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Clark v State of Queensland (Queensland Corrective Services)[2024] QIRC 112

Clark v State of Queensland (Queensland Corrective Services)[2024] QIRC 112

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clark v State of Queensland (Queensland Corrective Services) [2024] QIRC 112

PARTIES:

Clark, James

(Appellant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

PSA/2024/59

PROCEEDING:

Public Sector Appeal – Appeal against promotion decision

DELIVERED ON:

13 May 2024

MEMBER:

Caddie IC

HEARD AT:

On the papers

ORDER:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a promotion decision – where the appellant is permanently employed by the respondent as a Senior Advisor (AO6) – where the appellant applied for the Principal Advisor (AO7) role – where the appellant's application was unsuccessful – consideration of whether the recruitment and selection process was deficient – promotion decision confirmed

LEGISLATION:

Public Sector Act 2022 (Qld), ss 131, 133.

Industrial Relations Act 2016 (Qld), ss 562B, 562C.

Public Sector Commission Directive 04/23 – Appeals (1 March 2023).

Public Sector Commission Directive 07/23 – Recruitment and selection (26 June 2023), cls 9, 10.

Reasons for Decision

  1. [1]
    Mr James Clark ('the Appellant') is permanently employed by the State of Queensland (Queensland Corrective Services) ('the Respondent') as an AO6 Senior Advisor, Rehabilitation and Planning within the Community Corrections Division of the Respondent.
  1. [2]
    Mr Clark appeals a promotion decision in a recruitment process for the AO7 Principal Advisor, Service Planning and Impact role within Community Corrections.
  1. [3]
    The promotion of the successful appointee to the position of Principal Advisor was published by way of the Queensland Government Gazette on 8 March 2024.
  1. [4]
    The Appellant filed his appeal on 28 March 2024.

Is the Appellant entitled to appeal?

  1. [5]
    Section 131(1)(e) of the Public Sector Act 2022 (Qld) ('the PS Act') provides that a promotion decision is a type of decision against which an appeal may be made. Section 133(e) further provides a promotional appeal may be made by a public sector employee employed on a permanent basis, who is aggrieved by the decision, and is entitled to appeal under a Directive.
  1. [6]
    Directive 04/23 – Appeals ('the Appeals Directive') sets out requirements for promotion appeals at cl 10.
  1. [7]
    Mr Clark is a public sector employee employed on a permanent basis, who is aggrieved by the promotion decision.  The Appellant applied for the role subject of the decision and sought post-selection feedback in accordance with the relevant provisions.
  1. [8]
    I am satisfied that Mr Clark is a person who may appeal the promotion decision and that the Appellant lodged his appeal within 21 days following the public notification of the decision.

Appeal principles

  1. [9]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the 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. [10]
    For an appeal against a promotion decision, the Commission must decide the appeal having regard to the evidence before the decision-maker when the decision was made, but may allow other evidence to be considered if the Commission deems it appropriate.[1]
  1. [11]
    In deciding an appeal against a promotion decision, the Commission may only set the decision aside if it finds that the recruitment or selection process was deficient. In determining if the process was deficient, the Commission is required to have regard to whether the process complied with the PS Act, a regulation, or a directive made by the Public Sector Commissioner under that Act.[2]

Appeal grounds

  1. [12]
    In his application the Appellant outlines three grounds for appeal as follows (original emphasis):
  1. 1)
    The decision of the panel was not reasonable as it did not consider all relevant information.
  1. a)
    The role description[3] states that the position requires specialist knowledge and experience of rehabilitation which I have demonstrated, and that the successful candidate did not possess.
  2. b)
    The decision of the panel must have been premised either on the transfer of my knowledge and experience to another candidate, or on that candidate acquiring the knowledge.
  3. c)
    The first premise requires me to directly act against my own best interests in the recruitment process by supporting another candidate's application, post hoc. I believe that the panel applying this premise to their decision, either explicitly or implicitly, was unethical.
  4. d)
    If the panel's decision was not premised on the transfer of my knowledge, then it must instead consider the negative implications of another candidate independently acquiring the knowledge. I do not believe that this was considered as part of the decision.
  1. 2)
    The evaluation of the candidates was not fair or reasonable as it was not aligned with the role description.
  1. a)
    The role description for this appointment is highly technical in nature. The interview consisted of three questions relating to technical ability, project management, and strategic contributions. The role description does not include project management tasks, nor does it outline tasks that are strategic in nature. It is therefore unreasonable to assess candidates against unrelated topics rather than relevant questions focused on the role description.
  2. b)
    The three interview questions were weighted equally when assessing candidate performance. This weighting was not aligned to the tasks and essential requirements of the role description and so did not fairly assess candidates' suitability for the role.
  3. c)
    I was disadvantaged by this evaluation as I prepared my responses to the interview questions in alignment with the tasks and essential requirements of the role description.
  1. 3)
    The recruitment process was faulty because the role description lacked important information for candidates.
  1. a)
    Under the heading "Role fit", the role description states that "the ideal applicant will be someone who can competitively demonstrate their knowledge, skills and experiences and their suitability against the Leadership competencies for Queensland (Individual Contributor): Vision, Results and Accountability in the context of the essential requirements for this role:"
  2. b)
    The role description then does not provide any competencies or behavioural indicators from the Leadership Competencies for Queensland.
  3. c)
    This was likely an error in the preparation of the document, but I was disadvantaged by this error as I was not able to address the relevant behavioural indicators in my application or review.

Respondent's submissions

  1. [13]
    The Respondent submits the Appellant has failed to identify any appealable deficiency in the process. Rather, they state the process was not deficient as it complied with both s 45 of the PS Act and the Recruitment and Selection Directive (Directive 07/23) ('the Directive').
  1. [14]
    More specifically, the Respondent states that the position was advertised on the SmartJobs website for the required period and provided the required information in accordance with the Directive.
  1. [15]
    Further, the process undertaken for the position included shortlisting of written applications and interviews conducted by a panel, properly comprised. The Appellant was shortlisted and was interviewed by the panel on 27 November 2023.
  1. [16]
    The Respondent notes that the following techniques were used to assess applicant suitability against the role requirements:
  1. a)
    Assessment of written applications against essential requirements as stated in the role description to form a shortlist.
  2. b)
    Interview of shortlisted applicants provided 15 (sic.)[4] minutes perusal and 30 minutes to respond to three structured questions that related directly to the selection criteria/role requirements and included workplace scenario and behavioural based questions.
  3. c)
    Pre-employment checks of the recommended candidate that included two referees' reports and a serious discipline declaration.
  1. [17]
    The panel considered each applicant's abilities, aptitude, skills, qualifications, knowledge, past experience, and other personal qualities relevant to the selection criteria of the position. This included assessing the shortlisted applicants' written applications and interview performance, which were summarised within a selection report.[5]
  1. [18]
    Each panel member completed a conflict of interest and professional knowledge declaration, in which professional knowledge was declared and mitigation strategies proposed and endorsed by the decision maker.
  1. [19]
    On 18 January 2024, the Appellant was advised that they had been unsuccessful on this occasion.
  1. [20]
    The Appellant sought feedback, and a meeting was arranged with the panel Chair on 29 January 2024 to discuss this. Written feedback was subsequently provided at the request of the Appellant.
  1. [21]
    In relation to the specific grounds for the Appeal the Respondent submits:
  1. 27.
    The Appellant's first point of their application suggesting the panel did not consider all relevant information has no supporting evidence whereas the selection report demonstrates the panel did consider all relevant information presented to them as it related to the role requirements.
  2. 28.
    In response to point two of the Appellant's application, QCS submits that the role description does align with the interview questions noting dot point seven of the essential requirements for this role on page 3 states "Strong project management skills including coordination or (sic.) priorities and meeting timeframes in an agile environment."
  3. 29.
    In response to point three of the Appellant's application, QCS can confirm that the Leadership Competencies for Queensland are hyperlinked in the role description on Smart Jobs denoting that the Appellant was able to, either follow the link, or online search these competencies to address them.
  4. 30.
    QCS has followed the recruitment process and selection decisions outlined in the R&S Directive.
  5. 31.
    The R&S Directive sets out that selection decisions must ensure that the eligible applicant best suited to the position is selected, as provided for in section 45 of the PS Act.
  6. 32.
    QCS panel shortlisted four candidates and following this, interviewed four.
  7. 33.
    QCS considers that all questions posed to all shortlisted applicants were consistent and directly related to the role requirements.
  8. 34.
    The R&S Directive requires that the assessment of why a person is the eligible applicant best suited to the position is to be clearly documented and include a comparative assessment where there is more than one applicant and an order of merit determined.
  9. 35.
    The selection report for the process provided sufficient detail regarding the recruitment strategies and the suitability of the recommended applicants in comparison to other applicants, which ultimately informed the decision made in this process.
  10. 36.
    All selection information was considered, not just the interview process as in line with the R&S Directive. The candidate's qualifications and backgrounds were inspected. Detailed assessments of these are apparent in the selection report.

Respondent's requested outcome

  1. [22]
    The Respondent seeks that the appeal should be dismissed.

Appellant's submissions

  1. [23]
    The Appellant submits in reply that he has fundamentally been performing key duties associated with the higher-level role for some time.
  1. 3.
    Prior to the appointment of Ms Alix Brewen (sic.) to the position of Principal Advisor, Service Planning and Impact, the processes and systems employed by the ORMS business unit, including the process for annual planning, performance reporting, and standards for data analysis were all designed, implemented, and operated by me in my role as Senior Advisor, Operational Performance.
  1. [24]
    The Appellant submits the process does not comply with the Directive or the QCS Practice Guideline[6] in two significant ways. Firstly, the process did not align with the requirements of the role description and was therefore unfair; and, secondly, the panel did not consider all relevant material particularly the Appellant's experience and past performance of key elements of the role.
  1. 8.
    The position is defined by the position description, so therefore any process not based on the specifics of the position description cannot select the applicant best suited to the position and therefore fails to comply with the R&S Directive.
  2. 9.
    I submit that failing to comply with the R&S Directive was a fundamental deficiency in the recruitment and selection process that resulted in unfair treatment of my candidacy.
  3. 10.
    I note that the Respondent has a current Recruitment and Selection People Capability Operational Practice Guideline (Attachment 1) which is intended to ensure that recruitment and selection processes comply with all obligations required by legislation, directive or QCS policies.
  4. 11.
    I note that on page 15, paragraph 11, the Recruitment and Selection People Capability Operational Practice Guideline states that "Interview questions must be based on the requirements of the position".
  5. 12.
    I submit that the Recruitment and Selection People Capability Operational Practice Guideline demonstrates that the Respondent was aware of the necessity of ensuring that the interview questions are entirely aligned with the position description.
  6. 13.
    I submit that the Respondent did not comply with their own Operational Practice Guideline and that failure to do so constitutes a serious deficiency in the recruitment process.
  7. 14.
    I consider that the Respondent has not demonstrated that the recruitment panel considered all relevant information in making the decision to appoint the successful candidate.
  8. 16.
    I submit that there was other highly relevant information available to the panel including my resume, and past performance in the responsibilities of the role, that showed I had already been successfully undertaking the position's responsibilities for three or four years.
  9. 17.
    The Respondent's submission does not show that the panel considered that I had a demonstrated capability to successfully undertake the responsibilities of the position whereas the successful candidate did not have this knowledge or experience.
  10. 18.
    I consider that the recruitment and selection process was deficient as it failed to consider all the relevant information on which to base a decision.
  1. [25]
    The Appellant then provides more detail as to why, in his submission, the process was clearly deficient in these two areas. With regards to the first issue, the Appellant submits:
  1. 23.
    In response to paragraph 28 of the Respondent's submission, I submit that alignment against a minor element of the position description does not constitute genuine alignment, nor does it justify assigning this minor element a weighting of 33% of the total interview score.
  2. 24.
    The position description lists eight essential requirements and only the second last of them relates to project management. The position description further lists another 14 (sic.)[7] responsibilities, none of which relate to project management.
  3. 25.
    I submit that basing a third of the interview scoring on a minor element of the position description was disadvantageous to me and could not fairly inform a decision about the most suitable candidate.
  4. 26.
    I note that the Respondent did not contradict my submission that the third interview question, which pertained to strategic thinking, did not align with the position description. I submit that this was because the statement is correct and could not be refuted.
  5. 27.
    I submit that the second and third interview questions did not align with the position description and that this state made the process unfair to me and contravened the R&S Directive.
  6. 28.
    I note that the Respondent has not shown any evidence of how the interview questions were crafted and what steps were taken to ensure that the questions were proportionate and properly aligned to the position description.
  7. 29.
    In response to paragraph 29, I note that while the hyperlink in the position description did lead to the Leadership competencies for Queensland webpage, the position description itself does not indicate which of the competencies are related to the position.
  8. 30.
    There are 46 behavioural indicators under the "Individual Contributor" section of the Leadership Competencies for Queensland. The Respondent's assertion that I could "search" these competencies to determine which of them I should address in the interview is frankly bizarre.
  9. 31.
    I submit that a properly crafted position description would list eight to twelve behavioural indicators, selected based on their alignment to the position responsibilities, under the three major groupings in the framework.[8] I have attached a position description for an unrelated but similar position to illustrate this (Attachment 2).
  10. 32.
    I submit that this supports my assertion that important information was left out of the position description, and that the lack of this information disadvantaged my application.
  11. 33.
    In the Respondent's attachment, I note that the email from Ms Stacey Ireland, dated 13/11/2023, indicates that the Leadership Competencies for Queensland behavioural indicators were used to draft the benchmark indicators[9] for the selection process, despite them being absent from the position description.
  12. 34.
    The Respondent has not provided evidence of what process was used to select these behavioural indicators nor what steps were taken to ensure that they accurately aligned with the position description.
  13. 35.
    I submit that the benchmark indicators in the Respondent's Attachment do not align well with the position description and that they at best distort, or outright excise, important elements of the position description.
  14. 36.
    I note that benchmark indicator five in the Respondent's Attachment includes a requirement for candidates to display a "demonstrated ability to think and plan strategically".
  15. 37.
    I note that one of the essential requirements of the role is "Demonstrated ability to think and plan strategically to resolve issues, inform decision making and identify and implement business improvement initiatives".
  16. 38.
    I submit that separating the element "demonstrated ability to think and plan strategically" from the purposes and outcomes stated in the essential requirement resulted in a gross distortion of the interview questions and the resultant evaluation of candidate responses.
  17. 39.
    This is evidenced by the successful candidate and I both citing the opening of an $861 million dollar prison construction project as a strategic priority, despite the essential requirement of the position clearly indicating that it was intended to support activities at the level of "business improvement initiatives", not multi-million dollar capital works programs.
  18. 40.
    I submit that it was this failure to adequately align the selection of benchmark indicators with the position description that caused the interview questions to be similarly and grossly misaligned with the position description.
  19. 41.
    I note that benchmark indicator five in the Respondent's Attachment also lists the requirement for "Strong project management skills".
  20. 42.
    I submit that the fifth benchmark indicator in the Respondent's Attachment, "Strong project management skills, including a demonstrated ability to think and plan strategically" was ultimately used as the sole basis for interview questions two and three, despite it only being one benchmark indicator among seven.
  21. 43.
    I submit that this effectively made benchmark indicator five the sole determinant for the interview outcome as questions two and three held a combined weighting of 67%.
  22. 44.
    I submit that the recruitment process used one misaligned benchmark indicator as the sole basis for two thirds of the interview scoring and that this process is fundamentally unfair and inadequate to determining my suitability for a position.
  23. 45.
    I submit that I was being evaluated against a standard that wasn't disclosed to me, didn't align with the position description, and which represented only one of the seven benchmark indicators available to the panel.
  1. [26]
    With regards to the second issue, the Appellant submits:
  1. 19.
    I note that the page 4 of Recruitment and Selection People Capability Operational Practice Guideline states that the suitability criteria applied to the recruitment and selection of public sector employees must consider "the way in which each eligible applicant carried out any previous employment" and "the potential of each eligible applicant to make a contribution to each entity".
  2. 20.
    I submit that the Respondent was obligated to consider these factors in order to identify the most suitable candidate.
  3. 21.
    I submit that, had the Respondent done so, the consideration of these factors would have identified that I was able to immediately undertake the responsibilities of the position and that the other candidates would require a substantial period of training and upskilling to do the same.
  4. 22.
    I submit that the capability to immediately undertake the responsibilities of the position was highly relevant to the selection of the most suitable candidate and that the panel did not include this information in their decision.

Appellant's requested outcomes

  1. [27]
    The Appellant seeks an order for the Respondent:

… to repeat the interview process with interview questions and benchmark indicators that are properly aligned with the responsibilities and essential requirements of the position, and to reconsider my suitability for the role.

Respondent's submissions in reply

  1. [28]
    In summary, the Respondent states the Appellant's submissions are misconceived as:
  • The role is new to the structure and has not been performed by anyone;
  • The role description and interview questions do align;
  • Candidate employment history and resumes were considered appropriately in the process to short-list candidates;
  • The benchmark indicators were also used in the shortlisting process;
  • The benchmark indicators were based on the position description and the Leadership Competencies for Queensland Framework;[10]
  • The relevant part of the Framework was easily accessible by a hyperlink and was not required to be listed out in the position description;
  • The PS Act and the Directive do not stipulate requirements for weighting in interview questions; and
  • The interview questions were based on the requirements of the role.
  1. [29]
    In conclusion, the Respondent maintains the Appellant "has failed to identify any deviations from the Public Sector Act 2022 and the Recruitment and Selection Directive 07/23 during this recruitment process.”

Consideration

  1. [30]
    While the Appellant's arguments in support of the three grounds of appeal have become more nuanced over its course, they relate to two broad contentions of a deficient process underpinned by a confidence that had these issues not existed, the Appellant would have emerged as the best suited and job ready candidate.
  1. [31]
    Before delving into those issues, I will address the issues not in contention.
  1. [32]
    There is no material before the Commission to suggest that the advertising process, the panel composition, the declaration and mitigation of conflict process, pre-employment checks, or the provision of feedback did not align with the PS Act and the Directive. My own review of the material confirms the steps and timeframes have been complied with.
  1. [33]
    The two significant issues as submitted by the Appellant relate to the selection process not being aligned to the role requirements and therefore unfair; and the failure of the panel to consider all relevant material.

Issue One – The selection process was not aligned to the requirements of the role:

  1. [34]
    In the notice of appeal, the Appellant in summary contends that the process was not based on the requirements of the role in the following ways:
  • The interview questions were not directed to the most significant part of the role, with only one of the three questions being about technical ability;
  • Each of the three questions were weighted equally, and were not aligned to the tasks or essential requirements of the role, leading to unfair assessment;
  • The position description does not require project management tasks or tasks that are strategic in nature, therefore it was unreasonable to assess candidates against these unrelated topics.
  1. [35]
    The Appellant submits that this led to him being disadvantaged, as he prepared his responses to the interview questions in alignment with the tasks and essential requirements of the role.
  1. [36]
    Related to this issue, but listed as its own appeal ground, is the purported failure of the role description to contain specific competencies or behavioural indicators from the Framework. The Appellant argues he was disadvantaged as he was not able to address the relevant indicators in his application or interview. The Appellant submits that this caused the recruitment process to be faulty.
  1. [37]
    Following Respondent submissions that project management skills were listed as an essential role requirement, the Appellant submits they are minor only – due to their placement second last in the list of eight essential requirements, and not being found in the list of 12 responsibilities. The Appellant also asserts the Respondent's failure to dispute that strategic thinking was an unrelated topic meant that the point was conceded. This completely ignores the fact that "demonstrated ability to think and plan strategically" is also on the list of the eight essential requirements. 
  1. [38]
    The argument regarding the non-aligned process was also broadened out to capture the benchmarks used to short-list candidates. The Appellant contends that the linking together of project management and strategic thinking as a single benchmark infected the interview questions chosen, leading to a distortion of the interview process and rendering the entire process flawed.
  1. [39]
    I do not accept any of these submissions in relation to Issue One for the reasons that follow. 
  1. [40]
    Under the heading of "Role Fit", the role description includes, inter alia, a list of essential requirements and other requirements. The Appellant states in his appeal notice that he prepared for the interview based on the tasks and essential requirements of the role. The Appellant states he was disadvantaged in this approach, as two of the three questions asked at interview were unrelated to the role. This is not correct, as they are based on requirements clearly appearing in the essential list, covering off areas that his preparation would, by his own submission, have accounted for.
  1. [41]
    The Appellant has then shifted the argument to, what I will describe as, 'relative essentialness': Where the position of the requirement in the list and the proportion of times the requirement appears elsewhere in the role description impacts how essential it is. There is nothing in the document itself that supports either contention – that there is a descending order of essentialness, or that essential requirements should be less essential when measured against the tasks required to be performed in the role. To be on the list, the requirement must simply be essential.
  1. [42]
    For this reason, it does not strike me as a failure of the process if a candidate overlooked essential requirements in their preparation that were used as the basis for interview questions.
  1. [43]
    Section 44 of the PS Act sets out the principles that must underpin recruitment and selection processes:
  1. 44
    Principles underpinning recruitment and selection
  1. (1)
    The purpose of this section is to ensure the recruitment and selection of a high-performing, apolitical and representative public sector workforce
  2. (2)
    A person undertaking a recruitment and selection process in a public sector entity, including, for example, making a decision about employment of a public sector employee, must undertake the process in accordance with the principles mentioned in subsection (3).
  3. (3)
    The principles are—
  1. (a)
    recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and
  2. (b)
    recruitment and selection processes must be fair and transparent; and
  3. (c)
    recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.
  1. [44]
    The essential requirements for the role that underpinned the interview questions were clearly spelled out in material provided to the applicants and were logically relevant to the identification of suitability.
  1. [45]
    The Directive sets out the ways in which recruitment and selection processes must be carried out, including how the principles must be applied. The selection panel as defined in the Directive is responsible for conducting the recruitment and selection process, including assessment of applicants, and making a recommendation about employment to the decision maker.
  1. [46]
    The QCS Practice Guideline attached to the Appellant's submission requires that prior to interviews, the selection panel is to develop and agree on the structure "and a set of core questions to be asked of each candidate which are relevant to the essential criteria required to fill the role."[11] (emphasis added).  The section referred to by the Appellant stipulating that questions must be based on the requirements of the position[12]  is to ensure that non-role related requirements are not incorporated into the process, thereby rendering the selection tool potentially invalid. That is not the case here.
  1. [47]
    This also addresses the contention by the Appellant that project management and strategic planning and thinking, as ‘non-role related requirements’, or ‘less essential, essential requirements’, should not have carried equal weight as the 'technical' requirements in the interview. While I agree with the Respondent that there are no rules on the weighting of questions in the PS Act or the Directive, it might have followed that if these questions were indeed based on non-role requirements, there would have been an issue if included and weighted equally to role related requirements. Again, that is not the case here as these requirements are not only role related – they are also essential.
  1. [48]
    Moving to the purported flaw in the role description whereby the specific competencies and behavioural indicators from the Framework were not listed out, I note the role description does include the following guidance under the heading of Role Fit (original emphasis):

Within the context of the role responsibilities described above under "About the role”, the ideal applicant will be someone who can effectively demonstrate their knowledge, skills and experiences and their suitability against the Leadership competencies for Queensland (Individual Contributor) (Original emphasis and original hyperlinked): Vision, Results and Accountability in the context of the essential requirements for this role: …

  1. [49]
    This is repeated in the 'How to apply' section of the role description asking applicants to specifically address these competencies as part of the application process (original emphasis):

To be considered for this role, please provide the following information to the selection panel for assessment of your suitability

  • A cover letter of 1-2 pages maximum outlining how your knowledge, skills and experience make you a competitive candidate against the Leadership competencies for Queensland (Individual Contributor): Vision, Results and Accountability within the context of the essential requirements 'role fit' and responsibilities described under 'about the role'.
  • Your current curriculum vitae/resume …
  1. [50]
    While it might be easier to address particular competencies in the context of the role responsibilities and essential requirements if they were listed out for potential applicants,[13] that does not make it a necessary requirement.  The Directive relevantly provides:

Role design and description

…

  1. 7.8
    Role descriptions should accurately reflect the requirements of the position, such as the set of skills, abilities and qualities required to undertake the position, and whether it is an identified role and/or has any mandatory conditions or qualifications.
  2. 7.9
    Role descriptions should be accessible and inclusive, and must reflect the holistic set of skills, capabilities, qualities and attributes required to undertake the position (with or without reasonable adjustments), including, for example:
  1. a.
    technical skills and knowledge
  2. b.
    leadership and strategic abilities
  3. c.
    ability to contribute to an entity's cultural capability and/or culture of respect and inclusion
  4. d.
    mandatory qualifications and/or conditions (including any attribute(s) an applicant must possess for an identified role).
  1. [51]
    The role description contains a direct link to the relevant competencies, alongside contextual information about the way they relate to other role requirements. This is consistent with the features a role description should have. Additionally, the inclusion of the instruction to potential applicants to address how their own knowledge, skills and experience make them competitive against the competencies, provided sufficient information for potential applicants to apply. It is not contested that 11 applications were received, including one from the Appellant.
  1. [52]
    To the extent there was any disadvantage from a decision not to list out specific competencies or behavioural indicators, it would have impacted all applicants equally and would not have led to an unfair distortion of the process for the Appellant. The Appellant did submit a complying application, and the Appellant was one of four applicants shortlisted as competitive candidates for the role. This supports a conclusion that there was no such disadvantage.
  1. [53]
    Finally for Issue One, I turn to the question of the impugned benchmark indicators.
  1. [54]
    The Respondent's submissions and other filed material describes the way the indicators were developed and deployed in the selection process.  The selection report identifies the following (emphasis removed):
  1. 1.
    Shortlisting informed by benchmark indicators as established by the panel prior to shortlisting. This involved a review of the candidates (sic.) resume and 1-2 page cover letter. Shortlisting occurred on 21st November 2023 with relevant scoring available in Attachment 1.
  1. [55]
    An email from the panel Chair to other panel members, dated 13 November 2023, provides a draft list of benchmarking indicators and relevantly states (emphasis added):[14]

In preparation for shortlisting for this position, could you please cast your eyes over these benchmarking indicators that I have drafted? We will use these to determine who goes through to interview.

The indicators are based on the leadership competencies for QLD and role description (attached).

…

  1. [56]
    It is clear from the Selection Report and the email to the panel that the benchmarking indicators were used as a selection tool for the shortlisting phase of the process. It is also clear that the list was derived from the leadership competencies and the role description. It is objectively incorrect that the leadership competencies were absent from the position description, as the link to the relevant competencies was embedded.
  1. [57]
    Attachment one to the selection report shows how scores were allocated to each of the applicants based on the moderated review of their cover letter and resume against the benchmarking indicators. It was through this process that the Appellant, the successful candidate, and two other candidates were selected to proceed to interview.
  1. [58]
    I do not agree with the Appellant, to the extent I comprehend what is being argued, that the construction of the shortlisting benchmarks bears a direct – if any – relationship to the interview questions that were asked and their relative weighting. The argument is rejected by the Respondent and is not evident from any of the material before the Commission other than by assertion of the Appellant.

Issue Two – the panel failed to consider all relevant information

  1. [59]
    The Appellant contends that the process was flawed, as relevant information related to his suitability was not properly considered. The Appellant further argues that the Respondent's own QCS Practice Guideline mandated the consideration of certain factors which were not taken into account, including his performance in his current role which the Appellant asserts incorporates key elements of the higher-level position.
  1. [60]
    The Respondent submits it has complied with all requirements of the Act and the Directive, and the selection report provides details of the process undertaken and relative assessment of each of the candidates in the process.
  1. [61]
    While there is no doubt the Appellant genuinely believes he is the best suited candidate for the role; his written cover letter, along with the experience, knowledge and skills outlined in his resume, were considered directly by the panel as part of the selection strategy for shortlisting. The scoresheet from that process demonstrates the Appellant achieved a rating of "met or exceeded" in five out of seven benchmarks, and a rating of "did not meet but transferable skills and potential evidenced" in the remaining two. Then, through the interview process, each candidate had the opportunity to peruse and respond to the same three questions linked to essential requirements of the role. This was another opportunity for each candidate to highlight how their current and previous experience in the context of each question demonstrated their suitability for the role.
  1. [62]
    The panel assessed responses to the interview questions, and a moderated weighted score was applied to each candidate for each question. The Appellant received the second highest score but was not considered as suitable for permanent employment to the role.
  1. [63]
    The Appellant was afforded the same opportunity as every other candidate in this process, and the same category of information was assessed for each candidate at each stage of the process. I see no evidence that demonstrates the process and information relied on did not comply with the requirements of the PS Act and the Directive.
  1. [64]
    The Appellant does raise an issue about what he says is a mandatory requirement in the QCS Practice Guideline that was not undertaken.[15]
  1. [65]
    This directly references a relevant provision from the PS Act that provides (emphasis added):
  1. 45
    Employment on merit and for equity and diversity
  1. (1)
    A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.
  2. (2)
    In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity—
  1. (a)
    must consider each eligible applicant's ability to perform the requirements of the position; and
  2. (b)
    may consider —
  1. (i)
    the way in which each eligible applicant carried out any previous employment; and
  2. (ii)
    the potential of each eligible applicant to make a future contribution to the entity; and
  3. (iii)
    the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2, including, for example, the objectives, strategies and targets stated in the entity's equity and diversity plan.
  1. [66]
    The requirement he raises, to consider previous employment and future contribution is not mandatory. Rather, the mandatory requirement is to assess each eligible applicant's ability to perform the requirements of the position, which has demonstrably been undertaken in this process.
  1. [67]
    For the reasons given above, I find that Mr Clark has not demonstrated that the selection and recruitment process was deficient. I am satisfied the process complied with the relevant sections of the PS Act, the Directive and the Respondent's internal recruitment and selection procedure. The decision was fair and reasonable.

Order

  1. 1.
    The decision appealed against is confirmed.

Footnotes

[1]Industrial Relations Act 2016 (Qld) ('IR Act') s 562B(4).

[2]Ibid s 562C(2).

[3]Respondent's submissions in reply filed 24 April 2024 ('Respondent submissions in reply'), Attachment 1 – Role description ('role description').

[4]The selection report specified 10 minutes: Respondent's submissions filed 10 April 2024 ('Respondent's submissions'), Attachment 6: Selection Report ('selection report').

[5]Ibid.

[6]Appellant's submissions filed 17 April 2024, Attachment 1 – QCS Recruitment and Selection People Capability Operational Practice Guideline ('QCS Practice Guideline).

[7]There were twelve responsibilities.

[8]Respondent's submissions in reply (n 3), Attachment 1 – Leadership Competencies for Queensland Framework ('the Framework').

[9]Position benchmarking indicators: Respondent's submissions (n 4), Attachment 1 – Draft Benchmark Indicators (email) ('benchmark indicators').

[10]The Framework (n 8).

[11]QCS Practice Guideline (n 6), p 15.

[12]Paragraph 11 of the Appellant's submissions, quoted above at [24].

[13]For example, the Appellant attached to his submissions an example role description used by the Department of Education.

[14]n 9.

[15]Paragraph 19 of the Appellant's submissions, quoted above at [26].

Close

Editorial Notes

  • Published Case Name:

    Clark v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Clark v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2024] QIRC 112

  • Court:

    QIRC

  • Judge(s):

    Caddie IC

  • Date:

    13 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Walsh v State of Queensland (Queensland Police Service) [2025] QIRC 1772 citations
1

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