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  4. Ruberry v State of Queensland (Department of Education) - [2024] QIRC 3

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Ruberry v State of Queensland (Department of Education)[2024] QIRC 3

Ruberry v State of Queensland (Department of Education)[2024] QIRC 3

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ruberry v State of Queensland (Department of Education) [2024] QIRC 3

PARTIES:

Ruberry, Lisa

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/225

PROCEEDING:

Public Sector Appeal – Transfer Decision

DELIVERED ON:

5 January 2024

HEARING DATE:

Respondent's submissions filed 5 December 2023

Appellant's submissions filed 11 December 2023

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

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

  1. The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a transfer decision – where appellant is subject to a Required Transfer – where appellant requested a local review – where review confirmed original decision – where appellant sought a formal internal review – where appellant relied on personal circumstances, health concerns and caring responsibilities – where review confirmed original transfer decision – whether decision fair and reasonable – decision confirmed

LEGISLATION AND INSTRUMENTS:

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

Public Sector Act 2022 (Qld) ss 161, 162

Department of Education: Teacher Transfer Guidelines cls 4, 5, 8

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Reasons for Decision

Introduction

  1. [1]
    Ms Lisa Ruberry is employed by the State of Queensland through the Department of Education ('the Department') as a Teacher. Ms Ruberry commenced employment with the Department on 24 January 2002 at Banksia Beach State School (BBSS), where she has worked since her commencement date, other than a period of leave taken for the purposes of caring for her two children.
  2. [2]
    In a letter dated 6 November 2023, Ms Lois Craig, Director, Business Partnering North Coast Region, advised Ms Ruberry she was to be transferred from BBSS to Tullawong State School (TSS) ('the Internal Review Decision').[1]
  3. [3]
    Ms Ruberry appeals the Decision under ch 3 pt 10 of the Public Sector Act 2022 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  4. [4]
    The Commission's role in hearing this appeal is to consider whether the decision appealed against is fair and reasonable. This process encompasses a consideration of the decision arrived at having regard to the information available to the decision maker at the time the decision was made, as well as the processes followed. The appeal is not a re-hearing of the issues.
  5. [5]
    In my view, the Internal Review decision was fair and reasonable.
  6. [6]
    My reasons follow.

Background

  1. [7]
    Teachers employed by the Department may be required to teach at any location in the state of Queensland.[2]
  2. [8]
    To manage the transfer of Queensland teachers throughout the state, the Department has established a system, encompassing:
  1. Transfers initiated by the Department (Required Transfer);
  2. Transfers requested by employees (Requested Transfer); and
  3. Transfers based upon compassionate reasons (Compassionate Transfer).[3]
  1. [9]
    Teachers are expected to comply with a departmentally required transfer unless they can establish reasonable grounds exist for the transfer not to occur.[4]
  2. [10]
    Under the heading, Required Transfer, the Teacher Transfer Guidelines ('the Guidelines') explain the circumstances where school leaders will work with regional HR teams to recommend teacher transfers including:
  • offer teaching opportunities to teachers whose teaching practice would benefit from diverse experiences
  • provide professional development opportunities to teachers who would benefit from expanding their capabilities or areas of expertise
  • support school renewal, continuous improvement and innovation
  • generate vacancies for teachers seeking to transfer following rural and remote service
  • respond to a decrease in student enrolments that will impact school staffing allocations.[5]
  1. [11]
    Under the Guidelines, the Department is required to take the following factors into consideration when identifying teachers for a required transfer: 
  1. breadth of teaching experience, including prior service in rural and remote locations or other high priority locations;
  2. length of service in current location;
  3. professional development activities undertaken in the last 5 years that either support the teacher in their current position or their longer-term career plans;
  4. the need to create vacancies for teachers seeking to transfer following rural and remote service;
  5. temporary organisational circumstances that preclude the teacher from moving from their current location;
  6. personal circumstances that preclude a teacher from moving either from their current location or residence.
  1. [12]
    In response to enrolment reductions, it was necessary for the Department to reduce the teaching workforce at BBSS for the 2024 school year. Sixteen teachers were subsequently identified as being suitable for required transfer.[6]
  2. [13]
    On 6 June 2023, Ms Ruberry was notified in an email from the Department that she was a Required Transfer applicant.[7] Ms Ruberry opened this email on 6 June 2023 and again on 8 September 2023.[8]
  3. [14]
    On 8 September 2023, Ms Ruberry was informed she was being transferred from BBSH to another school in the Moreton Bay Geographic area. The specific school to which Ms Ruberry was to be transferred was not identified in the correspondence and as best I understand it, had not been selected at this point.[9]
  4. [15]
    On 9 September 2023, Ms Ruberry requested a local review of the transfer decision. The local review involved a meeting between Ms Ruberry, her current principal and a Senior Human Resource Consultant within the North Coast Region. The meeting took place on 12 September 2023.[10]
  5. [16]
    Following the meeting, Ms Casey Von Nida, a Senior Human Resources Consultant within the Department, emailed Ms Ruberry confirming the transfer decision was unable to be reversed, having regard to the information provided by Ms Ruberry. Ms Von Nida also relied on the Department's need to reduce staff at BBSS in support of the Department's decision.[11]
  6. [17]
    On 4 October 2023, Ms Ruberry submitted a Teacher Transfer Review Request ('Internal Review').
  7. [18]
    Under the heading, 'Grounds for Review', Ms Ruberry included information about her personal circumstances including past and present caring responsibilities, personal health issues and her son's autism spectrum condition.[12]
  8. [19]
    On 3 November 2023 Ms Ruberry was advised of a permanent vacancy located at TSS.
  9. [20]
    The Teacher Transfer Review Panel was advised of the placement school and subsequently met to determine the outcome of the Internal Review request.[13]
  10. [21]
    Ms Ruberry was informed of the outcome of the review on 6 November 2023 in which the Teacher Transfer Review Panel dismissed the review.[14]
  11. [22]
    In response to subsequent concerns raised by Ms Ruberry in respect of the period taken to complete an Internal Review, the Department advised the Internal Review was undertaken only after a permanent vacancy at a school located within the Moreton Bay Geographic Area had been identified.[15]

The Decision Letter

  1. [23]
    Ms Craig confirmed the decision was based on the following:
  • Mrs Ruberry was permanently appointed as a teacher at Banksia Beach State School on 23 January 2023, following a temporary teaching engagement at Banksia Beach State School for period 25 January 2002 to 22 January 2003. Mrs Ruberry has not completed service at any other Queensland school location.
  • The Teacher Transfer Guidelines state in part when identifying teachers for a required transfer, school leaders and Human Resources teams are to take into consideration:
  1. breadth of teaching experience, including prior service in rural and remote locations, i.e., transfer rating 4 to 7 or other higher priority locations in Queensland
  2. length of service in current location

Teachers employed by the department may be required to teach at any location in the state. A transfer placement to be a designated base location of up to 50 minutes driving time from a teacher's place of residence is considered reasonable. Time is calculated according to the nearest trafficable route, but should consider factors such as road and traffic conditions. Electronic trip planners such as www.googlemaps.com.au or www.mydrive.tomtom.com may be used as a guide to determine approximate driving time.

  • The 2023/2024 departmental required transfer process identified permanent teachers who had undertaken five (5) years' service or more in their current school location and had not worked as a permanent employee at another school location with the department. The purpose of this review enabled schools to:
  1. Explore the capacity to assist school renewal and share the expertise and capability of teachers across the local area;
  2. Provide teachers with a range of teaching experiences to enhance teaching skills and capabilities in another school context.
  • Mrs Ruberry was identified through the departmental required transfer process to mobilise teachers across school locations within North Coast Region. This is aligned to the Excellence and Equity Strategy to ensure teachers are placed in school location to best support student learning, capability development and diverse teaching experiences.
  • As part of the required transfer process, Mrs Ruberry received a survey email from the Teacher Mobility Team on 6 June 2023 which provided her with the opportunity to supply additional information for consideration. No response was received from Mrs Ruberry in relation to the survey.
  • In addition, workforce planning conducted by the Principal at Banksia Beach State School in conjunction with the regional Human Resources Team indicated that student enrolments will reduce in 2024. Staffing modelling based on the reduced student enrolments indicates this will result in a reduction in classroom teacher numbers in 2024.
  • Mrs Ruberry's personal circumstances were considered and significant attempts have been made to accommodate a transfer location within a reasonable travelling distance from her current residence at Banksia Beach. Mrs Ruberry's transfer location for 2024 has been confirmed as Tullawong State School.
  • The distance from Mrs Ruberry's residence to Tullawong State School is within the reasonable travel time of up to 50 minutes as outlined int eh Teacher Transfer Guidelines. The electronic trip planner Google Maps estimates the distance from Mrs Ruberry's address ... as 30.1km with an approximate travel time of 30-50 minutes. The transfer does not require Mrs Ruberry to change her residential address.
  • The ground for review identified by Mrs Ruberry included her health situation and the support she provides to family members. Employees are entitled to use any personal leave accruals to which they have an entitlement for sick or carer's leave purposes.
  • The purpose of the transfer review is to determine the appropriateness of the required transfer to Tullawong State School aligned to the Teacher Transfer Guidelines.
  • The factors considered by the Department identifying Mrs Ruberry for a required transfer are consistent with the application of the Teacher Transfer Guidelines, in ensuring that the proposed transfer is reasonable and recognises the employee's departmental service history. The decision not to overturn the transfer outcome is considered reasonable at this time.[16]

Reasons for Appeal

  1. [24]
    Within her appeal notice, Ms Ruberry sets out her grounds of appeal as follows:
  1. the principal at BBSS failed to verbally advise that she was on the transfer list
  2. the 8th of September 2023 was the first time she became aware she was on the transfer list;
  3. although internal review outcomes must be provided within two weeks following the receipt of the written request for a review, an outcome was only issued on 6 November 2023 approximately two months after a review was requested;
  4. the delay and lack of response from HR during this period affected Ms Ruberry; and
  5. both Ms Ruberry's mental health and her father's health have deteriorated since the appeal process commenced.[17]

Relevant Principles

  1. [25]
    Sections 161 and 162 of the PS Act set out the powers of Chief Executives in respect of public sector employee transfers, namely: 

Division 3 Transfers and redeployment

161 Chief executive's power to transfer or redeploy

  1. The chief executive of a public service entity (the first entity) may—
  1. (a)
    transfer or redeploy a public service officer of the first entity within the first entity; or
  2. (b)
    with the approval of the chief executive of another entity, transfer or redeploy a public service officer of the other entity to the first entity,
  1. However, a redeployment may be made only with the public service officer's consent.
  1. A transfer or redeployment of a public service officer under this section—
  1. (a)
    may involve a change in the location where the officer performs duties; and
  2. (b)
    if the officer is employed on contract—has effect despite anything in the contract.[18]

162 Consequence if public service officer refuses transfer

  1. If a public service officer is transferred under section 161, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive.
  1. If the public service officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive’s satisfaction, the chief executive may terminate the officer’s employment by signed notice given to the officer.
  1. If the public service officer establishes reasonable grounds to the chief executive’s satisfaction—
  1. the transfer is cancelled; and
  1. the refusal must not be used to prejudice the officer’s prospects for future promotion or advancement.
  1. [26]
    In addition to the factors set out at [10] and [11], the Guidelines relevantly provide:

Reasonable travel time

A transfer (requested, compassionate or required) to a designated base location of up to 50 minutes driving time from a teacher's place of residence is considered reasonable. Time is calculated according to the nearest trafficable route, but should take into account factors such as road and traffic conditions. Electronic trip planners such as www.googlemaps.com.au or www.mydrive.tomtom.com may be used as a guide to determine approximate driving time.[19]

Submissions

  1. [27]
    The Department submits that due to enrolment reductions at BBSS, it was necessary to reduce the number of full-time teachers by 16 for the 2024 school year. In this regard, 16 teachers were subsequently identified through the required transfer process.[20]

Reason for Selection

  1. [28]
    The reasons nominated by the Department for Ms Ruberry’s selection as a required transfer were:
  1. She has been employed at BBSS for over 20 years;
  2. She has only worked at one school since she was hired by the Department; and
  3. She has not completed rural or remote teaching service with the Department.[21]
  1. [29]
    In response, Ms Ruberry submits her prior service working in a Northern Territory school should have been considered by the Department when determining the Internal Review Request.[22]
  2. [30]
    Although it is not entirely clear how this information impacts, if at all, the reasons for selection, Ms Ruberry submits she took a period of leave from 2007 to 2012 to care for her children and terminally ill mother.[23] 

Notification of Required Transfer Status

  1. [31]
    In her appeal notice, Ms Ruberry maintains she was not verbally advised of the required transfer by her Principal and only became aware she was on the transfer list on 8 September 2023.
  2. [32]
    In response to Ms Ruberry's concerns about the manner in which she became aware of her transfer status, the Department maintains she was initially notified by a survey email that she had been identified as a Required Transfer applicant on 6 June 2023.[24]
  3. [33]
    The Department submits Ms Ruberry did not complete the survey or respond to the email advising her of her status as a Required Transfer applicant, despite opening the email on 6 June 2023 and again on 8 September 2023.[25]
  4. [34]
    Ms Ruberry describes the survey email of 6 June 2023 and the associated transfer processes as ambiguous and submits that had she realised she was on the transfer list she would have responded, which may have led to a different outcome.[26]

Reasonable Travel Time

  1. [35]
    Observing that a transfer placement at a location that is up to 50 minutes driving time from a teacher's home is considered reasonable,[27] the Department maintains that exhaustive efforts were undertaken to locate a permanent vacancy as close as possible to Ms Ruberry's residential address.
  2. [36]
    In this respect, it is submitted TSS was identified because it takes between 30 and 50 minutes (depending on traffic) to travel from Ms Ruberry's home to the school.[28]
  3. [37]
    Although Ms Ruberry acknowledges the Guidelines provide that 50 minutes of travel is reasonable, she argues that when compared to the travel time from her home to BBSS, the transfer to TSS will result in additional travel time of one hour and thirty minutes each day.[29]

Exceptional or compelling circumstances

  1. [38]
    Although the Department acknowledges Ms Ruberry's personal circumstances, it maintains she has not established reasonable grounds for refusing the transfer.[30] Nor, it is argued, has Ms Ruberry established any exceptional or compelling circumstances as to why she should remain at BBSS.[31]
  2. [39]
    It is further submitted that Ms Ruberry has failed to provide any evidence to establish how her personal circumstances prevent her from being transferred to TSS.[32]
  3. [40]
    The Department contends that all staff members have personal commitments and family relationships which they accommodate but argues that Ms Ruberry has failed to establish how her personal circumstances may lead to unjustifiable hardship in the event she is transferred to TSS.[33]
  4. [41]
    In response, Ms Ruberry submits her father's health requirements require her to be in close proximity to where he resides, so she is available to assist in the event of an emergency and provide day to day care. Moreover, Ms Ruberry maintains her own appointments and those of her son are located within the local area.[34]
  5. [42]
    Observing the onus was on Ms Ruberry to establish reasonable grounds or exceptional circumstances as to why she should not be transferred, the Department maintains she was unable to establish these grounds during the Teacher Transfer Review Request.
  6. [43]
    In response, Ms Ruberry maintains the additional travel time associated with the transfer in combination with her existing caring responsibilities are exceptional circumstances which will impose unjustifiable hardship.

Internal Review Timeframe

  1. [44]
    Ms Ruberry submits the Department failed to comply with the Internal Review timeframe, noting she did not receive a decision regarding her request until 6 November 2023.[35]
  2. [45]
    In support of her position, Ms Ruberry relies on the Teacher Transfers – Review and Appeal timeframes attached to the Teacher Transfer Request for Review, which provides:

Internal review outcomes must be provided to teachers within 2 weeks (14 calendar days) of receipt of a written request for internal review.[36]

  1. [46]
    In addition to the above, Ms Ruberry argues the delayed response time and lack of communication during this appeal has not been fair and reasonable.[37]
  2. [47]
    The Department submits that a permanent school vacancy was not identified until 3 November 2023.[38]
  3. [48]
    In response to a complaint by Ms Ruberry about the delay, Ms Lois Craig advised:

Mon 13/11/2023 3:44PM

Dear Mrs Ruberry

I acknowledge receipt of your email advising your dissatisfaction with the delayed review decision regarding you required transfer from Banksia Beach State School.

The delay in advising you of the outcome of the matter was caused by the following factors:

  1. 1.
    A correctly dated and signed request for review form was not received from you until 4 October 2023 (refer attached email trail).
  2. 2.
    My request to the teacher transfer review panel to delay their review until a school placement had been confirmed. Significant attempts were made to accommodate a transfer location within a reasonable travelling distance from your residence resulting in your placement at Tullawong State School which was communicated to you on 3 November 2023 by Casey Von Nida, Senior Human Resources Consultant.

…

Regards.

Lois

Lois Craig

Director HR Business Partnering, North Coast Region [39]

What Decision can an Industrial Commissioner make?

  1. [49]
    In deciding this appeal, s 562(1) of the IR Act provides that I may:
  1. confirm the decision appealed against; or
  2. set the decision aside and substitute another decision; or
  3. set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Was the Decision fair and reasonable?

  1. [50]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors.[40]
  1. [207]
    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.
  2. [208]
    The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.
  3. [209]
    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.
  4. [210]
    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 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 have been abused.

. . . Unreasonable is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.[41]

  1. [51]
    In simpler terms, where it is determined by the Commission that a decision was reasonably open to a decision maker, the decision ought not to be disturbed.
  2. [52]
    Ms Ruberry is seeking to have the required transfer from BBSS to TSS set aside. She maintains her personal circumstances amount to exceptional circumstances which would require the Department to reverse the transfer decision and allow her to remain at BBSS.
  3. [53]
    After considering the submissions filed with the Commission, I am not persuaded the Internal Review decision of 6 November 2023 to confirm Ms Ruberry's transfer to TSS was unfair or unreasonable for several reasons.

Reasons for Selection

  1. [54]
    Firstly, I note teachers employed by the Department may be required to teach at any location in the state.[42]
  2. [55]
    When identifying transfer applicants, the Guidelines provide that it is open to school leaders to work with regional HR Managers to recommend teachers for transfer for various reasons including offering teaching opportunities to teachers whose teaching practice would benefit from diverse experiences and to respond to a decrease in student enrolments that will impact school staffing allocations.[43]
  3. [56]
    In this appeal, it is not in contention that enrolment numbers have declined at BBSS, resulting in a requirement to reduce the total number of full-time teachers employed at the school. Ms Ruberry was one of 16 teachers within the school identified through the required transfer process in 2023.
  4. [57]
    It seems to me that a reduction in enrolment numbers at BBSS, leading to a requirement to reduce its teaching workforce, is a reasonable and legitimate cause under the Guidelines for commencing a process whereby teachers within the school were identified for a required transfer.

Valid Reason for Selection – Service and rural experience

  1. [58]
    When identifying teachers for a required transfer, school leaders and HR teams are required to consider the factors set out earlier in this decision at [11].
  2. [59]
    The Department identified Ms Ruberry for transfer in circumstances where she had been employed for six or more years, had only worked at one school during her employment with the Department and had not completed rural or remote teaching while employed.
  3. [60]
    While it may be the case that Ms Ruberry had previously taught in a rural or remote school within the Northern Territory, I am satisfied her length of service at the school in combination with only ever having worked at BBSS while engaged by the Department were relevant, reasonable and valid considerations when identifying her suitability for a Required Transfer.
  4. [61]
    I further note there is no requirement within the Guidelines that the Department consider prior service in another state or territory when identifying applicants for the required transfer process.

Notification of Required Transfer Status and Other Communication

  1. [62]
    In her appeal notice, Ms Ruberry raises concerns about not being verbally advised by the BBSS Principal about the transfer. It is submitted the first time she became aware of the transfer was on 8 September 2023.
  2. [63]
    While there is no requirement under the Guidelines or associated review documentation for a teacher to receive verbal confirmation about a proposed transfer, having worked at the school for more than two decades, I can appreciate Ms Ruberry's disappointment in not being directly advised by the Principal or their nominated delegate of her selection for a required transfer.
  3. [64]
    However, on the materials before the Commission, I am satisfied Ms Ruberry was sent, received and opened a survey email from the Department on 6 June 2023 confirming she had been identified as a Required Transfer applicant. Further, I am satisfied the email afforded Ms Ruberry an opportunity to supply additional information for consideration by the Department in respect of a proposed transfer. A failure on the part of Ms Ruberry to respond to the email or provide further information does not render the required transfer decision or the subsequent Internal Review decision unreasonable.
  4. [65]
    In any event, Ms Ruberry was provided with a further opportunity to discuss concerns about the proposed transfer on 12 September 2023 and thereafter through the Internal Review process. It was open to Ms Ruberry, as part of the review process, to provide the Department with further medical evidence or other materials in support of her request to remain with BBSS.
  5. [66]
    While I accept the notification of the Required Transfer status could have been communicated by senior staff at BBSS in a more sensitive manner and other correspondence sent by Ms Ruberry to the Department could have been addressed in a more timely manner, I am not persuaded the process that was followed by the Department renders the Internal Review decision unreasonable.

Reasonable Travel Time – preference for shorter travel time

  1. [67]
    Ms Ruberry maintains the unreasonableness of the travel time arises when one compares the time it will take to travel to TSS, to the previous commute from her residence to BBSS.
  2. [68]
    Certainly, I can appreciate Ms Ruberry's preference to maintain the shorter commute. I have no doubt there are thousands of teachers across Queensland who would elect, where the opportunity arose, to live closer to their place of work, as Ms Ruberry has done for some time now.
  3. [69]
    However, the Commission's role in this Appeal is not to impose its own views about the reasonableness (or otherwise) of the length of Ms Ruberry's commute.
  4. [70]
    Instead, I am obliged to consider the Guidelines and determine whether, when undertaking an Internal Review, the Review Panel adequately considered the travel time associated with the proposed transfer and whether the travel time to the transfer location is reasonable.
  5. [71]
    In this regard, I note the Guidelines provide that a transfer placement to a designated base location of up to 50 minutes driving time from a teacher's place of residence is considered reasonable.[44]
  6. [72]
    While I do have some sympathy for the extended commute Ms Ruberry will be required to undertake, I note the proposed travel time falls within the acceptable time frames set out in the Guidelines.
  7. [73]
    For these reasons, I am unable to conclude the additional time Ms Ruberry will be required to travel, renders the Internal Review decision unreasonable.

Caring Responsibilities

  1. [74]
    Although not directly raised in the documentation originally filed in support of the Internal Review Request, within her submissions to the Commission Ms Ruberry now seeks to rely on several operations her father is scheduled to undertake in 2024, in addition to the need to remain in close proximity to her father and son to provide care, as the basis for overturning the Internal Review Decision.
  2. [75]
    As touched on earlier, my role in this Appeal is to consider whether the Internal Review decision was fair and reasonable at the time it was made, having regard to the information that was available to the Panel at the time it was made. As best I can tell, the Internal Review Panel were not provided with details about the operations at the time of the review.
  3. [76]
    Even if that was not the case, the difficulty with Ms Ruberry relying on her father's upcoming surgery, albeit with no supporting medical evidence, is that it is not entirely clear from the submissions how these events in combination with the transfer to TSS will result in unjustifiable hardship.
  4. [77]
    Similarly, although Ms Ruberry submitted information about her son's autism condition, it is not clear on the materials how the transfer to TSS will impact her capacity to care for her son.
  5. [78]
    Although I accept Ms Ruberry will have to commute for a longer period, which will in turn extend the span of hours within which she travels to and from work and presumably erode some of the time she may have otherwise spent supporting her family, in the absence of any meaningful evidence or detailed submissions as to how this will significantly impact her son, her father and her ability to provide care for either, I am not persuaded the Internal Review decision was unreasonable.

Internal Review Timeframe

  1. [79]
    Ms Ruberry has raised concerns about the delay in the finalisation of her Stage 2 Teacher Transfer Internal Review Process.
  2. [80]
    Certainly, it is the case that the accompanying Review and Appeal timeframes note that an outcome for a Stage 2 – Notification of outcome of Internal Review, is to be provided to teachers within two weeks of receipt of a written request for an internal review.
  3. [81]
    I accept there was a delay in communicating the outcome to Ms Ruberry which extended beyond the fourteen days. However, I also accept the delay arose in circumstances where the Department was taking steps to identify a suitable vacancy at a school within a reasonable travel distance from Ms Ruberry's home.
  4. [82]
    It would have been very difficult for the Internal Review Panel to conduct a meaningful review of the required transfer in the absence of a known transfer location, particularly when one of the considerations subject to review is the travel time between Ms Ruberry's place of residence and the proposed transfer location.
  5. [83]
    In those circumstances, I am not persuaded the Department's delay in finalising the Internal Review outcome renders the decision unreasonable.

Impact on Ms Ruberry's Mental Health

  1. [84]
    Within the Notice of Appeal, Ms Ruberry observes her mental health has deteriorated since the commencement of the Appeal process.
  2. [85]
    It seems Ms Ruberry has enjoyed her time at BBSS and the flexibility the role has afforded her, and her family given its proximity to her home and local area. She is clearly disappointed about the process that has been followed in respect of the required transfer and the subsequent outcome Internal Review Process.
  3. [86]
    It is also the case that Ms Ruberry falls into a generation of mothers who is responsible for caring not only for her children but also an aging parent, while also working full-time and managing her own personal health issues.
  4. [87]
    I accept that taking care of an elderly parent, while also caring for one's own children can be a time-consuming task which in turn leads to challenges when it comes to managing time efficiently between family, work and personal well-being.
  5. [88]
    In this respect, I note that in addition to an Employee Assistance Program, Ms Ruberry has access to Reasonable Adjustment, Sick Leave and Flexible Work policies developed by the Department, all of which provide guidance and support for employees who are attempting to balance challenging personal circumstances with full-time employment.
  6. [89]
    While it is not a requirement of the transfer process or this decision, it seems to me there would be some value in Ms Ruberry contacting the Department to discuss how the above policies could assist in the transition to her new role at TSS.

Conclusion

  1. [90]
    I am sympathetic to the distress Ms Ruberry is experiencing in light of her current personal circumstances and the challenges that arise when balancing work, travel and family commitments.
  2. [91]
    The required transfer and the prospect of having to drive a longer distance to a new school, after only working at BBSS for over two decades, while also balancing other personal and family commitments has occurred at a challenging point in Ms Ruberry’s life.
  3. [92]
    However, in the absence of any conclusions that the Department or the Review Panel has erred in applying or considering the Guidelines, disregarded meaningful medical evidence or failed to properly consider Ms Ruberry’s personal circumstances, I am unable to conclude the review decision is unfair or unreasonable. Nor, on the materials before the Commission, have I been persuaded Ms Ruberry has reasonable grounds for refusing the transfer.
  4. [93]
    I note that the lack of detail or supporting materials specifically addressing how her personal circumstances will be impacted, in combination with an absence of meaningful medical evidence, has not assisted the review process, and subsequently this Appeal.
  5. [94]
    While I am unable to set the decision aside, I am satisfied the Department has established policies and procedures designed to accommodate employees such as Ms Ruberry who are experiencing difficult personal circumstances.
  6. [95]
    I order accordingly.

Order

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

1. The decision appealed against is confirmed.

Footnotes

[1]The Department's submissions filed 5 December 2023, attachment 7.

[2]Department of Education: Teacher Transfer Guidelines cl 4.

[3]Ibid cl 8.

[4]Ibid cl 4.

[5]Ibid cl 4.

[6]The Department's submissions filed 5 December 2023 [11].

[7]The Department's submissions filed 5 December 2023 [9].

[8]Ibid, attachment 4.

[9]Appeal notice filed 24 November 2023.

[10]The Department's submissions filed 5 December 2023 [14].

[11]Ibid [15].

[12]Appeal notice filed 24 November 2023, Teacher Transfer Request for Review – Required Transfer.

[13]The Department's submissions filed 5 December 2023 [20].

[14]Ibid, attachment 7.

[15]Ms Ruberry's submissions filed 11 December 2023, attachment 1; Appeal notice filed 24 November 2023, attached email dated 13 November 2023.

[16]The Department's submissions filed 5 December 2023, attachment 7.

[17]Appeal notice filed 24 November 2023, Part 7.

[18]Public Sector Act 2022 (Qld) s 161.

[19]Department of Education: Teacher Transfer Guidelines cl 5.

[20]The Department's submissions filed 5 December 2023 [11].

[21]The Department's submissions filed 5 December 2023 [12].

[22]Ms Ruberry's submissions filed 11 December 2023, 2.

[23]Ibid.

[24]The Department's submissions filed 5 December 2023, attachment 3.

[25]Ibid, attachment 4.

[26]Ms Ruberry's submissions filed 11 December 2023.

[27]The Department's submissions filed 5 December 2023 [18].

[28]Ibid.

[29]Ms Ruberry's submissions filed 11 December 2023, 3.

[30]The Department's submissions filed 5 December 2023 [23].

[31]Ibid.

[32]Ibid [24].

[33]Ibid.

[34]Ms Ruberry's submissions filed 11 December 2023, 2.

[35]Ibid.

[36]Ibid, attachment 5.

[37]Ibid, 4.

[38]The Department's submissions filed 5 December 2023 [18].

[39]Appeal notice filed 24 November 2023, attached email dated 13 November 2023.

[40]Gilmour v Waddell & Ors [2019] QSC 170.

[41]Gilmour v Waddell & Ors [2019] QSC 170; (emphasis added, citations removed).

[42]Ibid cl 4.

[43]Department of Education: Teacher Transfer Guidelines cl 4.

[44]Ibid cl 5.

Close

Editorial Notes

  • Published Case Name:

    Ruberry v State of Queensland (Department of Education)

  • Shortened Case Name:

    Ruberry v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 3

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    05 Jan 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
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170

Cases Citing

Case NameFull CitationFrequency
Jackson v State of Queensland (Queensland Health) [2024] QIRC 2221 citation
1

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