be considered fair and reasonable.[1]
  1. [7]
    On page four of the letter, Ms Borger sets out the evidence and documentation she considered in undertaking the internal review.
  1. [8]
    Ms Borger informs Mr Barber that ‘In consideration of the totality of this matter, Ms Craig’s local action decision dated 6 December 2022 was fair and reasonable in the circumstances’. On pages four, five and six, Ms Borger sets out the reasons for grievances 2 and 3 to be fair and reasonable in the circumstances.

Grievances 2 and 3

  1. [9]
    Ms Borger notes that with regard to grievance 2, Mr Barber alleges ‘no substantiated evidence provided by Victoria Anstey to prove that a conversation occurred at the end of 2021.’ Ms Borger says, in summary:
  • She agrees with Ms Craig that it is more probable than not that Mr Barber was made aware before taking leave that he would not be resuming higher duties following his resumption of duties;
  • She acknowledges that Mr Barber may not have been explicitly advised, and she is of the view that it was local management action which was fair and reasonable in the circumstances;
  • She is of the view that, albeit unsigned, the witness statements of Ms Hearn and Ms Ralph are a true and accurate reflection of what occurred;
  • She acknowledges that it is best practice to obtain an individual’s name, signature, date, time and any other relevant information in a statement but says that procedural fairness was not jeopardised by the local management enquiries;
  • It was fair and reasonable for Ms Craig to undertake a management enquiry to determine what has occurred;
  • While Mr Barber believes there is a perceived conflict of interest with Ms Ralph’s statement, Ms Borger is of the view there was no ulterior motive to influence or persuade a true statement of facts; and
  • It is not pertinent for Ms Craig to proffer statements to Mr Barber to adhere with natural justice principles for procedural fairness.
  1. [10]
    With regard to Mr Barber’s service statement/contract for higher duties, Ms Borger says, that Mr Barber’s employment history is a true and accurate reflection of what has occurred and that whether or not he was informed his higher duties were ceasing, it was reasonable for Ms Anstey to determine if his higher duties were extended given he was no longer able to resume the inherent requirements of the higher duties role
  1. [11]
    Ms Borger says that promotional opportunities are not a workplace right but rather an employment opportunity proffered where merit is met. Ms Borger says Mr Barber’s higher duties employment contract provided an end date at each point and acknowledges that this may or may not have been communicated to him at each instance.
  1. [12]
    Ms Borger states that it is within reason for local management action to determine whether the offer of future higher duties extensions exists, specifically where there is a genuine operational requirement due to the substantive employee’s absence.
  1. [13]
    With regard to Mr Barber’s statement regarding ‘relinquishing the acting position’, Ms Borger says that it is not an employment right that he will be offered further higher duties extensions, nor is there a right invoked to relinquish a higher duties engagement that he has not been extended in. Ms Borger says that Mr Barber’s decision to relinquish (or forgo) would commence prior to the end date of his higher duties and says that in his case, he was absent from the higher duties role due to taking a period of long service leave to provide care for his child.
  1. [14]
    Ms Borger refers to the Industrial Relations Act 2016 (Qld) (the IR Act) s 64 which requires minimum mandatory obligations imposed upon employees to prove their entitlement to take spousal leave. Ms Borger says that in the absence of furnishing sufficient evidence pertaining to his notice of intention to take spouse birth related leave, she is of the view that Mr Barber’s first period of leave, consistent with his leave applications, was long service leave at the rate of half pay and not spousal leave.
  1. [15]
    Ms Borger sets out her understanding that immediately following the vacation period from 24 January 2022 to 24 June 2022, Mr Barber applied for long service leave at half pay. Ms Borger says that based on that, it is evident that he has not taken a period of spousal leave as the initial absence as required by cl 9.3.2 of Paid Parental Leave (Directive 05/20). Ms Borger says that as a result, Long Service Leave (Directive 11/18) is the relevant directive for application for long service leave at half pay. Ms Borger notes an email from Ms Dani Sticker, Corporate Services Officer, North Coast Region dated 9 February 2022, which provides accurate advice to Ms Anstey regarding Mr Barber’s circumstances.
  1. [16]
    Ms Borger concludes that it was within the discretion of Ms Anstey to implement a decision not to offer future higher duties engagement extensions and as such, Mr Barber’s higher duties employment contract ceased as per the higher duties end date. Ms Borger notes that it is usual practice that higher duties arrangements are ceased following a period of long absence. Ms Borger also notes that Mr Barber was not financially disadvantaged and was remunerated at the higher rate in accordance with cl 13.1 of Higher Duties (Directive 04/20).
  1. [17]
    With regard to Ms Craig’s local action decision proposing to take no further action, Ms Borger says that she has arrived at the same decision given offers to extend higher duties arrangements are subject to the discretion of the local manager, in this case, Ms Anstey. Ms Borger says that she also concurs with Ms Craig’s decision that Ms Anstey should have communicated this with Mr Barber to exemplify best practice.
  1. [18]
    In summary, Ms Borger expresses a view that it was more probable than not that the local action decision outcomes with regard to grievance 2 and 3 were fair and reasonable in the circumstances.

Grievance 6

  1. [19]
    With regard to grievance 6, Ms Borger empathises that there were several instances of miscommunication of information to Mr Barber and that this has left him aggrieved. Ms Borger finds that it was more probable than not that Ms Anstey’s local management decisions at the time were an attempt to ameliorate the situation on hand while administering fair and reasonable local management action.
  1. [20]
    Ms Borger says that in her view, Ms Anstey’s management actions do not amount to intentional malice that would warrant a referral for further investigations for a conduct related matter. Ms Borger also upholds the local action decision not to enact a chief executive to engage a workplace investigation to investigate the substance of Mr Barber’s grievances.
  1. [21]
    Ms Borger says that another employee was required to undertake the position of Acting Head of Department (Senior Schooling). Ms Borger says that as Mr Barber was no longer able to resume the inherent requirements of the role due to his absence, the position was temporarily advertised as the substantive vacancy required someone to undertake the work.
  1. [22]
    Ms Borger concludes that Ms Craig’s local action decision with regard to grievance 6 was fair and reasonable in the circumstances and states that Ms Craig’s decision to resolve the matter via management action or alternative dispute resolution strategies were more appropriate and viable to maintaining the employment relationship between Mr Barber and Ms Anstey.

Length of the delay

  1. [23]
    Ms Borger acknowledges the length of the delay in providing a local action decision to Mr Barber and states that given the passage of time, she is unable to remedy this upon internal review.

Mr Barber’s complaint that he has been unduly disadvantaged by Victoria Anstey due to taking leave to become the primary carer for his infant daughter

  1. [24]
    Ms Borger notes Mr Barber’s statement that he has been ‘unduly disadvantaged by Victoria Anstey due to taking leave to become the primary carer for my infant daughter… and… the misrepresentation of statements provided, you feel there has been a lack of procedural fairness throughout this process…’. Ms Borger responds by saying that the Department prides itself in being an employer of equal employment opportunity. Ms Borger says that in the eventuality that Mr Barber furnished the relevant evidence and applied for short spousal leave, the same or another decision may have arisen. Ms Borger says that by way of ‘literal view and application’, Mr Barber’s first period of absence was long service leave to be paid at the rate of higher duties half pay. Notwithstanding, it is the discretion of the delegated officer to determine whether an employee is offered future higher duties employment opportunities.

Human Rights Act 2019

  1. [25]
    Ms Borger turns to consideration of Mr Barber’s human rights in making her internal review decision. Ms Borger notes that requirements regarding confidentiality limits the right to freedom of expression, including the right to impart information of all kinds. However, Ms Borger says that this limitation is considered reasonable and demonstrably justifiable in accordance with the Human Rights Act 2019 (Qld).

Action to be taken as a result of the internal review decision

  1. [26]
    Ms Borger sets out the resolutions sought by Mr Barber. Ms Borger acknowledges Mr Barber’s request for a statement of service for the duration of his period of absence. Ms Borger says that she is unable to reinstate Mr Barber to his former position of Acting Head of Department (Senior Schooling). Ms Borger notes that Mr Barber was paid the higher duties rate throughout his leave period and that he was not financially disadvantaged.
  1. [27]
    Ms Borger notes Mr Barber’s requests regarding an apology from Ms Anstey and a mediation with Ms Walker and Ms Jensen-Steele. Ms Borger expresses a view that mediation with Ms Anstey is an appropriate action and that if Ms Walker and Ms Jensen-Steele agree to mediation, this is an appropriate way to move forward. Ms Borger states that the resolutions identified are more appropriate to be handled locally by the local action decision-maker and that as such, a copy of the internal review will be provided seeking for the mediation resolutions to be enacted as soon as practicably possible.

Mr Barber’s Appeal Notice

  1. [28]
    Mr Barber sets out his reasons for appeal in Part C of his Form 89 Appeal notice:

I feel I have been blocked from a fair process and being appointed permanently to a position in accordance with s 149C of the Public Service Act 2008 (Qld) and the Public Service Commission’s Directive 13/20 – Appointing a public service employee to a higher classification level (Directive 13/20).

I have followed departmental procedures in good faith and attempted to resolve this unfair and unreasonable treatment locally and then, as advised by the Executive Principal Leanne Jensen-Steele, through the grievance process. While the grievance outcomes have outlined that Ms Anstey has provided ‘inaccurate’ and ‘ill’ advice, the outcome fails to take into account the impacts of this advice on my ability to be able to be afforded fair process under the directive listed above. It also fails to address the fact that Ms Anstey has intentionally withheld information from myself and also unfairly provided false accounts of substantive vacancies. Additionally the 160 days it took for the grievance outcome to be reached impacted the likelihood of any fair or reasonable resolution being reached.

Furthermore, the grievance appeal process, failed to take into account the multitude of additional evidence provided that clearly supports, based on the balance of probability, that Victoria Anstey failed to inform me that she would be ceasing my higher duties contract on December 10 2021 (which had been extended continually over two years without any communication). The grievance appeal also fails to acknowledge that statements provided by staff, in an attempt to justify Victoria’s version of events, were manipulated and not a true record of events.

I am seeking an appeal via the QIRC to address the additional information and evidence I can provide to support that I was treated unfairly and unreasonably by Ms Victoria Anstey, resulting in me being disadvantaged for taking accrued long service leave to care for my infant daughter. Furthermore, had Victoria been truthful and transparent in her processes and information, I would have been provided fair process to apply for the role in which I had been competently acting in for five years (most recently consecutively for three years at Chancellor State College).

The College has now advertised the position of Head of Senior Schooling state-wide which is the position I was originally in prior to my leave.

Appeal Principles

  1. [29]
    Section 562B(3) of the IR Act provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [30]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [31]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [32]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative Framework and Other Instruments

  1. [33]
    The Appellant filed his appeal after the commencement of the new Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time the decision was made. I will therefore hear Mr Barber’s appeal under the new PS Act.
  1. [34]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
  1. [35]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [36]
    Section 133 of the PS Act explains who may appeal a fair treatment decision:

133  Who may appeal

…

  1. (d)
    for a fair treatment decision—a public sector employee aggrieved by the decision;
  1. [37]
    Section 132 of the PS Act outlines the decisions against which appeals cannot be made:

132  Decisions against which appeals can not be made

  1. (1)
    A person can not appeal against any of the following decisions—

…

  1. (k)
    a decision under section 120 not to appoint a public sector employee to a position at a higher classification level, if the employee has been acting at, or seconded to, the higher classification level for less than 2 years
  1. [38]
    In terms of employment at a higher classification level, the PS Act relevantly states:

120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment

  1. (1)
    If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee’s chief executive to employ the employee in the position at the higher classification level on a permanent basis, after—
  1. (a)
    the end of 1 year of acting at, or being seconded to, the higher classification level; and
  1. (b)
    the end of each subsequent 1-year period.
  1. (2)
    The employee’s chief executive must decide the request within the required period.
  1. (3)
    The employee’s chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role.
  1. (4)
    In making the decision, the employee’s chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the public sector entity; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of acting at, or secondment to, the higher classification level.
  1. (5)
    If the employee’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and
  1. (c)
    how many times the employee’s acting arrangement or secondment has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the employee during the employee’s continuous period of acting at, or secondment to, the higher classification level.
  1. (6)
    If the employee’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commissioner must make a directive about employing an employee at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive.

required period, for making a decision under subsection (2), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

  1. [39]
    The Individual employee grievances (Directive 11/20) relevantly states:

8. Individual employee grievance resolution principles

…

8.4  All parties to an individual employee grievance:

  1. (a)
    must engage in the individual employee grievance process in good faith, and
  1. (b)
    be provided with regular and timely information by the decision maker in relation to the progress of the individual employee grievance.
  1. [40]
    At the time the decision was made, Appointing a public service employee to a higher classification level (Directive 13/20) applied. This has been superseded by Review of acting or secondment at higher classification level (Directive 03/23).
  1. [41]
    In addition, the Higher Duties (Directive 04/20) relevantly states:

13.  Payment of higher duties amount during recreation leave, long service leave and paid parental leave

13.1  An employee on higher duties who takes recreation leave, long service leave or paid parental leave is entitled to be paid for the full period of such leave at the higher duties rate being paid to the employee immediately before the employee takes the leave. This will be the case even where the higher duties arrangement ceases on the last day of duty prior to the leave commencing, or at any point during the leave period.

  1. [42]
    Paid Parental Leave (Directive 05/20) cl 10.6.1 states:

10.6  Recognition of Service

10.6.1 Continuity of Service: Continuity of employment is not broken by authorised leave, paid or unpaid. However, absences on unpaid leave do not count as service except as provided under the applicable industrial instrument or directive (e.g. Ministerial Directive: “Leave without Salary Credited as Service”).

Mr Barber’s Submissions

  1. [43]
    Mr Barber draws attention to the delay involved in considering the grievance. Mr Barber says that he received the decision on 6 December 2022, 160 days after he lodged the grievance. Mr Barber says that this does not comply with Directive 11/20 and that this was not a fair or reasonable timeframe and leads him to believe that the Respondent has not acted in good faith.
  1. [44]
    Mr Barber draws attention to his recent employment history in which he has acted in the role of Head of Senior Schooling for the vast majority of the time from 2017, most recently continually at Chancellor State College from 2019-2022, which he says is in excess of the time required for appointment to higher classification under Directive 13/20. Mr Barber says that this was the original reason for his grievance.
  1. [45]
    Mr Barber says that throughout the grievance process, a ‘pattern of adverse actions against me has become apparent’.

Grievances 2 and 3

  1. [46]
    In summary, Mr Barber says he provided additional evidence with his internal review request and that this was not considered by the internal reviewer and that the internal reviewer provides no justification for why they believe it was more probable than not that he was made aware he would not be returning to higher duties after his leave.
  1. [47]
    Mr Barber says that a finding that he was made aware he was not returning to the role is contradictory to statements made by Ms Anstey at a meeting on 15 June 2022 where Ms Anstey said she was going to tell him that he was not returning to the role in Week 8, Term 2 of 2022. Mr Barber says there would be no need for Ms Anstey to say this if her claims were true about making him aware that he would not return to the role in December 2021.
  1. [48]
    Mr Barber says that both he and his union representative made a note at that meeting that when asked why she had changed her mind about him returning to the role, Ms Anstey said words to the effect of ‘life happens, things change’.  While Ms Anstey later denied saying this, Mr Barber maintains that she did say that. He submits that a decision not to return him to the role because ‘life happens, things change’ has ‘an air of capricious indifference’ and does not disclose any real consideration of the merits of returning him to the role.
  1. [49]
    With reference to a document which the Department says is a record of statements from Ms Sue Ralph and Ms Audrey Hearn regarding their recollection of conversations with Mr Barber, Mr Barber says that the reviewer failed to address evidence provided by him from Ms Hearn clarifying that the statement attributed to her was not a true and accurate account.[2] Mr Barber says that Ms Hearn’s expanded recollection as evidenced in the email she sent him is consistent with the fact that Mr Barber expected to resume his Head of Department role when he returned on the basis of his belief that the ‘roll over process’ gave him an entitlement to the role.
  1. [50]
    Mr Barber denies saying to Ms Ralph that Ms Anstey had told him that he was not guaranteed his position back as Head of Department (HOD) Queensland Curriculum Assessment Authority (QCAA) but at that stage he did not care. Mr Barber maintains that he would not have taken leave without some assurance that he would be returned to the Head of Department position.
  1. [51]
    Mr Barber says that the document should be given little weight as it contains hearsay, is not signed by those it purports to speak for, and purports to recollect conversations from some six to twelve months prior. Mr Barber says Ms Ralph’s statement should be given little credence because at the time the statement was taken, Ms Ralph stood to benefit from Mr Barber not being appointed as Head of Department (QCAA).
  1. [52]
    In response to Ms Borger’s finding that Mr Barber’s employment history is a true and accurate reflection of what has occurred and that each of his higher duties contracts provided an end date, Mr Barber says:
  • The last physical contract provided to him was signed by him on 20/01/2020;
  • He was unable to access any contract start and end dates through MyHR;
  • He was only sent a statement of service after contacting Human Resources directly via phone;
  • The statement of service has no contract cease dates between 01/08/2019 and 31/07/2021 with an adjustment made from 1/8/2021 to 10/12/2021 with no reason stated; and
  • The adjustment was never communicated to him, nor was he able to see this end date in MyHR.
  1. [53]
    Mr Barber says that this contradicts the internal review finding that at each point he was provided an end date to his higher duties contract. Mr Barber says that at the very least, he should have been informed that cease of his contract had been put in place. Mr Barber says that he did not learn of the cease of contract, nor have any reason to investigate or look for such a date until 1 June 2022.
  1. [54]
    Mr Barber says that it is critical to note that his current employment history is not accurate and fails to reflect that he was working in his capacity of higher duties as acting HOD QCAA and Principal’s Delegate up to and including the student free days in January 2022. Mr Barber says that in a formal meeting on 21 July 2022, the Executive Principal agreed that his statement of service would be amended to reflect that he had acted in higher duties up to and including January 2022.
  1. [55]
    Mr Barber says that Ms Borger has selectively and without explanation responded to elements of his appeal. Mr Barber says that the review has failed to address an email sent by Ms Anstey to staff on 9 December 2021 which includes reference to an Expression of Interest to ‘fill’ Mr Barber’s leave for semester one. Mr Barber says that the choice of the word ‘fill’ strongly suggests that his absence from the position was temporary.
  1. [56]
    Mr Barber says that his initial email to the Secondary Campus Principal on 21 July 2021 was mainly intended to discuss planning his long service leave so that the taking of leave would not negatively affect his prospects of being permanently appointed as a Head of Department through the process associated with Directive 13/20. Mr Barber says that in that email he asked, ‘could you please see if you could get some information from region regarding my current role and taking LSL for a semester 1 2022?’.
  1. [57]
    Mr Barber says that on 21 July 2021, Ms Anstey wrote to Ruth Dillon, Principal Human Resources Consultant for the Regional Office, seeking advice on whether Mr Barber would have a right to return to his higher duties role after taking long service leave (LSL):

That evening of 21 July 2021, Ms Anstey wrote to the Principal Human Resources Consultant for the Regional Office, Ruth Dillon, seeking advice on whether I would have a right to return to my higher duties role after taking LSL. On 23 July 2021, Ruth Dillon responded to Ms Anstey. In her advice, she noted, ‘If David wishes to take parental leave and he is the primary care-giver he would be able to access parental leave as per the Paid Parental leave Directive below:’ She also noted the extended period in which I had been relieving in the higher duties role, ‘continuous from August 2019 – Dec 2021’; she advised that, at that point in time, I ‘would be able to submit a request for permanency under Directive 13/20 Acting in a Higher Classification greater than 12 months (continuous relieving period)’; she advised that the school does not have an obligation to return me to the acting role, but that she believed that ‘due consideration [should] be given in the decision making process about the significant relieving periods, how long he will be on parental leave as we don’t want to be in a situation where he has been unduly disadvantaged due to taking parent leave.’

  1. [58]
    Mr Barber says that despite this advice from Ms Dillon in July, according to Ms Anstey’s version of events, she waited until one week prior to the end of Term 4 in December 2021 to discuss that Mr Barber would be returning to his substantive teaching role after returning from LSL. Mr Barber says that Ms Anstey has stated that she recalls this because she had the email from Ms Dillon dated 23 July open in front of her and that based on her recollection of events, Ms Anstey withheld the information provided to her from HR for a period of five months before discussing with him.
  1. [59]
    Mr Barber submits that the version of events accepted by Ms Borger as more probable than not is inaccurate, but if it is accepted, it is ‘lacking transparency in direct violation to the principles underpinning recruitment and selection, Public Sector Act 2022 (Section 44), whilst also being unfair and unreasonable management action.’
  1. [60]
    Mr Barber notes Ms Borger’s reference to s 64 of the IR Act regarding an employee’s minimum obligations to prove their entitlements to take spousal leave. Mr Barber says however that Ms Borger does not take into consideration section 71(2) of the IR Act outlining the employer’s responsibilities regarding informing employees of their parental leave entitlements. Mr Barber says that the timeline upon which Ms Anstey provided him with information which he relied upon, whether intentionally or through recklessness, encouraged him to take LSL rather than parental leave. Mr Barber says Ms Anstey failed to disclose information provided to her on 23 July 2021 by Ms Dillon.
  1. [61]
    Mr Barber maintains that a discussion occurred between himself and Ms Anstey on 18 August 2021, where Ms Anstey specifically asked him to take LSL after attending the student free days in January 2022 in his higher duties. Mr Barber says that Ms Anstey told him that this would enable her to fill his absence through an internal process rather than state-wide processes as the leave would be for less than six months. Mr Barber recalls Ms Anstey telling him that this would be in his best interests and making it highly likely he would return to the role. Mr Barber says that at that end of that meeting, he filled out his long service leave application and thanked her. Mr Barber says that in contravention of s 71(2) of the IR Act, he was not informed of his parental leave entitlement.
  1. [62]
    Mr Barber also refers to an email dated 9 February 2022 in which Ms Dani Sticker, North Coast Region HR says to Ms Anstey, ‘I note that David is currently on LSL for the semester, did he apply for parental leave? If he was the primary caregiver, he would be entitled to take parental leave.’  Mr Barber says that this information was not provided to him by Ms Anstey in conversations following Ms Anstey’s receipt of this email from Ms Sticker.
  1. [63]
    Essentially, Mr Barber argues that Ms Anstey was aware that he was eligible for parental leave and that she failed to disclose this to him, and instead encouraged him to take long service leave.
  1. [64]
    As further evidence that Ms Anstey knew that the reason for Mr Barber taking leave was to be the primary carer for his daughter, Mr Barber points to an email from Ms Anstey to the Senior Leadership Team on 5 December 2021 stating that Mr Barber would be taking leave for a semester to ‘be a ‘Dad’’.
  1. [65]
    Mr Barber says that had he been informed that he was eligible for parental leave as his primary source of leave, he would have been eligible for the considerations set out in the Paid Parental Leave (Directive 05/20) and that he would maintain continuity of employment. Mr Barber says that this would have made a substantial difference to his prospects of permanent appointment in accordance with s 149C of the now repealed Public Service Act 2008 (Qld) and then Directive 13/20. Mr Barber says that Ms Borger failed to take this considerable impact on Mr Barber and his family into account.
  1. [66]
    With regard to Ms Borger’s statement that ‘it is usual practice that higher duties arrangements are ceased following a period of long absence,’ Mr Barber says that if this is true, Ms Anstey had a responsibility to inform him of this ‘usual practice’ during any of the meetings he had with her beginning in July 2021. Mr Barber maintains that if he had been properly informed, he would have either chosen not to take leave or raised his concern with the union at the time.
  1. [67]
    Mr Barber says that while the internal review notes he was not financially disadvantaged during his leave, this fails to acknowledge the numerous unreasonable management decisions of Ms Anstey which impacted his prospects of permanent appointment to the role. Mr Barber says that Ms Anstey:
  • Provided misleading information regarding his leave;
  • Failed to disclose his leave entitlements;
  • Withheld information regarding the substantive vacancy of the HOD QCAA for five months; and
  • Provided inaccurate information in writing when he specifically inquired about the vacancy on 15 March 2022.
  1. [68]
    In his further submissions filed on 28 April 2023, Mr Barber points to a number of occasions where he expressed a desire to be permanently appointed to the HOD Senior Schooling position. Mr Barber says that there is nowhere on the intranet or another accessible way for employees to receive information about how to request a review.

Grievance 6

  1. [69]
    Mr Barber notes that Ms Borger acknowledged that there were several instances of miscommunication of information to him which have led to the circumstances resulting in the grievance. Mr Barber says that Ms Borger has failed to address the evidence provided in the application for internal review. Mr Barber completely disagrees that it was ‘more probable than not’ that the local action decision at the time was an attempt to ameliorate the situation on hand while administering reasonable and fair local management action for the following reasons:
  • On 7 June 2022 the Executive Principal responded to an email from Mr Barber questioning why he was not being returned to the role and said to him that there had been numerous conversations in line management regarding his ‘commitment to the role’ but also stated that no formal performance management process had been entered into. Mr Barber says that this was the first time he had been made aware that there were concerns about this ‘commitment to the role’;
  • Mr Barber draws my attention to a number of pieces of evidence demonstrating his commitment to the Senior Schooling HOD role;
  • There is evidence of him doing work in his capacity as HOD during the Christmas holidays of 2021/2022. This reiterates that he was unaware he had been reverted back to his substantive role on 10 December 2021; and
  • Ms Anstey requested Mr Barber’s attendance was at numerous leadership meetings which would have been inappropriate if he was reverting to his teacher role and indicates that he was unaware he had been reverted to his teacher role and that he believed he would be returning in the Senior Schooling role.

Misrepresentation and adverse action

  1. [70]
    Mr Barber makes submissions that there were misrepresentations made to him about his workplace rights in breach of s 289 of the IR Act. Mr Barber also says that adverse actions taken against him by Ms Anstey ‘negate’ the Public Sector Act 2022 ch 2.
  1. [71]
    Mr Barber says that he has demonstrated Ms Anstey’s conduct can be fairly described as ‘inconsistent and at times duplicitous. At worse she has been deceptive, and at best she has been careless in giving me advice on planning my leave to care for my infant daughter.’ Mr Barber says that Ms Anstey’s conduct has not been an isolated lapse in judgment, but a protracted course of capricious action against him. Mr Barber says that Ms Anstey’s actions in not returning him to the higher duties role despite assuring him that she would, were unreasonable.

Permanent appointment to higher duties position

  1. [72]
    Mr Barber says that he has demonstrated that he meets criteria, through time serviced and capability to be converted on the basis of his continuous length of employment in the recently advertised Head of Department role. Mr Barber says that his employment record should be updated to reflect continuity of service through and up to and including 19 January 2022 and not a ‘break in service’ as is currently on the record.
  1. [73]
    Mr Barber asks that I instruct the Respondent to follow Directive 13/20 and convert his employment to permanent Head of Department.

Respondent’s Submissions

Jurisdictional objection to request for appointment to the higher classification

  1. [74]
    With regard to the request Mr Barber makes that he be appointed to the higher classification pursuant to s 149C of the now repealed PS Act, the Respondent says that this is a decision that is unable to be appealed. There are a number of reasons for this, including that Mr Barber is out of time to appeal Mr Boyd’s decision to refuse appointment dated 11 July 2022 and that as a result of the repealed s 195(1)(j) of the repealed PS Act, Mr Barber was precluded from appealing.

Reasons why the internal review decision was fair and reasonable

Length of time providing a local action decision

  1. [75]
    The Respondent acknowledges the length of time in providing a local action decision but says that this was unable to be remedied upon internal review. The Respondent says it has acted in good faith whilst undertaking the individual employee grievance process.

New evidence

  1. [76]
    The Respondent submits that Mr Barber has introduced new evidence at each stage of the individual grievance process. The Respondent says that adding new information as part of this fair treatment appeal is not appropriate and submitting additional information at each stage taints the process. The Respondent says that it would be inappropriate for me to consider the materials that were not before the internal review.

Grievances 2 and 3

  1. [77]
    The Respondent disputes Mr Barber’s submission that all evidence he provided was not internally reviewed and says that the ‘Summarised Timeline of Events’ he provided in support of this fair treatment appeal was not provided to Ms Borger has part of the Stage 2 – internal review request.
  1. [78]
    The Respondent submits that Mr Barber was advised by Ms Anstey that the higher classification contract was ceasing. The Respondent also submits that the decision to extend the contract rests with the Principal of Chancellor State College.
  1. [79]
    The Respondent says that Mr Barber was remunerated at the higher classification during his long service leave consistent with clause 13.1 of Directive 04/20. The Respondent also says that the HOD role required temporary recruitment to ensure that when school reconvened in Semester 1 of 2022, it was adequately staffed. The Respondent says that it was fair and reasonable not to extend Mr Barber’s higher classification contract as Mr Barber was not in the role while on long service leave. The Respondent says that there is no substantive entitlement to a higher classification contract while on authorised leave.
  1. [80]
    With regard to the matters Mr Barber raises above at [49] and [50], the Respondent says that this information was not considered during internal review as the corroborated evidence between Mr Cleary of the Queensland Teachers’ Union and Mr Barber was not proffered to the internal review decision-maker. The Respondent notes that the decision of Mr Barber to take long service leave resulted in the creation of a temporary vacancy in the HOD role. The Respondent says that the decision that the higher classification contract had naturally ended was fair and reasonable and that when an employee is unable to undertake the work, the higher classification contract is ceased.
  1. [81]
    With regard to Mr Barber’s statement of service, the Respondent says that it accurately reflects each employment contract, which has a fixed end date. The Respondent says that it is a matter for the delegated officer to distinguish whether further extensions of the higher classification contract are required or if the contract end date is to be observed. Mr Barber has no delegated authority to amend or extend the higher duties classification contract.
  1. [82]
    With regard to Mr Barber’s submissions about the work that he was doing over the holidays and on the student free days, the Respondent says that this work was handover related rather than evidence of HOD Senior Schooling duties.
  1. [83]
    The Respondent does not dispute that the last physically signed higher classification contract was signed by Mr Barber on 20 January 2020. The Respondent says that all financial adjustments to Mr Barber’s pay are communicated and recorded on his payslip at the time. Mr Barber does not have a right to predicate whether future promotional opportunities will be offered, rather those decisions rest with the delegated officer.
  1. [84]
    The Respondent submits that it was fair and reasonable for Mr Barber to be paid at the substantive rate of full pay for the student free days in January 2022 because no higher duties contract extension for the HOD role existed. No action to amend the statement was provided by the delegated officer because no offer of extension to the higher classification contract was made.
  1. [85]
    The Respondent does not dispute the submission made by Mr Barber at [57] regarding Ms Anstey’s communication that she was undertaking a temporary recruitment process for the vacancy of HOD Senior Schooling. The Respondent says that there was a genuine vacancy that required filling to prevent a staff shortage.
  1. [86]
    The Respondent submits that the decision to cease the higher duties contract was fair and reasonable due to Mr Barber no longer being engaged in the role due to his leave. The Respondent says that the decision not to offer the extension may not have been communicated in the best way, and may not be what Mr Barber desired.
  1. [87]
    The Respondent submits the internal review decision was transparent and does not violate principles of recruitment and selection as there was a genuine need to backfill the position. The Respondent points to the decision of the Commission in Bode v State of Queensland (Queensland Health),[3] where similar management action was found to be fair and reasonable.
  1. [88]
    The Respondent notes that Mr Barber has previously taken spousal leave from 22 February 2021 to 26 February 2021. The Respondent says that Mr Barber did not apply for parental leave, nor did he provide any evidence to persuade an alternative internal review decision. The Respondent says that in the absence of furnishing the relevant medical evidence, Mr Barber has applied for long service leave as the first leave of absence.
  1. [89]
    The Respondent says that the internal reviewer did not consider any evidence which has now been submitted in support of this appeal regarding the lack of information provided to him of an entitlement to parental leave. The Respondent says that the HOD Senior Schooling role is considered a senior role that requires understanding of employee industrial entitlements. The Respondent says that Mr Barber would have knowledge of gaining access to the Policy and Procedure Register to conduct a search for parental leave entitlements. Further, in the absence of evidence supporting an entitlement to access parental leave, the internal reviewer was unable to conclude long service leave was not an appropriate form of leave in the circumstances.
  1. [90]
    The Respondent says that an entitlement to be considered for permanent appointment to a higher classification only arises upon a request being made and the eligibility requirements being filled. The Respondent says that in Mr Barber’s case, a request was required to be made prior to 10 December 2021.
  1. [91]
    The Respondent submits that there are no specific obligations imposed upon the employer to notify an employee when to request appointment to the higher classification. The Respondent says that the onus was placed upon Mr Barber to make the request prior to the higher classification contract end date. The Respondent submits that like in Bode v State of Queensland (Queensland Health),[4] it is not unfair or unreasonable that Mr Barber’s higher classification contract was not extended and that this prevented Mr Barber from being eligible. Mr Barber could have applied prior to taking the long service leave and there would have been a decision made at the relevant time.

Grievance 6

  1. [92]
    With regard to grievance 6, the Respondent submits that the evidence within the internal review request was reviewed. The Respondent states that the internal review decision was unable to remedy, nor had the power to review Mr Boyd’s decision of 11 July 2022.
  1. [93]
    With regard to Mr Barber’s submissions regarding his merit and commitment to the role, the Respondent says it does not dispute that Mr Barber held merit for the higher classification but says it was not a relevant consideration for the internal reviewer.
  1. [94]
    The Respondent says that none of the information put forward by Mr Barber in relation to Grievance 6 were key issues for the internal review to determine if Ms Craig’s decision was fair and reasonable.

Consideration

  1. [95]
    The Respondent points out, and I agree, that Mr Barber has raised a number of matters in his submissions regarding alleged adverse actions taken against him and breaches of his workplace rights, misrepresentations made to him, and that he has experienced disadvantage as a result of his caring responsibilities. These matters are outside of the scope of this external review, and there are other avenues for addressing such matters.
  1. [96]
    It is also the case that this appeal is not a review of the decision not to appoint Mr Barber to the higher classification. Ms Borger made clear in her internal review decision that the decision of Mr Boyd Clifford dated 11 July 2022 refusing Mr Barber’s request to be appointed to the higher classification was a separate administrative decision and was therefore out of the scope of the local action decision she was reviewing. It follows that the decision not to appoint Mr Barber to the higher classification is not something I am considering in this appeal.
  1. [97]
    It also follows that the outcome Mr Barber seeks in this appeal, which is that the Commission order the Respondent to appoint him permanently to the higher classification level is not an outcome available as a result of the external review.
  1. [98]
    I note the Respondent’s submission that I should only consider the appeal on the basis of the material that was available to Ms Borger at the time she made the decision. This is the approach I am taking, however I note that there are many attachments to the material before me and unless the parties have explicitly pointed out to me that material is new, previously not-submitted, or was not considered by Ms Borger, it is difficult for me to identify what material is new and what was previously available.
  1. [99]
    For completeness, I acknowledge the submissions of the parties that it is not in dispute that Mr Barber has demonstrated merit for the position, however this is not a matter I am required to consider in deciding this appeal.
  1. [100]
    I think it is important to note that at the time Ms Borger undertook the internal review of the local action decision on Mr Barber’s grievances, Mr Barber does not appear to have, at any stage while eligible, lodged a request to be appointed to the higher duties position. This is even though it appears that prior to taking leave, Mr Barber would have met the eligibility criteria to make such a request. There is no requirement for the Respondent to alert people acting in a position at the higher classification that they are eligible to make a request. To that extent, the higher duties conversion regime differs from the temporary/casual to permanent conversion regime in which it is incumbent upon the Respondent to undertake a review when the appropriate anniversary is reached. There was a time at which Mr Barber was eligible to make the request and he did not do so. It is unclear to me why.
  1. [101]
    I understand Mr Barber’s submission that he may have made different choices in the event that he had been provided the information Ms Anstey had available to her. However, Mr Barber is ultimately responsible for his choices and it appears that he took actions on the basis of his existing understanding of how leave may impact on his acting role. Mr Barber was alive to the idea that his leave may have some impact on his capacity to return to the Acting HOD role and on his capacity to request appointment at the higher classification, however he does not appear to have undertaken his own research or sought advice from his union prior to taking the leave. Ms Anstey appears to have had information that she did not provide to Mr Barber, but this is not a case where Ms Anstey was the only person with that knowledge or that Mr Barber did not have ways to seek that information for himself.
  1. [102]
    While Mr Barber had a right to be paid at the higher duties rate while he was on leave, this was not the same as retaining a substantive right to the Acting HOD role. While he was on leave, it was entirely reasonable for the Respondent to appoint someone else to the Acting HOD role. There was work to be done and the Respondent needed a person in place to undertake the duties in Mr Barber’s absence. Whether or not there was an intention that Mr Barber would recommence the Acting HOD role upon his return, it is clear that his leave has created a break in continuity of the HOD role. It is also the case that Mr Barber did not have a right of return to the Acting HOD role because he did not permanently hold it as a substantive role. There was no guarantee that Mr Barber would continue to be appointed to the Acting HOD role (even in the absence of him taking leave), that the Acting HOD role would continue to exist at all, or that any application Mr Barber had made for the appointment to the higher classification would have been successful.
  1. [103]
    I note Mr Barber’s concerns regarding the significant delay in provision of a local action decision. However, I agree with Ms Borger that the review process is unable to remedy this. It is unfortunate that it took so long for the local action to be determined and communicated to Mr Barber, however, it is unclear to me how the matter of Mr Barber seeking permanent appointment to the HOD position could have led to a different outcome if the decision had been made promptly. This is particularly in circumstances where the internal review and this external review have resulted in the decision of Ms Craig being confirmed.

Grievances 2 and 3

  1. [104]
    There is little doubt in my mind that Ms Anstey could have provided better and more explicit and timely communication to Mr Barber regarding the situation with his Acting HOD role and any information she had regarding leave arrangements. However, I accept that with regard to leave arrangements, Ms Anstey was not solely responsible for provision of information to Mr Barber. Mr Barber had previously availed himself of parental leave and also had access to the leave policies and procedures of the Department.
  1. [105]
    I find that there was enough evidence available to Ms Borger to determine that, even if he was not explicitly told he would not be returning to the Acting HOD QCAA role at the end of his long service leave, Mr Barber was aware that this may be the case. It seems to me that Mr Barber’s enquiries and conversations with various people demonstrate that he was contemplating the effect of taking leave on continuity in the position. In any case though, Mr Barber knew that he did not ‘own’ the role. Mr Barber must have known that there was no guarantee that the role would continue to be his, or that no-one else would be appointed in his absence, as much is evidenced in him undertaking a handover to the newly appointed Acting HOD during the January student free days. Even though Mr Barber had been acting in the role for a long time, he had not applied for, or been appointed to, the role. Even if Mr Barber had been promised that he would return to the Acting role, absolutely nothing would have precluded Ms Anstey from making a different decision in the meantime and communicating this to Mr Barber prior to or upon his return from leave.
  1. [106]
    On the basis of the material she had available to her, it was fair and reasonable for Ms Borger to uphold Ms Craig’s finding that Ms Anstey did not behave unfairly or unreasonably in the circumstances.
  1. [107]
    With regard to the statement of service, it is unclear what flows from this. Ms Craig appears to have correctly identified the situation which is that while Mr Barber was being paid at that higher duties rate while on leave, he was no longer Acting in the HOD position. At this stage, someone else was Acting in the position and undertaking those duties. There was no requirement for the Department to employ two Acting HODs during the period of time Mr Barber was on leave. It was fair for Ms Borger to uphold Ms Craig’s local action decision with regard to Grievance 3.
  1. [108]
    Had Mr Barber taken spouse birth related leave, this may have resulted in a different situation in terms of continuity of service for the purpose of eligibility to be appointed to the higher classification. However, Ms Borger found no evidence that Mr Barber had taken such leave. Mr Barber was responsible for his leave application and I accept the Respondent’s submission that Mr Barber had previously taken a period of spouse birth leave and therefore he was clearly aware that such leave existed and that he had an entitlement to it.
  1. [109]
    Mr Barber says in his appeal notice that he acted on Ms Anstey’s advice or lack thereof to his disadvantage. I understand that he may feel this way and be aggrieved by what he has experienced by way of miscommunication. However, Ms Anstey was not responsible for advising Mr Barber about his leave applications or access to appointment to the higher duties classification. At the relevant time, Mr Barber had asked Ms Anstey for advice but was unaware of whether she had sought or received such advice on his behalf.  It was open to Mr Barber to find out the relevant information in the absence of Ms Anstey providing him with a response. Mr Barber was previously eligible to apply for appointment to the higher duties role and did not do so.
  1. [110]
    Mr Barber says that there is ‘nowhere on the intranet or another accessible way’ for employees to find out about how to request appointment to the higher classification. In his further submissions, Mr Barber requests that I order the public service entity to make review processes clearly accessible to employees. It seems to me that the information is readily available to an employee who is seeking it. I also note the information provided by the Respondent in its reply submissions that the information was available in OnePortal at the relevant timeframe related to this appeal.
  1. [111]
    The Respondent says that any right of appeal against a decision not to appoint Mr Barber to the higher classification has lapsed. Mr Barber says ‘this was due to a pattern of consistent inaccurate advice being provided’ by Ms Anstey. However, it remains the case that there was never an application for appointment to the higher duties position made during the period of time Mr Barber was eligible for appointment prior to taking long service leave. There is therefore no decision which can be appealed.
  1. [112]
    I find it unsurprising that Mr Barber is aggrieved by Ms Anstey’s actions, however, it was reasonable for Ms Borger to uphold Ms Craig’s finding that the appropriate approach was to address those matters through local management action and mediation.

Grievance 6

  1. [113]
    I have considered all of the material available to me and the submissions of the parties with regard to the internal review decision relating to Grievance 6. Ms Borger reasonably and appropriately acknowledges that there were several instances of miscommunication of information and that these have left Mr Barber aggrieved.
  1. [114]
    Ms Borger concludes that there was no intentional malice in Ms Anstey’s management actions. There is no evidence before me that Ms Anstey acted intentionally to deprive Mr Barber of opportunities or that her actions gave rise to a conduct related issue or warranted a workplace investigation. It was entirely reasonable for Ms Anstey to identity and appoint a person to the role of Acting HOD in Mr Barber’s absence. The role was not substantively Mr Barber’s and he could not undertake the duties of the role as he was on a period of long service leave.
  1. [115]
    Mr Barber and Ms Anstey needed to continue working together in the school. While there may have been aspects of communication which could have been better handled by Ms Anstey, it was reasonable for Ms Borger to uphold Ms Craig’s assessment and determination that the matter would be best resolved through management action or alternative dispute resolution strategies.
  1. [116]
    Further to this, it appears that not only did Mr Barber undertake a further period in the Acting HOD role, there is nothing precluding him from applying for the role via the state-wide advertisement. The maintenance of a productive working relationship between Mr Barber and Ms Anstey is important and local management action and mediation were a sensible approach to take.
  1. [117]
    The decision of Ms Borger that Ms Craig’s decision regarding Grievance 6 was fair and reasonable is confirmed.

Conclusion

  1. [118]
    As noted above, Mr Barber has presented material in support of his submissions in this appeal which the Respondent says was not available to Ms Craig or Ms Borger at the time of the local action decision and the internal review decision. To the extent that Ms Borger has upheld decisions regarding local management action to be taken in response to Mr Barber’s grievance, any new material should be considered by the local delegate and form a part of any reflection on how communication with Mr Barber could have been better handled by Ms Anstey and may form part of the discussions at any mediation which takes place regarding these matters.
  1. [119]
    This external review by way of a public sector appeal has a limited scope and is confined to the decision of Ms Borger regarding grievances 2, 3 and 6.  For the reasons set out in this decision, I find that it was open to Ms Borger to confirm the local action decision.
  1. [120]
    The decision appealed against is confirmed and my reasons for decision should be considered by the local delegate in considering local management action to be taken regarding this matter.

Orders

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

Footnotes

[1] Correspondence from Ms Borger to Mr David Barber dated 13 February 2023, page 3.

[2] I have reviewed this email provided at appendix 7 of Mr Barber’s submissions and note that while it expands on Ms Hearn’s recollections, it does not serve to undermine or change the recollection set out in the departmental document Mr Barber refers to.

[3] [2022] QIRC 450.

[4] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Barber v State of Queensland (Department of Education)

  • Shortened Case Name:

    Barber v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 151

  • Court:

    QIRC

  • Judge(s):

    Pidgeon 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
Bode v State of Queensland (Queensland Health) [2022] QIRC 450
2 citations
Jump To
Cite 1 - [2022] QIRC 450
Cite 2 - [2022] QIRC 450

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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