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  4. Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation) - [2025] QIRC 152

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Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation)[2025] QIRC 152

Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation)[2025] QIRC 152

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation) [2025] QIRC 152

PARTIES:

Dodds, Ricky John

(Appellant)

v

State of Queensland (Department of Environment, Tourism, Science and Innovation)

Respondent

CASE NO:

PSA/2025/57

PROCEEDING:

Public Sector Appeal – Appeal against promotion decision

DELIVERED ON:

5 June 2025

MEMBER:

O'Neill IC

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [67] of these Reasons for Decision. 

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against promotion decision – where the appellant is permanently employed by the respondent as a Senior Investigator (AO6) – where the appellant applied for Principal Investigator (AO7) position – where the appellant's application was unsuccessful – consideration of whether the recruitment and selection process was deficient – appeal upheld – promotion decision set aside with directions.

LEGISLATION:

Appeals (Directive 04/23), cl 10, cl 18

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

Public Sector Act 2022 (Qld), s 44, s 45

Recruitment and Selection (Directive 07/23), cl 8, cl 9, cl 12

CASES:

Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361

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

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Green v State of Queensland (Department of Environment, Tourism, Science and Innovation) [2025] QIRC 151

Missingham v State of Queensland of Queensland (Department of Child Safety, Youth and Women) (Unreported, Queensland Industrial Relations Commission PSA/2020/117, McLennan IC, 19 June 2020)

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Pope v Lawler [1996] FCA 1446

Reasons for Decision

Introduction

  1. [1]
    Mr Ricky John Dodds ('the Appellant') is currently employed by the State of Queensland (Department of Environment, Tourism, Science and Innovation) ('DETSI') ('the Respondent') as a Senior Investigator. This position is classified as a level AO6.
  1. [2]
    The Appellant applied for the position of Principal Investigator, which is classified as a level AO7. The position was advertised on SmartJobs webpage under job ad reference ('JAR') QLD/615694 with an advertised closing date of 5 February 2025. The Appellant was interviewed for the position and placed on the merit list, however, was not the successful applicant.
  1. [3]
    Twenty-nine (29) applications for the position were received, with nineteen (19) of those internal (Queensland Government).[1]
  1. [4]
    The selection panel included Mr Martyn Hughes, Principal Investigator[2], Mr Matthew Barr, Manager, State Investigations, Environmental Services and Regulation, and Ms Emilija Rupsys, a Principal Lawyers from Litigation, Office of the Deputy Director-General, Environmental Services and Regulation.[3] The selection panel reviewed and assessed all of the applications individually prior to meeting for the shortlisting discussion.[4]
  1. [5]
    The selection panel agreed on five (5) shortlisted applicants to be interviewed (including the Appellant).[5]
  1. [6]
    The selection panel subsequently interviewed all five shortlisted applicants.
  1. [7]
    The Appellant was assessed as suitable for the position and appears to have been ranked third in the order of merit. The selection panel selected Ms AM[6] as the person best suited to the position and this decision was approved by the delegate Ms Jackie McKeay on 26 February 2025.
  1. [8]
    The appointment was publicly notified in the Queensland Government Gazette, Vol. 398 on 21 March 2025.
  1. [9]
    The Appellant filed a Notice of Appeal, appealing the promotion decision on 2 April 2025, pursuant to chapter 3 of the Public Sector Act 2022 (Qld) ('the PS Act').
  1. [10]
    An appeal has been lodged by another unsuccessful applicant for the same role as   Principal Investigator AO7, State Investigations, under file number PSA/2025/54. That decision has now been published as Green v State of Queensland (Department of Environment, Tourism, Science and Innovation) ('Green').[7]
  1. [11]
    The appeal grounds relied upon by Mr Dodds in this appeal, to a large extent mirror those raised by Mr Green in the other appeal. In allowing Mr Green's appeal I found that there were deficiencies in the selection process for the Principal Investigator AO7 role and I issued orders setting aside the promotion decision and returning the matter to DETSI with directions.
  1. [12]
    The Appellant has raised as one of his grounds of appeal, the same ground that I have upheld in the Green appeal. In light of the Green decision, I will provide abridged reasons for decision for this appeal which do not address all of the grounds of appeal or the parties' respective submissions.
  1. [13]
    I am satisfied that the promotion decision appealed against was not fair and reasonable and the Appellant has established a deficiency in the selection process. I have set aside the promotion decision and returned the matter to the decision-maker with directions.
  1. [14]
    My reasons follow.

Appeal Principles

  1. [15]
    The appeal must be decided by way of reviewing the decision appealed against to consider whether it was fair and reasonable.[8] The appeal is not conducted by way of re-hearing but rather involves a review of the decision and the associated decision-making process.[9]  
  1. [16]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[10] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [17]
    In deciding this appeal, s 562C of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the PS Act that the Commission considers appropriate.
  1. [18]
    Clause 18.2 of the Appeals (Directive 04/23) ('the Appeals Directive') provides that the Commission member may issue any direction they consider necessary, including:
  1. a direction that, within one month, the chief executive is to revoke the appointment and publish a gazette notice that the appointment is revoked;
  1. a direction that the chief executive either recommences the recruitment and selection process from the point of advertising the vacancy or continues with the process from a particular time or event as identified by the IRC member; or
  1. a direction that a new selection committee is to be formed and a direction regarding the composition of the new selection committee, where a decision is made that a chief executive is to recommence the recruitment and selection process.

Is the Appellant entitled to appeal?

  1. [19]
    Section 131(1)(e) of the PS Act provides that a promotion decision is a type of decision against which an appeal may be made. Section 133(e) further provides a promotional appeal may be made by a public sector employee employed on a permanent basis, who is aggrieved by the decision, and is entitled to appeal under a Directive.
  2. [20]
    Section 129 of the PS Act defines a promotion decision to mean a decision to promote a public sector employee employed on a permanent basis.
  3. [21]
    Clause 10 of the Appeals Directive outlines the requirements for promotion appeals.
  4. [22]
    The Appellant is a public sector employee employed on a permanent basis, who is aggrieved by the promotion decision. The Appellant applied for the role subject of the decision and requested post-selection feedback in accordance with the relevant provisions.
  5. [23]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly provides:
  1. In this section—

appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—

…

(c) if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022; or

…

  1. [24]
    In the present case the promotion the subject of the appeal was published in the Queensland Government Gazette on Friday, 21 March 2025. The appeal was filed in the Industrial Registry on 7 April 2025, within the 21 days provided by s 564(3)(c) of the IR Act.
  1. [25]
    I am satisfied that the Appellant is a person who may appeal the promotion decision and that he lodged his appeal within the relevant timeframe, following the public notification of the successful applicant.

Relevant legislative provisions and Directives

  1. [26]
    Section 562C(2) of the IR Act provides:

In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act.

  1. [27]
    Section 44 of the PS Act relevantly provides the following:

44 Principles underpinning recruitment and selection

  1. The purpose of this section is to ensure the recruitment and selection of a high‑performing, apolitical and representative public sector workforce.
  1. A person undertaking a recruitment and selection process in a public sector entity, including, for example, making a decision about employment of a public sector employee, must undertake the process in accordance with the principles mentioned in subsection (3).
  1. The principles are—
  1. recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and
  1. recruitment and selection processes must be fair and transparent; and
  1. recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.
  1. [28]
    Section 45 of the PS Act also provides:

45 Employment on merit and for equity and diversity

  1. A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.
  1. In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity—
  1. must consider each eligible applicant's ability to perform the requirements of the position; and
  1. may consider—
  1. the way in which each eligible applicant carried out any previous employment; and
  1. the potential of each eligible applicant to make a future contribution to the entity; and
  1. the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2, including, for example, the objectives, strategies and targets stated in the entity's equity and diversity plan.
  1. [29]
    The Appeals Directive and the Recruitment and Selection (Directive 07/23) ('the Recruitment and Selection Directive') are both relevant to this promotion appeal.
     
  2. [30]
    The Appeals Directive relevantly provides:

10. Promotion decision appeal

  1. 10.1Section 131(1)(e) of the Act provides that a promotion decision may be appealed.
  2. 10.2Section 129 of the Act provides for the definition of promotion decision.
  3. 10.3Who may appeal a promotion decision under section 133 of the Act:
  1. a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive.
  1. 10.4Further to clause 10.3, a public sector employee is only entitled to appeal a promotion decision:
  1. where the decision relates to a promotion of a permanent public sector employee that has been published in accordance with section 84(2) of the Act, and
  1. where the aggrieved employee submitted an application for the role that is the subject of the promotion decision, and
  1. if the aggrieved employee's application for the role that is the subject of the promotion decision, was received by the deadline for the receipt of applications, or in the case of continuous applicant pools, the application was received prior to the initial date that applications were distributed to the selection panel, and
  1. the aggrieved employee has sought post-selection feedback in accordance with the relevant provisions of the directive relating to recruitment and selection, and
  1. in the case of a promotion decision resulting from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved employee must have been eligible to apply.
  1. 10.5Decisions that cannot be appealed as a promotion decision under section 132 of the Act:
  1. a non-appealable appointment (refer to clause 17 for more information)
  1. a decision to promote a public sector executive, unless the decision is declared under a directive to be a decision against which an appeal may be made
  1. a decision to promote a person as a chief executive, a senior executive or a senior officer
  1. a promotion decision if:
  1. the person employed under the promotion decision had been redeployed within one year before the promotion, and
  1. the promotion is to a classification level that is not higher than the classification level of the person employed under the promotion decision immediately before the redeployment.
  1. [31]
    The Recruitment and Selection Directive relevantly provides:

9. Selecting the eligible applicant best suited to the position

…

Selection panels

…

  1. 9.8To promote integrity and diversity in recruitment, selection panels must:
  1. consider and declare any actual, potential or reasonably perceived conflicts of interest between each panel member and the applicants, or, the absence of such conflicts of interest
  1. consider elements of conscious or unconscious bias that may impact the process, including mitigation strategies
  1. consider how the selection process can be accessible, inclusive and culturally safe (as relevant to each circumstance and organisational context)
  1. provide candidate care, including through timely and regular communication with applicants
  1. for senior executive vacancies, include one member from outside the ministerial portfolio.

…

Assessment of the person best suited to the position

  1. 9.10When selecting the eligible applicant best suited to the position, a person undertaking a recruitment and selection process must:
  1. comply with any relevant direction given by the chief executive under clause 7.6
  1. conduct a holistic assessment of eligible applicants in the context of the role requirements and the factors provided for in section 45(2) of the Act
  1. clearly document why a person is assessed as being the eligible applicant best suited to the position, including a comparative assessment where there is more than one applicant in a process.
  1. 9.11Assessment processes for advertised positions must:
  1. consider contemporary and best practice selection techniques relevant to the requirements of the position and the entity's operating context
  1. incorporate selection techniques that enable a sufficiently comprehensive and holistic assessment of each applicant within the context of being best suited to the position
  1. consider all the information before the selection panel, rather than rely or focus on one aspect of the process, such as interview performance
  1. incorporate referee checks and pre-employment checks as appropriate and required
  1. be consistent with the obligations set out in chapter 2 of the Act relating to equity, diversity, respect and inclusion.

(emphasis added)

…

12. Post-selection matters

Feedback

  1. 12.1All applicants are to be advised that they may request feedback from the selection panel. In cases of graduate program applicants, this requirement only extends to applicants who were interviewed.
  2. 12.2Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel. The mode of feedback is at the discretion of the panel member providing feedback, and must be reasonable in the circumstances.

(Emphasis added)

Grounds of Appeal

  1. [32]
    In Attachment 1 to his Notice of Appeal filed on 7 April 2025, the Appellant outlined his Grounds of Appeal as follows:
  1. The recruitment process was not fair and reasonable, was manifestly inadequate and was not transparent contrary to section 45 of the PS Act.
  1. The recruitment panel did not make a fair and reasonable merit assessment as they did not take into consideration of all the merit information, contrary to the criteria set out in section 45 of the PS Act. The short statement (2 pages) and resume were used to allow the applicant to move onto the interview stage. The interview was then used as the primary form of assessment to decide the successful applicant leaving the short statement and resume behind. The short statement and resume were not scored or listed in order of quality, nor does it appear that the merit within these documents were used as a whole to select the best person for the job.
  1. The interview process was not fair nor reasonable. I encountered issues out of my control within the interview that had a severe detrimental effect on the quality of my interview. No other persons interviewed had these issues therefore the interview process was not fair. This issue is even more relevant in this process as it does not appear that the short statement and resume were used to make a decision on the best applicant, but they were used simply as a yardstick to allow an applicant to progress to the interview stage.
  1. The recruitment and selection process were not fair or transparent in breach of section 44 of the PS Act  and Directive 07/23 Recruitment and Selection. The short statement and resumes were not marked to provide an order of merit. It is unknown what the benchmark was for applicants to be considered appropriate to move through to the interview process. BARR stated while providing feedback that during the interview assessment the resume and short statement were only used if an applicant didn't cover something in the interview, then the panel would go back to the resume and short statement to see if it was covered in there. It is unknown how the interview was marked and what tools were used to assess the applicant's performance in the interview. In light of this there would be no way to utilise the short statement and resume in the assessment process and that would leave all applicants who made it through to the interview process now on a level playing field as the resume and short statement have not been marked. …
  1. [33]
    Despite nominating the above four Grounds of Appeal, in Attachment 1, the Appellant goes on to raise additional grounds or issues including:
  • The recruitment strategy adopted by the panel included a preconceived bias towards appointing a female applicant to the position.
  • The selection panel was not a diverse panel.
  • A skill or experience (surveillance) was taken into account in appointing the successful applicant and this was not a skill or experience mentioned in the job advertisement or the position description.
  • The selection panel had not undergone recent training.
  • The panel chair was biased towards the successful applicant.
  1. [34]
    In light of the Green decision, it is only necessary to consider Ground 2 from the Appeal Grounds.

Appellant's Submissions

  1. [35]
    The Appellant filed his submissions in the Industrial Registry on 2 May 2025. For the purposes of this decision, it is only necessary to focus on Appeal Ground 2. The Appellant's relevant submissions relating to this ground can be summarised as follows:
  • The selection panel did not make a fair and reasonable merit assessment as they did not take into consideration all of the merit information, contrary to the criteria set out in s 45 of the PS Act. The Appellant's statement and resume were used to shortlist the Appellant, however, the interview was used as the primary form of assessment to determine the successful applicant.
  • The statement and resume were not marked to provide an order of merit. It is unknown what the benchmark was for applicants to be considered appropriate to move through to the interview process.

Respondent's Submissions

  1. [36]
    The Respondent filed written submissions on 26 May 2025. The submissions as they relate to Ground 2 can be summarised as follows:
  • The Respondent submits that it has complied with the requirements of the Recruitment and Selection Directive as:
  • The vacancy was advertised appropriately;
  • A holistic assessment was conducted of the shortlisted applicants with multiple selection techniques;
  • The proposed successful applicant was referee checked;
  • Post selection feedback was provided to the Appellant both verbally and in writing;
  • The process undertaken was clearly documented and included the reasons why the successful applicant was determined to be best suited to the position.[11]
  • The Respondent submits that the process does not have to be perfect in order for it to be considered reasonable.[12]
  • The selection panel members reviewed and assessed the applications individually prior to the shortlisting discussion. The Respondent contends that the selection report does not show bias but instead reflects the applicants' responses and their strengths and weaknesses for the position based on their application.[13]
  • The Respondent submits that the selection report provides a clear assessment of the panel's consideration of the Appellant's application in its entirety, including that the written application exceeded the maximum two-page requirement. The submission notes that after the interviews the panel concluded that the Appellant was suitable for appointment, but was not the most suitable candidate.[14] 
  • All assessment tools were aligned to the requirements of the position, including the position description. There is no requirement in the Recruitment and Selection Directive that mandates a panel to 'weight' functions or roles. It requires the panel to conduct a holistic assessment of eligible applicants against the role. Regarding the assessment of the person best suited to the position, the Respondent submits:
  1. The panel conducted an overall comparative assessment based on all the information gathered throughout the process, including the applicant's resume, written statement, interview and the potential of the applicant to make contributions to and support the department's commitment to diversity, respect and inclusion.
  1. The panel initially reviewed and assessed the applicant's written statement as demonstrated by the completed shortlisting matrix.

…

  1. Resumes and written statements assisted the panel in shortlisting the applicants. The interview process then provided the shortlisted applicants with the opportunity to further demonstrate their experience and skills in the context of the role.
  1. The selection report details the consideration of Mr Dodds' written application and interview responses, as well as an overall comparative assessment.
  1. The selection report does not include a transcript of the interview, but rather a reflection of the panel's assessment based on the information obtained throughout the selection process. The fact that particular skills or experiences Mr Dodds included in his written application or spoke to in interview are not included in the selection report does not render the decision unreasonable.

Consideration

  1. [37]
    To determine this appeal, I am required to assess whether the decision appealed against was fair and reasonable.
  2. [38]
    Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)[15] ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.[16]
  3. [39]
    In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.[17] His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[18]
  4. [40]
    Pursuant to s 562C(2) of the IR Act, the Commission may only set aside a promotion decision if the Commission finds that the recruitment or selection process was deficient having regard to whether the process complied with the PS Act, a regulation or a Directive made by the Public Sector Commissioner.

Appeal Ground 2 – The selection panel did not take into account all of the merit information

  1. [41]
    As noted above, I have upheld the slightly differently worded appeal ground in the Green appeal.
     
  2. [42]
    Clauses 9.10 and 9.11 of the Recruitment and Selection Directive are directly relevant to the issue of assessing the person best suited to the role. These clauses have been excerpted in paragraph [30] above. Of particular relevance to the Appellant's second ground of appeal is clause 9.11(c) which provides:
  1. 9.11Assessment processes for advertised positions must:

…consider all the information before the selection panel, rather than rely or focus on one aspect of the process, such as interview performance …

  1. [43]
    The AO7 Springboard Feedback Report[19] confirms that the selection panel considered the Appellant's resume and application in determining that he should be shortlisted for interview. Both Mr Barr and Mr Hughes were highly complimentary of the Appellant's application. Mr Barr made specific mention of the fact that the Appellant had relieved in the DETSI AO7 role previously, and that he had provided good examples and has shown his investigative and supervisory skills in a decent manner.
  2. [44]
    The Recruitment and Selection Report[20] for this position that was provided by the Respondent with its submissions is heavily redacted. The information relating to the successful applicant Ms AM is completely redacted. This is also the case for each of the other three applicants other than the Appellant.
  3. [45]
    Providing a recruitment and selection report in this form for the purposes of a promotion appeal makes it very difficult to determine whether the promotion decision was fair and reasonable. There appears to be no reason why the identity of the other applicants simply could not have been anonymised.
  4. [46]
    The Recruitment and Selection Report provides the following information in relation to the candidate pool:

Candidate Pool

Twenty-nine applications were received, nineteen internal (Qld Government), ten external from differing backgrounds and lines of work. The pool of applicants ranged from having no experience in the field of investigations, to very experienced, however not all of those with experience articulated that within their application, they made statements of their ability as opposed to providing examples and were therefore not shortlisted for interview.

Five applicants were unanimously shortlisted for interview by the panel. They had evidenced in their applications their abilities to meet the needs" for the role, either meeting or exceeding the requirement. [21]

  1. [47]
    This appears to confirm that the written application/statement and the resume were used as a sorting tool for the shortlisting process to identify the applicants to be interviewed.
  2. [48]
    In relation to the recruitment strategy adopted for this recruitment, the Recruitment and Selection Report notes:

The selection strategy used for this recruitment to determine merit was based on the candidate's written application, resume, and work experience against predetermined look fors/selection criteria within the job description. Via MS TEAMS, the panel discussed the candidates' responses to the selection criteria, the candidate's work history from their resumes.

The shortlisted applicants were interviewed via Teams, with a pre-read emailed to each candidate individually seventeen minutes prior to the commencement of their interview, to allow at least fifteen minutes pre-read. The question asked:

  1. Please provide the panel with an example of a complex investigation (which included the application for and execution of a search warrant), that you have managed and led, ensuring that you address the following four stages:
  1. Initial allocation and actions.
  2. Requirements for the warrant application and process.
  3. Warrant execution (including actions prior to).
  4. Conclusion.

Candidates had 25 self-managed minutes to explain to the panel their actions.

This was followed up with two supplementary questions (not included in the pre-read) to gain the candidates immediate reaction to an evolving situation:

  1. Person of interest collapses at a warrant whilst being interview, what do you do?
  1. Your manager is in the process of making a decision and the decision is in conflict with the relevant legislation. What do you do?

Further questions were asked by the panel, in order to illicit further information from the applicants when required.[22]

  1. [49]
    As regards the Appellant, the Recruitment and Selection Report does not make any specific reference to the Appellant's resume. In relation to the Appellant's written application/statement, the Recruitment and Selection Report includes the following brief information:

Overall, the written application contained good examples and has shown his investigative and supervisory skills, he has I relieved in the DETSI AO? role previously. Panel impressed with the care for staff wellbeing as a cornerstone to the leadership style. Exceeded the two-page writing guide but this wasn't fatal to Ricky's application, panel unanimous to interview.[23]

  1. [50]
    This also confirms the use of the written application and resume as a shortlisting tool.
  2. [51]
    The Recruitment and Selection Report then includes a detailed analysis of the Appellant's response to Question 1 which continues over five paragraphs. There is only one further mention of the written application regarding the Appellant displaying clear communication and a strong focus on safety and people care both in his interview and his written application.
  3. [52]
    A much shorter analysis occurs of the Appellant's response to the two other questions asked during the interview process.
  1. [53]
    In terms of benchmarking or comparison with the other shortlisted applicants, the Recruitment and Selection Report (as regards the Appellant) merely states:

…Compared to other candidates, Ricky demonstrated competence but was outperformed by AM and [Redacted] in meeting the position criteria.

  1. [54]
    The Appellant has provided an email from the chair of the selection panel, Mr Martyn Hughes, dated 12 March 2025 which relevantly provides

… Again, you asked if the application was considered in the whole of the decision-making process, and had it affected the outcome. I went on to explain that the statement and resume get you the interview and then the interview helps the panel decided suitability. I explained that if there were an excessive amount of people who were all suitable for shortlisting then the writing guide could be considered, but on this occasion, it was not relevant and had no bearing on the decision, as there were more suitable applicants. (emphasis added)

  1. [55]
    This once again confirms that the written application and resume were only utilised by the panel as a shortlisting tool.
  2. [56]
    In the detailed position description that was made available as part of the advertising for the role, the following passage is included:

What we are looking for

We're looking for the best suited person for the role. If you are eligible, we will assess your suitability by considering:

• your ability to perform the duties of the role, including 'What you need for this role'

• the way you carried out previous roles (if relevant) .

• your potential to make contributions to the department

• your awareness of health and safety obligations for yourself and to others

• how your engagement would support our commitment to equity, diversity, respect and inclusion.

  1. [57]
    Section 45(1) of the PS Act states that a person selected for employment in a public sector entity must be the eligible applicant best suited to the position. Section 45(2) of the PS Act states that in deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity:
  1. must consider each eligible applicant's ability to perform the requirements of the position; and
  2. may consider:
    1. the way in which each eligible applicant carried out any previous employment; …
  1. [58]
    As noted above, clause 9.11(c) of the Recruitment and Selection Directive requires that assessments for advertised positions must consider all the information before the selection panel, rather than rely or focus on one aspect of the process, such as interview performance.
  2. [59]
    There is no indication in the Recruitment and Selection Report of there being any further consideration of the Appellant's resume and written application when determining who was the most meritorious applicant out of the five shortlisted applicants. Nor is there any indication of there being any comparative analysis of the Appellant against the other short listed applicants utilising that material.
  3. [60]
    On the version of the selection report available to me, there is no indication of the selection panel addressing the various matters set out in the "What we are looking for" section of the position description, particularly by reference to the Appellant's resume and written application. Further, there is no indication of any comparison of the Appellant against the other applicants in relation to those matters.
  4. [61]
    Given that the Appellant had relieved in the AO7 role, I would have expected there to be at least some analysis of his performance during those periods, in comparison to the other short-listed applicants either in the role or similar roles. This would be an essential consideration in my view in the selection panel complying with the requirement of s 45(2) of the PSA to consider each eligible applicant's ability to perform the requirements of the role.
  1. [62]
    Given the above, I am satisfied that the selection panel have fallen into the very error that clause 9.11(c) of the Recruitment and Selection Directive cautions against. That is, the selection panel in making its assessment of the person best suited to the position has relied or focused on one aspect of the process, that being the interview performance.
  1. [63]
    Further, in the case of the Appellant, not only has the selection panel (on the evidence available to me) failed to give proper consideration to the Appellant's resume, written application and work history with DETSI, it appears to have given undue weight to the Appellant's response to Question 1 in determining that he was not the person best suited to the position.
  1. [64]
    A similar error (among other process deficiencies) occurred in Missingham v State of Queensland of Queensland (Department of Child Safety, Youth and Women)[24].  The errors in that matter included two of the selection panel not reading Ms Missingham's written application. Industrial Commissioner McLennan was also critical of a failure by the selection panel to give proper consideration of the manner in which Ms Missingham had previously performed the role.[25]
  1. [65]
    Industrial Commissioner McLennan also concluded that the selection panel solely relied on the interview presentation to assess Ms Missingham's merit and therefore failed to comply with the Recruitment and Selection Directive requirement to take into consideration all merit information before the selection panel.[26] In that appeal Industrial Commissioner McLennan set aside the promotion decision and returned the matter to the Department with directions.
  1. [66]
    I am satisfied that the selection panel have failed to comply with the requirements of the Recruitment and Selection Directive and s 45 of the PS Act, in that the selection panel have solely relied upon the applicants' performance during the interview process in determining who was meritorious and the most eligible applicant. As a consequence, the selection process was deficient, and the promotion decision was not fair and reasonable.
  1. [67]
    The appeal is upheld and I make the following orders.

Orders:

1.  The promotion decision is set aside.

2.  The matter is returned to the Department of Environment, Tourism, Science & Innovation with a copy of this decision.

3.  Within one month, the chief executive of the Department of Environment, Tourism, Science & Innovation is to revoke the appointment of the successful applicant to the position of AO7 Principal Investigator, State Investigations, Waste and Enforcement Services, Environmental Services and Regulation, job ad reference (JAR) number QLD/615694/25, and publish a gazette notice that the appointment is revoked.

4.  A new selection panel is to be formed, for the purpose of selecting an applicant for the vacant position of AO7 Principal Investigator, State Investigations, Waste and Enforcement Services, Environmental Services and Regulation, job ad reference (JAR) number QLD/615694/25 ('the vacant position'). The new selection panel must not include any member of the previous selection panel, that is:

a. Mr Martyn Hughes;

b. Mr Matthew Barr;

c. Ms Emilija Rupsys.

5. The new selection panel should be provided with a copy of sections 44 and 45 of the Public Sector Act 2022 (Qld) and the Directive 07/23: Recruitment and Selection.
 

6. The chief executive is to continue the recruitment and selection process for the position from the point immediately after the selection of the five shortlisted applicants for interview.

Footnotes

[1] Respondent's submissions filed 26 May 2025, Attachment 2 – Recruitment and selection report, p. 4.

[2] Ibid, [15].

[3] Respondent's submissions, [16].

[4] Ibid, [17]

[5] Ibid, [4]-[5].

[6] Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules'), the name of the successful applicant has been anonymised because they are not respondents to this Appeal.

[7] [2025] QIRC 151.

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

[9] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1) and s562B(2).

[10] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA).

[11] Respondent's submissions, [13].

[12] Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361, 24.

[13] Respondent's submissions, [18].

[14] Respondent's submissions, [20].

 

[15] [2022] QIRC 16.

[16] Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 

[17] Colebourne at [21]-[22] and [25].

[18] Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[19] Respondent's submissions, Attachment 4.

[20] Ibid, Attachment 2.

[21] Respondent's submissions, Attachment 2, page 4.

[22] Ibid, page 4.

[23] Ibid, page 7.

[24] (Unreported, Queensland Industrial Relations Commission PSA/2020/117, McLennan IC, 19 June 2020).

[25] Ibid, [33]-[38].

[26] Ibid, [49]-[51].

Close

Editorial Notes

  • Published Case Name:

    Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation)

  • Shortened Case Name:

    Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation)

  • MNC:

    [2025] QIRC 152

  • Court:

    QIRC

  • Judge(s):

    O'Neill IC

  • Date:

    05 Jun 2025

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
Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361
2 citations
Jump To
Cite 1 - [2022] QIRC 361
Cite 2 - [2022] QIRC 361
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Green v State of Queensland (Department of Environment, Tourism, Science and Innovation) [2025] QIRC 151
2 citations
Jump To
Cite 1 - [2025] QIRC 151
Cite 2 - [2025] QIRC 151
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Pope v Lawler [1996] FCA 1446
2 citations
Jump To
Cite 1 - [1996] FCA 1446
Cite 2 - [1996] FCA 1446

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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