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

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

ST v State of Queensland (Department of Education)[2023] QIRC 4

ST v State of Queensland (Department of Education)[2023] QIRC 4

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

ST v State of Queensland (Department of Education) [2023] QIRC 004

PARTIES: 

ST

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/967

PROCEEDING:

Public Service Appeal – Transfer Decision

DELIVERED ON:

10 January 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

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

  1. 1.The appeal is allowed;
  2. 2.The decision that the Appellant be required to transfer is set aside; and
  3. 3.The transfer is cancelled.

CATCHWORDS:

PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against transfer decision – where appellant required to transfer – where request made for review of transfer – where review confirmed transfer – whether decision fair and reasonable – decision set aside and substituted with another decision

LEGISLATION & OTHER

INSTRUMENTS:

Human Rights Act 2019 (Qld) s 58

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Service Act 2008 (Qld) s 133, s 134, s 194

Department of Education Guideline for assessment of compassionate circumstances cl 3

Department of Education Teacher Transfer Guidelines

CASES:

Benton v State of Queensland (Department of Education) [2022] QIRC 232

Gilmour v Waddell & Ors [2019] QSC 170

HL v State of Queensland (Department of Education) [2022] QIRC 458

Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317

Main v State of Queensland (Department of Education) [2022] QIRC 455

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Reasons for Decision

Background

  1. [1]
    Miss ST[1] (the Appellant) is employed as a Teacher at School A by the Department of Education, State of Queensland (the Department; the Respondent).[2]
  1. [2]
    On 8 September 2022, Ms Kirsty Payne,[3] notified the Appellant that she had been selected for a required transfer to School B on 19 January 2023.
  1. [3]
    On 11 October 2022, the Appellant lodged a Teacher Transfer Request for Review form, requesting a review of the decision to transfer her from School A to School B (the Request for Review).
  1. [4]
    On 13 October 2022, Mr John Norfolk,[4] informed the Appellant, "I have accepted the panel's[5] recommendation and wish to advise that your review has been dismissed" (the Decision).
  1. [5]
    On 2 November 2022, the Appellant filed an Appeal Notice against the Decision at the Industrial Registry.

Jurisdiction

Decisions against which appeals may be made

  1. [6]
    Pursuant to s 194(1)(d) of the Public Service Act 2008 (Qld) (the PS Act), an appeal may be made against a decision to transfer a public service officer. On that basis, I am satisfied the Decision may be appealed.

Timeframe for appeal

  1. [7]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Appeal Notice regarding when the decision was received.
  1. [8]
    The Decision was given on 13 October 2022 and the Appeal Notice was filed on 2 November 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [9]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [10]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [11]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  1. [12]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  1. [13]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[6]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

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

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

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Submissions

  1. [14]
    In accordance with the Directions Order issued on 7 November 2022, the parties filed written submissions.
  1. [15]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [16]
    I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those materials. My focus is on determining whether the Decision appealed against is fair and reasonable, so I will instead refer only to the parties' key positions in my consideration.

Relevant provisions

  1. [17]
    The Department of Education Teacher Transfer Guidelines (the Transfer Guidelines) outline the objectives of the teacher transfer process as to:
  • ensure all schools have a robust workforce and are sufficiently resourced to deliver high quality education
  • ensure appropriately qualified teachers in all schools throughout Queensland
  • ensure transfer decisions are equitable and transparent
  • encourage teachers to contribute to our rural, remote and Indigenous communities
  • recognise rural and remote service by supporting teachers to return to a preferred location
  • deliver the best possible outcomes for teachers and schools
  • increase the potential for successful transfers that take into consideration an individual teacher's personal circumstances, professional capabilities and career interests.
  1. [18]
    The Transfer Guidelines provide that, "To meet the workforce planning needs of schools throughout the state or specific operational needs, the department may also require teachers to transfer." The Transfer Guidelines suggest that school leaders may recommend teachers for transfer to, among other reasons, provide professional development opportunities, support school improvement and generate vacancies for teachers seeking to transfer following rural and remote service.
  1. [19]
    The Transfer Guidelines relevantly provide that when identifying teachers for a required transfer, school leaders and HR teams are to take into consideration, among other factors, "personal circumstances that preclude a teacher from moving either from their current location or residence." The Transfer Guidelines further require that Human Resources assess teachers recommended for required transfer to ensure "a transfer is reasonable".
  1. [20]
    Section 133(1) of the PS Act empowers the chief executive of a department to transfer a public service officer of the department within the department. Pursuant to s 134(1) of the PS Act, that transfer "has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer's chief executive."
  1. [21]
    Section 134(3)(a) of the PS Act provides that the transfer is cancelled if the officer establishes reasonable grounds to the chief executive's satisfaction. Similarly, the Transfer Guidelines stipulate that "Teachers are expected to comply with a departmentally required transfer unless they can establish that reasonable grounds exist for the transfer not to occur."
  1. [22]
    The Transfer Guidelines stipulate that the Panel is required to consider the grounds of review and all supporting documentation against the Transfer Guidelines in a thorough, fair and impartial manner.

Appeal grounds

  1. [23]
    Broadly, the Appellant contends the Decision is not fair and reasonable because:
  • the Department failed to comply with or have proper regard to the Transfer Guidelines;
  • the Appellant has established reasonable grounds for refusing the transfer and provided medical evidence to demonstrate this;
  • the Decision erroneously states that "medical circumstances are considered in accordance with the Guideline for assessment of compassionate circumstances";
  • the Decision provides no evidence of the Panel having properly considered other reasonable grounds;
  • the Panel failed to consider the Appellant's reasonable grounds in a thorough manner;
  • the review process was compromised by undue pressure placed on the Appellant;
  • while distance is one factor to be taken into account in assessing reasonableness in accordance with the Guidelines, it is not the sole factor; and
  • the Decision is invalid because it contravenes s 58 of the Human Rights Act 2019 (Qld) (the HR Act) by not evidencing consideration of any human right.[7]
  1. [24]
    I will now proceed to consider the appeal grounds below.

Did the Department fail to take into consideration the Appellant's personal circumstances?

  1. [25]
    The Appellant submits the Department failed to take into consideration her personal circumstances that she contends preclude her from transferring from her current location.
  1. [26]
    An attachment to the Decision which is entitled "Determination was based on the following", refers to the following personal circumstances:
  • the Appellant was diagnosed as medically infertile and has since commenced fertility treatment;
  • fertility treatment is extensive, has required ongoing appointments and a commitment of substantial finances (with reference to a document from City Fertility);
  • the Appellant believes the stress and demands of a transfer at this time would be detrimental and likely to cause her great mental and physical hardship and possibly interfere with the success of the fertility treatment;
  • for a successful outcome to her fertility treatment, the Appellant has been advised it is imperative that she maintain the best possible physical health and a positive wellbeing; and
  • emotional support from her colleagues while the Appellant has been going through this process has, and would continue to be, invaluable throughout the fertility process.
  1. [27]
    The Decision then turns to the following considerations which the Respondent contends support the transfer:
  • teachers may be required to transfer to meet the workforce planning need of schools throughout the state or specific operational needs including to support school renewal, continuous improvement and innovation and generate vacancies for teachers seeking to transfer following rural and remote service;
  • teachers may be required to teach in locations not necessarily of their choice as all teachers are likely to be required to transfer at some stage;
  • medical circumstances are considered in accordance with the Guideline for assessment of compassionate circumstances (the Compassionate Guideline);
  • the Compassionate Guideline states that "The staff members must provide documentation from a medical specialist articulating the reasons why they are required to work in a particular location, or why the existing or proposed location's environmental conditions are a catalyst for a chronic medical condition and the likely duration of this need. In situations where the staff member's treating medical specialist is unable to provide this evidence, documentation from a registered medical practitioner or an allied health specialist will be considered";
  • the information outlined by the Appellant's Gynaecologist does not support the proposition that the transfer is unreasonable;
  • although the Appellant intends to provide a letter from her psychologist which may be sufficient to consider her circumstances as compassionate, "it would not change the transfer decision as whether a transfer is required, requested or compassionate a placement within 50 minutes is considered reasonable";
  • the approximate driving time from the Appellant's place of residence to School B via the shortest trafficable route would typically be 18 – 30 minutes;
  • ongoing support from established relationships throughout the Appellant's fertility journey is not sufficient to render the transfer unreasonable; and
  • while the Respondent is empathetic to the Appellant's situation, the Respondent has decided that the Appellant's circumstances are not sufficient to support her appeal, and that the proposed transfer is consistent with the provisions of the Transfer Guidelines.
  1. [28]
    In my view, the Decision reasons summarised in [26] and [27] above do not reasonably explain why the Department is not satisfied with the Appellant's reasons for refusal. The Appellant was not specifically advised in the Decision why the transfer was occurring – rather the Department generally outlined reasons for why transfers occur. Merely stating that the Appellant's personal circumstances are "not sufficient" when balancing those specific circumstances against broad objectives is not fair or reasonable.
  1. [29]
    Upon review of the Decision, I am not satisfied the decision-maker thoroughly took into consideration the Appellant's personal circumstances.

Did the Respondent err in applying the Compassionate Guideline?

  1. [30]
    The Appellant argues the Respondent erred in applying the Compassionate Guideline because they do not apply to a required transfer. The Appellant contends that the Compassionate Guideline applies only to teacher-initiated compassionate transfers and a plain reading of the Transfer Guidelines makes clear that the Compassionate Guideline is only relevant to compassionate transfers.
  1. [31]
    The Respondent submits it is usual to conclude that a compassionate circumstance within the meaning of the Compassionate Guideline will form a reasonable ground for a transfer not to occur.
  1. [32]
    In Main v State of Queensland (Department of Education),[8] Industrial Commissioner Hartigan (as she then was) noted that the Transfer Guidelines and Compassionate Guideline applied to the proposed transfer of the Appellant in that matter, which was a transfer initiated by the Respondent.
  1. [33]
    Similarly, in Benton v State of Queensland (Department of Education),[9] Industrial Commissioner Knight held that, "When determining whether reasonable grounds exist for a transfer not to occur, the Panel is required to consider the same criteria as compassionate transfer requests. Compassionate requests are classified as either exceptional hardship or personal pressing circumstances."
  1. [34]
    In HL v State of Queensland (Department of Education),[10] Industrial Commissioner Pidgeon similarly concluded that in accordance with the Compassionate Guideline, the requirement for the Appellant in that matter was that she demonstrate that she has medical circumstances which mean the required transfer will cause her unjustifiable hardship.
  1. [35]
    I follow the decisions referred to in [32] – [34] above and find that the Compassionate Guideline is applicable to assessing whether reasonable grounds exist. In this regard, I reject the Appellant's submission that the Respondent erred in applying the Compassionate Guideline.

Was the review process compromised by undue pressure placed on the Appellant to rush her review application?

  1. [36]
    The Appellant argues the review process was compromised by undue pressure placed on her to rush her Request for Review. The Appellant alleges that on 10 October 2022, her School Principal advised her to submit her Request for Review by close of business on 11 October 2022 and that she did not have the opportunity to gather all appropriate medical evidence in support of her reasonable grounds. The Appellant submits she complied with this deadline "because she was given no other choice in respect of timing".
  1. [37]
    The Appellant was originally advised of the transfer in correspondence dated 8 September 2022. That letter stated:

The decision to transfer you may be subject to the review and appeals process which is set out in the Teacher Transfer Guidelines. The Key Dates for review are published within the Teacher Transfer Information Sheet – Review and Appeals document which is available on the Teacher Transfer Information and Guidelines page in One Portal.

  1. [38]
    Section 2 of the Teacher Transfer Information Sheet – Reviews and Appeals (the Information Sheet) provides that:
  • the local level (school) review process should be finalised within 28 calendar days from official notification of transfer;
  • lodgement of request for internal review by Teacher Transfer Review Panel should be made within 7 calendar days from local level review being finalised; and
  • notification of outcomes from Teacher Transfer Review Panel should be made within 14 calendar days from internal review being finalised.
  1. [39]
    Clause 3.1 of the Information Sheet provides that:

During the first step in the review process, the base school principal will attempt to resolve the matter at the local level in consultation with their regional human resource consultant. The teacher’s written request for a review must include sufficient information to enable their concerns to be resolved, including any action that the teacher would like to be taken.

The teacher is to be advised in writing of the outcomes of the discussions, including the action taken to manage the concerns and information considered, reasons for the decision, any further action to be taken, and the next steps in the review process.

  1. [40]
    It is unclear on the material filed whether the Appellant made a written request for a local level (school) review and whether she was advised in writing of the outcome. The Department unhelpfully ignored the Appellant's submission in this regard and therefore did not shed any more light on the alleged tight turnaround time advised by the School Principal. 
  1. [41]
    Furthermore, the first sentence on the Teacher Transfer Request for Review form reads, "Teachers may request a review of a required transfer by completing this form and submitting it within 28 days from official notification of transfer." This appears to be at odds with the Information Sheet and supports the Appellant's belief that she had no other choice but to comply with her School Principal's direction. Again, by omitting to provide submissions in this regard, the Department's position is unclear.
  1. [42]
    Significantly, in the Request for Review, the Appellant noted "Supporting specialist letter from psychologist… to be forwarded as soon as it is available this week." The Decision was made before the Appellant had an opportunity to forward the letter from her Psychologist and merely noted that "Her intention to provide a letter from her Psychologist in support of her review is also acknowledged." The Appellant also takes issue with the fact that the Decision was made within a two-day period, suggesting the process was unreasonably rushed. The Appellant argues that the inclusion of the name "Louise" rather than the Appellant's name indicates the Decision was simply cut and paste from an earlier decision and her personal circumstances were not taken into account.
  1. [43]
    The Appellant contends the Panel's subsequent conclusion regarding the futility in any case of providing that medical evidence demonstrates that the Panel had a predetermined view of the matter, contrary to its obligations to consider both her personal circumstances and circumstances precluding her from moving from her current School A location. The Appellant argues that the Panel's assumptions regarding the content of the foreshadowed medical evidence and failure to wait even three days to enable the Appellant to submit that medical evidence before disregarding it, are an affront to its obligation to consider the Request for Review thoroughly, fairly and impartially. I agree with this submission and for the reasons that follow, I find the letter from the Appellant's Psychologist and General Practitioner are of significance. 
  1. [44]
    Subsequently on 19 October 2022, the Appellant emailed Mr Paul Dallinger,[11] and requested the Panel reconsider her appeal due to the fact that only one of her supporting documents was viewed to make the Decision and she had subsequently obtained all three supporting documents that she would like the Panel to consider.
  1. [45]
    The Respondent submits that the letters from the Appellant's Psychologist and General Practitioner were not provided to the decision-maker as the Decision had already been made, the documents were unlikely to change the recommendation of the Panel and unlikely to persuade the decision-maker to repeal and replace his Decision. In my view, the expeditious turnaround of the Decision was unfair in light of the uncontested advice from the School Principal to quickly submit the Request for Review prior to the Appellant being able to obtain appropriate evidence coupled with her indication that further documentation would be submitted shortly. It was unreasonable for the Respondent not to wait even just a few more days before considering the matter.
  1. [46]
    I am not satisfied the Decision followed a procedurally fair process which resulted in the decision-maker issuing a Decision without all the relevant evidence at hand.

Did the Appellant establish that reasonable grounds exist for refusing the transfer to the satisfaction of the chief executive?

  1. [47]
    The Compassionate Guideline provides that a compassionate circumstance is one in which "the current or proposed location causes unjustifiable hardship to an applicant because of…" medical circumstances, environmental circumstances or personal circumstances "causing unjustifiable hardship". 
  1. [48]
    Clause 3 of the Compassionate Guideline lists circumstances in which an application for consideration of compassionate circumstances may be made, including where the staff member "provides supporting documentation from an independent third party substantiating their compassionate circumstances" and "the supporting documentation justifies why the staff member should be working in a particular location".
  1. [49]
    While the Respondent acknowledges the Appellant provided a medical document in support of the request for review of her required transfer and that she does suffer from a medical condition – it is the Respondent's position that the documentation did not establish to the satisfaction of the decision-maker that a medical circumstance would cause the Appellant to suffer an unjustifiable hardship if she transferred.
  1. [50]
    The Compassionate Guideline provides that, "The staff member must provide documentation from a medical specialist articulating the reasons why they are required to work in a particular location, or why the existing or proposed location's environmental conditions are a catalyst for a chronic medical condition and the likely duration of this need."
  1. [51]
    The Appellant provided a letter from a Gynaecologist and specialist in Medical Infertility who had been seeing the Appellant for that reason since June 2022. The document provided from this medical specialist stated that the Appellant "has a low Anti-Mullerian Hormone level which suggests depleting ovarian reserve and I have encouraged her to try for a pregnancy as soon as possible."
  1. [52]
    The Compassionate Guideline provides that, "In situations where the staff member's treating specialist is unable to provide this evidence, documentation from a registered medical practitioner or an allied health specialist will be considered." At the time of the Decision, the decision-maker did not have any further evidence before them. For reasons outlined above, the rush in the consideration process and subsequent decision of the Department not to provide the further supporting documents to the decision-maker for reconsideration was unreasonable. That unreasonable process led to a situation where the Panel and decision-maker did not consider two of the three supporting documents prior to the Decision.
  1. [53]
    The statement provided by the Appellant's psychologist provides, "It is my opinion that any changes to her work situation and support network will cause her significant distress which could negatively impact her fertility treatment."
  1. [54]
    The Appellant also submitted a letter from a General Practitioner which provided:

She will require a lot of support from her family and colleagues during this time and this is of vital importance.

Any change in her current work location and her support networks would be detrimental to her mental well being but also to the success of her fertility treatments.

This is a letter of support for [the Appellant] in the hope that she can remain in the same school that she has been working in for the last ten years to ensure a successful fertility treatment journey as well as her overall mental, physical and emotional wellbeing.

  1. [55]
    The view of the General Practitioner supports the Appellant's position and outlined what it is about the transfer that may be a catalyst for a chronic medical condition. That is, change in work location and support networks would be detrimental to her mental wellbeing and success of her fertility treatments. The Appellant's medical specialist outlined the Appellant's medical condition and the three supporting documents in totality evidence that a significant degree of medical and personal hardship is likely to transpire from a transfer.
  1. [56]
    Due to the way in which the Department conducted the review process, the Appellant's ability to present her case was prejudiced which has led to the Decision lacking intelligent justification. On that basis, I find the Decision is not fair or reasonable.

Did the decision-maker only consider distance in assessing reasonableness?

  1. [57]
    The Decision provides:

The Panel acknowledges the information from [the Appellant's] Gynecologist [sic] but that does not provide any information to support the transfer in [sic] unreasonable. Her intention to provide a letter from her Psychologist in support of her review is also acknowledged. However, whilst this may be sufficient to consider [the Appellant's] circumstances as compassionate, it would not change the transfer decision as whether a transfer is required, requested or compassionate a placement within 50 minutes is considered reasonable.

  1. [58]
    The Appellant alleges the Decision is made in error of law because it ultimately turns on the fact that the new school is "a placement within 50 minutes" and that should not have been the sole factor taken into account. The Appellant contends that the Panel has erroneously interpreted the Transfer Guidelines to mean that all required transfers that are within 50 minutes travel time are valid, regardless of other reasonable grounds raised.
  1. [59]
    The Transfer Guidelines state that, "A transfer placement to a designated base location of up to 50 minutes driving time from a teacher's place of residence is considered reasonable." The Appellant argues that, had the basis for the Review Request been travel time, then that provision would have had relevance. However, it did not, and that provision cannot be reasonably relied upon to excuse the Panel from properly considering the specific grounds raised by the Appellant.
  1. [60]
    The Decision extract reproduced at [57] above is certainly worded oddly and appears to indicate that regardless of whether the Appellant can evidence compassionate circumstances, that would not change the Decision because a placement within 50 minutes is considered reasonable. Clearly that position is at odds with the need to consider personal circumstances that preclude a teacher from moving and the need to consider whether a teacher has established reasonable grounds for refusing the transfer. To conclude that regardless of the circumstances the Appellant may present, the Decision is reasonable in light of the placement being within 50 minutes is not reasonably justified. This is a factor that supports the conclusion the Decision is not fair or reasonable.

Human rights

  1. [61]
    Section 58 of the HR Act provides:
  1. (1)
    It is unlawful for a public entity –
  1. (a)
    to act or make a decision that is not compatible with human rights; or
  2. (b)
    in making a decision to fail to give proper consideration to a human right relevant to the decision.

…

  1. (5)
    For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to –
  1. (a)
    identifying the human rights that may be affected by the decision; and
  1. (b)
    considering whether the decision would be compatible with human rights.
  1. [62]
    The Appellant contends the Department contravened s 58(1)(b) of the HR Act in failing to give proper consideration to a human right relevant to the Decision. The Appellant refers to the following human rights that she contends the Department should have considered:
  • protection from torture and cruel, inhuman or degrading treatment;
  • protection of families and children;
  • arbitrary interference with her family or home;
  • the right to liberty and security; and
  • the right to access health services without discrimination.
  1. [63]
    The Decision does not expressly refer to consideration of human rights.
  1. [64]
    In Hutchison v State of Queensland (Queensland Health),[12] Industrial Commissioner Pidgeon considered (citations omitted):
  1. [131]
    'Proper consideration' is not clearly defined in the HR Act or the Directive.  However, the test for proper consideration has been considered in relation to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which contains a provision similar to s 58(1) of the Qld HR Act stating that it is unlawful for a public authority in making a decision, to fail to give proper consideration to a relevant human right.  Castles v Secretary of the Department of Justice [2010] VSC 310 states that proper consideration involves:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of the justification, proper consideration will involve balancing competing private and public interests.  There is no formula for such an exercise and it should not be scrutinised over-zealously by the courts.

While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.[13]

  1. [132]
    It is clear that the simple inclusion in a decision of a sentence to the effect that 'human rights have been taken into consideration' does not provide the person affected by the decision with any useful information. However, I do not think that it is necessary that a decision maker write in great detail about the consideration of human rights undertaken in relation to decisions being made. 
  1. [133]
    If the decision maker comes to the conclusion that the human rights of the employee are not interfered with as a result of the decision, the inclusion of a statement to this effect may provide some confirmation to the employee that 'proper consideration' has occurred.  Indeed, it would only be proper for the decision maker to include such a statement if they had properly considered the employee's human rights.
  1. [134]
    The Respondent has argued that in the event that it has acted to limit Ms Hutchison's human rights, this 'was reasonably and demonstrably justifiable pursuant to section 13 of the HR Act'.  I note that this was a submission made in reply for these proceedings and not the position of the decision maker in the decision of 24 June 2021. 
  1. [135]
    If the decision maker determines that human rights have been limited but that this is permissible under s 13 HRA, it is necessary to explain this reasoning to the employee.  Likewise, it may be the case that the decision maker decides that s 58(2) of the HR Act is relevant and that:

Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of the statutory provision, a law of the Commonwealth or another State or otherwise.

However, in such a case, 'proper consideration' would involve explaining this to the affected employee.

  1. [136]
    The HR Act and the relevant Directive and policy places the obligation on the decision maker to give proper consideration to human rights. However, it is also open to an employee responding to a show cause notice to bring to the decision maker's attention any information regarding the specific human rights that the employee believes are relevant and should be taken into account by the decision maker.
  1. [137]
    With regard to the statement included in the letter and set out at [126], one may infer that Ms Gallagher gave consideration to the relevant sections of the HR Act and determined that they had no impact on the decision.  However, it is unclear if this is the case.  Additionally, the statement refers only to the consideration of human rights with regard to the proposed disciplinary action. This leaves the reader to infer that in order to come to the proposed disciplinary action, human rights were properly considered in first establishing the ground for discipline. 
  1. [138]
    It may be that Ms Gallagher should have provided more detail about the proper consideration of human rights undertaken in making the decision. However, there is no evidence before me to suggest that Ms Gallagher did not consider Ms Hutchison's human rights in making the decision. I have given consideration to all of the material before me, including the submissions of Ms Hutchison with regard to her human rights. I cannot find that any of the factors raised can serve to interfere with the finding that the allegation was substantiated and that grounds for discipline were established.  When considering all of the facts in this matter, I cannot find that Ms Gallagher's statement regarding consideration of human rights serves to make the decision unreasonable. Given this, I see no utility in returning this decision to the decision maker to undertake the exercise of reissuing it with an expanded explanation regarding the consideration of human rights. 
  1. [65]
    The Respondent has not provided the Appellant with any useful indication of whether human rights have been taken into account and unhelpfully does not address this issue in their written submissions either. However, similar to Industrial Commissioner Pidgeon's conclusion in Hutchison v State of Queensland (Queensland Health),[14] I do not think it is always necessary for a decision-maker to write in great detail about the consideration of human rights particularly if the decision-maker has come to the conclusion that human rights are not interfered with. I also accept that it would have been open to the Appellant to raise specific human rights that the employee believed were relevant and ought to have been taken into account. The Appellant in subsequent submissions has referred to several human rights, however on the face of the submissions, it remains unclear how those rights would be interfered with in a matter of this nature.
  1. [66]
    I have considered the submissions presented by the Appellant with respect to her human rights and I cannot identify that any of the matters raised interfere with the conclusion that the Appellant did not present a reasonable ground to the satisfaction of the chief executive that would warrant cancellation of the transfer. Similarly, in consideration of the totality of matters, I do not accept the Appellant's submissions regarding consideration of human rights renders the decision unreasonable. Alike in Hutchison v State of Queensland (Queensland Health),[15]  and in light of my own conclusions above, I see no utility in returning the Decision to the decision-maker to reissue the Decision with an expanded explanation regarding the consideration of human rights.

Conclusion

  1. [67]
    In light of the following conclusions, I have found that the Decision was not reasonably open to the decision-maker:
  • the Decision does not adequately evidence consideration of the Appellant's personal circumstances;
  • the Decision was unreasonably expedited despite the Panel being put on notice that the Appellant had further supporting documentation to provide;
  • the unreasonable expedition of the Decision meant that the decision-maker was not presented with all of the evidence prior to making the Decision;
  • had the decision-maker reasonably awaited all of the evidence, the establishment of reasonable grounds to the satisfaction of the chief executive would have eventuated; and
  • the decision-maker erred in applying the test of distance in assessing reasonableness instead of providing a more fulsome assessment of all circumstances.
  1. [68]
    Based on the totality of the abovementioned factors, I conclude the decision-making process was unfair and the Decision lacked intelligent justification which rendered the outcome unreasonable.
  1. [69]
    I order accordingly.

Order

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

  1. 1.The appeal is allowed;
  2. 2.The decision that the Appellant be required to transfer is set aside; and
  3. 3.The transfer is cancelled.

Footnotes

[1]An alias has been used.

[2]Appeal Notice, 2 November 2022, 1.

[3]Director, Human Resources Business Partnering, South East Region.

[4]Regional Director, South East Region.

[5]Teacher Transfer Review Panel ("the Panel").

[6][2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[7]Schedule to Form 89 Appeal notice.

[8][2022] QIRC 455, 7 [20].

[9][2022] QIRC 232, 8 [31].

[10][2022] QIRC 458, 10 [44].

[11]Principal HR Consultant, Department of Education.

[12][2021] QIRC 317.

[13][2010] VSC 310, [185]-[186].

[14][2021] QIRC 317.

[15]Ibid.

Close

Editorial Notes

  • Published Case Name:

    ST v State of Queensland (Department of Education)

  • Shortened Case Name:

    ST v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 4

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    10 Jan 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
Benton v State of Queensland (Department of Education) [2022] QIRC 232
2 citations
Jump To
Cite 1 - [2022] QIRC 232
Cite 2 - [2022] QIRC 232
Castles v Secretary to the Department of Justice [2010] VSC 310
2 citations
Jump To
Cite 1 - [2010] VSC 310
Cite 2 - [2010] VSC 310
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
HL v State of Queensland (Department of Education) [2022] QIRC 458
2 citations
Jump To
Cite 1 - [2022] QIRC 458
Cite 2 - [2022] QIRC 458
Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317
3 citations
Jump To
Cite 1 - [2021] QIRC 317
Cite 2 - [2021] QIRC 317
Cite 3 - [2021] QIRC 317
Main v State of Queensland (Department of Education) [2022] QIRC 455
2 citations
Jump To
Cite 1 - [2022] QIRC 455
Cite 2 - [2022] QIRC 455
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332

Cases Citing

Case NameFull CitationFrequency
KB v State of Queensland (Department of Education) [2024] QIRC 1432 citations
1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.