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Benesovsky v State of Queensland (Department of State Development and Infrastructure)[2024] QIRC 127

Benesovsky v State of Queensland (Department of State Development and Infrastructure)[2024] QIRC 127

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Benesovsky v State of Queensland (Department of State Development and Infrastructure) [2024] QIRC 127

PARTIES: 

Benesovsky, Anne-Marie

Appellant

v

State of Queensland (Department of State Development and Infrastructure)

Respondent

CASE NO:

PSA/2024/25

PROCEEDING:

Public Sector Appeal – Fair Treatment

DELIVERED ON:

20 May 2024

HEARING DATE:

On the papers

MEMBER:

Pratt IC

HEARD AT:

On the papers

ORDER:

The appeal is dismissed

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – FAIR TREATMENT DECISION – where appellant not coping in role and raised grievances – where appellant lodged a grievance that sought a review of the requirements of the role – where the Appellant sought Job Evaluation Management System ('JEMS') evaluation of the role – where appellant sought an assessment of suitability following JEMS evaluation of the role – where respondent reviewed the requirements of the role and revised the role – where respondent's JEMS evaluation of revised role found that the original role and the revised role were not materially different – where respondent refused appellant's request for independent comparison of the original role and the revised role – where respondent refused assessment of suitability following JEMS evaluation of the role because such an assessment was premature and unnecessary – whether decision following the JEMS evaluation that the original role and revised role  not materially different fair and reasonable – whether decision that assessment of suitability premature and unnecessary fair and reasonable – where decision following the JEMS evaluation that the original role and revised role not materially different held to be fair and reasonable – where decision that assessment of suitability premature and unnecessary held to be fair and reasonable – where appellant raised a miscellany of other issues not in initial grievance – where respondent submits the miscellany of other issues not raised in the initial grievance irrelevant – where miscellany of other issues not raised in the initial grievance but raised in the decision generally held to be relevant – where miscellany of issues not raised in initial grievance and not raised in the decision irrelevant.

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 562B.

CASES:

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16.

Gilmour v Waddell & Ors [2019] QSC 170.

Minister for Immigration and Citizenship v Li [2013] HCA 18.

Pope v Lawler [1996] FCA 1446.

Rycroft v State of Queensland (Queensland Health) [2021] QIRC 134.

State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3.

Williams v State of Queensland (Queensland Health) [2022] QIRC 90.

Reasons for Decision

  1. [1]
    Ms Anne-Marie Benesovsky ('the Appellant') appeals a fair treatment decision ('the Decision') that was made by Mr Andrew Harris, Executive Director of the Office of Industrial Relations ('OIR'), on 30 January 2024 pursuant to ss 130 to 133 of the Public Sector Act 2022 (Qld) ('PS Act'). The appeal was lodged on 19 February 2024 and so was lodged within time.[1]

Relevant background

  1. [2]
    The Decision is essentially in response to a grievance that the Appellant lodged in April 2023 ('the Grievance').  However, the Grievance itself has a much longer history.
  1. [3]
    In May 2020, the Appellant took up the role of Manager, Information Management (AO8), which was described in a position description ('PD') bearing that title ('Original PD'). The role reported to the Director of Information Communication and Technology Services ('ICTS').
  1. [4]
    About year after taking up the role, the Appellant stated that she was not coping in the role. She sought a review of the Original PD on the basis that the role was broader than what the Appellant had understood it to be.
  1. [5]
    Three months after that, the Appellant's behaviour became the subject of a complaint after an incident occurred at work. The Appellant then took a period of about nine months of sick leave, after which the Respondent, in July 2022, helped the Appellant to gradually return to work, albeit in an alternative role. A month later, the Appellant inquired as to why she had not been returned to her substantive role.
  1. [6]
    On 18 April 2023 the Appellant lodged the Grievance. The Grievance principally sought a review of the Original PD to ensure that it reflected the full scope of the requirements of the role, as well as a Job Evaluation Management System ('JEMS') evaluation of the role.
  1. [7]
    Pursuant to the Grievance, if the result of the JEMS evaluation was that the Original PD was an AO8 role, then the Appellant sought an assessment of her suitability for the role. And if the Appellant was deemed suitable, then the Appellant sought a to return to the role by utilising mediation between the ICTS Director and the Appellant. If deemed unsuitable, or if the Original PD was not an AO8 role, then the Appellant sought to invoke clause 6 of "Directive 1/22 – Supporting employees affected by workplace change" ('Directive 1/22'), which deals with actions following workplace change.
  1. [8]
    On 30 May 2023, Mr Jason Korenromp, Director of OIR, advised the Appellant in writing that a review of the Original PD and a JEMS evaluation would occur. Mr Korenromp directed the Director of ICTS to review the Original PD and prepare the required Job Analysis Questionnaire to sufficiently detail the requirements of the role.
  1. [9]
    In June 2023, the Original PD was reviewed by the ICTS Director and revised. That revision included a change to the title from "Manager, Information Management" to "Information Manager" ('Revised PD').
  1. [10]
    The Respondent then had a JEMS evaluation carried out on the Revised PD, which was completed in July 2023. The result of the JEMS evaluation was that the role described in the Revised PD had the same work value as the role as described in the Original PD – AO8. This result was communicated to the Appellant during a meeting conducted on 19 July 2023.
  1. [11]
    The Appellant then requested a formal independent comparison of the two PDs, amongst other requests. Those requests were set out in the Appellant's email to Mr Harris dated 25 October 2023. In relation to the PD, that email sought an acknowledgment that there was a need for the PD review. The basis for the Appellant seeking an independent comparison of the Original PD and the Revised PD was to see whether Directive 1/22 was enlivened. In relation to the Grievance, the email also alleged inaction over the Grievance and that this inaction was a significant psychosocial factor that contributed to the Appellant's mental health disorder.
  1. [12]
    The Appellant's 25 October 2023 email also had a miscellany of other requests. The Appellant requested a decision about whether a performance improvement plan should be utilised and a discussion about her ongoing role and reporting relationship. The Appellant also asked about the use of mediation moving forward. Finally, the Appellant sought an acknowledgement that, since returning to work on 5 July 2022, the Appellant had taken proactive steps to assimilate back into the workplace with no support or action taken by HR and others, including alleging a failure to place the Appellant in an ongoing, meaningful role.
  1. [13]
    The Appellant's 25 October 2023 email was formally acknowledged that day and the Appellant was asked if she wanted to meet and discuss the matter before taking a scheduled period of 11 weeks leave, which she was due at that time to take in only a matter of days. The Appellant declined the meeting request.
  1. [14]
    Two days after the Appellant returned from leave, Mr Harris met with her on 17 January 2024 and discussed her concerns. About two weeks later, on 30 January 2024, the Decision was issued. The Decision addressed both the issues raised in the Grievance and those subsequently raised in the Appellant's 25 October 2023 email.

The legal issue in this proceeding

  1. [15]
    Pursuant to section 562B(2) of the IR Act, the Commission must decide an appeal of this nature by reviewing the relevant decision.  Such appeals are by review, not re-hearing.  The relevant legal test for such appeals is whether the decision appealed against was fair and reasonable.[2] The legal issue in this proceeding is therefore whether the Decision was fair and reasonable. A review of a decision involves consideration of the decision making process and the material available to the decision maker at the time that the decision that was made.[3],[4]

The Decision

  1. [16]
    The Decision sets out the relevant history, including the above-mentioned requests contained in the Appellant's 25 October 2023 email. Mr Harris made a number of findings in the Decision.
  1. [17]
    Mr Harris found that the Original PD and the Revised PD were practically the same – that there were no material differences between the responsibilities and duties of the two PDs. The only difference was that the Revised PD had a more detailed and specific description of the role. Mr Harris rejected the assertion that there had been a shift in focus in the role from records management to including information management. And given the lack of difference between the two PDs, Mr Harris deemed that an independent evaluation of the differences between the two PDs was unnecessary.
  1. [18]
    Mr Harris then found that Directive 1/22 was not enlivened because there was no relevant "workplace change" as defined. Directive 1/22 only applied to "workplace changes", which are "decisions that affect the services and programs an agency delivers, its workforce structures and establishment". Mr Harris had no hesitation in finding that the Appellant's circumstances did not fall within this definition of "workplace changes".
  1. [19]
    Mr Harris also concluded that an assessment of the Appellant's skills and capabilities against the requirements of the role was premature and unnecessary. This conclusion was based on a number of grounds. First, the Appellant had not been in the role for some time – October 2021, to be exact - and so any assessment may not accurately reflect the Appellant's true skills and capabilities. To this point, Mr Harris noted that regard should be had to the Appellant's own view that her own skills and abilities were not up to par. Mr Harris concluded that it would be more appropriate to assess the Appellant after she was reintegrated into the role.
  1. [20]
    Second, no possible outcome of the assessment could enliven Directive 1/22 because this was not an instance of "workplace change" within the meaning of that term as defined in that directive.  Only "Directive 15/20: Positive Performance Management", ('Directive 15/20')  and s 85 of the PS Act, which both deal with individual performance management, could be enlivened by this assessment. And if Directive 15/20 and s 85 were enlivened, then the purpose of any assessment would be identifying ways to help the Appellant build up her expertise rather than enlivening Directive 1/22.
  1. [21]
    Mr Harris also responded to the Appellant's numerous other requests. As to the allegations of health and safety risks, Mr Harris concluded that it was appropriate to seek the help of the OIR's Health, Safety and Well-being team. Subject to that advice, and appropriate medical advice obtained through the use of relevant experts, Mr Harris decided that it was appropriate for consideration to be given to returning the Appellant to her substantive role.
  1. [22]
    As to the "lack of action" assertion, Mr Harris further concluded that it was not apt to describe as a "lack of action" the situation where a review of the role was eventually carried out in response to the Grievance in circumstances where OIR maintained, from the start, that no review was warranted.
  1. [23]
    Mr Harris also rejected the assertion that the Appellant was not given support and that no action had been taken by OIR to place the Appellant in "an ongoing, meaningful role". Mr Harris referred to and relied on a number of steps that had been taken by OIR to address the Appellant's concerns. Those steps included undertaking a review of the Original PD and a carrying out a JEMS evaluation as well as numerous discussions between the Appellant and Mr Harris in relation to options available regarding the role and the work the Appellant had been performing whilst temporarily appointed.
  1. [24]
    Finally, Mr Harris also addressed the allegation about a psychosocial risk assessment regarding a potential return to work, stating that he had sought advice from OIR's Health, Safety and Well-being team to ensure due consideration was given to the relevant medical advice concerning a return to work. Mr Harris reasoned that the information derived from those inquiries would be used to consider whether it would be appropriate to return the Appellant to the substantive role having regard to any risks identified.

Parties' submissions

Appellant's appeal notice

  1. [25]
    The Appellant submits that she misunderstood the nature of the role when taking it up in 2020. More specifically, the submission is that it was the Appellant's understanding when taking on the role that the "meaning of the term 'information management' was that it related to 'documents' and 'records', and 'information'; and [she] used the terms interchangeably."
  1. [26]
    The Appellant disagrees with the conclusion in the Decision that the two PDs are "not materially different". The Appellant seeks a finding that the Original and Revised PDs are substantially different roles and that the Decision was therefore wrong on this finding.
  1. [27]
    The Appellant contends that the JEMS evaluation concluding that the two PDs have the same work value does not mean that the roles are the same – that a specialist role may have the same work value as a more overarching or generalist role and that this is the situation in this case. The Appellant also submits that she was not concerned whether the role was at an AO8 level, but rather was concerned about the expectations of the ICTS director and whether these expectations exceed the Appellant's capabilities.
  1. [28]
    The Appellant now accepts Mr Harris' submission that Directive 1/22 is not applicable.
  1. [29]
    The Appellant submits that her 25 October 2023 email to Mr Harris became pivotal to the response provided in the Decision. The Appellant makes several submissions as to why she sent the email but does not clearly allege why this warrants a finding by the Commission that the Decision was not fair and reasonable.
  1. [30]
    The Appellant submits that she has never received a request to attend mediation, a facilitated discussion or any other meeting specifically aimed at discussing the role expectations, workplace behaviour or raise any other matters. The Appellant does not, however, state why that might warrant a finding by the Commission that the Decision was not fair and reasonable.
  1. [31]
    In relation to the "lack of action" allegation, the Appellant expresses the view that the "next steps" detailed in the Decision at pages 7 – 8 should have been offered in 2022, soon after the Appellant returned from mental health leave. I understand the submission to be that the offer of next steps in the Decision was so late that it's timing warrants a finding that this part of the Decision was not fair and reasonable.
  1. [32]
    The Appellant also made submissions about that part of the Decision setting out the history of the Appellant not wishing to meet prior to taking 11 weeks leave soon after her 25 October 2023 email. The Appellant submits that the statement in the Decision "implies that I was being difficult by refusing to discuss the matter in the 2 days before taking a long period of leave."
  1. [33]
    Under the heading of "Implication that I've been contrary and resistant", the Appellant also addresses that part of the Decision covering the Appellant's unwillingness to seek relevant information from her treating practitioner as requested. The Appellant submits that she declined to seek that information because she believed that nothing had changed in the workplace and that it was not her responsibility to initiate a request for updated information from her doctor.
  1. [34]
    The Appellant also submits that she did not ask for an independent assessment of her skills and capabilities against the requirements of the role. Rather, the submission is that the Appellant only asked for an independent comparison of the Original PD and the Revised PD. This submission was in response to the Decision stating that the Appellant requested an independent assessment in relation to her skills and capabilities against the requirements of the Information Manager role.
  1. [35]
    Under the heading of "other discrepancies", the Appellant submits that the Decision addresses the specific topic of the Grievance, however, it ignores the workplace issues that surround those raised in the Grievance. The submission appears to be that the Decision failed to consider a bigger picture. As best I can understand the submissions on this point, they can be summarised as an allegation that the Appellant was inadequately supported. This submission culminates in an allegation that a workplace issue involving specific individuals has caused the Appellant mental health issues and that OIR has not attempted to resolve the workplace issue, thereby adding stressors through a lack of action.
  1. [36]
    The Appellant seeks four outcomes from this appeal:
  1. an order that the PDs be independently assessed (presumably at the Respondent's cost) to determine if they describe the same role;
  2. an order confirming that the Original PD and Revised PD are materially different;
  3. an appropriate directive or mechanism be identified and the Appellant be assigned to "an ongoing, meaningful role, or other options are explored"; and
  4. an acknowledgement that the way the Appellant's case has been handled by OIR has been unsatisfactory.

Respondent's submissions

  1. [37]
    The Respondent submits that the Decision was essentially in response to whether an independent assessment of the Appellant's skills and capabilities against the requirements of the Revised PD was necessary.
  1. [38]
    The Respondent submits that it was fair and reasonable for Mr Harris to determine that an independent or external assessment of the Appellant's skills and abilities as against the Revised PD was not necessary. The Revised PD was evaluated through a JEMS process as being at the same classification level as the Original PD and Mr Harris himself reviewed the two PDs and determined that they were not materially different. As well, the Appellant had been absent from work for quite some time. Carrying out an external assessment of skills and abilities in those circumstances would have been premature and might not accurately reflect the Appellant's skills and capabilities for the role, noting in particular that the Appellant had not had an opportunity to reintegrate into the role, familiarise herself with the role and also participate in facilitated discussions with the ICTS Director. The Respondent submits that Mr Harris rightly took into account the Appellant's own reported view that her skills and capabilities were lacking.
  1. [39]
    The Respondent further submits that Mr Harris rightly decided that Directive 1/22 had no application and any assessments of PDs and skills/capabilities designed to enliven consideration of Directive 1/22 was therefore unnecessary. If there were any shortfall in skills/capabilities, that would be better managed using the positive performance management principles prescribed in the PS Act and in Directive 15/20, which is the decision reached by Mr Harris in the relevant part of the Decision.
  1. [40]
    The Respondent contends that the differences between the Original PD and the Revised PD were no more than amendments to the language used to describe the functions and responsibilities of the role. Further to this point, the Respondent notes how the Appellant, despite claiming that the Revised PD represents a different position to that described by the Original PD, does not identify any of the responsibilities that are different between the two PD's.
  1. [41]
    The Respondent submits that the Appellant's assertions regarding her initial understanding of the nature of the role should be rejected. In support of that submission, the Respondent points out that the Original PD made many references to responsibilities relating to "information management" that were quite distinctly different to those responsibilities within the Original PD relating to "records management". As well, the Respondent submits that Mr Harris was right to reject the Appellant's assertion that she used the terms 'information', 'document' and 'record' interchangeably. Mr Harris gave appropriate consideration to the Appellant's perspective and her understanding as to the nature of the role she accepted in 2020 in the Respondent's submission. However, it was fair and reasonable, the Respondent contends, for Mr Harris to come to a different view about whether the role had in fact changed when the Original PD was reviewed and the language amended to create the Revised PD.
  1. [42]
    And in any case, the Respondent submits, the Decision did in fact contain an assessment of the two different PDs. Mr Harris considered the two PDs, also having regard to the JEMS evaluation before concluding that two PDs were not materially different to each other. In support of this point, the Respondent submitted examples of how the language in the Revised PD simply reframed and clarified the language of the Original PD.
  1. [43]
    The Respondent further submits that the Appellant's arguments in relation to delay are not relevant to whether the decision was fair and reasonable. That said, the delay between July 2023 (when Mr Harris and others met with the Appellant concerning what further action might be taken regarding the JEMS evaluation) and October 2023 (when the Appellant followed up with Mr Harris by email), was not unreasonable in the Respondent's submission. There was also a lengthy period of time during which the Appellant was not available to be contacted due to periods of leave. And as to the setting out in the Decision of the Appellant's conduct, the submission is that this does not imply that the Appellant was being contrary or difficult – the Decision simply sets out a chronology of relevant events.
  1. [44]
    As to the argument around an assessment of skills and capabilities, the Respondent submits that the request for an independent comparison of the Original PD against the Revised PD is not what was originally sought in the Grievance. The Respondent notes the relevant passage of the Appellant's Grievance, which says (referring to obtaining a JEMS evaluation of the role) "If evaluated at the same level (AO8), then assess my skills/capabilities against the requirements of the role". And as to whether to place the Appellant in a new or different role that better suits her skills and capabilities, the Respondent submits that it, and Mr Harris, considered that option in the past and looked at redeployment both within OIR and in the Department. However, a suitable available position has not been identified.
  1. [45]
    The Respondent submits that the Appellant has sought to enlarge the scope of her grievance through this appeal process. The Appellant initially sought an internal review of the decision to not review the Original PD and assess her skills against the requirements of the role. However, the complaint has morphed substantially since to include allegations regarding culture and conduct of various employees with whom the Appellant worked. The Respondent submits that it is the Commission's role in this appeal to review the Decision and decide if it was fair and reasonable. To that point, the submission is that whatever issues the Appellant has raised in relation to her return to work and "other matters", which were not raised in her Grievance, are not relevant to whether the Decision regarding the outcome of the Grievance was fair and reasonable. Even so, the Respondent submits, its handling of the additional matters, including those that are referred to in the Decision, has been fair and reasonable.

Appellant's submissions in reply

  1. [46]
    In her reply submissions, the Appellant insists that she has never requested an independent assessment of her skills and capabilities against the Revised PD. The Appellant submits that the unfair and unreasonable decision is the decision of the Respondent referring to such a request when the Appellant never in fact made such a request.
  1. [47]
    The Appellant submits that it is unfair that Mr Harris decided that the Original and Revised PDs are not materially different. The basis of that submission appears to be that Mr Harris relied on his own assessment of the PDs and does not have sufficient expertise in either records management or information management. The Appellant concludes that Mr Harris is therefore not qualified to make this decision without independent advice.
  1. [48]
    The Appellant further submits that it is unfair and unreasonable that the relevant case manager for her Grievance did not make recommendations to the decision maker on appropriate actions to be taken rather than relying solely on the suggestions made by the Appellant as an aggrieved employee. I understand this submission to be that it was unfair and unreasonable of the Respondent (more broadly, as opposed to Mr Harris in his capacity as the individual decision maker), to not look beyond the outcomes proposed by the Appellant in the Grievance and consider other possible solutions that the Appellant had not identified.
  1. [49]
    The Appellant submits that it is not fair and reasonable that Mr Harris failed to give any consideration to her mental health condition.
  1. [50]
    The Appellant also submits that the alleged lack of action and the failure to place her in an "ongoing and meaningful role" were not addressed at all in the Decision.
  1. [51]
    The Appellant further submits that it was unreasonable to have included some competencies within the Revised PD rather than the broader 'information management'.

Respondent's submissions in reply

  1. [52]
    The Respondent's submissions in reply allege that some of the Appellant's submissions do not engage s 562B of the IR Act. As well, the Respondent submits that the Appellant's claim that she never requested an assessment of her skills and capabilities against the Revised PD is plainly wrong when one considers that the text of the Grievance itself, which reveals that the Appellant in fact did make that request. The Respondent also submits that the Appellant enquired of Ms Bush as to whether an assessment of the Appellant's skills and abilities could be conducted by way of a recruitment process. The Respondent submits that that was something that Mr Harris was entitled to have regard to when making the Decision.
  1. [53]
    The Respondent submits that, in relation to what Mr Harris had regard to when evaluating the two PDs, he also had the benefit of advice from relevant subject matter experts within OIR. That was in addition to his own assessment of the two PDs and the JEMS evaluation. The Respondent submits that it was not necessary for Mr Harris to have sought external or independent assessment of the PDs in order to be satisfied that they were not materially different from each other.
  1. [54]
    The Respondent rejects the Appellant's submissions about various people advising Mr Harris about the PDs having a "vested interest" in finding that there was no material difference between the two PDs. The Respondent submits that the Appellant does not explain what she means by "vested interest" or develop that argument in any way.
  1. [55]
    The Respondent denies that there has been, or is, a need for an independent assessment or comparison of the two PDs. It notes that it is now agreed between the parties that Directive 1/22 does not apply. Engaging Directive 1/22 was the objective of the Appellant's original assetion that the role had changed by more than 20%. The Respondent therefore submits that there is simply no utility to an assessment or comparison of the two PDs, even on the Appellant's own arguments.
  1. [56]
    As to the Appellant's submissions about Mr Harris not considering her mental health condition, the Respondent denies that. It points to portions of the Decision that clearly demonstrate that Mr Harris did consider, and was taking advice in relation to, the Appellant's stated mental health condition.

Consideration

  1. [57]
    I have given careful consideration to all of the submissions and materials that the parties have provided. They are extensive. I have only set out above some of the more relevant submissions raised in this appeal. However, there are, of course, others which I have considered and which I have not expressly set out above. Whilst I may not, in these reasons, refer to every single point raised in each round of submissions, I have considered all of them.

The correct approach to considering PS Act appeals

  1. [58]
    As noted by the Respondent in its submissions, the correct approach to resolving an appeal of this nature is a review of the relevant decision. It seems well-settled that the word "review" takes its meaning from the context in which it appears in the text of the statute.[5] The decision being appealed is therefore the focal point for the test of 'fair and reasonable'. The Commission's task is not to stand in the shoes of the decision-maker and decide for itself on the issues afresh.[6]
  1. [59]
    Unfairness might occur where some form of practical injustice has occurred.[7] An example of such might be an employer departing from an accepted relevant standard, procedure or policy such as granting an employee the right to know and respond to an allegation of misconduct.
  1. [60]
    Unreasonableness in a decision has often been described as a decision that lacks intelligent justification.[8] However, the test prescribed by s 562B(3) of the IR Act does not involve applying the legal standard of reasonableness in the sense of testing a decision on its lawfulness or legality.[9]  Instead, the words 'fair' and 'reasonable' should be ascribed nothing more than their ordinary meaning.[10] As his Honour, Merrell DP, put it in Colebourne,[11] the task is a review of the decision to decide it was 'fair and reasonable', not whether the decision was unreasonable by the legal standard of reasonableness.

Some submissions must be put to one side

  1. [61]
    Many of the Appellant's reply submissions do not engage with s 562B(3) of the IR Act. For example, the Appellant submits that it is unfair and unreasonable that she be expected to have known about the Information Management Policy Framework. The Appellant also submits that it was unfair and unreasonable to expect her to return to the role and have her performance in that role assessed where the Revised PD describes a role that is significantly different to the one in the Original PD. A further example is the submission that it was unfair and unreasonable for the Respondent to state that the delay between July 2023 and October 2023 is not unreasonable. These submissions, and many more like them in the Appellant's submissions, do not address whether the Decision itself is fair and reasonable. Arguments such as these are outside the scope of s 562B(3) of the IR Act.
  1. [62]
    Other parts of the Appellant's reply submissions are simply re-agitation of the same arguments set out in the Grievance. For instance, submissions regarding how or why the Appellant misunderstood the nature of the role and construed a change with the Revised PD. Those submissions do not advance the appeal, which must focus on the test of whether the Decision itself was fair and reasonable.
  1. [63]
    These submissions must be put to one side because they either do not engage the relevant legal test under s 562B(3) or simply re-agitate issues raised in the Grievance, which also does not engage the test in s 562B(3). Those are not matters that fall to the Commission for consideration as part of this appeal process. As noted above, the Commission's role in this process is to assess the Decision as to whether it was fair and reasonable. Notwithstanding the Commission's capacity to review a process by which a decision is reached, it is not a rehearing on the fairness and reasonableness of everything that happened along the way to the relevant decision being issued.

Consideration of relevant submissions

  1. [64]
    The Decision traversed several intertwining issues that the Appellant had raised. The earliest issue in time was what the Appellant argued was either, or both, a misunderstanding by her about the nature of the role or what the ICTS Director expected from the incumbent in the role.  That came across in the first instance as a complaint about a change (or misunderstanding) in the scope of the role. A "shift in focus" is how the Appellant put it. This included the claim that the role had changed by more than 20%, thus enlivening Directive 1/22 and warranting a review of the role.
  1. [65]
    From my reading of the Decision, it is clear to me that Mr Harris did compare the two PDs as requested by the Appellant.  Mr Harris is not the independent expert that the Appellant says she asked for. However, on my assessment, it was quite fair and reasonable that Mr Harris carry out that process.  Mr Harris was an experienced and senior member of the Respondent's staff.  I accept the submission that he took advice from subject matter experts as part of his consideration in this part of the Decision. Mr Harris caried out that assessment by way of a review of each PD. He also considered the fact that the JEMS evaluation of the Revised PD had concluded that it was at the same level as the Original PD. In the Decision, Mr Harris sets out his reasons.  Mr Harris concluded that the Revised PD provided a more detailed and specific description of the role but that the responsibilities and duties outlined in the Revised PD were "not materially different" from those in the Original PD.
  1. [66]
    Mr Harris also considered the basis upon which the Appellant claimed the "shift in focus" or mistaken understanding had occurred.  Mr Harris noted that at the time the Appellant transferred to the role in 2020, the title of it was 'Manager, Information Management'. Mr Harris noted that the title of the role alone gave a strong indication that the role covered more than just managing records. Mr Harris also noted that the Appellant had input into preparing the Original PD. Mr Harris further set out part of statement made by the Appellant during a meeting held on 18 May 2021, which was evidence that the Appellant was aware of the broader nature of the role when she transferred into it. Mr Harris construed those facts, and those derived from comparing the two PDs and the JEMS evaluation, as the basis for rejecting the Appellant's claim that there was a change to the role or a "shift in focus". That finding was open to Mr Haris to make on my review of this part of the Decision. I find it was a fair and reasonable conclusion for him to reach.
  1. [67]
    Mr Harris next turned to the related issue of whether clause 6 of Directive 1/22 was enlivened.  The Appellant's claim was that the change in the role or the "shift in focus" enlivened Directive 1/22. The Appellant pointed in particular to clause 6 of Directive 1/22, which does mention redeployment to roles that employees are suited to and offers of voluntary redundancy.  However, Mr Harris, I find, convincingly put an end that assertion by setting out a considered set of detailed reasons as to why Directive 1/22 had no application to this situation and was therefore not enlivened. They included the construction of the definition of "workplace change". Mr Harris set out in the Decision how that definition was fundamental to the application of Directive 1/22 and did not cover this situation. On my assessment, that construction was open to Mr Harris to adopt. This was a fair and reasonable conclusion for him to reach in my opinion.
  1. [68]
    Mr Harris then turned to the outcomes sought in the Grievance and listed them.  Mr Harris noted that the review of the Original PD and the JEMS evaluation had taken place as requested. Mr Harris then turned to the abovementioned requests for an assessment of the Appellant's skills and capabilities as against the requirements of the role.
  1. [69]
    Mr Harris set out detailed reasons as to why he decided that it was not appropriate to have an assessment of the Appellant's skills done, or handle any potential shortfall in skills as the Appellant proposed by utilising the redeployment or voluntary redundancy provisions of Directive 1/22.  As I have set out above, Mr Harris' reasons included the fact that the Appellant had been away from the role for some time, had not been reintegrated into it, and had professed to having held a sense of not being able to perform the role confidently. As well, Mr Harris formed the view that there were other much more appropriate methods of dealing with any shortfall in skills.  He cited several as I have noted above. These were findings underpinning the reasoning for rejecting the request for a skills assessment.  The findings were open to Mr Harris to make and the reasoning that followed was appropriate and gave rise to an inevitable conclusion in my opinion.  On my assessment, this part of the Decision was fair and reasonable.
  1. [70]
    In the Decision, Mr Harris then determined the "next steps" in moving the Appellant's grievance forward and returning her to the role she is contracted to perform. As I have noted above, Mr Harris reasoned that, subject to advice taken from OIR's Health, Safety and Wellbeing team, the requested further medical evidence, and a facilitated discussion to ensure clarity around OIR's expectations of the role, Mr Harris concluded that it was time to return the Appellant to the role (as per her request). I find that was a fair and reasonable decision in the circumstances. The issues raised in the Grievance, and in the Appellant's 25 October 2023 email had been dealt with. Doubtless, the Appellant may have not received exactly the outcome she sought. But on my assessment, it was fair and reasonable to decide to close out these issues in this way and commence a process for returning the Appellant to the role she is contracted to perform.
  1. [71]
    Ms Harris also considered the "other matters" the Appellant had raised complaints about.  I have noted these above. They essentially relate to complaints about "a lack of action" and seeking validation that the request for a review of the Original PD was "necessary".  Mr Harris set out his reasoning in this part of the Decision as well.  As to the Respondent's submissions that this is outside the scope of this appeal, I cannot accept that. This was part of the Decision and it was in relation to matters raised by the Appellant as a complaint about fair treatment.  On that basis, I find that these "other matters" findings were something that are validly part of the appeal.
  1. [72]
    That said, Mr Harris' reasons in this part of the Decision are as considered as those I have reviewed above. Mr Harris cited the relevant requests and set out his consideration of each in turn. He noted that whilst it had been a considerable period of time since the review request was first raised, OIR's position was always that no such review was necessary. Mr Harris concluded that a disagreement over whether an action is required does not equate to "a lack of action". I am of the view that that was a fair and reasonable conclusion to reach.
  1. [73]
    So too, I am of the view that it was open to Mr Harris to find that the mere fact that a review of the role did occur, did not amount to that being "necessary".  Mr Harris cited the reasoning of Mr Korenromp's letter of 30 May 2023. Having formed the view that this finding was open to Mr Harris, I conclude that this too was a fair and reasonable part of the Decision.
  1. [74]
    Mr Harris concluded that the concerns raised by the Appellant about psychosocial risk would be the subject of advice from OIR's Health, Safety and Wellbeing team. These were complex and technical allegations that had not been investigated.  I have no difficulty in finding that it was an appropriate decision in those circumstances to take advice from experts before determining the matter. On my assessment, that part of the Decision was also fair and reasonable.
  1. [75]
    Regarding that part of the Decision that mentions the Appellant's reluctance to seek relevant information from her treating practitioner as requested, I do not accept the Appellant's submission about implied contrariness and resistance. I apprehend the submission to be that it was not fair and reasonable of Mr Harris to mention in the Decision the fact that the Appellant had previously refused to comply with a request to seek relevant information from her treating medical practitioner. On my assessment, those remarks were merely statements of fact that were a relevant part of the narrative.  That is because they were facts relevant to the Appellant's Grievance, which included issues around returning to work after a lengthy health-related absence where advice from her treating practitioner would have been an important part of the employer's considerations. The Decision set out some factual detail of the relevant history. I am of the view that this part of the Decision is fair and reasonable.
  1. [76]
    Similarly, I find that it was a fair and reasonable part of the Decision to set out the fact that the Appellant declined to discuss the matter two days before taking a lengthy period of leave, and not wanting to be contacted during that period of leave. Part of the complaint being responded to via the Decision was an alleged "lack of action".  These facts were a relevant part of addressing that complaint.  This simple statement of such facts does not imply that the Appellant was being deliberately difficult as alleged. I accept the Respondent's submissions on this point.

Conclusion

  1. [77]
    It is clear that the Appellant is disappointed with the outcome to her grievance.  However, the test for these appeals is whether, on review, the Decision was fair and reasonable. I have considered the matters raised by both of the parties carefully.  In conclusion, for the forgoing reasons, I find that the Decision was fair and reasonable in all respects. I therefore order that the appeal is dismissed.

Order

  1. 1.
    The appeal is dismissed

Footnotes

[1] Section 564(3)(d) of the Industrial Relations Act 2016 relevantly provides an appeal period of 21 days after the relevant decision is communicated to the appellant.

[2] Industrial Relations Act 2016 (Qld) s 562B(3).

[3] Williams v State of Queensland (Queensland Health) [2022] QIRC 90, [16]; Rycroft v State of Queensland (Queensland Health) [2021] QIRC 134, [13].

[4] Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16, [6] ('Colebourne').

[5] State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3, [36], citing Minister for Immigration and Citizenship v Li [2013] HCA 18.

[6] Ibid, [27].

[7] Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162, [79]

[8] Gilmour v Waddell & Ors [2019] QSC 170, [207].

[9] Colebourne (n 4) [19]-[22].

[10] Ibid, [25], citing Pope v Lawler [1996] FCA 1446 in the context of identical wording within s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth).

[11] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Benesovsky v State of Queensland (Department of State Development and Infrastructure)

  • Shortened Case Name:

    Benesovsky v State of Queensland (Department of State Development and Infrastructure)

  • MNC:

    [2024] QIRC 127

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    20 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

Case NameFull CitationFrequency
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162
1 citation
Jump To
Cite 1 - [2022] QIRC 162
Minister for Immigration and Citizenship v Li [2013] HCA 18
2 citations
Jump To
Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
Pope v Lawler [1996] FCA 1446
2 citations
Jump To
Cite 1 - [1996] FCA 1446
Cite 2 - [1996] FCA 1446
Rycroft v State of Queensland (Queensland Health) [2021] QIRC 134
2 citations
Jump To
Cite 1 - [2021] QIRC 134
Cite 2 - [2021] QIRC 134
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3
2 citations
Jump To
Cite 1 - [2024] ICQ 3
Cite 2 - [2024] ICQ 3
Williams v State of Queensland (Queensland Health) [2022] QIRC 90
2 citations
Jump To
Cite 1 - [2022] QIRC 90
Cite 2 - [2022] QIRC 90

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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