Rotar v State of Queensland (Queensland Fire and Emergency Services)
[2024] QIRC 227
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- Unreported Judgment
- Rotar v State of Queensland (Queensland Fire and Emergency Services)[2024] QIRC 227
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Rotar v State of Queensland (Queensland Fire and Emergency Services)[2024] QIRC 227
Rotar v State of Queensland (Queensland Fire and Emergency Services)[2024] QIRC 227
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rotar v State of Queensland (Queensland Fire and Emergency Services) [2024] QIRC 227 |
PARTIES: | Rotar, Micky (Appellant) v State of Queensland (Queensland Fire and Emergency Services) (Respondent) |
CASE NO.: | PSA/2023/130 |
PROCEEDING: | Public Sector Appeal – Fair Treatment Decision |
DELIVERED ON: | 13 September 2024 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDERS: | 1. The review decision is confirmed. 2. The appeal is dismissed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against fair treatment decision – where appellant requested flexible work arrangement – where flexible work arrangement was partially approved – where appellant requested an internal review – where internal review set aside the primary decision – whether review decision was fair and reasonable – review decision confirmed. |
LEGISLATION AND OTHER INSTRUMENTS: | Individual Employee Grievances Directive 11/20 Industrial Relations Act 2016 (Qld), s 27, s 562B, s 562C Positive Performance Management Directive 15/20 Public Sector Act 2022 (Qld), s 81, s 110, s 131 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland [2018] QSC 319 Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480 |
Reasons for Decision
Introduction
- [1]Mr Micky Rotar ('the Appellant') is employed by the State of Queensland (Queensland Fire and Emergency Services) ('the Respondent') as a Curriculum Learning and Development Officer within the School of Fire and Emergency Services Training ('SFEST') Unit at the Queensland Combined Emergency Services Academy Training Facility at the Port of Brisbane.
- [2]The Appellant submitted a flexible work arrangement ('FWA') request to his supervisor under s 27 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). The Appellant was subsequently advised that the FWA would be partially supported ('the primary decision').
- [3]The Appellant sought an internal review of the primary decision by lodging an Individual Employee Grievance ('the grievance') under s 110 of the Public Sector Act 2022 ('the PS Act'). The internal review was sought on the basis that the primary decision had been unfair and unreasonable. Mr Simon Evans, Acting Director, Relations and Standards Branch, QFES ('the decision maker'), determined that the primary decision be set aside and outlined a number of other recommendations ('the review decision').
- [4]The Appellant filed a Notice of Appeal pursuant to s 131(1)(d) of the PS Act appealing the review decision on the basis that it was not fair and reasonable.
Appeal principles
- [5]The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [6]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination in this matter is whether the review decision by the Respondent regarding the Appellant's request for an FWA was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
What decisions can the Industrial Commissioner make?
- [7]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- confirm the decision appealed against; or
- set the decision aside and substitute another decision; or
- set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Grounds of appeal
- [8]The Appellant's grounds for appeal as stated in the appeal notice are outlined as follows:
The grounds for seeking this appeal are based on my dissatisfaction with the Internal Review Decision, namely:
- Whilst the Internal Review decision-maker has made a finding that the original decision surrounding my Flexible Working Arrangement was unfair and unreasonable, they did not substitute another decision or take further decisive action to actually resolve my Individual Employee Grievance. To remove doubt, I agree with the Internal Review decision-maker that the original grievance decision was unfair and unreasonable. I am specifically appealing the Internal Review decision's outcome as it does not fundamentally resolve my original Individual Employee Grievance.
- I contend that the original decision-maker had adequate information to make a decision regarding my Flexible Working Arrangement, and it is unfair and unreasonable to conclude that I need to resubmit a new Flexible Working Arrangement application from the beginning again. I respectfully submit that the Internal Review decision-maker could have and should have made a substitute decision to approve my original Flexible Working Arrangement request. I contend to require me to commence the process again from the very start instead of issuing a substitute decision is, of itself, unfair and unreasonable.
- To remove doubt, I agree with the Internal Review decision's overall finding that my Flexible Working Arrangement was unfairly and unreasonably refused. I specifically disagree and seek to appeal the "Outcome/Recommendations", which are labelled from 1. to 7. in the Internal Review decision document.
I am seeking a review of the Internal Review Decision as I do not believe it is fair and reasonable. I seek relief from the Commission in the form of substituting a new decision approving my original Flexible Working Arrangement, or alternatively, I seek that the decision be returned to the decision maker for a fresh decision with directions deemed appropriate by the Commission.
Submissions
- [9]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.
Appellant's submissions
- [10]Despite the Directions Order stating that written submissions of no more than five pages plus relevant attachments were to be filed, the Appellant filed a 60-page document. This document does not appear to include submissions as to why the second decision was unfair or unreasonable, rather it seems to be a copy of the original individual employee grievance in response to the primary decision.
Respondent's submissions
- [11]The Respondent's submissions are summarised as follows:
- In mid-2022 the Appellant was approved to work from home on a full-time basis in response to medical certificates he provided from his treating doctor stating that he had a medical condition and was not able to travel to his workplace. No information was provided to the Respondent about the medical condition.
- This period of work from home was considered to be temporary, part of a suitable duties program and in line with medical advice to assist him to return to the workplace.
- When asked by the Respondent to provide a completed Work Capacities Checklist completed by his treating doctor, the Appellant refused to provide any medical information and instead provided a full clearance to return to working in the office on a full-time basis. Consequently, the full-time work from home arrangement ceased on 10 February 2023.
- On 20 March 2023, the Appellant submitted a FWA request to his supervisor, Acting Inspector Scott Banbury seeking to work 2 days per week from a Queensland Government distributed workplace (non-QFES) located at Ipswich on Monday and Tuesday each week, 2 days working from home on Thursday and Friday each week and attending his primary location of employment (SFEST) 1 day per week on Wednesday.
- The Appellant stated that the reason for his FWA request was for improved work/life balance, increased productivity from a reduction in travel, and financial benefits of saving in transportation costs.
- A/Inspector Banbury (the primary decision maker) wrote to the Appellant advising him that his FWA was partially supported, endorsing an arrangement of working 4 days per week at SFEST and 1 day per week at home.
- The Appellant sought an internal review of the primary decision by way of an individual employee grievance pursuant to s 110 of the PS Act.
- The Respondent argues that the decision maker confirmed the primary decision to deny the Appellant's request for a 4 day per week FWA, providing reasons for his findings and a list of outcomes and recommendations.
- The Respondent submits that the review decision was fair and reasonable having regard to the requirements in the Individual Employee grievances Directive 11/20 ('the Directive'). The decision maker provided careful consideration to the Appellant's detailed submission requesting the internal review and provided clear reasons for his findings as well as a list of outcomes and recommendations in his written decision to the Appellant.
- The decision maker's outcome advice to the Appellant met the requirements of clause 9.2 of the Directive because it included:
- that the decision maker had conducted a review of the document that the Appellant submitted;
- that the decision maker had summarised the allegations submitted by the Appellant and presented each of them with his findings;
- recommendations and outcomes; and
- provided the relevant appeal information for the Appellant to pursue an external review if he was dissatisfied with the review decision.
- The Appellant states that he is dissatisfied with the review decision because the decision maker did not make a substitute decision to approve his FWA request, and being required to commence the process from the beginning is unfair and unreasonable.
- While the decision maker found that parts of the process to make the primary decision were unfair and unreasonable, he also found that the Appellant did not provide sufficient detail to the Respondent to allow a fully considered decision to be made.
- The decision maker also found that it was reasonable for the Respondent to request additional information to support the Appellant's claim of needing the FWA to support his disability/medical condition. This was because the Respondent did not have any information about the Appellant having a disability or a medical condition, other than medical certificates stating that he has a medical condition.
- The Appellant stated in his IEG request for a review of the primary decision that his former supervisor is aware of his medical condition. The Appellant's former supervisor, Mr Andrew Richards, states that he was told by the Appellant that he had symptoms, however, he did not know what his medical condition was, but that he was receiving treatment. Mr Richards was never provided any information to confirm that the Appellant does have a medical condition.
- The decision maker's role in the Respondent is not part of the SFEST, which is why he liaised with the SFEST Director before determining his recommendations that the original decision be set aside and that a new application be submitted for assessment with the SFEST Director as the delegate.
- The Respondent notes that the Appellant states in his FWA request that his reason is increased productivity "resulting from less travel each day. Saving in car cost, traffic congestion and helping to reduce climate change impacts and … less travel-related fatigue." The Appellant's home is in Fernvale, and his workplace is at Whyte Island at the Port of Brisbane, which is approximately 70 minutes travel time in each direction.
- The Respondent refers to the decision of the Commission in Hardy v State of Queensland (Department of Environment and Science) where it was held that the burden of an Appellant's commute does not create a reciprocal obligation on a department to accommodate an Appellant's request for an FWA.
- The Appellant has been undertaking his role for the last 14 years. Without knowing when the Appellant commenced living in Fernvale, the Respondent submits that the Appellant either knew the distance and length of the commute when he moved to Fernvale, or when he applied for and was appointed to his position. The Respondent argues that either way, the Appellant accepted that he would be required to commute to work every day.
- As the Appellant has provided a full medical clearance and has not disclosed any new medical information that would warrant vulnerable employee arrangements being made, the Respondent concluded that the Appellant's reason for the FWA of travel reduction was not sufficient for the Respondent to accommodate his request.
- The Appellant states that his FWA will result in increased productivity; however, prior to the Appellant commencing his full-time work from home arrangement in mid-2022, his supervisor had informally discussed the Appellant's work performance with him multiple times.
- During the conversations held with the Appellant in late 2022 and early 2023, while he was working from home full-time, the Appellant's supervisor also asked questions about the Appellant's work that had not been completed or submitted.
- Clause 6.1(b) of the Positive Performance Management Directive 15/20 states that managers must provide regular and constructive feedback on an employee's work performance, including recognising areas of work performance that need improvement. As such, taking into consideration performance concerns already discussed does comply with cl 6.1(b).
Appellant's submissions in reply
- [12]In reply, the Appellant made the following submissions –
- The Appellant contends that the Respondent's submission that the primary decision maker did not refuse the Appellant's FWA and that it was partially supported is a disingenuous interpretation of the facts of the matter. The Appellant further argues that the Respondent's interpretation is contradicted by the review decision:
It is clear that A/Inspector Banbury had decided the FWA outcome before meeting with Mr. Rotar but was open to additional information from Mr Rotar (particularly in respect to a medical/disability consideration). Had Mr Rotar been given reasonable notice and a meeting agenda (e.g., to seek more information to support the FWA) he may have been better prepared to discuss any concerns. On the balance of probabilities, the meeting was to inform Mr Rotar of the FWA decision and did not constitute genuine consultation prior to making the decision.
[emphasis added by the Appellant]
- The Respondent appears to claim that "…given that QFES does not have any information about [the Appellant] having a disability or a medical condition, other than medical certificates stating he has a medical condition" they were unable to make a decision. The Appellant once again clarifies that he was not requesting an FWA on the basis of a disability or a medical condition, and that this wording was not included in his original application.
- The Appellant respectfully contends that the Respondent appears to be indicating that the refusal of his FWA seems to be related solely to his supposed disability or impairment, and this may be contrary to s 7 of the Anti‑Discrimination Act 1991. The Respondent appears to indicate that the Appellant would need to provide medical or disability information to his employer in order for his FWA to be approved despite no medical grounds existing.
- The Respondent acknowledges in their submissions that they have received a full medical clearance from the Appellant, so the Appellant is unsure why they would need further medical/disability information.
- The Respondent cites Hardy v State of Queensland (Department of Environment and Science). The Appellant respectfully contends that Hardy can be distinguished from the present matter for multiple reasons:
- In Hardy, the employee had specific operational requirements for their role which prevented them from receiving their requested FWA (for example, a Department vehicle). In the Appellant's case, there have been no operational requirements identified by the Respondent that would prevent the Appellant's request.
- Unlike Hardy, the Appellant's employer's internal review decision acknowledges that no operational requirement would restrict the Appellant's ability to work from a Distributed Working Centre or continue working from home, as it stated:
As long as Mr Rotar has a computer and phone there should be no reason why connectivity or printing would be a barrier to working at an DWC.
It is reasonable to assert that Mr Rotar has a responsibility to advise his employer of any potential communication connectivity or bandwidth issues that could impact a FWA from his home…
[emphasis added by the Appellant]
To remove any doubt, the Appellant has been working from home for an extended period of time without any connectivity or bandwidth issues, so he submits that the employer would have no reasons to hold concern about this.
- The Appellant states that the Respondent appears to argue that the Appellant 'accepted' that he would be required to commute to work each day. The Queensland Government's public-facing website title "About distributed work centres" specifies:
A distributed work centre (DWC) is a convenient, accessible and safe workplace option that allows approved users to work closer to their home, alongside employees from various Queensland Government departments. By opting to work at a DWC you can network and collaborate with other agencies and benefit from a better work/life balance.
Using a DWC is free of charge to your department, but your agency will need to supply you with the required technology…
[emphasis added by the Appellant]
- Section 4(k) of the IR Act also specifies that the main purpose of the IR Act is to be achieved by:
…promoting diversity and inclusion in the workforce, including by providing a right for employees to request flexible work arrangements to help balance their work and family responsibilities.
[emphasis added by the Appellant]
- Section 39(3)(g) of the PS Act also includes the following wording as part of the public sector principles:
…promoting equitable and flexible working environments.
[emphasis added by the Appellant]
- Part 20 of the State Government Entities Certified Agreement 2019 ('the Certified Agreement') is dedicated to the topic of work/life balance and clarifies the employer's commitment to considering:
…flexible working arrangements, including telecommuting/working from home and co-working spaces/distributed work centres.
[emphasis added by the Appellant]
- The Appellant respectfully submits that an employee understanding they need to commute to work does not absolve the Respondent of its obligations under the IR Act, PS Act, and the Certified Agreement.
- The Respondent's submissions disingenuously mention supposed issues with the Appellant's work performance conversations from mid-2022. The Respondent also mentions that in late 2022 and early 2023 there were conversations where the Appellant's supervisor 'asked questions about Mr Rotar's work that had not been completed or submitted.'
- The Appellant argues that these claims directly contradict the Respondent's internal review decision, which stated:
On the balance of probabilities, the inclusion of the condition "a high level of supervision/direction is required" was not congruent with positive performance management principles and therefore not reasonable grounds on which to make a FWA decision.
[emphasis added by the Appellant]
Consideration
- [13]In accordance with the Directive the Appellant sought an internal review of a primary decision with which he was dissatisfied. The Appellant then exercised his right to appeal the internal review decision ('the review decision') to the Commission in accordance with s 131(1)(d) of the PS Act.
- [14]The Appellant sought an FWA in which he proposed working 2 days per week from a Queensland Government distributed workplace located at Ipswich on Monday and Tuesday, 2 days per week working from home on Thursday and Friday, and attending his primary location of employment 1 day per week at the SFEST on Wednesday.
- [15]A/Inspector Banbury determined in his primary decision that the FWA was partially supported, allowing for the Appellant to work at the SFEST 4 days per week and from home on 1 day per week.
- [16]In the review decision, the decision maker determined that a number of aspects of the primary decision were unfair and unreasonable and made a number of recommendations including that the primary decision be set aside.
- [17]The Appellant's grounds of appeal can be summarised as objecting to the review decision on the grounds that the primary decision was found to be unfair and unreasonable, but the decision maker did not substitute another decision or take further 'decisive action' to resolve the grievance. The Appellant contends that it was unfair and unreasonable to require that he submit a new FWA as the original decision maker had adequate information to make a decision regarding the FWA application. The Appellant objects to the 'Outcome/Recommendations' labelled 1 to 7 in the review decision.
- [18]As noted above, the submissions filed by the Appellant appear to be similar to the submissions upon which he sought an internal review of the primary decision. These submissions do not address the Appellant's contention that the review decision was not fair and reasonable. The Respondent has also filed submissions that appear to support the primary decision rather than the review decision. Both parties' submissions are consequently of limited value in assessing whether the review decision was fair and reasonable.
- [19]The review decision conducted a review of the primary decision regarding the FWA and made a number of findings. These findings can be summarised as follows –
- There is no clear reason why 1 day per week was granted in the FWA, but also no clear reason why 2 or more days would be granted as neither applicant nor decision maker provided substantial justification.
- On the balance of probabilities, the decision made by A/Inspector Banbury may have been influenced by the SHE system database notes (or advice) provided by QFES Injury Management, and that advice may have been unintentionally erroneous in the absence of any documented performance or absenteeism management plan for the Appellant.
- The Appellant did not provide sufficient detail to the Respondent (as per the IR Act, Division 4, s 27(2)(b)) to consider his request for 2 days per working week working from home and 2 days per working week from a Distributed Work Centre ('DWC'), and when asked if he wished to provide medical documentation to have the FWA considered in the context of medical or disability needs, the Appellant declined.
- On the balance of probabilities, the inclusion of the condition "a high level of supervision/direction is required" was not congruent with positive performance management principles and therefore not reasonable grounds on which to make the primary decision.
- The Respondent's FWA Guide section on DWCs has incorrect information relating to internet and printing services (not being available) and needs to be revised.
- As long as the Appellant has a computer and phone there should be no reason why connectivity or printing would be a barrier to working at a DWC.
- It is reasonable to assert that the Appellant has a responsibility to advise his employer of any potential communication connectivity or bandwidth issues that could impact an FWA from his home. It would also be reasonable for the Appellant's employer to take this into consideration in an FWA application.
- A review of the FWA application clearly shows A/Inspector Banbury was referring to bandwidth issues and lack of IT resources as being the source of any inability to complete tasks or role. There are no evident personal assertions on the Appellant's character.
- It is clear that A/Inspector Banbury had decided the FWA outcome before meeting with the Appellant but was open to additional information from the Appellant (particularly in respect to a medical/disability consideration). Had the Appellant been given reasonable notice and a meeting agenda (e.g. to seek more information to support the FWA) he may have been better prepared to discuss any concerns. On the balance of probabilities, the meeting was to inform the Appellant of the FWA decision and did not constitute genuine consultation prior to making the decision.
- [20]Following these findings, the decision maker outlined the following 'Outcome/Recommendations' –
- In consultation with Chief Superintendent Steve DePinto, the FWA application dated 06.04.2023 is now set aside.
- If you so desire, you may submit a new FWA application to Superintendent Cameron Thomas.
- I strongly encourage you to provide sufficient detail in your application to articulate your reason for the request, and at your discretion any personal needs.
- Your FWA will be assessed by Superintendent Cameron Thomas in genuine consultation with both you and your supervisor, and that the decision maker for the new FWA is the Director of the School of Fire and Emergency Service Training or delegate.
- That any new FWA is in accord with QFES policy and legislation.
- That the Director of SFEST has been advised to consider implementing a positive performance management strategy for all relative SFEST personnel that is in line with the Positive Performance Management (Directive 15/20).
- That QFES revises the Flexible Work Arrangement Guide (this is already underway).
- [21]I note the Appellant's submission that he was not requesting an FWA on the basis of a disability or medical condition. It is unclear why the Respondent submits that QFES did not have enough information about the Appellant's medical condition when the Appellant had not included any such reference in the FWA application. It was not reasonable to refer to the Appellant's medical or disability needs when the FWA was not sought on the basis of any such condition.
- [22]The onus on the Appellant in an appeal of this type is to demonstrate that the decision was not fair and reasonable. While the Appellant has identified a number of deficiencies in the primary decision, only limited reference was made to the review decision. I am satisfied that the review decision was fair and reasonable as it reviewed the primary decision and identified deficiencies in both the process and outcome. Acknowledgement of these deficiencies formed the basis of the recommendations by the decision maker.
- [23]The physical format of the Respondent's FWA application requires the Respondent's response (or primary decision) to be incorporated into the application, i.e. the decision maker responds to specific prompts included in the form and ticks a box as to whether the proposal is supported or not. To allow the FWA application to be re‑considered would presumably require the Respondent to remove the details of the primary decision that was incorporated into the application. In these circumstances, it was fair and reasonable for the decision maker to determine that the FWA application should be set aside, and a fresh one completed to be considered in accordance with the recommendations in the review decision. The deficiencies in the primary decision have been identified and the decision maker has determined that the FWA should be considered by a different decision maker in consultation with the Appellant and his supervisor. That is a fair and reasonable course of action. It would not be appropriate to simply set aside the primary decision and grant the application in circumstances where a proper process has not yet been followed.
- [24]The Appellant contends that being required to commence the process again from the start is unfair and unreasonable. I am satisfied that this outcome provides the Appellant with the opportunity to include additional information about his circumstances that may assist in the assessment of his application, should he wish to do so. It is also open to the Appellant to simply re-submit his application without amendment. In either circumstance, I do not consider a requirement to submit a fresh application to be onerous and certainly not unfair or unreasonable. I consider that the recommendations outlined in the review decision were fair and reasonable.
- [25]It does not follow that because deficiencies have been identified in the primary decision that the FWA must be granted on appeal. In circumstances where the Respondent appears to have misunderstood the basis for the FWA application as being sought on the basis of a medical condition and has recognised the lack of consultation with the Appellant, it would not be appropriate to simply order that the FWA be approved. After the recommendations are followed and appropriate consultation occurs between the parties, the Respondent will then make a more informed decision regarding the FWA application. If the Appellant believes that decision to be unfair or unreasonable, an internal review may be sought.
- [26]The Respondent referred to Hardy v State of Queensland (Department of Environment and Science)[5] (‘Hardy’), in which it was held that the burden of an Appellant's commute does not create a reciprocal obligation on a department to accommodate an Appellant's request for an FWA. The Appellant contends that this matter can be distinguished on the basis that in Hardy the employer relied upon operational requirements that prevented the FWA application from being accepted. The Appellant asserts that no such operational requirements were identified in the primary decision that would prevent his request.
- [27]Consideration of the issues that arose in Hardy regarding operational requirements and consideration of an employee's commute may be relevant for both parties to consider when re-submitting the FWA application and responding to the application. These issues are not central to the decision under appeal which is the review decision to set aside the primary decision.
- [28]If the Appellant chooses to re-submit his FWA application, the Respondent is reminded of its obligations under the relevant industrial instrument, the IR Act, and the PS Act regarding the assessment of an FWA application.
Order
- [29]I make the following orders:
- The review decision is confirmed.
- The appeal is dismissed.