Lambinon v TAFE Queensland[2025] QIRC 247

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Introduction

1. [1]
   Ms Tanya Lambinon (‘the Appellant’) commenced employment with TAFE Queensland (‘the Respondent’), within TAFE Queensland SkillsTech, on 11 January 2016, and is currently substantively employed in the permanent AO6 position of Marketing Campaign and Projects Lead.
2. [2]
   On 20 June 2022, the Appellant commenced acting in higher duties in an AO8 position, Marketing and Communications Manager – Trades.
3. [3]
   In September 2023, the Respondent commenced consultation in relation to proposed workplace change within the Commercial Services Portfolio at TAFE Queensland SkillsTech. The ultimate outcome of the consultation process, as the Appellant was advised on 31 October 2023, included the:^[1]

• removal of one permanent AO8 Corporate Solutions Manager position;
• removal of one permanent AO8 Marketing and Communication Manager – Trades position; and
• the creation and advertising of one permanent AO8 Business Development and Marketing Manager (consolidated) position. 

4. [4]
   The consolidated AO8 position of Business Development and Marketing Manager (‘the position’) was advertised on 30 October 2023, with a closing date of 13 November 2023. While the Appellant applied for the position on 12 November 2023, she was not shortlisted on 15 November 2023.
5. [5]
   After conducting interviews for shortlisted applicants on 20 November 2023, the successful candidate, Ms Katey Cochrane, was selected. Ms Cochrane commenced in the position on 18 December 2023, with her promotion published in the Queensland Government Gazette on 19 April 2024.
6. [6]
   It is this promotion decision that Ms Lambinon now appeals, pursuant to s 131(1)(e) of the Public Sector Act 2022 (Qld) (‘the PS Act’).

Is the Appellant entitled to appeal?

7. [7]
   The PS Act relevantly stipulates that:

129 Definitions for part

In this part –

…

promotion decision means a decision to promote a public sector employee employed on a permanent basis …

130Appeals

A person may appeal against a decision if –

1. An appeal may be made against the decision under section 131; and
2. The person is entitled to appeal against the decision under section 133.

131Decisions against which appeals may be made

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

…

(e)a promotion decision …

(3)This section is subject to section 132.

132Decisions against which appeals can not be made

…

(3)A person can not appeal against a promotion decision if –

(a)the person employed under the promotion decision had been redeployed within 1 year before the promotion; and

(b)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 …

133Who may appeal

The following persons may appeal against the following decisions –

…

(e)for a promotion decision – a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under the directive …

8. [8]
   Clause 10 of Appeals (Directive 04/23) also addresses promotion appeals, as extracted below:

10.Promotion decision appeal

10.1Section 131(1)(e) of the Act provides that a promotion decision may be appealed.

10.2Section 129 of the Act provides for the definition of promotion decision.

10.3Who may appeal a promotion decision under section 133 of the Act:

a.a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive.

10.4Further to clause 10.3, a public sector employee is only entitled to appeal a promotion decision:

a.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

b.where the aggrieved employee submitted an application for the role that is the subject of the promotion decision, and

c.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

d.the aggrieved employee has sought post-selection feedback in accordance with the relevant provisions of the directive relating to recruitment and selection …

9. [9]
   Ms Lambinon is a public sector employee employed on a permanent basis, is aggrieved by the decision appealed against, and is entitled to appeal under a directive.^[2] She also submitted an application for the position now the subject of the promotion decision, and sought post-selection feedback.^[3]
10. [10]
    However, I note that clause 10.4(a) of Appeals (Directive 04/23) requires that the decision appealed against “relates to a promotion of a permanent public sector employee that has been published in accordance with section 84(2) of the Act”. Section 84 of the PS Act relevantly provides that:

84Notification of employment or secondment

(1)This section applies if the chief executive of a public sector entity –

…

(b)is required, under a directive made by the commissioner for this section, to publish notice of the employment or secondment of a public sector employee.

(2)The chief executive must publish notice of the employment or secondment in the gazette or in another way the commissioner considers appropriate.

11. [11]
    Section 564(3)(c) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) further provides that an appeal against a promotion decision must be started within 21 days after the decision is publicly notified under the PS Act.
12. [12]
    While Ms Lambinon submits that she was notified on 27 November 2023 that her application was unsuccessful,^[4] the promotion of Ms Cochrane had not been published in the Gazette at the time of Ms Lambinon’s appeal notice being filed on 5 March 2024.
13. [13]
    In correspondence of 10 April 2024, the Respondent advised the Registry that:^[5]

The Respondent has identified that due to an administrative oversight, the Appointment was not publicly notified, either through the Queensland Government Gazette, or on the Respondent’s public facing website as is required by the Public Sector Commission’s Recruitment and Selection Directive (Directive 07/23) and Section 84 of the Public Sector Act 2022. The Appointment was notified through an internal broadcast email from the General Manager of TAFE Queensland SkillsTech on 1 February 2024. In the Respondent’s view, this does not satisfy the Respondent’s obligations to publicly notify of a promotion decision.

On this basis, the time limit for Ms Lambinon to appeal the Appointment has not yet commenced.

The Respondent respectfully proposes that an appropriate course of action might be for the Appointment to be gazetted as soon as possible, and for the Respondent to provide advice to the Commission and the Appellant when the Appointment has been Gazetted.

14. [14]
    The Respondent usefully proposed in this correspondence that “the Appeal be held in abeyance until the Respondent has complied with the requirements for public notification of the Appointment” and that “the Appellant should not be required to file a new appeal notice despite the time limit to make an Appeal not yet commencing.”^[6]
15. [15]
    The Respondent subsequently published the promotion of Ms Cochrane to the position in the Queensland Government Gazette of 19 April 2024.^[7]
16. [16]
    I thank the Respondent for their practical approach to addressing this jurisdictional issue,^[8] and am satisfied that, this issue having now been rectified, the decision to appoint Ms Cochrane to the position is appealable, and that Ms Lambinon is a person who may appeal that decision.

Appeal principles

17. [17]
    Public sector appeals are heard and decided under Chapter 11 of the IR Act. An appeal of this nature is not a rehearing of the matter but rather involves a review of the decision arrived at and the associated decision-making process.^[9]
18. [18]
    The stated purpose of such an appeal is to determine whether the decision was fair and reasonable.^[10] Findings which were reasonably open to the decision maker should not be expected to be disturbed on appeal.
19. [19]
    The issue for my determination is therefore whether the decision appealed against was fair and reasonable.

What decisions can the Industrial Commissioner make?

20. [20]
    In deciding an appeal against a promotion decision, section 562C(1) of the IR Act provides that the Commission may either:

1. confirm the decision appealed against; or
2. set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate.

21. [21]
    Section 562C(2) of the IR Act further provides that:

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.

(emphasis added)

Relevant legislative provisions and directives

22. [22]
    The relevant recruitment and selection process to be complied with is outlined in the following sections of the PS Act:^[11]

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.

(2)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).

(3)The principles are –

(a)recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and

(b)recruitment and selection processes must be fair and transparent; and

(c)recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.

45Employment 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.

(2)In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity –

(a)must consider each eligible applicant’s ability to perform the requirements of the position; and

(b)may consider –

(i)the way in which each eligible applicant carried out any previous employment; and

(ii)the potential of each eligible applicant to make a future contribution to the entity; and

(iii)the extent to which the proposed decision would contribute to the 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.

46Directive about recruitment and selection

The commissioner may make a directive about recruitment and selection under this part, including, for example –

1. the way in which recruitment and selection processes in public sector entities must be carried out; and
2. the way in which the principles mentioned in section 44(3) are to be applied; and
3. a matter mentioned in section 45(2).

23. [23]
    Made under s 46 of the PS Act, the Recruitment and selection (Directive 07/23) (‘the Directive’) is relevant to the determination of this appeal.
24. [24]
    Clause 9 of the Directive provides that:

9. Selecting the eligible applicant best suited to the position

9.1 Recruiting a diverse and high performing public sector workforce is enabled through fair, transparent and contemporary selection processes.

9.2 Selection decisions must ensure that the eligible applicant best suited to the position is selected for employment, as provided for in section 45 of the Act.

…

9.4 Where there are mandatory qualifications associated with a position, a chief executive must satisfy themselves of the validity of the qualification. For example, the qualification can be verified with the issuer that conferred the qualification (noting that some tertiary institutions have a qualification checking mechanism or website).

Selection panels

9.5 Where a vacancy is advertised, selection processes and notification of outcomes must take place in a timely manner. To facilitate this, selection panels should be formed and selection strategies determined prior to the closing date of the vacancy advertisement.

9.6 In determining the composition of a selection panel (which must include a minimum of two people), a chief executive must consider diversity of the panel as a key factor for successful recruitment, particularly in the context of their obligations under chapter 2 of the Act.

9.7 The decision maker should generally not be a member of the selection panel.

9.8 To promote integrity and diversity in recruitment, selection panels must:

(a) 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

(b) consider elements of conscious or unconscious bias that may impact the process, including mitigation strategies

(c) consider how the selection process can be accessible, inclusive and culturally safe (as relevant to each circumstance and organisational context)

(d) provide candidate care, including through timely and regular communication with applicants

(e) for senior executive vacancies, include one member from outside the ministerial portfolio.

…

Assessment of the person best suited to the position

9.10 When selecting the eligible applicant best suited to the position, a person undertaking a recruitment and selection process must:

(a) comply with any relevant direction given by the chief executive under clause 7.6

(b) 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

(c) 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.

9.11 Assessment processes for advertised positions must:

(a) consider contemporary and best practice selection techniques relevant to the requirements of the position and the entity’s operating context

(b) incorporate selection techniques that enable a sufficiently comprehensive and holistic assessment of each applicant within the context of being best suited to the position

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

(d) incorporate referee checks and pre-employment checks as appropriate and required

(e) be consistent with the obligations set out in chapter 2 of the Act relating to equity, diversity, respect and inclusion.

…

Documentation and decision-making requirements

9.17 The selection panel must clearly document the process undertaken and the reasons why the proposed successful applicant was determined to be best suited to the position.

9.18 In approving employment of a person, the decision maker must be satisfied that the selection panel has selected the person best suited to the position, and where applicable, the selection process complies with the Act and this directive.

9.19 The approved selection documentation must also include a declaration from the decision maker that identifies any actual, potential or reasonably perceived conflicts of interest in relation to the process, including the applicant determined to be best suited to the position or the absence of such.

…

12. Post-selection matters

Feedback

12.1 All 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.

12.2  Applicants 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.

25. [25]
    Also relevant to this appeal is Respondent’s Recruitment and Selection Procedure (‘the Procedure’), which has the stated purpose of providing “a process for the management of recruitment and selection of employees in TAFE Queensland.”^[12] The Procedure relevantly stipulates the following:

Employment on merit and for equity and diversity:

4.37 A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.

4.38 The Chief Executive Officer (or delegate) is responsible for determining the activities required to make an assessment on the eligible applicant best suited to the position.

4.39 In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity—

(a) must consider each eligible applicant’s ability to perform the requirements of the position; and

(b) may consider—

(i) the way in which each eligible applicant carried out any previous employment; and

(ii) the  potential of each eligible applicant to make a future contribution to the entity; and

(iii) the  extent to which the proposed decision would contribute to fulfilment of the entity’s obligations under the Public Sector Act 2022, including, for example, the objectives, strategies and targets stated in the entity’s equity and diversity plan.

4.40The recruitment and selection panel should comprise three members and must comprise a minimum of two members, one of whom is the manager (or a nominated representative) of the vacant role.

4.41 Where possible, the selection panel composition should represent gender balance.

…

4.43 The nature of the assessment tools to be utilised for the selection process should be considered when forming the selection panel. For example, for an Educator role, a member of the selection panel should also be a qualified Educator, preferably with experience in the subject area of the position being filled.

Managing Selection Panel Declarations of Conflicts of Interest:

4.44 Upon receipt of the applications and before shortlisting commences, all selection panel members must disclose any real or perceived conflict of interest including any existing work or personal relationships with any of the applicants by completing the Selection Panel Member Declaration and provide the completed declaration to the Human Resources Manager for consideration and decision on whether the panel member should continue as a member of the selection panel. The selection panel must not continue with the selection process until a decision is provided by the Human Resources Manager.

4.45 The Human Resources Manager will assess whether the conflict of interest is actual, perceived, or potential:

 (a) An actual conflict exists when a reasonable person, in possession of the relevant facts, would conclude that an individual's private interests interfere, or are likely to interfere, with the proper performance of their official duties as a selection panel member;

 (b) A perceived or apparent conflict exists where there is an appearance that an individual's private interests may interfere with the proper performance of their official duties as a selection panel member even if, in reality, this may not be the case; and

 (c) A potential conflict exists where the personal or private interest could, in the future, conflict with an individual's official duties.

4.46 The Human Resources Manager will then make a determination if the selection panel member’s relationship with the applicant necessitates further action, including:

(a) Register - Recording the disclosure of conflicts of interest in a formal register is an appropriate management strategy for dealing with very low-risk and potential conflicts of interest. It is also an adequate response where the act of transparency through recording conflicts of interest is sufficient;

(b) Restrict - Where restrictions are placed on the employee’s involvement in the selection process; and

(c) Remove - Where the employee is removed from their involvement in the selection process, with a replacement found for the selection panel.

4.47 The Human Resources Manager will retain a copy of the Selection Panel Member Declaration form and conflict of interest decision along with all other recruitment paperwork.

4.48 It is important to note that a conflict of interest in itself is not necessarily wrong or unethical, however, identifying and managing the situation is important. Selection panel members should not be part of a process where they have a conflict of interest, or where there could be a reasonable perception that it exists. If a panel member has identified or if they are unsure if a real or perceived conflict of interest exists, they should seek advice from a member of Human Resources.

Appeal grounds

26. [26]
    In their submissions of 3 April 2024, the Appellant summarised the three grounds of their appeal as follows:^[13]

Failure to Follow Fair and Transparent Selection Process: The decision appears to have been made without adherence to a fair and transparent selection process. The recruitment process should have been conducted in accordance with the principles underpinning recruitment and selection as outlined in Chapter 3, Part 3, Section 44 of the legislation, and in accordance with the principles of merit, equity, and transparency as outlined in Section 45 of the legislation. However, there are concerns that the process may have been biased or unfair.

Lack of support for employee effected by workplace change: According to the Recruitment and Section (Directive 07/23) Attracting and Advertising (Directive clause 8.3) indicates, where relevant, a  chief executive must comply with the directive relating to supporting employees affected by workplace change when filling a vacancy (that is, where that directive applies to the entity and the employees of that entity.).

Lack of Justification for Decision: The decision lacks adequate justification or explanation for the outcome. There is a need for clarity regarding the criteria used for evaluation and selection, as well as how these criteria were applied in my case. Without sufficient justification, the decision appears arbitrary and unjustified.

27. [27]
    In accordance with directions orders issued by the Commission, the parties have filed written submissions addressing the Appeal Notice and the issue for my determination.  While I have carefully considered all submissions filed by the parties, I have not approached the writing of this decision by summarising the entirety of this material. Rather, the key positions of the parties on pertinent issues have been referred to throughout my below consideration of this appeal. 
28. [28]
    As the parties did not apply for leave to make oral submissions, this matter has been dealt with on the papers pursuant to s 451(1) of the IR Act.

Consideration

Approach to the Appellant’s grounds for appeal

29. [29]
    The determination of this appeal necessarily involves a consideration of the recruitment and selection process,^[14] including: 

• the composition of the selection panel;
• the process by which applicants were shortlisted and/or interviewed;
• the process by which a successful applicant was selected;
• documentation and decision-making requirements; and
• the provision of feedback to unsuccessful applicants.

30. [30]
    Appeal grounds one (‘failure to follow fair and transparent selection process’) and three (‘lack of justification for decision’) broadly pertain to the abovementioned aspects of the recruitment and selection process. As such, submissions of the parties addressing these matters have been considered further.
31. [31]
    However, I concur with the Respondent’s submission that the Appellant has made a “range of submissions concerning the history of her employment and other matters, that are unrelated to the substantive issue in this matter, being the process that led to the appointment of Ms Cochrane to the Position.”^[15] The Appellant’s submissions frequently digress from the promotion decision with which she is ultimately concerned, to address other matters or grievances that fall outside of the scope of this appeal, including:

• her employment history with the Respondent, including details of previous promotion decisions;
• her previous requests for permanent appointment to a higher classification position;
• the consultation process undertaken by the Respondent in relation to proposed workplace change, and the outcome of that consultation process; and
• her endeavours to have a (now non-existent) AO7 position reinstated.

32. [32]
    Previous promotions and requests for permanent appointment to a higher classification have little significance when considering the recruitment and selection process currently in question.^[16] Submissions regarding these concerns have therefore not been addressed further in this decision.
33. [33]
    The previous consultation process, the outcome of that consultation process, and the Appellant’s proposals for future workplace changes, are also matters of little relevance. In reviewing a promotion decision, the Commission is tasked with considering the recruitment and selection process undertaken to fill a position. An appeal of this nature is therefore not overly concerned with how that position came into being in the first place, nor it is concerned with the Appellant’s proposals for further changes to a team structure or the creation of a new position. For present purposes, it is sufficient that the consultation process undertaken by the Respondent concluded and resulted in the creation of the position. How the Respondent set about, e.g., advertising, recruiting, and selecting a suitable candidate for the position, is the process with which this appeal is concerned.
34. [34]
    I note the Appellant does correctly observe that clause 8.3 of the Suspension Directive requires a chief executive to “comply with the directive relating to supporting employees affected by workplace change when filling a vacancy”, namely, the Supporting employees affected by workplace change (Directive 01/22). However, the Appellant’s circumstances are not captured by this Directive, clause 6.1 of which stipulates that:

6.1 Where workplace change results in permanent employees being displaced from a substantive (ongoing) role, agencies and affected employees must work cooperatively to transfer … the employee to a suitable alternative (ongoing) role.

35. [35]
    At clause 18, the Directive further provides a definition of ‘affected employee’:

Affected employee means a tenured employee who has been unable to be substantively allocated to a role following workplace change (i.e. a surplus employee) …

36. [36]
    It is uncontroversial that the Appellant is substantively employed in the permanent AO6 position of Marketing Campaign and Projects Lead. After acting in higher duties from 20 June 2022 until 26 January 2024, the Appellant returned to this substantive AO6 position. Despite her submissions to the contrary, the Appellant is therefore not an ‘affected employee’ within the meaning of Directive 01/22; she has not been displaced from a substantive role, nor has she been unable to be substantively allocated to a role.^[17] Submissions of the Appellant addressing her second ground for this appeal (i.e., those regarding workplace change, being an affected/displaced employee, and the consultation process preceding the creation of the position), have accordingly not been meaningfully addressed in this decision.

Composition of the selection panel, and allegations of bias

37. [37]
    It is uncontroversial that the selection panel included the following members:^[18]

• Ms Taris Cox (Director of Commercial Services, TAFE Queensland SkillsTech);
• Ms Renee Galvin (A/Director of Marketing, TAFE Queensland Corporate); and
• Mr Robert Petherbridge (Executive Director Business Development, TAFE Queensland Executive Services).

38. [38]
    It is further agreed that Ms Galvin and Mr Petherbridge are employees external to SkillsTech, and that the panel chair, and the direct supervisor of the advertised role,^[19] was Ms Cox. While the Appellant initially submitted that Ms Cox was also the decision maker,^[20] it is clear from subsequent submissions of the parties that the decision maker was in fact Mr Stephen Gates (General Manager, TAFE Queensland SkillsTech).^[21]
39. [39]
    After reviewing all submissions before me, I am satisfied that the Respondent selected a panel that:

• had at least two members, in accordance with cl 9.6 of the Directive;
• had the ideal number of three members, in accordance with cl 4.40 of TAFE Queensland’s Recruitment and Selection Procedure (‘the Procedure’);
• included the manager (or a nominated representative) of the vacant role (namely Ms Cox), in accordance with cl 4.40 of the Procedure;
• represented gender balance, in accordance with cl 9.6 of the Directive and cl 4.41 of the Procedure; and
• did not include the decision maker, in accordance with cl 9.7 of the Directive.

40. [40]
    However, the Appellant raises various concerns regarding the inclusion of Ms Cox on the selection panel, namely that:

• Ms Cox was her direct manager, and so “bias is likely present” in the recruitment and selection process;^[22]
• Ms Cox’s involvement in the consultation process and team restructure (that resulted in the creation of the position, and the removal of the AO8 position in which the Appellant was acting), resulted in Ms Cox making decisions during the recruitment and selection process that were consciously or unconsciously biased against the Appellant as a candidate;
• Ms Cox’s bias resulted in her not valuing the Appellant’s contributions to the team and organisation while acting in the AO8 position, or “at the very least” inviting the Appellant to interview for the new position;^[23] and
• Ms Cox “did not disclose all actual, potential, or reasonably perceived conflicts of interest between herself and the Appellant”.^[24]

41. [41]
    As required by clause 9.8 of the Directive, selection panels must “consider elements of conscious or unconscious bias that may impact the process, including mitigation strategies”, and “consider and declare any actual, potential or reasonably perceived conflicts of interest between each panel members and the applicants.” If such a conflict of interest is declared, clause 9.9 of the Directive requires the panel to “consider and document any resolution or mitigation strategies, which must be approved by the decision maker prior to continuing with the selection process.”
42. [42]
    In compliance with the clause 4.44 of Procedure, the panel members completed a Selection Panel Member Declaration.^[25] In that declaration, Ms Cox confirmed that she had professional relationships with several applicants, including the Appellant, because they all held substantive positions within her directorate, and had reported directly to her in some capacity over the previous 3.5 years. Ms Cox also declared that she had worked indirectly with Ms Cochrane, as she is a fellow member of the TQ BDL network and User Choice Strategy Steering Committee.
43. [43]
    Mr Petherbridge similarly declared having professional relationships with several applicants, including both the Appellant and Ms Cochrane. Ms Galvin declared having professional relationships with three applicants, including the Appellant. She also declared having previously attended social gatherings in a personal capacity with another applicant, with whom she remained connected on social media.
44. [44]
    In assessing this declaration in accordance with clause 4.45 of the Procedure, an appropriate human resources delegate deemed the proposed panel composition to be appropriate in terms of “levels, external panel members, [and] gender balance”. While they acknowledged a potential or perceived conflict of interest to exist (namely, Ms Galvin’s previous personal relationship with another applicant), the delegate found it could be adequately managed by the standard mitigation strategies. The delegate did not identify the existence of any actual conflict of interest.
45. [45]
    I do not accept the Appellant’s submission that Ms Cox’s declaration was insufficient because Ms Cox did not declare her “role in [recent] workplace change and management”.^[26] While it is clear from her submissions that the Appellant feels keenly targeted by this workplace change, she is not an employee affected by workplace change within the meaning of the relevant directive. The Appellant has also not provided any evidence to suggest that Ms Cox held a negative view of the Appellant following her role in facilitating the workplace change that would influence her decision-making, much less that Ms Cox embarked on this restructuring process because she held a negative view of the Appellant. In the absence of any such evidence, and where the workplace change has not rendered the Appellant relevantly ‘affected’, it is unclear what conflict Ms Cox could possibly declare in this regard. A declaration of Ms Cox’s “role in workplace change” would likely amount to a mere declaration of her position description, entirely superfluous to the issue at hand of identifying possible conflicts of interest. Further, that Ms Cox’s role involved facilitating the restructuring of the Commercial Services Portfolio, in my view only justifies her inclusion in the selection panel as an individual who both understood the nature of the position created as a result of that restructure, and who would be directly supervising the position.
46. [46]
    The Appellant further disputes Ms Cox’s inclusion in the selection panel because she had raised concerns about Ms Cox’s management which Ms Cox did not declare.^[27] However, the material before the Commission indicates that the Appellant raised these concerns with Mr Stephen Gates, rather than Ms Cox, on 18 December 2023. That the Appellant raised these concerns with Mr Gates after the members of the panel were selected and the recruitment and selection process was complete,^[28] is not a matter that Ms Cox could have declared when completing her declaration at the commencement of the recruitment and selection process.
47. [47]
    I also do not accept the Appellant’s submission that, because Ms Cox is her direct manager, “bias is likely present in this process.”^[29] The submission that bias is essentially a foregone conclusion should Ms Cox have any involvement in the process, is rather unsophisticated. As required, Ms Cox declared the professional relationships she had with several applicants, many of whom she currently, or had previously, directly managed. That a panel member and an applicant have a professional relationship does not automatically render that panel member incapable of participating in a fair and transparent selection and recruitment process.^[30] The Appellant does not provide any evidence of the process actually being infected by the apprehension of bias due to Ms Cox’s involvement, or at all.^[31] I note in this regard that the Appellant does not take issue with the inclusion of Ms Galvin and Mr Petherbridge on the panel despite their declared professional and personal relationships with various applicants.
48. [48]
    The Appellant also submits that Ms Cox’s bias against the Appellant resulted in her not having the “consideration to at the very least invite [the Appellant] for interview particularly since [she] had been operating as the lead Marketing and Communications role since 2018.”^[32] I fail to see how this submission supports the Appellant’s argument that Ms Cox held a bias, either conscious or unconscious, against the Appellant. Rather, it indicates that Ms Cox recognised the importance of conducting of a fair and transparent process where no particular individual was shown favour by the selection panel. Further, such an approach is in accordance with the Procedure’s observation that “attracting and retaining a diverse and skilled workforce is generally best supported by advertising vacancies to the open market, in a way that maximises quality talent pools.”^[33]
49. [49]
    Allegations of bias or a conflict of interest “should not be made lightly,^[34] and ought to be supported with “cogent and persuasive evidence.”^[35] Based on the material before me, however, there is no evidence that the selection panel was deficient, was biased against the Appellant, or included a member that failed to declare a relevant conflict of interest.
50. [50]
    I am satisfied that the manner in which the Respondent has selected the participants of the selection panel complies in all respects with the requirements of the PS Act, the Directive, and the Procedure. As such, I dismiss this ground of challenge to the promotion decision.

Shortlisting process

51. [51]
    It is uncontroversial between the parties that the position was advertised on 30 October 2023, and that the Appellant applied for the position on 12 November 2023 before applications closed the following day. It is also agreed that the Appellant was not shortlisted or interviewed for the position.
52. [52]
    The Respondent further submits that:

• each applicant was required to provide a detailed resume, a cover letter of no more than two pages in response to the position’s criteria, and the details of two referees;
• the panel received a total of 31 finalised applications for the position by the closing date of 13 November 2023;^[36] 
• the selection panel shortlisted applicants using the ‘Applicant short-listing matrix’,^[37] first distributed to the panel members on 13 November 2023;^[38]
• the panel members individually assessed the applications on 14 November 2023, and then convened to collaboratively shortlist the applicants on 15 November 2023; and
• the Appellant was not one of the four applicants shortlisted.

Use of a short-listing matrix

53. [53]
    The Appellant has raised concerns that the short-listing matrix utilised by the panel to shortlist the applicants was “created post shortlisting” on 19 December 2023.^[39] In submitting that this occurred, the Applicant relies on a screenshot of the document information panel for the Microsoft Word copy of the short-listing matrix sent to her on 19 December 2023, which lists the creation date of the copy as being that same day.^[40]
54. [54]
    At best, the Appellant’s inclusion of the document information panel information visible to her, indicates that the copy of the matrix document shared with her was created on 19 December 2023, when Ms Cox was attaching a copy to her reply correspondence. However, I am not satisfied that this creation date visible to the Appellant invites a conclusion that the matrix was first written on 19 December 2023. I note in this respect the correspondence dated 13 November 2023 from Ms Cox to the other members of the selection panel as attached to the Respondent’s submissions, in which Ms Cox distributed the matrix in anticipation of applications for the position closing later that afternoon.^[41]
55. [55]
    The short-listing strategy used by the selection panel, as stipulated in this matrix, is as follows:^[42]

Resume review

1. –Significant relevant experience or identifiable, transferrable skills
2. –Longevity in roles (commitment to ongoing career development and organisation)
3. –Relevant qualifications/accreditations (desirable, not mandatory)

Cover letter

1. –Application consistent with EOI (demonstrates ability to follow instructions)
2. –Application addresses the assessment criteria:

• Demonstrated highly effective people management skills that include providing high level and supportive leadership that rewards excellence, encourages creativity and innovation and maximises workforce capability while promoting a shared vision for success.
• Demonstrated high level knowledge of the national VET sector (or similar) with an emphasis on market development, market share growth, sales growth and contract management
• Proven at level capacity to develop, implement and monitor effective strategies that support the achievement of business targets whilst specifically targeting identified priority areas.
• Highly developed communication, negotiation, problem solving, and relationship management skills as evidenced by a record of achievement in developing and effectively managing position and collaborative partnerships with a wide variety of key stakeholders in challenging work environments.
• Comprehensive understanding of contemporary business development, account management, and marketing and communication concepts and the ability to develop, lead and promote strategic brand management activities.

1. –Clear and concise application demonstrating appropriate language and grammar
2. – Provides examples which demonstrate knowledge, work experiences and ability to undertake the role
3. –Awareness of ‘dynamics’, not solely focused on mechanics. Similarly leadership opposed to management.

X Factor

1. –As a newly combined role, the goal is to achieve synergies between the BD and Marketing teams.
2. –Firm leadership that develops staff ability to be autonomous, strategic and collaborative.  Focus is on empowering and enabling staff to set their targets and actively pursue tasks that will actually achieve these goals (i.e., push them outside of their comfort zones and the tasks that they have always undertaken, and encourage creativity).
3. –A key focus for this combined team is to collate information from the business and add it to market data/analysis, in order to determine TQST priority industry trade areas that then receive appropriate BD and Marketing support.
4. –Development of strong operational plans that see goals achieved through effective campaigns and projects that run across teams and staff/SMEs.
5. –This is a broad role and it isn’t expected that one candidate will cover all facets (BD and Marketing) equally. As such, the candidate should demonstrate good self-reflection skills in order to identify strengths and potential blind spots where they could utilise more assistance.

56. [56]
    I am satisfied that this matrix reasonably reflects the criteria against which the applicants would be assessed for shortlisting as set out in the Position Description, and the selection panel utilised this matrix when shortlisting applicants for the position. I am also satisfied that, by utilising this matrix, the panel members had a plan for what they were looking for when shortlisting applicants that incorporated a variety of assessment types, as recommended by the Queensland Government’s guide on shortlisting applicants.^[43]

Approach of panel to shortlisting of applicants

57. [57]
    The Appellant further submits that the overall shortlisting process is deficient, because of her “assumption the panel chair (Ms Cox) identified her list of top scoring candidates and brought those to the group to determine shortlisting candidates” on 15 November 2023. She further submits that the Respondent “has not provided evidence which would support any other scenario that would constitute a fair and transparent recruitment and selection process.”^[44]
58. [58]
    The Respondent in turn submits that the panel members individually reviewed the pool of applications to form “a view of shortlisting”, with the panel members then convening to determine an agreed list of shortlisted candidates.^[45] Given this approach, it would be reasonable to assume that each panel member attended the meeting of 15 November 2023 with a preliminary view on the most suitable applicants; the possibility that Ms Cox may have prepared for this meeting by identifying a preliminary list of the candidates she believed to be most suitable for shortlisting does not evince any deficiency in the shortlisting process. Rather, it would merely suggest Ms Cox had taken steps to adequately prepare for the selection panel’s meeting.
59. [59]
    More pertinent, however, is that the Appellant has failed to produce any evidence in support of her mere assumption. The Appellant’s assumptions about how candidates were shortlisted do not at all constitute proof to the requisite standard of what the Appellant submits occurred.^[46] No evidence has been provided to support the Appellant’s assumption that Ms Cox essentially commandeered the shortlisting process, or that the other panel members failed to participate meaningfully in this process. Rather, I am satisfied that the panel, as stated by Mx Cox in correspondence to the Appellant of 19 December 2023, prioritised a process of “collaboratively ranking the top scoring candidates for the outcome of determining who would be selected for an interview”,^[47] as the Queensland Government’s guide on shortlisting applicants recommends.^[48]
60. [60]
    For completeness, I note that it is not mandatory under the PS Act for each of the panel members to independently score each of the candidates prior to shortlisting. While the Appellant clearly believes such an approach would be preferable over the panel’s collaborative approach, she has not pointed to any deficiency arising from the latter method.^[49] 
61. [61]
    The Applicant also takes issue with the limited time the selection panel spent shortlisting the applicants. In email correspondence of 13 November 2023 to the selection panel, Ms Cox recognised they were “working to a pretty compressed recruitment timetable for this position”, further noting that:^[50]

Applications close this afternoon and first thing in the morning we’ll receive the Panel Member Declaration from TQST HR, complete with the list of applicant names.  Once we’ve completed our respective parts, they will review the form and when approved, release the applications to us.  That will give us roughly 24 hours to review applications ahead of our shortlisting meeting on Wednesday.

62. [62]
    It is worth noting that the recruitment and selection process does not have to be perfect to be considered reasonable.^[51] While it may not be ideal for a shortlist to be compiled in this timeframe, I am not satisfied that this resulted in a deficiency in the overall selection and shortlisting process. I also do not accept there is any compelling evidence to suggest this timeframe was insufficient for the panel to adequately assess the 31 applications considered for shortlisting. Given the selection panel had already prepared a clear matrix and criteria against which to assess applications, it is not unreasonable to expect the panel members to identify in this timeframe those applications that not only met all of the minimum requirements listed in the position description, but that also stood out from the rest of the candidate pool.

Feedback

63. [63]
    The Appellant submits that the decision “lacks adequate justification or explanation for the outcome” where there has been a “lack of clarity” regarding how the relevant criteria were applied to her application. In submitting this, the Appellant concludes that the decision appears “arbitrary and unjustified.”^[52]
64. [64]
    This is a curious submission, given the feedback that the Appellant received since being informed her application had not been shortlisted on 23 November 2023. From the material filed, it is clear that the Appellant, at her request, received written feedback on 19 December 2023 from Ms Cox,^[53] in addition to having received verbal feedback from Ms Galvin on 23 November 2023, and from Ms Cox on 27 November 2023.^[54]
65. [65]
    It is clear that the Appellant does not agree with the panel feedback she was provided. However, that the feedback provided was not well-received by the Appellant, does not alone make that feedback unfair or unreasonable. Further, disagreement is not sufficient to demonstrate a deficiency in the process of recruitment and selection.^[55]
66. [66]
    Clause 12.1 of the Directive requires that any applicants that request post-selection feedback must receive timely, specific and constructive feedback from a member of the selection panel, provided in a mode at the discretion of the panel member and that is reasonable in the circumstances. In receiving feedback from two panel members and in both oral and written form, I am satisfied that the feedback provided by the Respondent has complied with the requirements of the Directive. For example, the written feedback of 19 December 2023 alone is sufficiently detailed so as to be constructive; the Appellant is clearly informed that the panel found her application to be lacking in specific detail, and that it would have benefitted from examples of how she would apply her previously experiences and achievements to the position. The Appellant was also provided with a copy of the matrix used by the panel to shortlist the candidate pool, with this matrix being clearly referenced in the feedback provided.
67. [67]
    It is also notable that the Appellant failed to comply with the requirements explicitly outlined in the position description, by submitting a cover letter that exceeded the maximum length. While Ms Cox indicates the Appellant was not penalised for this non-compliance in her feedback, the Applicant short-listing matrix does identify an application being consistent with the requirements outlined in the EOI and position description as a relevant factor for consideration that is indicative of an ability to follow instructions.^[56] 
68. [68]
    Lastly, I do not accept the Appellant’s submission that the promotion decision is arbitrary or unjustified, given the Respondent’s clear compliance with the documentation and decision-making requirements of the Directive.^[57] I am satisfied that the selection panel sufficiently documented the process undertaken to determine the applicant best suited to the position, culminating in the preparation of a panel selection report detailing, e.g., the selection strategies used to assess shortlisted applicants during the interview process, and the panel’s final assessment of each interviewed applicant.^[58]

Conclusion

69. [69]
    Pursuant to s 562C of the IR Act, the Commission may only set aside a promotion decision if the Commission finds that the recruitment and 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.
70. [70]
    Having considered all the material before the Commission, I find that the Appellant has failed to establish a deficiency in this recruitment and selection process that would justify setting aside the appointment made by the selection panel. Consequently, I find that the decision was fair and reasonable.
71. [71]
    I order accordingly.

Order

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed