Dale v State of Queensland (Department of Housing and Public Works) [2026] QIRC 150

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Dale v State of Queensland (Department of Housing and Public Works) [2026] QIRC 150 Dale, Rhiannon (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2025/60 PROCEEDING: Public Service Appeal – Promotion decision DELIVERED ON: 1 May 2026 MEMBER: HEARD AT: McLennan IC On the papers ORDERS: 1. Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld), the promotion decision appealed against is set aside. 2. The matter is returned to the Department of Housing and Public Works with a copy of this decision. 3. I direct that, within one month, the chief executive is to revoke the appointment of Ms Amanda Whittard to the position of Senior Housing Officer, Central Queensland / North Coast Region, Service Delivery, Housing and Homelessness Services, Bundaberg (AO4 classification), Job Ad Reference QLD/616244/25, and publish a gazette notice that the appointment is revoked. -- 1 of 30 -- 2 4. I direct that a new selection panel is to be formed, for the purposes of selecting an applicant for the vacant position of Senior Housing Officer, Central Queensland / North Coast Region, Service Delivery, Housing and Homelessness Services, Bundaberg (AO4 classification), Job Ad Reference QLD/616244/25 ('the vacant position') and that the new selection panel must not include any of the three members of the original selection panel. 5. The new selection panel must be provided with a copy of ss 42 -46 of the Public Sector Act 2022 (Qld) and Public Sector Commission Directive 07/23: Recruitment and Selection. 6. The chief executive is to continue the recruitment and selection process for the vacant position from the point of receipt of the six applications. The applicants in the resumed selection process shall comprise the six applicants in the selection process subject of this appeal (should they wish to continue to be considered for the vacant position). CATCHWORDS: LEGISLATION & OTHER INSTRUMENTS: PUBLIC SECTOR – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a promotion decision – where the appellant unsuccessfully applied for the role of Senior Housing Officer – consideration of whether the recruitment and selection process was deficient – consideration of mandatory assessment processes under Directive 07/23 Recruitment and Selection – consideration of merit and process – consideration of panel composition – consideration of unconscious bias - decision not fair and reasonable – appeal upheld Directive 04/23: Appeals cl 10.4 Directive 07/23: Recruitment and Selection cls 4.2-4.6, 5.3, 6.1, 6.2, 7.1, 7.5, 7.8, 7.9, 8.10, -- 2 of 30 -- 3 CASES: 8.13, 8.16, 8.19, 8.20, 9.1, 9.2, 9.5-9.12, 9.17- 9.19, 12.1, 12.2, 12.4 Industrial Relations Act 2016 (Qld) ss 562B(3)- (4), 562C(1) Public Sector Act 2022 (Qld) ss 21(4)(a), 25, 44(2)-(3)(a)-(c), 45(2)(a)-(b), 46, 129, 131(1)(e), 132, 133(e) Goodall v State of Queensland & Anor [2018] QSC 319 Reasons for Decision Background [1] Ms Rhiannon Dale (the Appellant) appeals against a promotion decision of the Department of Housing and Public Works, State of Queensland (the Department; the Respondent). [2] The Department advertised the position of Senior Housing Officer, Bundaberg Housing Service Centre (HSC), AO4 (the promotional position) on the Queensland Government's SmartJobs website on 28 January 2025. Applications closed on 11 February 2025. [3] The recruitment and selection panel (the panel) comprised: the chairperson (the Senior Customer Service Manager, Bundaberg HSC); second panel member (Rent Connect Officer, Bundaberg HSC); and third panel member (Acting Senior Service Centre Manager, Maryborough HSC). [4] The Department received six applications, of which only one applicant was shortlisted for interview. [5] The shortlisted applicant was subsequently recommended for permanent appointment to the position. The Selection Report was signed off by the panel and approved by Mr James O'Brien (the Delegate) on 4 March 2025. [6] On 9 March 2025, the successful candidate1 was permanently appointed to the position. [7] On 12 March 2025, the Appellant was provided with written feedback by the panel chair. The email indicates that the feedback requested had been provided a few days earlier, though the Appellant sought that it also be provided in writing. 1 Ms Amanda Whittard. -- 3 of 30 -- 4 [8] The appointment outcome was advertised in the Queensland Government Gazette No 57 on 28 March 2025 (the promotion decision). [9] On 11 April 2025, the Appellant appealed the promotion decision. [10] In my view, the promotion decision appealed against was not fair and reasonable, as the selection process was deficient. [11] My reasons follow. Decision against which an appeal may be made [12] Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. Section 131(1)(e) of the PS Act provides that an appeal may be made against a promotion decision. Section 129 defines a promotion decision to be "a decision to promote a public sector employee on a permanent basis." [13] Section 133(e) of the PS Act prescribes that "a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive" may appeal against a promotion decision. [14] Clause 10.4 of Directive 04/23 Appeals stipulates an array of requirements with respect to appeals against a promotion decision. The parties do not dispute that the Appellant meets those requirements. It is clear the promotion decision related to a gazetted promotion, the Appellant's application was received on or before the nominated deadline, and there was an appropriate request by the Appellant for post-selection feedback. [15] I am satisfied that the promotion decision, as contained in the gazetted notice of 28 March 2025, constitutes a decision made by the Department and is capable of appeal pursuant to s 131(1)(e) of the PS Act. Appeal principles [16] The appeal is decided by reviewing the decision "to decide whether the decision appealed against was fair and reasonable".2 [17] The appeal is not conducted by way of re-hearing but rather involves a review of the decision arrived at by the Department and the associated decision-making process.3 [18] Section 562B(4) of the Industrial Relations Act 2016 (Qld) (IR Act) provides that: 2 Industrial Relations Act 2016 (Qld) s 562B(3) (IR Act). 3 Goodall v State of Queensland & Anor [2018] QSC 319, 5. -- 4 of 30 -- 5 For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022, the commission – (a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but (b) may allow other evidence to be taken into account if the commission considers it appropriate. [19] A decision made by the Department, which was reasonably open to it, should not be disturbed on appeal. What decisions can the Commission make? [20] Section 562C(1) of the IR Act prescribes that the Commission may determine to either: (a) confirm the decision appealed against; or (b) 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] The Commission may only set aside a promotion decision if they find that the recruitment or selection process was deficient, having regard to whether the process complied with the PS Act, regulation or Directive.4 [22] In determining whether there was such a deficiency, the Commission must consider whether the recruitment and selection process complied with the PS Act, a regulation or a directive of the commission chief executive.5 [23] It is necessary, in determining whether the promotion decision was fair and reasonable and whether the recruitment and selection process was deficient, to consider the Appellant's submitted grounds of appeal. Parties' submissions [24] The Appellant submitted that all the requirements contained in Directive 07/23 Recruitment and selection (Recruitment Directive) were not followed.6 [25] The Appellant's grounds of appeal pertain to various concerns about the selection process, panel composition, and unconscious bias. 4 Industrial Relations Act 2016 (Qld) s 562C(2) (IR Act). 5 Ibid. 6 Appellant’s submissions filed in the Industrial Registry on 6 May 2025, 2. -- 5 of 30 -- 6 [26] The Respondent submitted the "recruitment and selection process and promotion decision was fair and reasonable" as it was made in accordance with the PS Act and Directive.7 [27] I have summarised the parties' submissions within my consideration of each ground of appeal below. Relevant legislation [28] Section 562C(2) of the IR Act states (emphasis added): 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. [29] The following PS Act provisions detail the required recruitment and selection considerations: 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. 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. (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 fulfilment of the entity's obligations under chapter 2, including, for 7 Respondent’s submissions filed in the Industrial Registry on 13 May 2025, [14]. -- 6 of 30 -- 7 example, the objectives, strategies and targets stated in the entity's equity and diversity plan. 46 Directive about recruitment and selection The commissioner may make a directive about recruitment and selection under this part, including, for example— (a) the way in which recruitment or selection processes in public sector entities must be carried out; and (b) the way in which the principles mentioned in section 44(3) are to be applied; and (c) a matter mentioned in section 45(2). [30] Further, the Recruitment Directive relevantly provides: 4.2 Chief executives are required to act in a way that is compatible with the main purpose of the Act by: (a) treating public sector employees fairly (b) maximising employment security and permanency of employment (c) taking steps to promote equity, diversity, respect and inclusion in employment (d) ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes. … 4.4 Under chapter 1, part 3 of the Act reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples. A chief executive of a reframing entity is responsible for ensuring the entity fulfils its role when applying and making decisions under the Act and Commissioner directives. 4.5 Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, including in the application of, and making decisions under, the Act and Commissioner directives. 4.6 Section 44 of the Act requires that recruitment and selection processes must be undertaken in accordance with the following three principles: (a) recruitment and selection processes must be directed to the selection of the eligible person best suited to the position (b) recruitment and selection processes must be fair and transparent (c) recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion. … 5.3 The requirements set out in these directions are binding and must be followed. … 6.1 Chief executives of reframing entities must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples, including but not limited to: (a) promoting cultural safety and cultural capability at all levels of the public sector (b) ensuring the workforce and leadership of the entities are reflective of the community they serve, having regard to chapter 2 and chapter 3, part 3 of the Act -- 7 of 30 -- 8 (c) supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector (d) working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, in particular when making decisions directly affecting them. 6.2 In considering the responsibilities under section 21 of the Act in the context of recruitment and selection, a chief executive of a reframing entity should: (a) undertake workforce planning activities that support recruitment and selection outcomes that are directed to ensuring an entity's workforce and leadership is reflective of the community they serve (b) ensure advertising practices for all roles are inclusive and that composition of selection panels reflects the: (i) capability to undertake processes and make selection decisions in a way that will contribute to an entity's cultural capability, and supports ongoing capability development in this area (ii) appropriate representation of Aboriginal persons or Torres Strait Islander persons, including consideration of external representation where appropriate, for example, from a community-controlled organisation. (c) ensure that recruitment processes are conducted in a culturally safe way, including: (i) recognising culturally significant connections for Aboriginal people and Torres Strait Islander people involved in the process (ii) establishing practices to ensure that adverse information (as provided for under clause 11) relating to an Aboriginal person or Torres Strait Islander person does not disproportionately or unnecessarily impact employment outcomes in the public sector for Aboriginal peoples and Torres Strait Islander peoples. … 7.1 Through high quality workforce planning and application of the principles underpinning recruitment and selection (section 44 of the Act), each vacancy should present an opportunity to support a high performing, apolitical and representative public sector workforce. … 7.5 In addition to the factors in clause 7.4, when a chief executive decides how to fill a vacancy, consideration should be given to: (a) the responsibilities provided for under clause 6 and section 21 of the Act for supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples (b) the way in which the chief executive's obligations relating to equity, diversity, respect and inclusion under chapter 2 of the Act should be reflected in: (i) a recruitment and selection process (as provided for in section 44(3)(c) of the Act) (ii) a decision about the eligible person best suited to the position (as provided for in section 45(2)(b)(iii) of the Act). … 7.8 Role descriptions should accurately reflect the requirements of the position, such as the set of skills, abilities and qualities required to undertake the position, and whether it is an identified role and/or has any mandatory conditions or qualifications. -- 8 of 30 -- 9 7.9 Role descriptions should be accessible and inclusive, and must reflect the holistic set of skills, capabilities, qualities and attributes required to undertake the position (with or without reasonable adjustments), including, for example: (a) technical skills and knowledge (b) leadership and strategic abilities (c) ability to contribute to an entity's cultural capability and/or culture of respect and inclusion (d) mandatory qualifications and/or conditions (including any attribute(s) an applicant must possess for an identified role). … 8.10 At a minimum: (a) a chief executive of a public service entity must advertise a vacancy for a period of 10 working days (exclusive of the Christmas to new year closure period) on the Queensland Government careers website, or in the case of vacancies for graduate roles or programs, on the relevant Queensland Government graduate portal (b) a chief executive of a public sector entity that is not a public service entity must advertise a vacancy for a period of 10 working days on the entity's public facing website or in another way approved by the Commissioner. … 8.13 The following information must be provided when a vacancy is advertised: (a) a description of the duties and key capabilities against which the applicant will be assessed (b) any mandatory conditions or qualifications of the position (c) the location and type of vacancy (including duration of vacancy for non-permanent vacancies) (d) remuneration, such as classification and/or salary range, including where a range of roles are vacant and being advertised collectively (e) any pre-employment checks that may be undertaken, including criminal history screening and/or disciplinary history checks (f) any probationary period which may apply (g) any requirement for preferred applicants to disclose serious disciplinary history and employment as a lobbyist, and (h) for identified roles, the mandatory attribute/s applicants must possess, and any required evidence of the attribute/s (i) for inter-agency advertising, the public service entities and roles (including level) the applicant will be considered for. … 8.19 A chief executive may decide to fill a vacancy as a recurring vacancy in the following circumstances: (a) where a vacancy is identical to the originally advertised vacancy in terms of title, remuneration, classification level, role description, provided the employment decision is made within 12 months of the closing date of the initial vacancy (b) where a vacancy is similar to a vacancy previously advertised, provided that: (i) the classification level, remuneration, role requirements and key capabilities are the same as the original vacancy (ii) the employment decision is made within 12 months of the closing date of the initial vacancy and the advertisement identified that applications may be used to employ applicants in similar vacancies for a period of up to 12 months. -- 9 of 30 -- 10 8.20 In applying clause 8.19, an entity may fill a non-permanent recurring vacancy from a previously advertised permanent vacancy, however, may not fill a permanent recurring vacancy from a previously advertised non-permanent vacancy. … 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. … 9.5 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. 9.9 Where a conflict of interest is declared under clause 9.8(a), the selection panel must consider and document any resolution or mitigation strategies, which must be approved by the decision maker prior to continuing with the selection process. 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. -- 10 of 30 -- 11 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. Referee checks 9.12 At a minimum, referee checking must be conducted for the applicant determined to be best suited to the position, including where a process is used to fill a recurring vacancy under clause 8.19 and where a decision is made to directly employ someone without advertising a vacancy under clause 8.16. … 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. 12.4 Notice of the employment or secondment decisions provided for in clause 12.3 must be published within one month of the decision: (a) for a public service entity, in the gazette, or (b) for a public sector entity that is not a public service entity, on the entity's public facing website, or in another way approved by the Commissioner. -- 11 of 30 -- 12 Consideration [31] The determination of this appeal turns on whether the Appellant is able to establish that the selection process was deficient. [32] Relevant to any such determination is the consideration of whether the various requirements contained in the Recruitment Directive were satisfied. Concerns about the selection process [33] The Appellant submitted that: (a) the Appellant was not shortlisted for interview, even though she had been successfully acting in the AO4 role for 11 months 3 weeks,8 without any performance issues raised;9 (b) the Appellant was informed her application "did not meet the benchmark"10 so she was not shortlisted for interview. However, "the exact same application was deemed suitable for the first recruitment process as a temporary vacancy but deemed unsuitable for the permanent recruitment process for the same role description and job number, with the same chair for the panel…within 12 months";11 (c) "Both advertised roles on smart jobs included the same role descriptions for both roles I had applied for (temporary and permanent)".12 Role Descriptions for the Senior Housing Officer (AO4), Bundaberg HSC (Fixed-term temporary, full-time, 12 months with a possibility of extension) and Senior Housing Officer (AO4), Bundaberg HSC (Permanent, full-time) were attached;13 (d) "The application used to apply for the permanent role, was the exact same application used to apply for the temporary role in which it was deemed suitable within the last 12 months, however, has now been deemed "unsuitable within a 12 month period";14 (e) "The vacant position was the same position number I had been successful in via the appropriate recruitment process (not an expression of interest)";15 8 Appellant’s submissions (n 6), 1. 9 Ibid; Appeal Notice filed in the Industrial Registry on 11 April 2025, Attachment 1, 3. 10 Appellant’s submissions (n 6), 1. 11 Ibid; Appeal Notice (n 9), Attachment 1, 1-3. 12 Appeal Notice (n 9), Attachment 1, 4. 13 Ibid, Attachments 2 and 3. 14 Ibid, Attachment 1, 4. 15 Ibid. -- 12 of 30 -- 13 (f) the successful candidate had been unsuccessful in winning a permanent AO4 role in another team, before returning to HSC at her substantive AO3 position. She expressed her dissatisfaction and so offered to act in a higher position "without any recruitment process';16 (g) although the successful candidate stated she would not apply for the role, given her previous recruitment experience, she told staff she was "strongly encouraged" by the panel chair to apply;17 (h) as the application for the previous temporary process was within 12 months, the appellant should have been automatically shortlisted for interview for the permanent position;18 (i) the selection process was unfair to other public sector employees who applied because more than one applicant should have been shortlisted and interviewed;19 (j) there was "potential favouritism"20 and "incorrect actions being taken to provide an advantage to the successful applicant".21 [34] The Respondent submitted that: (a) applicants were required to submit a resume and a two-page cover letter outlining how they demonstrate the skills listed under the "what we are looking for" section of the position description.22 (b) the benchmarking criteria set out the capabilities and responsibilities required to perform the role;23 (c) all applicants were assessed against the same benchmarking criteria, set by the panel during the shortlisting process;24 (d) only one applicant satisfied the benchmarking criteria, and so progressed to interviewed:25 In comparison to the Appellant's application, the successful candidate's application detailed her extensive experience of the role and included specific examples demonstrating how she would apply her knowledge and skills to successfully perform in the role on an ongoing basis…the 16 Ibid. 17 Ibid. 18 Ibid, Attachment 1, 2. 19 Appellant’s submissions (n 6), 1. 20 Appeal Notice (n 9), Attachment 1, 4. 21 Ibid, Attachment 1, 1. 22 Respondent’s submissions (n 7), [5]. 23 Ibid, [16]. 24 Ibid, [15]. 25 Ibid, [15]. -- 13 of 30 -- 14 successful applicant's application provided examples which demonstrated her ability to build and maintain internal and external relationships, showcased her strong knowledge of the role, and highlighted effective time management skills to meet deadlines which ultimately met the requirements of the benchmarking criteria. The panel had determined that the Appellant's application did not demonstrate or provide examples on how she would use her skills to address the "what we're looking for" section in the position description, as requested at the application stage.26 (e) "…temporary recruitment processes often focus on short-term skill development for temporary reasons, while permanent recruitment processes require a higher standard of assessment as the successful candidate must perform the role long-term and consistently meet its requirements. This is the case for the process in question";27 (f) there is no requirement to 'automatically shortlist the Appellant for the permanent process solely because they were previously successful in a previous temporary recruitment process". To do so would "void an independent assessment of suitability at the time of the recruitment and selection process and would not be consistent with clause 8.20 of the Directive and the recruitment and selection principles outlined in the PS Act";28 (g) an independent decision-maker reviewed and endorsed the panel's "process and final report, including their assessment of the applicants and recommendations".29 Consideration of this ground of appeal Appellant not shortlisted for interview, as informed that her application "did not meet the benchmark" [35] The Respondent submitted the "recruitment and selection process and promotion decision was fair and reasonable" as it was made in accordance with the PS Act and Directive.30 [36] PS Act, s 44(3)(a), requires that the recruitment and selection process must be directed to the selection of the person "best suited" to the position. [37] Recruitment Directive, cl 4.2(d) provides that "Chief executives are required to act in a way that is compatible with the main purpose of the Act by: ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes." [38] The question is then 'was the selection process fair and transparent and merit-based?'31 26 Ibid, [16]. 27 Ibid, [16]. 28 Ibid, [17]. 29 Ibid, [18]. 30 Ibid, [14]. 31 Public Sector Act 2022 (Qld), s 44(3)(b) (PS Act). -- 14 of 30 -- 15 [39] The selection process developed by the panel in this case was: (a) applicants were required to submit a resume and a two-page cover letter outlining how they demonstrate the skills listed under the "what we are looking for" section of the job information;32 (b) the benchmarking criteria set out the capabilities and responsibilities required to perform the role;33 (c) all applicants were assessed against the same benchmarking criteria, set by the panel during the shortlisting process;34 (d) only one applicant (the successful candidate) progressed to interview. [40] The Recruitment Directive sets out matters concerning the assessment of the person "best suited" to the position, at cl 9.10-9.11. Of particular relevance in this case is that the applicant assessment process (emphasis added): (a) "must" "incorporate selection techniques that enable a sufficiently comprehensive and holistic assessment of each applicant within the context of being best suited to the position";35 (b) "must consider" "all the information before the selection panel, rather than rely or focus on one aspect of the process, such as interview performance";36 (c) "must consider" "each applicant's ability to perform the requirements of the position";37 (d) "may consider" "the way in which each applicant carried out any previous employment";38 (e) "may consider" "the potential of each eligible applicant to make a future contribution to the entity";39 (f) "may consider" "the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2…".40 [41] I see that the information contained in the permanent position vacancy information advertised the following matters to be relevant considerations, under the "what we are 32 Respondent’s submissions (n 7), [5]. 33 Ibid, [16]. 34 Ibid, [15]. 35 Directive 07/23 Recruitment and selection, cl 9.11(b) (Recruitment Directive). 36 Ibid, cl 9.11(c). 37 PS Act (n 31), s 45(2)(a). 38 Ibid, s 45(2)(b)(i). 39 Ibid, s 45(2)(b)(ii). 40 Ibid, s 45(2)(b)(iii). -- 15 of 30 -- 16 looking for" heading: "person best suited for the role"; "knowledge, skills, experience"; "potential for future contribution"; how applicant's "personal qualities" "contribute to our department's equity and diversity objectives". [42] The Recruitment Directive, cl 9.10(c), further requires that the panel "must" "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." Further, Recruitment Directive, cl 9.17, states that 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." [43] I have carefully reviewed the Feedback Report, containing the panel member's assessment of the applicants' two-page cover letter and resume, in response to matters contained in the 'what we are looking for' section of the job advertisement information. There is only very brief reference to some, but not all, of those factors in the assessment commentary against the successful applicant and the Appellant. [44] The panel members have not evidenced by "clearly document[ing]" that they have engaged with the entirety of the considerations required by the Recruitment Directive. Further, I note that the very brief commentary regarding applicant assessment, as contained in the Feedback Report, has primarily been offered by the panel chair. The other two panel members have not demonstrated independent consideration of matters, but have merely echoed that examples have / have not been provided and thence should / should not proceed to interview (in the case of assessment of successful candidate and Appellant, respectively). [45] The exception was the comment of the third panel member against the Appellant's assessment that: "…Discussed with panel and decided as it is a permanent role, the panel would not be offering interviews solely based on grounds of being a current department employee." That contention requires further exploration. [46] While the fact of being a current department employee does not necessitate shortlisting for interview in itself, the panel's decision not to extend an interview to the Appellant (who had been successfully acting in the AO4 role for almost a year, without any performance concerns) was unwise - especially in circumstances where the panel determined to interview only one candidate, so did not have another to fairly and holistically compare them against by more than one narrow measure. [47] The second related point then is the contention of difference between the 'permanent' and 'temporary' roles. [48] The Respondent submitted that "…temporary recruitment processes often focus on short- term skill development for temporary reasons, while permanent recruitment processes require a higher standard of assessment as the successful candidate must perform the role long-term and consistently meet its requirements. This is the case for the process in question".41 I do not accept that submission. In either case, there is a role to be filled, and key capabilities are required in order to fulfill it. The successful candidate in a 41 Respondent’s submissions (n 7), [16]. -- 16 of 30 -- 17 temporary vacancy is not chosen to have the benefit of short term skill development, but rather on the basis that are determined to be best suited to fulfil the requirements of the position. My comparison between the temporary and permanent job advertisements below reveal that there was no claimed "higher standard of assessment". If anything, it was a lower standard of assessment used to select a person best suited to the position because only one candidate was interviewed, whilst the same criteria against which examples were sought was used. [49] The Appellant's complaint was that "the exact same application was deemed suitable for the first recruitment process as a temporary vacancy but deemed unsuitable for the permanent recruitment process for the same role description and job number, with the same chair for the panel…within 12 months".42 [50] The Appellant further submitted that "Both advertised roles on smart jobs included the same role descriptions for both roles I had applied for (temporary and permanent)".43 [51] I note that the job advertisements for the Senor Housing Officer (AO4), Bundaberg HSC (Fixed-term temporary, full-time, 12 months with a possibility of extension) and Senior Housing Officer (AO4), Bundaberg HSC (Permanent, full-time) were attached to the submissions, and I have compared them carefully.44 The Appellant is correct that all points under the "what we are looking for" heading are the same between both the temporary and permanent roles advertised. The significance of that being clearly too that was the sole determinator of shortlisting, in the narrow assessment methodology utilised by the panel members in this case. I have further noted that the duties listed under the heading "what you will be doing" are exactly the same between the two, as are the "mandatory requirements." In any fair measure of comparison, the two roles are the same, with the exception that one was designated "temporary" and the role subject of this promotion decision is "permanent". A final - and critical comparison - between the two job advertisements is the information as to "How to apply" for the respective AO4 positions. In both cases, the instructions to applicants are to provide a resume and no more than a two-page response "addressing through examples" how the criteria under the heading "what we are looking for" is satisfied. In the Feedback Report, the panel chairperson's assessment of the Appellant's cover letter is that she "has not provided examples". That was echoed by the scant assessments offered by the other two panel members. The difficulty for the Respondent here is that the Appellant was required in her applications for both roles to address the same criteria with examples. She was assessed successful by a panel with the same chairperson, less than a year earlier – but was not even shortlisted for interview for the permanent recruitment process? The shifting goal posts appears to be contrived, at best. The Appellant was entirely correct to challenge the promotion decision on these grounds. 42 Appellant’s submissions (n 6), 1; Appeal Notice (n 9), Attachment 1, 1-3. 43 Appeal Notice (n 9), Attachment 1, 4. 44 Ibid, Attachments 2 and 3. -- 17 of 30 -- 18 [52] The panel is required to conduct a "sufficiently comprehensive and holistic assessment" of applicants "rather than rely…one aspect of the process", and must consider applicants' "ability to perform the requirements of the position" that may include how they carried out their previous employment. In the circumstances of this case, the Appellant had been working in the same AO4 role for almost a year without any performance concerns. That is clear evidence of her ability to perform the requirements of the position, though was not noted in the comparative applicant assessment. The Appellant's successful performance of the AO4 role for a lengthy period was within the knowledge of the panel and ought to have been appropriately weighed, rather than narrowly relying on only one aspect of the process. [53] It is mandatory to "conduct a holistic assessment" of applicants "in the context of the role requirements."45 That did not occur in the selection process utilised here. A "holistic assessment" does not mean every applicant must be shortlisted for interview of course, though does mean going beyond the one narrow measure developed by the panel (examples as contained in the two-page cover letter and resume) to the conduct of a comprehensive assessment of each applicant as a whole, using all relevant evidence about their suitability. [54] The Recruitment Directive, cl 9.1, provides that (emphasis added): Recruiting a diverse and high performing public sector workforce is enabled through fair, transparent and contemporary selection processes. [55] The benchmarking criteria used to assess applicants was presented in tabular format. That was contained in the submissions to this appeal. The six skills identified in the job advertisement under the "what we are looking for" heading, are listed in a column titled "Capabilities" in the benchmarking criteria table. A second column in the table is headed "Responsibilities", under which each of the duties listed under the "what you will be doing" heading in the job advertisement is then set out. I note those matters were fairly and transparently advertised to applicants, via the job advertisement. That particular element of the benchmarking criteria does not pose any concern. [56] However, the same cannot be said for the third column headed "Benchmarks". This was the criteria upon which an applicant's shortlisting to progress to interview (or not) relied in this particular selection process. I have reproduced that column below: Benchmarks Provides evidence examples which demonstrates - Ability to maintain existing relationships with stakeholders - Consideration of a customers holistic needs and ability to promote this within a team - Understanding of asset importance and longevity Higher rating: - Example that details forming relationships with new stakeholders Provides evidence examples which demonstrates - WHS consideration to all tasks including promotion across the team ie staff meetings, planned visit etc - Encouragement and guidance to consider all relevant policies and strategic plans ie Human Rights, Cultural Commitment 45 Recruitment Directive (n 35), cl 9.10(b). -- 18 of 30 -- 19 Provides evidence examples which demonstrates - Time management with consideration to KPIs - Ability to lead complex case discussions and set goals / actions - Skills to operationally supervise a team ie workload management / delegation [57] The benchmarking criteria does not appear to have been transparently and fairly communicated to applicants. In fact, the "How to apply" instructions to applicants was to "address through examples, how you can demonstrate the skills listed under what we are looking for…" That is most problematic, and in fact unfair. [58] For those reasons, my view is that the benchmarking criteria alone was not a fair way to assess who should progress to interview. [59] The combination of factors explained above amounts to significant procedural flaws in the selection process. Appellant not shortlisted for interview, although she had acted in the AO4 role for almost a year without any performance concerns raised [60] The PS Act, s 45(2)(a) provides it is mandatory to consider each applicant's (emphasis added) "ability to perform the requirements of the position".46 [61] Further, I note s 45(2)(b) states that a person undertaking a recruitment and selection process (emphasis added): (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 chapter 2… [62] The Respondent has submitted that there is no requirement to "automatically shortlist the Appellant for the permanent process solely because they were previously successful in a previous temporary recruitment process". That is true. However, the requirement to consider the Appellant's "ability to perform the requirements of the position"47 was not evident in the Feedback Report of applicant assessment,48 though ought to have been. [63] With respect to the mandatory requirement at s 45(2)(a) of the PS Act, the Feedback Report containing the assessment of applicants (that was determinative of who would proceed to interview) does not include express consideration of the Appellant's "ability to perform the requirements of the position",49 specifically that she had satisfied that criterion because she acted in the role for 11 months and 3 weeks without any performance concerns. 46 PS Act (n 31), s 45(2)(a). 47 Ibid. 48 Such clear documentation is a further requirement of the Recruitment Directive, cl 9.17. 49 PS Act (n 31), s 45(2)(a). -- 19 of 30 -- 20 [64] As two of the three panel members worked with the Appellant in the Bundaberg HSC, and were both "part of the Bundaberg Operational Leadership Team which discusses all operational matters directly impacting on applicants from within the Bundaberg HSC", I believe that the Appellant's ability to perform the requirements of the position for almost a year was demonstrated by her unblemished record with respect to any performance concerns. That would have been within the knowledge of the panel chairperson, at least. [65] In order to comply with the PS Act provision, that information ought to have been part of the panel's considerations and assessment. [66] Although the panel members decided to assess applicants solely against the benchmarking criteria they developed, I consider that was too narrow and did not properly take account of the s 45(2)(a) requirements. Neither did that assessment methodology adhere to the Recruitment Directive requirement to "consider all the information before the selection panel, rather than rely or focus on one aspect of the process…"50 and (emphasis added) "incorporate selection techniques that enable a sufficiently comprehensive and holistic assessment of each applicant within the context of being best suited to the position."51 I have provided an explanation of "holistic assessment" earlier in this Decision. [67] I consider that was a significant procedural flaw in the assessment of applicants that led to the panel's decision not to shortlist the Appellant for interview. Appellant contended that the selection process was "unfair" to other public sector employees who applied as only one candidate progressed to interview [68] Recruitment Directive, cl 4.2(a) provides that "Chief executives are required to act in a way that is compatible with the main purpose of the Act by: treating public sector employees fairly." That does not mean that all current public sector employees who apply for a position must be interviewed. Though it does mean that both the process of selection that is established is fair, and that it is fairly applied to all applicants. [69] I have earlier found that the narrow assessment methodology developed by the panel was not a fair process that was fairly applied to all applicants. Specifically, I have earlier found that assessment to be non-compliant with the Recruitment Directive requirements at cl 9.10-9.11 and thus a significant procedural flaw. Appellant not shortlisted for interview, although her application for prior temporary position was within 12 months [70] In this case, the Appellant had applied for an earlier temporary position of Senior Housing Officer (AO4) Bundaberg HSC, with a closing date of 2 July 2024 (that was about 7 months prior to the closing date of the permanent position of Senior Housing 50 Recruitment Directive (n 35), cl 9.11(c). 51 Ibid, cl 9.11(b). -- 20 of 30 -- 21 Officer (AO4) Bundaberg HSC, that is subject of this appeal). That was clearly then within a 12-month period. [71] The information about that earlier temporary position included the following statement: Applications will remain current for a period of up to 12 months after the closing date of the vacancy and may be considered for other identical or similar vacancies which may be available. [72] On that basis, I understand why the Appellant believed she ought to have been shortlisted for interview automatically simply because she had a "live" application in the system. However, the wording does say "may be considered", not will be considered – an important distinction that the Appellant may have overlooked. [73] Further, Recruitment Directive, cl 8.16, states that a chief executive "may" decide to "limit the advertising of a vacancy to a specific group of applicants". I recognise that the chief executive did not elect to do so in this case. There is no issue with that choice, given the use of the words "may decide" in the Directive provision. However, "In determining whether to exercise their discretion under clause 8.16, a chief executive must consider…(b) whether a similar vacancy was advertised previously…" There is no information before me to demonstrate that this matter was considered by the Delegate, in determining whether to exercise discretion. [74] I do not consider those issues makes the selection process deficient in itself. Reframed relationship considerations [75] Recruitment Directive, cl 6.1 provides that the chief executive "must" consider responsibilities (under s 21 of the PS Act) relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples, including but not limited to "ensuring the workforce and leadership of the entities are reflective of the community they serve…" I do not have information before me regarding the representation of employees within the Bundaberg HSC who identify as First Nations people (other than the Appellant herself), or indeed whether the clients of the local HSC include First Nations people. However, cl 6.1 does not appear to have been considered in the context of this recruitment and selection endeavour, though it "should" have been.52 [76] Although the effect of s 21(4)(a) of the PS Act is that the promotion decision cannot be set aside on that basis. Appellant alleged that the successful candidate had told staff the panel chair had "strongly encouraged" her to apply [77] Firstly, the Appellant submitted that the successful candidate had previously been unsuccessful in winning a permanent AO4 role in another team, before returning to HSC 52 Ibid, cl 6.2(a). -- 21 of 30 -- 22 at her substantive AO3 position – and had expressed her dissatisfaction and so was placed acting in a higher position "without any recruitment process."53 [78] Recruitment Directive, cl 8.5, provides that vacancies are not required to be advertised in certain circumstances, including if they are to be filled for a period of up to six months. It may be the case that the successful candidate was placed in an acting AO4 role upon her return to the HSC for that reason. [79] Secondly, the Appellant submitted that although the successful candidate stated she would not apply for the role, given her previous recruitment experience, she told staff she was "strongly encouraged" by the panel chair to apply for it. The Respondent's submissions do not address this allegation. That is rather unhelpful. [80] With respect to both elements raised within this particular ground of appeal, I have insufficient information before me to conclude whether or not that constituted "potential favouritism" or an "incorrect action being taken to provide an advantage to the successful applicant" as the Appellant has suggested. For that reason, I cannot confidently take that particular submission any further. Delegate had reviewed and endorsed the panel's process, applicant assessment and recommendations [81] The Respondent submitted that an independent decision-maker reviewed and endorsed the panel's "process and final report, including their assessment of the applicants and recommendations".54 [82] While I have noted the Delegate has endorsed and approved the Selection Report, that does not mean that the recruitment and selection process was without deficiencies, as I have found to be the case here. Concerns about the panel composition [83] The Appellant submitted that: (a) there was a lack of diversity on the panel because it was comprised of all women;55 (b) there were no "identified employees" on the panel, meaning "no cultural safety" for Aboriginal and Torres Strait Islander people.56 53 Appeal Notice (n 9), Attachment 1, 4. 54 Respondent’s submissions (n 7), [18]. 55 Appellant’s submissions (n 6), 1. 56 Ibid, 1. -- 22 of 30 -- 23 [84] The Respondent submitted that: (a) the panel composition was made in accordance with the Directive;57 (b) there are no panel composition requirements for gender and identified employees;58 (c) panel members were chosen for their knowledge, skills and experience to ensure an informed assessment of all applicants.59 Consideration of this ground of appeal [85] The Appellant identifies as a First Nations woman. [86] Section 44(2),(3)(c) of the PS Act provides that "a person undertaking a recruitment and selection process in a public sector entity, including…making a decision about employment of a public sector employee, must undertake the process in accordance with the principles" including that the "recruitment and selection process must reflect the obligations…relating to equity, diversity, respect and inclusion." [87] Clause 6.2(b)(i) of the Recruitment Directive, Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples, provides that a chief executive "should" (but not "must") (emphasis added): (b) ensure advertising practices for all roles are inclusive and that composition of selection panels reflects the: (i) capability to undertake processes and make selection decisions in a way that will contribute to an entity's cultural capability, and supports ongoing capability development in this area (ii) appropriate representation of Aboriginal persons or Torres Strait Islander persons, including consideration of external representation where appropriate, for example from a community-controlled organisation. … (c) ensure that recruitment processes are conducted in a culturally safe way… [88] Clause 9.6 of the Recruitment Directive provides that "In determining the composition of a selection panel…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." [89] Firstly, I note that s 21(4)(a) of the PS Act provides that a "…decision is not invalid merely because a person fails to comply with this section", that includes 'promoting cultural safety" for Aboriginal peoples and Torres Strait Islander peoples. For that 57 Respondent’s submissions (n 7), [19]. 58 Ibid. 59 Ibid. -- 23 of 30 -- 24 reason, the Appellant's submission that there was "no cultural safety" cannot be a reason to set aside the promotion decision made. [90] Secondly, while I accept the Respondent's submissions that "there are no panel composition requirements for gender and identified employees" (with respect to representation quotas presumably), it is also true that the Recruitment Directive, cl 9.6, requires consideration of "diversity" "in determining the composition of a selection panel." The Appellant has asserted that there was "a lack of diversity on the panel because it was comprised of all women", however gender is not the sole "diversity" factor to consider here. Section 25 of the PS Act describes it to include Aboriginal peoples and Torres Strait Islander peoples; people from culturally and linguistically diverse backgrounds; people with disability; women. On the information before me, I cannot know whether the all-female selection panel did have any of those other diversity characteristics or not. That ground of appeal is not a reason to set aside the decision. [91] Thirdly, the Recruitment Directive, cl 6.2, stated that the composition of selection panels "should" reflect the "appropriate representation of Aboriginal persons or Torres Strait Islander persons, including consideration of external representation where appropriate, for example from a community-controlled organisation." In the circumstances of this case, the three panel members disclosed a "perceived conflict" with the Appellant and successful candidate on the grounds that they were "colleagues". A sensible mitigation strategy would have been to enlist a person external to the Department on the selection panel. Given the focus of the role to deliver housing services in a regional area, and that at least one of the candidates – the Appellant – identified as a First Nations person, it may have been appropriate then to have considered representation on the selection panel by a suitably experienced Aboriginal or Torres Strait Islander person from a local community-controlled organisation (presumably there may be one amongst the "stakeholders" the position holder would be required to "actively work to understand", pursuant to the role description provided). [92] Although there is no material before me to demonstrate that the chief executive did fulfil the requirement to consider diversity in determining the selection panel, in my view that cannot be a reason to set aside the promotion decision made because the Recruitment Directive, cl 9.6 refers to chapter 2 of the PS Act. As I have earlier noted, s 21(4)(a) of the PS Act is then relevant to a determination that the promotion decision cannot be set aside on that basis. [93] Fourthly, I have nonetheless accepted though that there were real issues with the composition of the panel. That is because of conflict of interest and unconscious bias failures. I have proceeded to consider these matters below, in the next section of this Decision. Concerns about unconscious bias [94] The Appellant submitted that: -- 24 of 30 -- 25 (a) disclosure of her personal circumstances to a panel member may have negatively influenced the outcome of the recruitment and selection process;60 (b) a previous interactions with, resulting in verbal complaints against, a panel member (who was alleged by the Appellant to have raised her voice at her, and made a racist remark)61 may have negatively influenced the outcome of the recruitment and selection process.62 The Appellant complained to the panel chair in October 2024 that a panel member had raised her voice at her in the workplace,63 then further complained to Ms O'Beirne about the same panel member's alleged racist remark in November 2024.64 [95] The Respondent submitted that: (a) all applicants were assessed against the same selection criteria;65 (b) decisions were made on demonstrated merit and suitability for the role;66 (c) all panel members made the same findings in the shortlisting process;67 (d) all panel members completed declarations in compliance with the Conflict of Interest Policy and the Directive…while panel members had professional relationships with some internal applicants, there were no personal relationships; (e) the selection process "ensured impartiality and had appropriate controls in place to address any potential risk of unconscious bias";68 (f) the mitigation strategy declared by the panel and approved by the decision-maker included "consistent assessment of all applicants, having an external panel member who worked at a different HSC and having a decision maker independent to the business area";69 (g) an independent decision-maker approved the panel's findings and method of managing any conflicts of interest.70 60 Appeal Notice (n 9), Attachment 1, 1, 5. 61 Appellant’s submissions (n 6), 3. 62 Ibid, 1; Appeal Notice (n 9), Attachment 1, 3. 63 Appeal Notice (n 9), Attachment 1, 3; Appellant’s submissions (n 6), 5. 64 Ibid, Attachment 1, 3; Ibid, 6. 65 Respondent’s submissions (n 7), [21]. 66 Ibid. 67 Ibid. 68 Ibid, [20]. 69 Ibid, [20]. 70 Ibid, [21]. -- 25 of 30 -- 26 Consideration of this ground of appeal [96] The Respondent has made no response to the Appellant's contention that the disclosure of her personal circumstances to the panel chair may have negatively influenced the outcome of the recruitment and selection process. I cannot reasonably discern whether or not the Appellant's disclosure did count against her in the selection process, as unconscious bias. I can take that submission no further. [97] The Respondent submitted the panel assessed all applicants against the same selection criteria, made the same findings in the shortlisting process, and selected the successful candidate based on merit and suitability. I have considered this submission in the section above – consideration of selection process. I consider those to be relevant matters. [98] The Appellant has submitted she made two verbal complaints about a panel member (one of which was made to the panel chair) just a few months before applications for the promotional position closed. The Respondent did not respond to that particular submission. I have referred to this matter in this section, as well as considered the submission in the section above – consideration of panel composition. I consider that to be a relevant matter. [99] The Recruitment Directive states that (emphasis added): 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) … 9.9 Where a conflict of interest is declared under clause 9.8(a), the selection panel must consider and document any resolution or mitigation strategies, which must be approved by the decision maker prior to continuing with the selection process. … 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 absence of such. [100] The Conflict of Interests in Recruitment and Selection form prepared for this selection process is before me,71 as is the Department's Conflict of Interest (COI) Policy.72 The COI Policy defines conflict of interest to mean "an interest that conflicts or may conflict with the discharge of the employee's duties." Where an "interest" is defined to include non-financial interests, such as "…any tendency toward favour or prejudice resulting 71 Ibid, Attachment 5. 72 Ibid. -- 26 of 30 -- 27 from friendship, animosity or other personal involvement that could create bias in the making of a judgement or decision…"73 [101] Each of the three panel members have completed a COI declaration on the Department's approved form. All three panel members' declarations are with respect to "perceived" COI as "colleagues" of both the successful candidate and the Appellant. All three panel members declared that they "do not socialise on a personal level with any of these candidates." The chairperson's declaration noted a "Facebook friendship" with the successful candidate. However, there are some problems with the declarations, in my view: (a) the chairperson's declaration does not note that the Appellant made a verbal complaint to her about the second panel member about four months prior. In my view, that constitutes a condition for potential "prejudice resulting from…animosity or other personal involvement that could create bias in the making of a judgement or decision…" and so ought to have been declared. Clause 9.8(b) of the Recruitment Directive requires that the panel "must consider elements of conscious or unconscious bias that may impact the process, including mitigation strategies". As the Appellant's verbal complaint to the chairperson about the second panel member was not declared, it follows that the required "mitigation strategies" to address it were not considered either. (b) the second panel member's declaration does not note that the Appellant made two verbal complaints about her about four months prior (one of those verbal complaints being made to the panel chairperson). My comments above with respect to the matters declared, and requirement to consider and mitigate against unconscious bias, are both relevant here too. Further, cl 9.8(c) of the Recruitment Directive requires that the panel "must consider how the selection process can be…culturally safe". In circumstances where the Appellant (a First Nations woman) had complained to Ms O'Beirne about the second panel member's alleged racist remark just three months earlier, it does not appear that this mandatory requirement was satisfied. I consider that the second panel member would have been aware of the complaint, at least. In the circumstances, that person's inclusion in the selection panel was perhaps unwise. (c) all three panel members have checked both alternatives at the end of the form, effectively declaring that the circumstances of "identified any actual, perceived or potential conflicts of interest relevant to my involvement" and "no conflict of interest to declare" both apply. The notations made earlier in the forms of each panel member state there "may be perceived conflicts of interest" given the working relationships with some applicants, however the word "or" ought to have alerted a careful reader that only one of those options is correct. It appears the three panel members did not properly read the declaration made. 73 Ibid, Attachment 4, 9. -- 27 of 30 -- 28 (d) all three panel members have written exactly the same text, with respect to the recommended mitigation strategies for "how any impacts arising from the identified conflict of interest may be minimised and managed in the public interest". All three panel members declared that: The three person panel, with one panel member being from a different Housing Service Centre gives way for one panel members to provide their input before I provide my input for an applicant with a perceived conflict of interests… There are two problems with that though. Firstly, as all three panel members declared they had a perceived conflict of interest with the Appellant and successful candidate,74 there is seemingly no panel member that could "provide their input" first. Secondly, as the third panel member (from a different HSC) had also declared a perceived conflict of interest with the Appellant and successful candidate, I cannot understand how it is asserted to be a mitigation strategy either. Those "Recommended mitigation strategies" are practical impossibilities, at best. [102] On 3 March 2025, the Delegate signed the declaration required at cl 9.19, determining that "a conflict of interest does exist for this process" and he is "satisfied that the proposed strategies are sufficient to manage the conflict in the public interest".75 I accept that a decision maker independent to the business area76 approved the panel's proposal for managing any conflicts of interest;77 though that did not result in procedural fairness through careful attention to the requirements of the Recruitment Directive. [103] For the reasons above, there were significant issues that denied the Appellant procedural fairness. That was with respect to conflict of interest, unconscious bias and cultural safety consideration requirements. [104] I consider the conflict of interest and unconscious bias failures to be fatal flaws in this case, that render the selection process defective. Other Directive requirements [105] Clause 8.13 of the Recruitment Directive provides a list of the particular information that "must" be "provided when a vacancy is advertised". I have reviewed the advertisement information for the Senior Housing Officer (AO4) Bundaberg HSC position, that is subject of this appeal.78 I cannot see information about "any probationary period which may apply" or "any requirement for preferred applicants to disclose serious disciplinary history", pursuant to cl 8.13(f)-(g). While that does not in itself render the selection process defective in my view, I note that it is nonetheless non-compliant with the Recruitment Directive. 74 in the section about “Nature of the relationship or connection”, as well as ticking that box in the declaration at the end of the form. 75 Respondent’s submissions (n 7), Attachment 5, 8. 76 Ibid, [20]. 77 Ibid, [21]. 78 Appeal Notice (n 9), Attachment 3. -- 28 of 30 -- 29 [106] Clause 9.6 of the Recruitment Directive provides that a selection panel must include a minimum of two people. In this case, there were three people on the panel. That satisfies the requirement. [107] Clause 8.10(a) of the Recruitment Directive requires the vacancy be advertised for a minimum of 10 working days. The vacancy was advertised on 28 January 2025 and applications closed on 11 February 2025. That satisfies the requirement. [108] Clause 9.12 of the Recruitment Directive requires referee checking be done for the recommended candidate, at minimum. Page 4 of the Selection Report noted that two referee reports were completed for the recommended candidate. That satisfies the requirement. [109] Clause 12.2 of the Recruitment Directive requires applicants may request feedback from a member of the selection panel. This occurred verbally, and then in writing via email dated 12 March 2025. That satisfies the requirement. [110] Clause 12.4 of the Recruitment Directive requires notice of the appointment to be published within one month of the decision. The Delegate approved the Selection Report recommendation and made the decision on 4 March 2025. The decision was published in the gazette on 28 March 2025. That satisfies the requirement. Conclusion [111] The Commission may only set aside a promotion decision if the recruitment or selection process is found to be deficient. In determining whether there was such a deficiency, the Commission must consider whether the recruitment and selection process complied with the PS Act, a regulation or a directive of the commission chief executive. [112] For the reasons explained above, I have found that the promotion decision was not fair and reasonable. The selection process conducted by the Department was deficient, as it did not comply with the Recruitment Directive and relevant principles contained in the PS Act. [113] I acknowledge that the impact of this Decision will also be felt by Ms Amanda Whittard, the advertised successful candidate for the promotional position as gazetted, through no fault of her own. The Selection Panel's inattention to the express requirements of the selection process to be undertaken, pursuant to the Recruitment Directive, will unfortunately result in a period of professional uncertainty for each of the original applicants. Having acknowledged the 'human impact' of this Decision, the Act and Directive prescribe mandatory terms to be complied with. I am required to determine findings on the various appeal grounds on that basis alone. -- 29 of 30 -- 30 [114] The appeal is upheld. [115] I order accordingly: 1. Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld), the promotion decision appealed against is set aside. 2. The matter is returned to the Department of Housing and Public Works with a copy of this decision. 3. I direct that, within one month, the chief executive is to revoke the appointment of Ms Amanda Whittard to the position of Senior Housing Officer, Central Queensland / North Coast Region, Service Delivery, Housing and Homelessness Services, Bundaberg (AO4 classification), Job Ad Reference QLD/616244/25, and publish a gazette notice that the appointment is revoked. 4. I direct that a new selection panel is to be formed, for the purposes of selecting an applicant for the vacant position of Senior Housing Officer, Central Queensland / North Coast Region, Service Delivery, Housing and Homelessness Services, Bundaberg (AO4 classification), Job Ad Reference QLD/616244/25 ('the vacant position') and that the new selection panel must not include any of the three members of the original selection panel. 5. The new selection panel must be provided with a copy of ss 42 -46 of the Public Sector Act 2022 (Qld) and Public Sector Commission Directive 07/23: Recruitment and Selection. 6. The chief executive is to continue the recruitment and selection process for the vacant position from the point of receipt of the six applications. The applicants in the resumed selection process shall comprise the six applicants in the selection process subject of this appeal (should they wish to continue to be considered for the vacant position). -- 30 of 30 --