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  4. Gregson v State of Queensland (Department of Resources) - [2024] QIRC 208

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Gregson v State of Queensland (Department of Resources)[2024] QIRC 208

Gregson v State of Queensland (Department of Resources)[2024] QIRC 208

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gregson v State of Queensland (Department of Resources) [2024] QIRC 208

PARTIES:

Gregson, Julian

(Appellant)

v

State of Queensland (Department of Resources)

(Respondent)

CASE NO:

PSA/2023/183

PROCEEDING:

Public Sector Appeal – Fair Treatment Appeal

DELIVERED ON:

26 August 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

  1. The appeal is allowed;
  1. The Delegate's decision is set aside, and another decision is substituted; and
  1. Mr Gregson's substantive position with the Department is permanently transferred from Maryborough to Kingaroy. That will take effect from the time Mr Gregson wishes to return to his substantive position.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant is employed as a team leader – where the appellant sought a permanent transfer of his position from Maryborough to Kingaroy – where the department refused the appellant's request – where the appellant submitted an individual employee grievance of the department's administrative decision – where the individual employee grievance decision upheld the administrate decision – where the appellant submitted an request for internal review and the decision was upheld on internal review – whether or not the decision was fair and reasonable –  consideration of the appellant's individual personal circumstances – consideration of operational requirements

LEGISLATION AND INSTRUMENTS:

Human Rights Act 2019 (Qld) s 26, s 58

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

Public Sector Act 2022 (Qld) s 131, s 133, s 134

Directive 11/20: Individual Employee Grievances cl 4, cl 5, cl 8

Department of Resources, Bushfire/wildlife response framework (LND/2019/4867) (January 2021)

Department of Resources, Individual Employee Grievance Protocol (CHB/2013/764) (January 2021) cl 1, cl 2

Queensland Public Service Officers and Other Employees Award – State 2015

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480

Hume v State of Queensland (Queensland Health) [2021] QIRC 272

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

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

Reasons for Decision

  1. [1]
    Mr Julian Gregson (the Appellant) is employed as a Team Leader, State Land Management, State Land and Stock Route Management, Lands under the Queensland Public Service Officers and Other Employees Award – State 2015 with the Department of Resources (the Respondent; the Department). The Appellant's substantive position is located at Maryborough.
  1. [2]
    On 23 July 2023, the Appellant lodged an Individual Employee Grievance (IEG) in relation to an administrative decision made by Ms Leeann Jude, Director, Natural Resource Management and Compliance to not support his request to transfer his substantive position from Maryborough to Kingaroy.
  2. [3]
    On 21 August 2023, Ms Anita Haenfler, Executive Director, Natural Resource Operations, Land Division, found that the administrative decision was fair and reasonable (the IEG Decision).
  3. [4]
    On 23 August 2023, the Appellant requested an internal review of the IEG Decision in accordance with cl 9.2 of Directive 11/20: Individual Employee Grievances (the IEG Directive) and the Department's Individual Employee Grievance Protocol (the Protocol).
  4. [5]
    On 6 September 2023, Ms Danielle McAllister, Deputy Director-General, Lands determined that the Grievance Decision was fair and reasonable in the circumstances (the Internal Review Decision).
  5. [6]
    On 19 September 2023, Mr Julian Gregson filed this appeal against the Internal Review Decision to not support his request to transfer his substantive position from Maryborough to Kingaroy.
  6. [7]
    The Appellant submitted that the Internal Review Decision is unfair and unreasonable as:

The department has not acted fairly, reasonably, consistently, or with any empathy … My role could be done from Anywhere in the world, but I have only moved to the next major town so that I can keep a roof over my head.

… From day one, I was unable to find and maintain housing in the Maryborough region due to the unprecedented low vacancy rates and fast-moving real estate market. At multiple times I was homeless, or at risk of becoming homeless due to trying to stay in Maryborough just for the role.

Due to my work being mainly administrative, with infrequent field days (2-3 per month) at random locations anywhere within the Wide Bay Burnett region, usually staying there at motels, my manager at the time believed it would be possible for me to work anywhere in the Wide Bay Burnett region, and endorsed a relocation to Kingaroy, but soon after I secured a house in Maryborough and did not need to relocate at that time. Upon moving in, I realised the house was completely unsafe and inappropriate for someone with sensory issues and a new baby. I started applying for rentals and made offers to purchase other houses in Maryborough, but it was harder than when I first started trying. Other than this house, I had no other housing options available to me in the Maryborough area.

I decided to look elsewhere in the Wide Bay Burnett region. I made no secret I needed to move and even mentioned it in my PDA, but for some reason it was used against me. I made an offer on a house in Kingaroy which was accepted, and I relocated to Kingaroy on 25 July 2023. The Bjelke Petersen Research Centre at Kingaroy is shared by various state government departments and is managed by DAF. DAF advised me that a desk space was available for me is supported by my manager. Finally, I thought the crisis was over for me.

…

This has not been a personal choice for me, as I have had no choice. I have done what is necessary to not be homeless. My only other option was to resign and lose my career I have developed over more than a decade, but even if I was to resign, the department would not be able to recruit someone new into such a niche role in Maryborough, due to the housing crisis.[1]

Background

  1. [8]
    The Appellant has been employed by the Respondent since 10 January 2019 in the position of Team Leader at an AO5 classification.[2]
  2. [9]
    In his role, the Appellant is required to develop project plans and coordinate Department of Resources' staff and contractors in the implementation of risk management activities, including fire, pest, plant and animal management for the operational maintenance of State land in Southeast Queensland. A portion of the Appellant's role includes administrative duties and physical tasks, such as field work.
  3. [10]
    On 12 June 2023, the Appellant requested a permanent relocation of his position to Kingaroy. The Appellant made this request in consideration of significant issues he was experiencing surrounding the 'housing crisis' in Maryborough.
  4. [11]
    Mr Terry Reid, the Appellant's Manager, provided the Appellant with Ms Jude's decision, that the transfer was refused. Mr Reid stated, in part, that Ms Jude did not support the permanent transfer as it was not operationally convenient for the role to be located in Kingaroy and that the Department is "generally not supportive of transfer requests when an employee has moved to a new location and sought retrospective approval".[3]
  5. [12]
    On 23 July 2023, the Appellant lodged an IEG against Ms Jude's decision on the basis that it was unfair and unreasonable given personal factors impacting on his living situation in Maryborough.
  6. [13]
    In the Appellant's request to lodge an IEG against Ms Jude's decision, the Appellant provided (emphasis added):

Maryborough has the lowest rental vacancy rate in Queensland, and I was initially unable to secure accommodation upon accepting the position in December 2018 …

I have persevered in the hope of making it work for almost five years now, initially sleeping in my car in the bush for the first few weeks, then defrauded by someone offering private rentals taking advantage of the housing crisis, followed by renting a tiny sunroom in a share house (for the price of an entire house).

It is essentially impossible to rent a house in the area, and I have also tried Hervey Bay – but every open house I have ever been to has seen 30-40 couples attend. At some stages I have applied for every rental property advertised within 100km of Maryborough.

…

My situation is unique, as other departmental employees based in Maryborough are all essentially 'locals' of an older age bracket who have been established in the area for many years and have not faced these housing challenges.

My unique situation shows that anyone can be impacted by the housing crisis, and that the department must show some empathy and flexibility.

Being unable to secure decent housing to the standard I had hoped for in a good neighbourhood, I have been based in areas surrounded by non-stop crime. I have been a victim of crime – I've been broken into countless times. At one stage I was locked down by for 12 hours because there was a siege in the neighbouring property. More recently, my vehicle was written off while we slept on Christmas Eve by someone crashing into it.

If the baby isn't woken up by trucks and hoons, she is woken up by fighting and screaming or smashing. When neighbouring houses and businesses get broken into, the police are so busy that they can't even attend …

Even in the days after I put in my original request to my substantive supervisor on June 12, a different vehicle of mine was vandalised from head to toe and people were under my house while my family and I slept. Understandably, I have been put under pressure to resolve this situation.[4]

  1. [14]
    Between 21 July 2023 and 31 July 2023, the Appellant accessed leave in order to relocate his family, furniture, and household items from Maryborough to Kingaroy, after purchasing a house in Kingaroy.
  2. [15]
    The Appellant was then provided with the IEG Decision which found that that Ms Jude's decision was fair and reasonable.
  3. [16]
    On 23 August 2023, the Appellant lodged a request for internal review of the IEG Decision.
  4. [17]
    On 19 September 2023, the Internal Review Decision was given to the Appellant which confirmed the IEG Decision. That is the decision subject of this appeal.

The IEG Decision

  1. [18]
    The IEG Decision outlined the following basis for which Ms Jude declined the Appellant's request:
  1. The location and fatigue management including the cumulative effect of compressed hours and a long commute.
  2. The SLM vehicles and equipment are all located in Maryborough.
  3. There is no departmental office in Kingaroy and Ms Jude does not support the Appellant attending State Land audits on his own from the base of Kingaroy due to safety issues.
  4. The disconnect from the team would impact the physical operations and may decrease operational effectiveness as a team (the team practices, trains and operates together to maintain skill proficiencies).
  5. The Appellant is a team leader in emergency situations such as fire control activities on State Land in support of QFES and travel would incur a substantial delay to operations as he would be expected to attend the Maryborough office, meet with crew, and then attend the fire event location.
  6. From a budget perspective, it would increase the Respondent's need to provide accommodation away from the Appellant's home in Kingaroy to mitigate the risk of a WHS incident.
  1. [19]
    In determining that Ms Jude's decision was fair and reasonable, Ms Haenfler considered the operational requirements of the Department, the nature of the role, the potential impact of the transfer on the operational capacity of the Department, and any relevant occupational health and safety risks.

Personal factors

  1. [20]
    Ms Haenfler took into consideration the personal factors of the Appellant, namely the issues the Appellant and his family experienced living in Maryborough. Ms Haenfler acknowledged the issues the Appellant experienced, including alleged criminal and antisocial behaviour by residents towards the Appellant and his family, and the Maryborough 'housing crisis'. She determined that while reasons provided by an employee should be considered by a delegate, where the requested transfer is not operationally convenient, nor a strong business need identified, it was open to Ms Jude to not support the transfer.
  2. [21]
    Ms Haenfler provided:

… While I empathise with your stated personal circumstances, I am of the view it would be more appropriate for Ms Jude to weigh the operational requirements against your raised personal factors in making a determination around your request to transfer your position. Ms Jude's decision states that a permanent transfer of your position is not operationally convenient and as such I have further considered factors relating to operational convenience below.

  1. [22]
    The IEG Decision then set out the issues relating to the operational convenience of the Department, which included office availability and operational role requirements.

Office space

  1. [23]
    Ms Haenfler acknowledged while the Appellant had received advice from the Department of Agriculture and Fisheries Manager (DAF) office in Kingaroy that there is office space there to which the Appellant is able to use, Ms Jude had considered office space and the lack thereof in Kingaroy. Ms Haenfler provided that the Department does not have any staff in Kingaroy and the Appellant did not provide any specific details regarding the source if his statement in respect to the available office space.
  2. [24]
    Irrespectively, Ms Haenfler undertook enquiries with the Queensland Government Accommodation Office (QGAO) to confirm that the transfer was not operationally convenient. QGAO provided information that there were no available workstations in other Departments that reside in Kingaroy. As such, Ms Haenfler found that Ms Jude's consideration of the lack of office space in Kingaroy was fair and reasonable.

Operational role requirements

  1. [25]
    In respect to the Appellant's submission that there would be little change to the Appellant's current work arrangement should the transfer be approved, Ms Haenfler found that the Appellant's role clearly identifies significant aspects that require the Appellant to be physically on location to undertake the duties of the role. Further, she considered that the Appellant is required to work in pairs and supervise others when engaged in high-risk activities, such as operating chainsaws to clear firebreaks on state land or attending to assist other agencies undertaking coordinated fire and / or pest management. Ms Haenfler provided:

In assessing if Ms Jude's decision was fair and reasonable, I have considered, in summary:

  • In your role you supervise two staff who are based in Maryborough.
  • A significant portion of your role includes physical tasks.
  • You are required to work in pairs or as a part of a team when engaged in high-risk activities (such as clearing fire breaks, mop up activities resulting from wildfires).
  • You are required to physically supervise your subordinate staff.
  • You are frequently required to drive a departmental vehicle to attend various work sites with bulky plant and equipment such as chainsaws and pesticide spraying equipment.
  • You have suggested you could commute from Maryborough to Kingaroy when required, specifically that you could 'leave your residence in Kingaroy at 7:00am and arrive in Maryborough by morning tea for work.' The commute of 182 kms each way would take between 2 to 3 hours. I accepted that on an infrequent basis, work arrangements such as this may be necessary. However, long term regular arrangements requiring such long-distance travel prior to and after finishing work are in my view unsustainable. I am of the opinion this would pose a significant and unacceptable work health and safety risk due to the impact of fatigue on you as a worker.

Flexible work location application / agreement / discussions

  1. [26]
    Ms Haenfler then went on to address the Appellant's argument that the transfer had been previously supported by the Manager in 2020.
  2. [27]
    Ms Haenfler determined that while the Appellant submitted a Flexible Work Location Application / Agreement in 2020 (the 2020 FWLA) for a temporary transfer to 'Kingaroy', the 2020 FWLA did not include details around the actual location or reason for the request. In the absence of this information, Ms Haenfler was "unable to ascertain if the circumstances around your request for a FWLA reflected your current circumstances you have now raised".
  3. [28]
    At the time the 2020 FWLA was completed by Ms Roslyn Hooper (the Appellant's Former Manager). Ms Hooper wrote that the decision was effective from 7 April 2020 and was to be reviewed again after six months on 7 October 2020. Ms Haenfler found that it was clear that Ms Hooper supported a temporary arrangement, however, she could not identify any evidence to suggest that she supported a permanent move to Kingaroy in approving the 2020 FWLA.
  4. [29]
    Additionally, Ms Haenfler noted that the 2020 FWLA did not appear to be fully completed, in that the "supervisor checklist" section of the form was not filled as required. It also contained the requirement that "if you propose working from an alternate location, you will need to discuss this with the manager of that location and seek your endorsement for your agreement." Ms Haenfler considered that as "this section was not completed by a relevant ALM in the Kingaroy office" she was "unable to confirm if an appropriate ALM would have supported the decision to approve your 2020 FWLA or not".
  5. [30]
    Ms Haenfler accepted that while the Appellant received some management support for a temporary FWLA in 2020, this was significantly different to a request to permanently transfer. A 'request to transfer to another work location' (as detailed in the Queensland Public Service Officers and Other Employees Award – State 2015) amounts to approving a "redesignation of a position (e.g. change of position's location, reporting relationship etc) (including identified)" which requires approval by a level 3 Delegate, such as Ms Jude. Ms Hooper as an AO8, who would not have had the authority to approve such transfer request.
  6. [31]
    Having regard to the above, Ms Haenfler found that at no time was a formal (or informal) agreement made between the Appellant and an authorised officer regarding the permanent transfer of the Appellant's position from Maryborough to Kingaroy.
  7. [32]
    Ms Haenfler found Ms Jude's considerations to be fair and determined that the Appellant's substantive position was to remain in the department's office in Maryborough having considered the above factors.

Appellant's request for internal review of the IEG Decision

  1. [33]
    In his request for internal review, the Appellant considered the IEG Decision to be unfair and unreasonable as the Appellant had (in summary):
  • Given up his stable home when he moved to Maryborough to work for the Respondent in 2019, unaware that there is a housing crisis in Maryborough.
  • Initially slept in his car due to a lack of suitable housing until the Appellant eventually found housing that was "not ideal". He persevered in this housing for several years. When the Appellant's daughter was born, it became important for the Appellant to find safe and suitable housing.
  • Tried to purchase a house at the top of his budget but found it "impossible" as houses were selling for 50-75 thousand dollars above the asking price. Rentals were only being offered to the top bidders.
  • Considered that his options were to be homeless in Maryborough or move somewhere else where he could secure a home.
  • Previously discussed moving to Kingaroy with his supervisors as it was deemed central to the area where he is required to do field work in and still close to other team members.
  • Had the verbal support of his supervisor and the Department of Agriculture and Fisheries (DAF) Research Station at Kingaroy to work there.
  • Kingaroy is inland from Maryborough – only 182 km away which is significantly less than the distance between other teams and staff in the Appellant's business unit.
  • Majority of the Appellant's role can be undertaken from any location.
  • The Appellant works alone in Maryborough and sits in an office by himself without anyone from the SLM business unit – it would be no different in Kingaroy.
  1. [34]
    In the Appellant's request for an internal review of the IEG Decision, the Appellant addressed each of the above considerations at [18]. 

(a) The location and fatigue management including the cumulative effect of compressed hours and a long commute

  1. [35]
    The Appellant provided that while his position is based in Maryborough, the field work component of the role occurs on state land spread across Southern Queensland. The field work component is on average a day or two per month and becomes more regular in winter. It would not be described as a daily or weekly occurrence.
  2. [36]
    The Appellant then went on to demonstrate that the transfer would in fact reduce fatigue for himself and all Southern SLM staff when field work is required:
  • Southern Qld SLM team are currently based at Beenleigh and Maryborough, at opposing ends of southern Queensland. Fatigue management, cumulative effects of their compressed hours and long commutes come into play for all staff when undertaking field work, regardless of their office location, as neither location is central to southern Queensland.
  • According to the SLM enquiries register, three LGAs that are located centrally in southern Queensland were among the 10 busiest for SML in all of Queensland, plus regular AFMEG meeting commitments exist, necessitating the need for SLM staff to regularly undertake long commutes in and out of these central areas.
  • For instance, the LGA where I propose to be located, South Burnett, received four times more enquiries than Logan City where Beenleigh staff are located. It also received a greater number of enquiries than other LGAs where SLM staff are based (Cairns, Mareeba, Mackay).
  • Attending to these enquiries in the central part of southern Queensland, i.e.. South Burnett, can only take a few minutes on the ground, but requires at least a 500 kilometre round trip, and a minimum of 12 hours of wages spent sitting in vehicles while travelling on the highway.
  • In addition to travel time and wage costs, these trips have other costs:

1 trip

5 trips

Landcruiser diesel (65L@$2/L)

$130

$650

Accommodation

$400

$2000

Travel claim (2x dinner, breakfast, lunch, incidentals)

$276.80

$1384

Total

$806.8

$4034

Hours spent driving in vehicles

12

60

  • The same trip from Kingaroy would cost $25 in fuel, only require 40 minutes travel, with no travel claim, and no accommodation. Staff would be able to more effectively deliver work across the landscape by focusing on tasks closer to them, while reducing fatigue issues.
  • Being based in Kingaroy would ensure that Area Fire Management Groups (AFMG) are actually attended by Department of Resources staff on an ongoing basis, instead of being skipped because of the inconvenience of the long drive.
  • In 2022 the department employed contractors to undertake hazard reduction burns in the South Burnett (Wondai and Benarkin) at a cost of $120,000, despite those exact burns already being arranged at no charge by the Rural Fire Service, however, no one from department of Resources maintained those relationships, so contractors were paid to do jobs that had been lined up for free.
  • As someone who has coordinated operational works across southern Queensland for over a decade, I can confidently state that it would be highly efficient to have an SLM staff member based in Kingaroy, and that it makes very little sense to recruit new staff to Maryborough or Beenleigh.[5]

(b)  The SLM vehicles and equipment are all located in Maryborough

  1. [37]
    The Appellant provided that all the necessary field equipment is located within the vehicles themselves. If one vehicle were to relocate to Kingaroy, it would not impact the team and would increase operational efficiency.
  2. [38]
    There are two vehicles located in Maryborough for a total of three positions (including the Appellant's position). The Appellant submitted that typically, he would drive one, while the other two positions (the AO3 and AO4) would share the other. As the AO3 and AO4 work together, they do not require a vehicle each and there has never been a time when they have required a vehicle at the same time.
  3. [39]
    Therefore, in the Appellant's view, relocating one of the vehicles with the required equipment in it would not have any observable impact.

(c) There is no departmental office in Kingaroy and Ms Jude does not support the Appellant attending State Land audits on his own from the base of Kingaroy due to safety issues

  1. [40]
    The Appellant submitted that Mr Scott Campbell, Facilities Manager, DAF Kingaroy, has said that there is office availability for him to utilise and that if the Department confirmed that they needed the space, they would be willing to offer it as they have done in the past.[6]
  2. [41]
    Attached to the Appellant's request for an internal review was a photo of the DAR Research Centre signage which has the "Department of Resources" listed on the sign, indicating that there is in fact Departmental office space in Kingaroy.
  3. [42]
    The Appellant said that while there may not have been staff from the Department based in the Kingaroy Research facility on the date of the Respondent's IEG Decision, there had been as recently as a few months prior.
  4. [43]
    With respect to attending land audits on his own, the Appellant provided that he usually attends state land audits by himself, which is permitted under the Department's policy:
  • As there are 2x two seat vehicles in Maryborough, and only three staff in total, I usually attend state land audits by myself anyway, as permitted by policy.
  • Attending state land audits by myself would be no different to if I was driving out to Maryborough on my own to do the audits, and no different to other SLM staff across Queensland who frequently do it by themselves in even more remote areas such as Cape York.
  • Highway driving in a QG vehicle using the department's WHS systems, such as vehicle tracking and trip approvals, would occur in the same way as if I was based anywhere else in the state.[7]

(d) The disconnect from the team would impact physical operations

  1. [44]
    In response to the apparent disconnect the team would experience, the Appellant submitted that he already works at a different location than the team and keeps in contact with them via phone and teams. The Appellant provided that it would not make any difference to the team if his location changed and that he already works alone in the Maryborough office.
  2. [45]
    If the Appellant had a vehicle from the Maryborough office move with him to Kingaroy, the Appellant provided that the team would continue to come together in the field as required.
  3. [46]
    Regarding training, the Appellant said that training has been delivered at various locations across Southern Queensland, in Maryborough only once, and that it would be attended as normal. The Appellant went on to provide that:

Of 7x SLM AO4 positions across the state, only 1 is based in the same location as their supervisor. Their supervisors are typically hundreds of kilometres away. I cannot understand why there is an insistence for me to be at the same location as the AO4 who reports to me, it can make no sense and is an inequitable requirement placed on me.

Further, the AO4 work level description in the general employees award states:

  • Work is performed under general direction.
  • Work at this level includes supervision of a work group small work area or office within the total organisational structure and co-ordination of a range of office functions.
  • Independent action may be exercised at this level, particularly in local office situations.
  • Staff would be expected to set priorities and to monitor work flow.
  • Work performed at this level will require the ability to supervise staff, set priorities, monitor work flow and develop local strategies or work practices.[8]

(e) The Appellant is a team leader in emergency situations such as fire control activities and travel would incur a substantial delay to operations

  1. [47]
    Under the Department's policy, the team and the Appellant do not attend emergency situations. The Department of Resources, Bushfire/wildlife response framework[9] states that:

… It should be noted that the department is not recognised as an emergency response agency for the purpose of wildfire and does not resource itself as such.

Whilst the department is responsible for a substantial portfolio of freehold and non-freehold lands, it should be noted that a large portion of the departmental estate consists of small parcels of land spatially fragmented across the state.

…

According with the department's Fire Management Program and based on present resourcing and equipment the department has on hand, the department's adopted policy is that it will not routinely provide on ground firefighting resources for wildlife incidents on departmental lands.

…

This policy ultimately means that SLM officers are unable to be on the frontline for any activities or actions in wildfire response efforts unless otherwise endorsed by the departments' Executive Director.[10]

  1. [48]
    If an unlikely event arose in which approval was given to the Appellant to attend an emergency, he provided that the emergency could occur anywhere in Southern Queensland. Given that Kingaroy is central to Southern Queensland, it could be more beneficial to have the Appellant located in Kingaroy.
  2. [49]
    Additionally, there has never been an occasion where the Appellant has had to meet in the office prior to attending hazard reduction burns or any other field work as they "come together on site when required, as do any other SLM staff from other locations, without first needing to go into an office".

(f) It would increase the Respondent's need to provide accommodation away from the Appellant's home in Kingaroy to mitigate the risk of a WHS incident

  1. [50]
    The Appellant provided that groundwork is not undertaken specifically in Maryborough itself as it occurs all across Southern Queensland, so there has always been a need to provide accommodation when working away from home irrespective of the Appellant's location.
  2. [51]
    As the Appellant outlined at [36], there would be a reduction in costs associated with travel if the Appellant was located in Kingaroy, as there would be a decreased need for staff to travel and fatigue related WHS risks would be mitigated.
  3. [52]
    In light of all factors outlined above, the Appellant considered that the IEG Decision was unfair and unreasonable.

The Internal Review Decision

  1. [53]
    In the Internal Review Decision, Ms McAllister determined that the IEG Decision was fair and reasonable. Ms McAllister noted that some of the information provided by the Appellant was "new" and not before Ms Haenfler when she was considering the Appellant's IEG. Ms McAllister outlined and referred to that information where relevant to assess whether the IEG Decision was unfair and unreasonable and addressed the following considerations.

Supervision of staff

  1. [54]
    Ms McAllister found that while the Appellant stated that supervising staff was not a reason to be based in Maryborough as he already works at a different location to the team (stating the staff work at the Depot and he works in the office), it was reasonably open to Ms Haenfler to consider Ms Jude's inclusion of this operational factor in her decision making.
  2. [55]
    Ms McAllister noted that while the Appellant pointed out that other supervisors in the Department work at different locations to their subordinate staff, Ms Haenfler was correct in considering the Appellant's individual circumstances around his role in supervision. Ms McAllister then outlined that she undertook her own inquiries regarding the Appellant's supervisory role by consulting the Aurion system. The Aurion system reflected that the Appellant supervises two positions, with both in the same Maryborough office as the Appellant. Ms McAllister was of the view that this information, along with emails she located between the Appellant and Human Resources in mid-2023, supports the Appellant's supervisory obligations.
  3. [56]
    With reference to an email exchange between the Appellant and Human Resources between 25 May 2023 and 2 June 2023, Ms McAllister suggested that the Appellant had experienced some issues with staff being absent from the office. As the supervisor he was required, and correctly, received support from Human Resources to resolve those issues. This satisfied Ms McAllister's consideration of the determination that the Appellant supervises two staff located in the same Maryborough office.
  4. [57]
    Ms McAllister found that there was no evidence that the decision was unfair or unreasonable in this regard, making reference to statements made by the Appellant's line manager, Mr Reid, that relocating the AO5 team leader position to Kingaroy would reduce operational leadership to team members in Maryborough. 

Duties and work location

  1. [58]
    Ms McAllister considered the Appellant's submission that a major component of his work is administrative and that while he is required to work in pairs or as part of a team when engaged in 'high risk' activities, this is not a regular occurrence. In any event, the Appellant had contended that such work could need to occur "anywhere across southern Qld".
  2. [59]
    Ms McAllister reviewed the Appellant's role profile, which was before Ms Haenfler. The role profile supported the fact that his position includes physical tasks (such as field work) – so Ms McAllister proceeded to consider the contention around the Appellant's role being predominantly administrative.
  3. [60]
    Mr Reid had provided information to Ms Haenfler that there was "limited benefit to the operational effectiveness and efficiency of the State Land and Stock Route Management team if your position was to be transferred to Kingaroy". While Ms McAllister did not refer to specific objective data to an exact "split" between administrative duties and field work, Ms McAllister placed weight on Mr Reid's confirmation that the Appellant is regularly engaged in field work, including fire risk management and pest management activities, site and field inspections, and contractor management.
  4. [61]
    With respect to the lack of office space, Ms McAllister found that it was entirely open to Ms Haenfler to seek information from an objective source, the QGAO, to support Ms Jude's consideration that the department does not have any available office space in Kingaroy. Additionally, Ms McAllister found that the signage in which the Appellant photographed which had "Department of Resources" printed at the Kingaroy Research Facility, was an oversight. On 4 September 2023, the Department vacated the site but the signage was not taken down.
  5. [62]
    Ms McAllister addressed the Appellant's statements that other team members are located at locations that are further than the distance from Maryborough to Kingaroy. While this may be the case, the Department's view is that these locations have been established as Departmental business centres and are considered more suitable to support the team. Mr Reid was of the view that there would be "limited benefit" to the State Land and Stock Route Management Workforce Plan, which does not identify Kingaroy as a "preferred work location", satisfying Ms McAllister that a change to work centre structure is not included in a desired state for the team.

Departmental vehicle and travel

  1. [63]
    Despite the Appellant's assessment regarding the potential saved costs in transferring a vehicle from Maryborough to Kingaroy, Ms McAllister found that it was fair and reasonable to have regard to the established location of the departmental vehicles and equipment. Ms McAllister provided that it was not incumbent on the Department to move departmental resources to support the Appellant's transfer request.

Previous supervisors

  1. [64]
    In relation to the Appellant's submission that he had previously discussed relocating to Kingaroy with his former supervisor, Ms McAllister accepted Ms Haenfler's considerations summarised at [26]-[32]. Ms McAllister determined that Ms Haenfler took reasonable measures to source information on this point, noting that the Appellant had not provided any refuting evidence that the information was not sound.

Housing crisis

  1. [65]
    In considering the relevance of the statements made by the Appellant regarding the lack of assistance from the state government for employees experiencing the effects of the housing crisis, Ms McAllister provided:

In considering the relevance of these statements in relation to the scope of the internal review, I have identified that:

  1. -
    In your internal request for transfer, you made mention of the housing crisis as part of your decision making in making a personal move to Kingaroy. As such this was information before Ms Jude when she made her administrative decision and likewise available to Ms Haenfler.
  1. -
    The Grievance Decision correspondence included relevant considerations, contained in Annexure A, 'Personal factors' (page 2), which demonstrates Ms Haenfler, in part:

a.  Acknowledged your statements at that time around housing [including the 'housing crisis']

b.  Stated that the information provided by you for the IEG was more fulsome than that provided for Ms Jude's decision however that it was reasonable to consider Ms Jude was aware of the personal factors raised by you in reaching her decision.

c.  Expressed empathy for your stated circumstances, however determined it was reasonable for Ms Jude to weigh operational requirements against your personal factors in making a determination around the request to transfer the position.[11]

  1. [66]
    Ms McAlister was satisfied that Ms Haenfler was aware of and considered the housing crisis matters raised by the Appellant.
  2. [67]
    In undertaking the Internal Review, Ms McAllister identified that the Appellant sold his residential house in Maryborough and purchased another at Kingaroy, where both properties settled on 25 July 2023. The Department approved one week of leave for the Appellant to relocate with his family.
  3. [68]
    Ms McAlister determined that while the Appellant had concerns regarding the housing he had in Maryborough, he had established housing prior to relocating to Kingaroy. As such, she was of the view that the Appellant made a personal decision to relocate to Kingaroy and did so prior to receiving any authorised decision around his request to transfer his position to Kingaroy. Ms McAlister determined that it was open to Ms Haenfler to confirm Ms Jude's decision, in circumstances where it was not operationally convenient for the Department weighed against the Appellant's personal factors.
  4. [69]
    In relation to the Appellant's concerns regarding what support exists for staff, the Internal Review Decision referred to Ms Jude's previous suggestion, that the Appellant may request a Flexible Work Arrangement. Ms McAllister also referred him to the Staff Alliance staff welfare fund.

Other matters

  1. [70]
    Ms McAllister made reference to the Appellant's statement that he may be "forced to resign …" should he not be able to transfer his position. She determined that the Appellant's position has been based in Maryborough since the commencement of the Appellant's employment. The Appellant's role continues to be based in Maryborough. Given the statements made and the material before Ms McAllister, she was of the view that the Appellant made a personal choice to relocate his position, without receiving prior approval from the Department.
  2. [71]
    While the Appellant had been dissatisfied with the decisions of Ms Jude and Ms Haenfler, communications have pointed to the expectations that the Appellant's employment with the Department will continue.
  3. [72]
    Ms McAllister did not identify any evidence that the Appellant was being forced to resign.
  4. [73]
    In reviewing Ms Haenfler's IEG Decision, Ms McAllister was satisfied that she reasonably considered all of the information provided and appropriately advised the Appellant on her decision that Ms Jude's decision was fair and reasonable.

The Appeal

  1. [74]
    The Appellant submitted this Appeal of the Internal Review Decision, arguing that the Department "did not act fairly, reasonably, consistently, or with any empathy".[12]
  2. [75]
    In his Appeal notice, the Appellant provided:

Due to my work being mainly administrative, with infrequent field days (2-3 per month) at random locations anywhere within the Wide Bay Burnett region, usually staying there at motels, my manager at the time believed it would be possible for me to work anywhere in the Wide Bay Burnett region, and endorsed a relocation to Kingaroy, but soon after I secured a house in Maryborough and did not need to relocate at that time. Upon moving in, I realised the house was completely unsafe and inappropriate for someone with sensory issues and a new baby. I started applying for rentals and made offers to purchase other houses in Maryborough, but it was harder than when I first started trying. Other than this house, I had no other housing options available to me in the Maryborough area.

I decided to look elsewhere in the Wide Bay Burnett region. I made no secret I needed to move and even mentioned it in my PDA, but for some reason it was used against me. I made an offer on a house in Kingaroy which was accepted, and I relocated to Kingaroy on 25 July 2023. The Bjelke Petersen Research Centre at Kingaroy is shared by various state government departments and is managed by DAF. DAF advised me that a desk space was available for me if supported by my manager. Finally, I thought the crisis was over for me.

…

This has not been a personal choice for me, as I have had no choice. I have done what is necessary to not be homeless. My only other option was to resign and lose my career I have developed over more than a decade, but even if I was to resign, the department would not be able to recruit someone new into such a niche role in Maryborough, due to the housing crisis.[13]

  1. [76]
    In his submissions filed on 31 October 2023, the Appellant submitted that the ongoing housing crisis in Maryborough adversely affected the Appellant's health and wellbeing. The Appellant describes the housing situation as "so dire it could never have been resolved in my favour without the department recognising the situation."[14] The Appellant submitted that his housing choices have not been "personal decisions" due to the housing crisis, he has had to "accept whatever accommodation" he could get.
  2. [77]
    The Appellant is seeking to have his position transferred to Kingaroy in the DAF location, which have confirmed to the Appellant that there are "many workstations available for me to choose from". The Appellant submitted:
  1. While the Queensland Government Accommodation Office has stated there is technically not Department of Resources workstations at the Kingaroy location, it has been confirmed by the manager of the Kingaroy location that there are many workstations available for me to choose from, and that it simply needs to be signed off by my manager …

…

  1. I could be working at the DAF location right now, getting on with the job, instead of working from home every day. It makes no sense to me that I can work from home for months on end but not from the established government office where there is workspace available. My laptop would connect to the network immediately, and I could put these stressful handful of years behind me and get on with the job. It is unreasonable that the department now draws out this stressful situation that I had finally resolved, by failing to be reasonable and accommodating.[15]

The Directions Order

  1. [78]
    On 4 October 2023, I issued a Directions Order requiring submissions from the parties. The Directions Order read as follows:

That the Appellant file in the Industrial Registry, and serve on the Respondent, any further written submissions (of no more than five pages in length and any relevant attachments) in further support of the Appeal by 4.00 pm on 11 October 2023.

That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions (of no more than five pages in length and any relevant attachments) in response to the Appellant's submissions by 4.00 pm on 18 October 2023.

That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) in reply to the submissions of the Respondent, by 4.00 pm on 25 October 2023.

Unless any party files an application by 4:00pm on 26 October 2023 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016.

  1. [79]
    On 16 October 2023, the Respondent emailed the Industrial Registry, asserting that the Appellant had not complied with the Directions Order, in that he did not file and serve his written submissions by 11 October 2023.
  2. [80]
    On 17 October 2023, through the Industrial Registry, I requested that the Appellant explain why he had not filed any written submissions by the stipulated date in accordance with the Directions Order.
  3. [81]
    The Appellant replied that day that he had nothing further to submit, that is why he had not submitted anything.
  4. [82]
    Given that the Appellant provided he had nothing further to submit, I issued an amended Directions Order on 18 October 2023. In that Directions Order, I directed the Appellant to instead file submissions "in reply to the submissions of the Respondent".
  5. [83]
    On 26 October 2023, the Respondent submitted their written submissions in accordance with the Amended Directions Order.
  6. [84]
    On 31 October 2023, the Appellant submitted his written submissions in accordance with the Amended Directions Order.
  7. [85]
    On 1 November 2023, the Respondent sought to make further written submissions to address "new matters raised by the Appellant in the written submissions filed 31 October 2023". I granted leave for the Respondent to make further written submissions in the Further Directions Order dated 2 November 2023.

The Respondent's further written submissions

  1. [86]
    In the Respondent's further written submissions, the Respondent contends that the Appellant introduces "new information" that was not included in the Appeal notice, nor does it respond to the Respondent's submissions. As such, they request that I exclude any new information raised by the Appellant:
  1. The Department refers to the Commission's amended Directions Order of 18 October 2023 which noted Mr Gregson's confirmation that he had no further submissions to make in support of his Appeal Notice. The amended Directions Order further stated the "Appellant file…written submissions…in reply to the submissions of the Respondent…" …
  2. The Department contends that Mr Gregson has introduced new information in his submissions filed on 31 October 2023, that was not included by him in the Appeal Notice, nor responds to the Department's submissions. The Department respectfully submits that Mr Gregson was previously provided ample opportunity to provide all relevant information in support of his appeal and chose not to do so. The Department requests the Commission exclude any new information introduced by Mr Gregson in reaching a conclusion.
  1. [87]
    I have considered the submissions of the Respondent and have determined that I will consider the entirety of the Appellant's written submissions. While I appreciate that the Appellant had not initially filed any written submissions in support of his Appeal notice, the Directions Order dated 4 October 2023 said that the Appellant ought to file "any further written submissions". The Appellant, at that time, did not believe he had further submissions to make. I then ordered that he file submissions following the Respondent "in reply to the submissions of the Respondent" which he has inevitably done.
  2. [88]
    The Appellant's submissions directly address the question to be determined in this case, of whether or not the Internal Review Decision was fair and reasonable. Out of an abundance of fairness and caution, I will consider them in their entirety. Particularly given that the Respondent requested and was given leave to submit a reply to those submissions. I see no prejudice that can be suffered by the Respondent if I have regard to the information submitted by the Appellant. 

Submissions

  1. [89]
    I have carefully considered all submissions but have determined not to approach the writing of this decision by summarising the entirety of those arguments. My focus is on determining whether the Internal Review Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal.

Jurisdiction

Decisions against which appeals may be made

  1. [90]
    Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. A "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable is appealable under s 131(1)(d) of the PS Act. The Appellant indicated in the Appeal Notice that he is "appealing a fair treatment decision".
  2. [91]
    Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. The Appellant meets that requirement.
  3. [92]
    Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission.

Timeframe for appeal

  1. [93]
    Section 564(3) of 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.
  2. [94]
    The Internal Review Decision was given on 6 September 2023 and the Appeal Notice was filed on 19 September 2023. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [95]
    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.

Relevant Legislation, Directives and Protocols

  1. [96]
    Section 131 of the PS Act states:

131 Decisions against which appeals may be made

(1)An appeal may be made against the following decisions—

…

(d)a fair treatment decision;

…

  1. [97]
    Section 133 of the PS Act provides:

133 Who may appeal

The following persons may appeal against the following decisions—

…

(d)for a fair treatment decision—a public sector employee aggrieved by the decision;

…

  1. [98]
    Clause 4 of Directive 11/20: Individual Employee Grievances (the Directive) provides (emphasis added):

4.1The Queensland Government is committed to creating positive and healthy workplace cultures, where employees, supervisors and managers:

(a) make decisions and take actions that are fair and transparent, and take responsibility for the consequences of their decisions and actions

…

(d) listen to understand and show empathy for others

(e) work together to resolve issues early and as informally as possible

4.4 Under the HR Act, decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

  1. [99]
    Clause 5 of the Directive provides (emphasis added):

5. Matters that can be the subject of an individual employee grievance

5.1 An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that:

(a)an administrative decision, which they are aggrieved by, is unfair and unreasonable

…

(e) an act or decision is not compatible with human rights or a decision failed to give proper consideration to a relevant human right under the HR Act.

  1. [100]
    Clause 8 of the Directive provides:

8. Individual employee grievance resolution principles

8.1 Employees are required to ensure that individual employee grievances are submitted as soon as reasonably possible after the administrative decision, alleged conduct or alleged behaviour has occurred.

8.2 Individual employee grievances are to be managed and resolved using a three-step process:

  1. (a)
    local action (the first stage of the individual employee grievance process)
  1. (b)
    internal review of a decision made following local action (the second stage of the individual employee grievance process), and
  1. (c)
    where applicable, external review of a decision made at internal review (the third stage of the individual employee grievance process).

8.3 Agencies, including managers and supervisors, must manage individual employee grievances:

  1. (a)
    in accordance with principles of natural justice, including timely decisions and the provision of adequate reasons
  1. (b)
    in a manner that protects the privacy of the employee who has submitted the grievance subject to any legal disclosure obligations, such as the requirement to provide natural justice to the subject of the grievance, and
  1. (c)
    in accordance with the procedures in clause 9.

8.4 All parties to an individual employee grievance:

  1. (a)
    must engage in the individual employee grievance process in good faith, and
  1. (b)
    be provided with regular and timely information by the decision maker in relation to the progress of the individual employee grievance.

8.5 To assist in the resolution of individual employee grievances an employee who submits an individual employee grievance may be:

  1. (a)
    supported by a person of their choosing, and
  1. (b)
    represented by a union representative or member of a professional association.
  1. [101]
    The Department's Individual Employee Grievance Protocol (the Protocol) provides (emphasis added):

1.  Purpose

The Department of Resources (the department) is committed to the effective, confidential and timely resolution of the individual employee grievances (employee grievance) and in a manner that protects the privacy of the aggrieved employee.

…

2.  Principles

…

2.3  The department is committed to applying a grievance resolution process that:

  • treats all people fairly and in a non-discriminatory manner
  • is conducted fairly and consistently
  • complies with the principles of natural justice; and
  • complies with the Information Privacy Principles in the Information Privacy Act 2009.

The department is committed to respecting, protecting and promoting human rights. Under the Human Rights Act 2019 (HR Act), the department has an obligation to act and make decisions in a way that is compatible with human rights and, when making a decision, to give proper consideration to human rights. When making a decision under this policy and procedure, decision-makers must comply with that obligation (refer to Comply with the HR Act).

…

Consideration

Appeal principles

  1. [102]
    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".
  2. [103]
    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.
  3. [104]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.  In reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  4. [105]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[16]

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.

Did the Department fail to consider the Appellant's personal circumstances?

  1. [106]
    The Appellant submits that the Internal Review Decision is unfair and unreasonable due to the housing crisis and living situation he experienced in Maryborough. It appears that the Appellant has experienced significant hardship throughout his residency in Maryborough.
  2. [107]
    The Appellant initially had to sleep in his car as his rental applications were constantly unsuccessful and houses were going for well above the asking price. When the Appellant was eventually successful in buying a house in Maryborough, it turned out to be completely unsuitable and unsafe for him and his family. The house was in an area of "non-stop crime."[17] When the Appellant's daughter was born "she had trouble staying asleep due to the noise around the house, and multiple cars crashed from the busy road into my cars parked in my yard".[18] It then became imperative for the Appellant to find quieter and more suitable housing, which he did in Kingaroy.
  3. [108]
    The Appellant detailed in his IEG submission the instances of crime that have impacted his family's living situation by:
  • Being broken into "countless" times.
  • Being locked down for 12 hours because there was a siege in the neighbouring property.
  • Having someone crash into his vehicle while he and his family slept on Christmas Eve.
  • A second vehicle of the Appellant's being vandalised.
  • Having people be under his house while he and his family slept.
  1. [109]
    The Department submitted that the Internal Review Decision "clearly demonstrates the Delegate's genuine consideration of Mr Gregson's personal circumstances". They submit that the Appellant's housing choices are a "personal decision" and outside of its control. Further, the Department is not obligated to approve a request for a transfer to accommodate a transfer decision "where it is not operationally convenient for the Department".
  2. [110]
    The Department is certainly not obligated to approve a request for a transfer where it is not operationally convenient. It is however, important for the Department to have sufficient regard to the Appellant's personal factors.
  3. [111]
    In relation to the consideration given to the Appellant's "personal factors" the IEG Decision outlined (emphasis added):

… the information before Ms Jude did include statements by you of personal, including housing, factors influencing your decision to relocate your family to Kingaroy. As such is it reasonable to consider that Ms Jude was aware of the personal factors raised by you in reaching her decision.

… While I empathise with your stated personal circumstances, I am of the view it would be more appropriate for Ms Jude to weigh the operational requirements against your raised personal factors in making a determination around your request to transfer your position. Ms Jude's decision states that a permanent transfer of your position is not operationally convenient and as such I have further considered factors relating to operational convenience below.

  1. [112]
    In the Internal Review Decision, Ms McAllister was satisfied that Ms Haenfler was aware of and considered housing matters raised by the Appellant in determining that Ms Jude's decision was fair and reasonable.
  2. [113]
    The Appellant outlined in detail the struggles experienced to obtain housing in Maryborough. The Appellant also provided in his IEG, the various criminal activities he encountered in the housing he eventually was able to purchase, which in essence made the property unsafe for him and his family.
  3. [114]
    The Department submitted that I ought to have regard to the considerations in Hardy v State of Queensland (Department of Environment and Science).[19] In that case, the Appellant sought a flexible work arrangement to work from home three days per week. The Appellant's primary reason for the arrangement was her daily commute from Gympie to Maryborough.
  4. [115]
    I am minded rather, to adopt my approach in Hume v State of Queensland (Queensland Health)[20] which was upheld by Deputy President Merrell in the Industrial Court of Queensland.[21] In that case, the Appellant requested a flexible work arrangement to work from home five days a week. I determined that the Appellant's flexible working arrangements ought to require physical attendance at work 20% of the time (1 day each week), having consideration for the Appellant's particular circumstances.
  5. [116]
    In Hume v State of Queensland (Queensland Health),[22] I considered (emphasis added):

[37]  Mr Hume relevantly pointed to a Policy principle that "No one size fits all – everybody and every situation is different". This is supported by cl 2.1 of Attachment One to the Policy which states that "Each individual request is to be considered by the delegate on a case–by–case basis…" The idea of "optimum work/life balance" is not obtainable simply by dividing in half an employee's time between home and the office. Achieving that balance will be different for each individual and therefore requires specific consideration of that individual's circumstances.

[38]  Mr Hume comprehensively set out the reasons why he submits working from home 100% of the time would achieve mutual benefits of boosting performance and his own wellbeing. With respect to his personal life, Mr Hume submitted he has been able to live a healthier lifestyle working remotely, assist with domestic duties and reduce external family stressors. With respect to his work performance, Mr Hume submitted he and his team have successfully worked remotely for more than 12 months and have received positive feedback regarding this period. Further, Mr Hume submits he is more accessible and agile through telecommunication which has led to increased interaction and collaboration.

 

  1. [117]
    With regard to the Appellant's request to be permanently transferred in this case, I am guided by the principle in Hume v State of Queensland (Queensland Health),[23] that each individual has unique circumstances and therefore specific consideration of that individual's circumstances ought to be given.
  2. [118]
    The Appellant has clearly set out his unique individual circumstances when he submitted his IEG. Having regard to the fact that the Appellant had struggled initially to secure housing in Maryborough due to the housing crisis and when he finally did, it was in an area that was unsafe and unsuitable for his young family, I am of the view that those individual circumstances warrant special consideration. In my mind, the Appellant's decision to relocate was no mere "personal choice" and rather, was a decision made to protect his mental wellbeing and the safety of his infant child. 
  3. [119]
    The Department's Protocol outlines:

2.3  The department is committed to applying a grievance resolution process that:

  • treats all people fairly and in a non-discriminatory manner
  • is conducted fairly and consistently
  • complies with the principles of natural justice; and
  • complies with the Information Privacy Principles in the Information Privacy Act 2009.[24]
  1. [120]
    I find that the Respondent did not reasonably or fairly weigh the Appellant's individual personal factors with the operational convenience for the Department. The operational matters from the Department's perspective can be managed on my assessment, whereas the Appellant's housing situation cannot.
  2. [121]
    I will now in turn consider the operational factors raised in the Internal Review Decision to explain why I have found that the operational factors have not been fairly assessed against the Appellant's individual circumstances.

Risk of fatigue

  1. [122]
    The Appellant has submitted that he is someone with ADHD and Asperger's Syndrome, requiring a peaceful night of sleep to work well during the day.[25] Due to the circumstances the Appellant has described, the housing he was able to obtain in Maryborough was not suitable for someone with sensory issues, nor was it suitable for someone with an infant who kept waking up through the night.
  2. [123]
    The Respondent submitted that information regarding the Appellant having ADHD and Asperger's Syndrome was not before Ms McAllister when making the internal review decision. While that may have been the case, material that was before both Ms Haenfler and Ms McAllister was the countless acts of criminal activities occurring at nighttime, which would inevitably impact upon any person's ability to sleep at night.
  3. [124]
    Not only did the Appellant have to navigate the difficulties arising from being a parent to a newborn baby, but he had to do so while multiple criminal acts including break ins occurred at his doorstep. It would be reasonably apparent to the Department that the Appellant would be unable to sleep well each night due to these conditions, with him then having to attend work each day with minimal sleep.
  4. [125]
    The Department raised concern about the Appellant having to commute from Kingaroy to Maryborough when required. While the Department had concerns over fatigue management arising from "long term regular arrangements requiring such long-distance travel prior to and after finishing work", which in their view was "unsustainable"  and that it would pose "a significant and unacceptable work health and safety risk due to the impact of fatigue on you as a worker", if the Appellant is unable to sleep through the night, then that poses a bigger fatigue risk than being occasionally required to drive around 180 km from Kingaroy to Maryborough.
  5. [126]
    The Department undoubtedly would have fatigue risk management strategies for workers required to drive long distances, given that staff service Southern Queensland. The Appellant had provided that all workers are "already impacted by fatigue and commute concerns when travelling for field work, and this is effectively managed by modern systems and processes".[26] It does not seem unusual that from time to time, the Department's workers are required to drive long distances.
  6. [127]
    In my view, the Appellant's risk of fatigue has in fact been mitigated through him moving to Kingaroy as he has been able to find suitable housing in a safer area where his sleep is not disturbed, making him more rested and alert when he is at work.

Supervisory obligations

  1. [128]
    Ms McAllister found that the Appellant's supervisory obligations considered by Ms Jude decision were a reasonable operational factor in her decision making. Ms McAllister referred to statements made by the Appellant's line manager, Mr Reid, that relocating the AO5 team leader position to Kingaroy would reduce operational leadership to team members in Maryborough. 
  2. [129]
    As various flexible work arrangements have shown and with the experience of COVID-19 still in recent memory, people can be supported to work at locations separate from each other, with platforms such as Teams and the telephone keeping individuals connected. The Appellant has previously demonstrated through COVID-19 times, that "my location is irrelevant to my work quality and this has been much more of a crisis for me than covid ever was".[27]
  3. [130]
    The Department submitted that "the delegates Internal Review Decision provides clear and intelligent justification as to why she believed the statement [that Mr Gregson supervises two staff in the same office location as him] was accurate". While the statement may be "accurate" the Internal Review Decision lacks intelligent justification about why the Appellant would not be able to supervise staff from a different location and how it would reduce operational leadership, in circumstances where it seems to be the 'norm' across the Department.
  4. [131]
    It seems that it would not be unusual for there to be distance between the work locations of the Department's staff across Queensland. The Appellant submitted that:

The distance between work locations of supervisors and staff is not usually a consideration in the business unit - For instance, supervisors and staff at the same level as the role and its reports are based in Cairns and Townsville, 346 km apart but manage to undertake regular operational work together. The same exists between supervisors and staff in Rockhampton and Mackay (336 km). Furthermore, other departmental staff (State Valuation Service, and Business Services) regularly travel back and forth between Maryborough and Kingaroy/the South Burnett on the same day. It is unreasonable to consider the distance in my case between Kingaroy and Maryborough (184 km) as any less accommodating to travel for any operational work than what most people think of as business as usual.[28]

  1. [132]
    In his written submissions, the Appellant referred to his supervisor who was given approval to have their position relocated from Maryborough to Rockhampton.
  2. [133]
    The Respondent submitted that this is not relevant to the Appellant's role. Further, that arrangement was "a temporary flexible work arrangement which can be distinguished from Mr Gregson's request for a permanent transfer of his position". The Department submitted in approving that flexible work agreement request, "it was determined operationally viable for the Department to implement given that role's responsibilities".
  3. [134]
    A significant point of difference seems to be that it is a "permanent transfer" that is being requested by the Appellant.
  4. [135]
    The 2020 FWLA approved by Ms Hooper[29] demonstrates that a "temporary" transfer of the Appellant's role to Kingaroy had once been considered by the Department. It was then determined that the Appellant's role could be transferred on a temporary basis. Although the 2020 FWLA was never required due to the Appellant purchasing a property in Maryborough (which later turned out to be unsuitable and unsafe), to support a temporary transfer, there would have been some operational convenience found by the Department to have the Appellant's role there. As the Department had considered for the Appellant's supervisor's FWA to be located in Rockhampton rather than Maryborough, "it was determined operationally viable for the Department to implement given that role's responsibilities". The same would have understandably been assessed when considering the Appellant's supervisory obligations back in 2020 by Ms Hooper. It is not clear what would have changed with respect to the Appellant's supervisory obligations between then and now.
  5. [136]
    In saying that, I understand that a temporary FWLA is not what is being requested now. I am simply pointing out that the Internal Review Decision lacks justification about why the Appellant's supervisory duties are no longer "operationally viable" in his permanent transfer request.
  6. [137]
    I am mindful that security and certainty are important to everyone, particularly in the circumstances the Appellant has outlined. It is not unreasonable for the Appellant to have requested a "permanent" transfer of his position after enduring the housing issues he has in Maryborough.
  7. [138]
    I am not persuaded that the Appellant's supervisory obligations outweigh his personal circumstances – it appears that the Department often manages supervisors being at different locations from the rest of their team.

Duties

  1. [139]
    Ms McAllister placed weight on Mr Reid's confirmation that the Appellant is "regularly" engaged in field work, including fire risk management and pest management activities, site and field inspections, and contractor management.
  2. [140]
    I agree that consideration ought to be had to the duties of an employee's role when determining whether or not to support a permanent transfer. Where the Appellant is unable to perform their duties effectively and efficiently from a different location, a permanent transfer should not be approved.
  3. [141]
    The Department did not attribute an approximate number of times or indicate how "regularly" the Appellant is required to conduct these tasks in Maryborough.
  4. [142]
    The Appellant suggests that the field work component of the role occurs on state land spread across Southern Queensland and is on average a day or two per month, becoming more regular in winter.[30]
  5. [143]
    Given my consideration above in relation to fatigue, I see no reason why the Appellant could not commute to attend to these tasks as they are required. Often, the team would be required to stay overnight in the location attended anyway, as field work occurs "on state land spread across southern Queensland".[31] The Appellant has consistently upheld that he will continue to travel for the field components of his role which occurs across Southern Queensland, not specifically in Maryborough.
  6. [144]
    The Appellant also detailed how Kingaroy is a more cost effective and time efficient location to be based, having regard to the field components of the role and the areas serviced by the Respondent. In his request for an internal review, the Appellant provided the team typically "meet on site across the region, meaning it would be even less travel" and that he would "reach many of these sites quicker than if I was located in Maryborough, better utilising the department's time, budget, and resources".[32] It seems that the Appellant's duties could be effectively undertaken from Kingaroy given that the field work component of the role occurs on land across Southern Queensland.

Work location

  1. [145]
    With respect to the work location, the Appellant provided to the Department that there "is space at the Kingaroy DAF/DES location where Resources staff were based as recently as last year".[33] While Ms Haenfler undertook enquiries with the QGAO who provided that there were no available workstations in other Departments that reside in Kingaroy, the Appellant submitted that there is space in the DAF/DES location.
  2. [146]
    The Appellant attached email correspondence to his request for internal review between him, Mr Scott Campbell, Facilities Manager, and Ms Denyse Trace from DAF between 12 June 2023 and 22 August 2023, which seems to indicate that there is office space at the DAF location.[34]
  3. [147]
    I agree with the Department, that it was entirely open to Ms Haefner to seek information from an objective official source to determine whether Ms Jude's decision was fair and reasonable. It is quite obvious that in order to transfer the Appellant's position, he needs an office location to attend upon each day. However, I am not convinced that the Department has adequately investigated the Appellant's claims that there was space in the DAF office. This is because of the email exchange between the Appellant and the Facilities Manager of DAF which seems to indicate that a space could be rented by the Department between 12 June 2023 and 22 August 2023.
  4. [148]
    Staff from the Department have previously been located in Kingaroy and it would seem that space can be sourced to support the Appellant's transfer. It was not fair or reasonable to not undertake specific enquiries with Mr Campbell or DAF with respect to the available office space and how the Department could go about obtaining it, given the unique individual circumstances of the Appellant.  

Departmental vehicle

  1. [149]
    Ms McAllister noted that the aspect of the Appellant's response relating to the location of the Department's vehicles relies on a departmental vehicle and equipment being relocated to Kingaroy from Maryborough.
  2. [150]
    It was fair and reasonable for the Department to have regard to the established location of the work vehicles and equipment in Maryborough when considering Ms Jude's decision making around operational convenience. Departmental vehicles and equipment should not often be transferred around to facilitate "personal relocations" of Departmental staff.
  3. [151]
    I am of the view however, that the Department has not properly weighed the unique individual circumstances the Appellant has described, in determining that the vehicle and equipment should not be relocated. The Appellant has provided that the equipment is in the vehicles themselves, meaning that all that would be required is for the Appellant to drive the vehicle from Maryborough to Kingaroy.
  4. [152]
    Given the work health and safety concerns that have been raised over fatigue, it would be a greater risk to the Department to have the Appellant stay in Maryborough where he is unable to sleep and night, to then get into the Department's vehicles to drive. It seems to be a very fair and reasonable solution to have one of the Department's vehicles relocated to Kingaroy with the Appellant.
  5. [153]
    In the Appellant's email correspondence between him and the Facilities Manager at DAF, Mr Campbell provides that at the Kingaroy Research Station, "Security patrol a couple times per night". Provided that there is parking, I see no reason why the Departmental vehicle could not be safely and securely kept at the new office location in Kingaroy. Alternatively, given that the Department has had employees located in Kingaroy in the past, and the Appellant's "temporary" request in 2020 had been given consideration, there understandably would have been arrangements regarding the use of Departmental vehicles.
  6. [154]
    I am not of the view that this operational factor outweighs the Appellant's individual circumstances.
  7. [155]
    Having regard to all of the operational factors considered by the Respondent and in addressing the operational factors raised in the Internal Review Decision above, I do not find that the Department gave proper consideration to the Appellant's unique individual circumstances against the operational convenience of the Department. I therefore find that the Internal Review Decision was unfair and unreasonable.

Did the Respondent fail to consider the Appellant's human rights?

  1. [156]
    As I have found the Internal Review Decision is unfair and unreasonable for the reasons above, I will uphold the appeal on that basis. Therefore, consideration of the Appellant's submission that the Department failed to consider his human rights, under ss 26 and 58 of the Human Rights Act 2019 (Qld) (HR Act) is not required.

Conclusion

  1. [157]
    For the reasons I have outlined above, I have concluded that the Internal Review Decision was not reasonably justified, making it unfair and unreasonable. The Appellant's substantive role is capable of being undertaken in Kingaroy and having considered the operational requirements of the Department against the Appellant's individual personal circumstances, I will reverse the decision to refuse the permanent transfer of the Appellant's substantive position from Maryborough to Kingaroy.
  2. [158]
    I order accordingly.

Orders

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

  1. The appeal is allowed;
  1. The Delegate's decision is set aside, and another decision is substituted; and
  1. Mr Gregson's substantive position with the Department is permanently transferred from Maryborough to Kingaroy. That will take effect from the time Mr Gregson wishes to return to his substantive position.

Footnotes

[1] Appeal notice filed 13 September 2023, 4.

[2] Currently, the Appellant is relieving in a different position as a Senior Land Officer at an AO6 classification.

[3] Respondent's submissions filed 26 October 2023, Attachment 1B, 1.

[4] Respondent's submissions filed 26 October 2023, Attachment 1A, 1-2.

[5] Respondent's submission filed 26 October 2023, Attachment 7R, 1.

[6] The Appellant attached an email exchange between the Appellant, Ms D. Trace and Mr S. Campbell between 12 June 2023 to 22 August 2023. 

[7] Respondent's submission filed 26 October 2023, Attachment 7R, 2.

[8] Ibid 3.

[9] Department of Resources, Bushfire/wildlife response framework (LND/2019/4867) (January 2021).

[10] Ibid; Respondent's submissions filed 26 October 2023, Attachment 7S.

[11] Respondent's submissions filed 26 October 2023, Attachment 1, 8.

[12] Appeal notice filed 19 September 2023, 4.

[13] Ibid.

[14] Appellant's submissions filed 31 October 2023, [2].

[15] Ibid [12], [14].

[16] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[17] Respondent's submissions filed 26 October 2023, Attachment 1A, 1.

[18] Appellant's submissions filed 31 October 2023, [3].

[19] [2022] QIRC 480.

[20] [2021] QIRC 272.

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

[22] [2021] QIRC 272.

[23] Ibid.

[24] Individual Employee Grievance Protocol cl 2.3.

[25] Appellant's submissions filed 31 October 2023, [3].

[26] Respondent's submissions filed 26 October 2023, Attachment 7R, 1.

[27] Ibid Attachment 1A, 2.

[28] Appellant's submissions filed 31 October 2023, [13].

[29] Which would have been effective from 7 April 2020 and was to be reviewed again after six months on 7 October 2020.

[30] Respondent's submission filed 26 October 2023, Attachment 7R, 6.

[31] Ibid 1.

[32] Ibid.

[33] Ibid Attachment 1A, 2.

[34] Ibid Attachment 7T.

Close

Editorial Notes

  • Published Case Name:

    Gregson v State of Queensland (Department of Resources)

  • Shortened Case Name:

    Gregson v State of Queensland (Department of Resources)

  • MNC:

    [2024] QIRC 208

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    26 Aug 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480
2 citations
Jump To
Cite 1 - [2022] QIRC 480
Cite 2 - [2022] QIRC 480
Hume v State of Queensland (Queensland Health) [2021] QIRC 272
3 citations
Jump To
Cite 1 - [2021] QIRC 272
Cite 2 - [2021] QIRC 272
Cite 3 - [2021] QIRC 272
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
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

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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