Chen v State of Queensland (Queensland Health) [2025] QIRC 122

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v State of Queensland (Queensland Health) [2025] QIRC 122 PARTIES: Chen, Ziwei Appellant v State of Queensland (Queensland Health) Respondent CASE NO: PSA/2025/34 PROCEEDING: Public Sector Appeal – Appeal against promotion decision DELIVERED ON: 13 May 2025 MEMBER: HEARD AT: O'Neill IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: INDUSTRIAL LAW – PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against promotion decision – where the appellant is permanently employed by the respondent as a Sonographer (HP4) – where the appellant applied for Sonographer Advanced (HP5) position – where the appellant's application was unsuccessful – consideration of whether the recruitment and selection process was deficient – promotion decision confirmed. -- 1 of 26 -- 2 LEGISLATION: CASES: Appeals (Directive 04/23), cl 10 Industrial Relations Act 2016 (Qld), s 562B, s 562C, s 564 Public Sector Act 2022 (Qld), s 44, s 45 Recruitment and Selection (Directive 07/23), cl 8, cl 9, cl 12 Recruitment and Selection Human Resources Policy (QH-POL-212) Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361 Clare v State of Queensland (Department of Education) [2022] QIRC 492 Cleary v State of Queensland (Department of Resources) [2022] QIRC 416 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487 Kumar v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 084 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Reasons for Decision -- 2 of 26 -- 3 Introduction [1] Ms Ziwei Chen ('the Appellant') is currently employed by the State of Queensland (Queensland Health) as a Sonographer in Medical Imaging. This position is at the level of Health Practitioner Level 4 ('HP4') and is within the Gold Coast Hospital and Health Service ('GCHHS'). [2] The Appellant applied for the position of Sonographer Advanced which is a Health Practitioner Level 5 ('HP5') position. The Appellant was interviewed for the position, however, was not placed on the order of merit and was unsuccessful in obtaining the promotional position. [3] The Appellant was informed of the outcome of the recruitment process on 13 February 2025. [4] By Appeal Notice filed by the Appellant on 5 March 2025, the Appellant appeals the promotion decision of the Respondent pursuant to chapter 3 of the Public Sector Act 2022 (Qld) ('the PS Act'). [5] I am satisfied that the promotion decision appealed against was fair and reasonable and the Appellant has not established any deficiency in the selection process. [6] My reasons follow. Is the Appellant entitled to appeal? [7] Section 131(1)(e) of the Public Sector Act 2022 (Qld) ('the PS Act') provides that a promotion decision is a type of decision against which an appeal may be made. Section 133(e) further provides a promotional appeal may be made by a public sector employee employed on a permanent basis, who is aggrieved by the decision, and is entitled to appeal under a Directive. [8] Section 129 of the PS Act defines a promotion decision to mean a decision to promote a public sector employee employed on a permanent basis. [9] Directive 04/23 – Appeals ('the Appeals Directive') sets out requirements for promotion appeals at cl 10. [10] Ms Chen is a public sector employee employed on a permanent basis, who is aggrieved by the promotion decision. The Appellant applied for the role subject of the decision and sought post-selection feedback in accordance with the relevant provisions. -- 3 of 26 -- 4 [11] I am therefore satisfied that the Appellant has satisfied clause 10 of the Appeals Directive. [12] There is an issue with the timing of the appeal. Section 564(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly provides: (3) In this section— appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after— … (c) if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022; or … [13] The Appellant was personally informed of the outcome of the recruitment process on 13 February 2025.1 Public notification of the outcome of the recruitment process did not occur until Friday, 21 March 2025 when the appointment of Ms S to the position was confirmed in the Queensland Health Services Bulletin.2 [14] The Appellant filed her Appeal Notice on 5 March 2025, therefore, the filing of the appeal pre-dated the public notification of the outcome of the recruitment process. [15] This issue was raised with the parties by an email from the Industrial Registry on 6 May 2025. In that email the Commission proposed that it would rely upon the incidental powers provided by s 539(e) of the IR Act to waive the irregularity and to treat the appeal as being filed on 22 March 2025. The parties were afforded the opportunity of raising any objection to this proposed course of action by close of business on 7 May 2025. [16] The Appellant emailed the Industrial Registry on 7 May 2025 in which she confirmed that she received a group email on 13 February 2025 which informed the applicants of the successful applicant. The Appellant indicates that she assumed that she had to submit the appeal within twenty-one (21) days after receiving that email. The Appellant did not indicate any objection to the Commission's proposed course of action. [17] The Respondent emailed the Industrial Registry on 12 May 2025, confirming its consent to the course of action outlined by the Commission. [18] Pursuant to s 539(e) of the IR Act, I waive the irregular filing of the Appeal Notice and I treat the appeal as having been filed on 22 March 2025. As a consequence, I am satisfied that the Appellant is entitled to appeal the promotion decision. 1 Respondent's written submissions filed on 25 March 2025, [2]. 2 Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules'), the name of the successful applicant has been anonymised because they are not respondents to this Appeal. -- 4 of 26 -- 5 Appeal Principles [19] Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". [20] The appeal is not conducted by way of re-hearing,3 but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.4 [21] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. [22] The issue for my determination is whether the decision appealed against was fair and reasonable. 5 What decisions can the Industrial Commissioner make? [23] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the PS Act that the Commission considers appropriate. Relevant legislative provisions and Directives [24] Section 562C(2) of the IR Act provides: In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act. [25] Section 44 of the PS Act relevantly provides the following: 44 Principles underpinning recruitment and selection (1) The purpose of this section is to ensure the recruitment and selection of a high-performing, apolitical and representative public sector workforce. (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 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1). 4 Ibid; Industrial Relations Act 2016, s 562B(2). 5 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA). -- 5 of 26 -- 6 (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. [26] Section 45 of the PS Act also provides: 45 Employment on merit and for equity and diversity (1) A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position. (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 example, the objectives, strategies and targets stated in the entity's equity and diversity plan. [27] The Appeals Directive and Recruitment and selection (Directive 07/23) ('Recruitment and Selection Directive') are relevant to the determination of the appeal. [28] The Appeals Directive relevantly provides: 10. Promotion decision appeal 10.1 Section 131(1)(e) of the Act provides that a promotion decision may be appealed. 10.2 Section 129 of the Act provides for the definition of promotion decision. 10.3 Who 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. 10.4 Further 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, -- 6 of 26 -- 7 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, and (e) in the case of a promotion decision resulting from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved employee must have been eligible to apply. 10.5 Decisions that cannot be appealed as a promotion decision under section 132 of the Act: (a) a non-appealable appointment (refer to clause 17 for more information) (b) a decision to promote a public sector executive, unless the decision is declared under a directive to be a decision against which an appeal may be made (c) a decision to promote a person as a chief executive, a senior executive or a senior officer (d) a promotion decision if: (i) the person employed under the promotion decision had been redeployed within one year before the promotion, and (ii) 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. [29] The Recruitment and Selection Directive relevantly provides: 9. Selecting the eligible applicant best suited to the position … Selection panels … 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) -- 7 of 26 -- 8 (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. … 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. Grounds of Appeal [30] I summarise the Appellant's grounds of appeal as set out in the Appeal Notice as follows: -- 8 of 26 -- 9 • The Appellant in the previous interview cycle made the order of merit, but failed to do so on this occasion. • The Appellant has been a qualified sonographer for ten years. For the last five years the Appellant has been working as a HP4 sonographer in medical imaging. Concurrently, in the last five years the Appellant has been working as a HP5 advanced sonographer in the maternal foetal medical unit at Gold Coast Health. • The Appellant has demonstrated a strong commitment to her role as a HP4 sonographer by: o Consistently going above and beyond her responsibilities; o Previously working in temporary HP5 positions in medical imaging; o Being heavily involved in CPD activities and leveraging her experience and position in another tertiary department to up-skill medical imaging sonographers and enhance service delivery in medical imaging. • The selection criteria for the position were not adequately assessed. • The Appellant was given oral feedback only and not written feedback as she requested which was not sufficient. • The selection process was not fair and transparent. The Appellant makes a suggestion that the process was racially biased. • The selection panel did not select the most meritorious candidate. Critical factors listed, such as demonstrated work history, ability to promote learning, departmental contributions, and specialist-level experience were completely disregarded. [31] The Appellant requests a review of the selection process and a reassessment with a different panel. Submissions [32] The Commission issued a Directions Order on 12 March 2025 calling for submissions from both parties following receipt of the Appeal Notice. The submissions are summarised below. -- 9 of 26 -- 10 [33] The Commission has considered all of the submissions and the attached evidence provided by the parties although it may not be specifically referenced in these reasons. [34] The parties have not applied for leave to make oral submissions, as a consequence the matter will be dealt with on the papers pursuant to s 451(1) of the IR Act. Respondent's Submissions [35] The Respondent in summary contends that a rigorous recruitment process was undertaken in which the applicants were assessed on their resume, cover letter, referee checks and interview responses to demonstrate their ability to act in this senior leadership position. Areas assessed were motivation and self-awareness, collaboration, conflict resolution, innovation, managing change and clinical expertise.6 [36] The Respondent submits that the recruitment process which was undertaken by the Respondent was compliant with the Act, the Recruitment and Selection Directive and Queensland Health Recruitment and Selection Policies for the following reasons: a. The role and role description … was advertised;7 b. The selection criteria were transparent and available to all applicants; c. The evaluation of candidate's applications was standardised; d. The most meritorious candidates were selected to perform the role; and e. The Respondent disputes any non-compliance under chapter 2 relating to equity, diversity, respect and inclusion, noting the Appellant's contentions are vaguely particularised that 'All 3 of us happen to have ethnic names' as rationale for not making the order of merit.8 Recruitment Process [37] The Respondent notes that the selection panel was made up of three (3) members, one of which was external to the unit. Additionally, prior to the offers of employment being made, a fourth independent delegate signed off the selection report ensuring compliance.9 [38] There were eleven (11) applicants interviewed, with five (5) applicants being placed on the order of merit. The permanent role was offered to two (2) applicants, with one (1) applicant being offered a temporary role. The Appellant was notified on 13 February 6 Respondent's submissions filed on 25 March 2025, [4]. 7 Ibid, Attachment A – Role Description Sonographer – Advanced. 8 Respondent's submissions filed on 25 March 2025, [6]. 9 Ibid, [7]. -- 10 of 26 -- 11 2025 of the successful candidates.10 [39] The applicants were assessed on the matters set out in paragraph [32] above, with the areas assessed including motivation and self-awareness, collaboration, conflict resolution, innovation, managing change and clinical expertise.11 The interview process was standardised, with each applicant asked the same six questions which were aimed to elicit information relevant to the role and role description.12 This approach was confirmed in the 'Selection Strategy Process Details' of the Panel Selection Report.13 [40] The Respondent confirms that comparative assessment was used within the selection report by the selection panel to compare each applicant against other applicants and the key attributes for the position.14 [41] The Respondent submits that the process of comparative assessment has long been the standard held by the Commission when deciding the merit of an Appellant's application to overturn a decision of a recruitment panel.15 The Respondent cites the decision of Bayntun v State of Queensland (Department of Tourism, Innovation and Sport),16 where Industrial Commissioner Power stated: The Panel determined that the Appellant demonstrated adequate skills and experience related to the requirements of the position and was consequently listed as meritorious for the position. The Panel ultimately determined that, comparatively, the appointee demonstrated a higher degree of merit and articulated her high-level skills and experience including outcomes, deliverables, and achievements as they relate to all the requirements of the position. The Appellant submits the selection report disregarded her 'large volume of highly quality outcomes' within her resume. I am not persuaded that the Appellant's resume was disregarded simply because all aspects were not referred to in the selection report. The fact that particular skills or experiences are not mentioned in the selection report does not indicate that they were not considered. The Panel's comments on the selection report regarding the written application and the interview demonstrate that each applicant was assessed fairly with particular strengths or weaknesses noted. [42] The Respondent further submits that the Appellant was provided feedback verbally on 24 February 2025 in which she was advised on how she performed for each of the six (6) questions. The Appellant was given general feedback about how to improve in future interviews. In relation to that feedback, the Appellant was advised: • She should provide relevant examples to back up responses. 10 Respondent's submissions filed on 25 March 2025, [8]. 11 Ibid, [9]. 12 Ibid, [10] - A 13 Respondent's written submissions – Attachment B – Panel Selection Report. 14 Ibid, [11] – Attachment B. 15 Ibid, [12]. 16 [2022] QIRC 361, [25]. -- 11 of 26 -- 12 • She was appreciated within the department but there is more to the position than educating staff academically, such as managing staff (leadership skills), day to day operational workflow, managing change and dealing with internal and external stakeholders. The Appellant was provided an opportunity to step up and gain more experience leading the team in the 'captains role' to which the Appellant was hesitant.17 Merit [43] In relation to merit, the Respondent submits: • The Appellant has failed to provide evidence that her application was more meritorious than those of other candidates that were successful in the recruitment process. The Respondent observes that the Applicant was not privy to the other applicant's applications and performance during the recruitment process.18 • The appeal is absent to the character and evidence necessary for the appeal to have merit. The Appellant's submissions are absent of evidence that the recruitment process was deficient in complying with the principles contained within sections 44 and 45 of the PS Act.19 • The recruitment process was moderated through the filter provided by three (3) panel members and one (1) delegate which ensures an absence of personal bias in any presentation. A conflict of interest was only disclosed by one (1) panel member who advised they are the direct line manager for 10 of the 11 applicants.20 [44] The Respondent contends that the Panel Selection Report21 confirms that the panel judgements on all candidates were consistent, merit based and that the consistency in commentary was evidence that the Appellant's application was assessed on the same merit criteria that the panel provided to all applicants. [45] In relation to the selection report, the Respondent cites Clare v State of Queensland (Department of Education),22 where Industrial Commissioner Pidgeon stated: [67] While a selection report should be a decent record of the deliberations of the panel and the reasons for their assessment, it is not intended to be a transcript of their deliberations, or the responses provided by applicants.23 [46] Additionally, one (1) delegate was tasked with signing off the selection report and ensuring its compliance with the Act and Directive. The Respondent cites Cleary v State 17 Respondent's written submissions, [13]. 18 Ibid, [15]. 19 Ibid, [16]. 20 Ibid, [17]. 21 (n 13), Attachment B. 22 Clare v State of Queensland (Department of Education) [2022] QIRC 492. 23 Ibid, at [67]. -- 12 of 26 -- 13 of Queensland (Department of Resources),24 where Industrial Commissioner McLennan observed: [67] The Commission may only set aside a promotion decision if they find that the recruitment or selection process was 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.25 [47] The Respondent contends that the decision has complied with the PS Act and the Directive and further, that the Appellant has failed to provide sufficient particulars regarding how they believe the recruitment process was unfair. [48] The Respondent provides the following responses to the matters raised by the Appellant in the Appeal Notice: • The Appellant previously making the order of merit does not automatically mean the Appellant will continue to meet the order of merit in future recruitment processes because each recruitment process is independent and stand alone.26 • Regarding the Appellant's contention she has a strong commitment to her role as a HP4 Sonographer, the Respondent accepts this and notes it was traversed within the verbal feedback offered to the Appellant including the offer to act within the 'captains role' to further develop her.27 • The Respondent disputes the Appellant's assertion 'I firmly believe that these criteria were not adequately assessed in this selection process.' The Respondent relies upon the selection report to demonstrate the six (6) standardised questions ensured the selection criteria was assessed in a standardised manner.28 • In relation to the Appellant's reference to Trang Nguyen, the Respondent notes this appeal is in relation to the Appellant only, not Ms Nguyen. The Respondent vigorously disputes any contentions of discrimination during the recruitment process and relies on these submissions broadly regarding that point.29 • Regarding the Appellant's assertions about Ms S, the Respondent contends that the Appellant does not and cannot have direct knowledge of Ms S's performance during the recruitment process. Additionally, the Respondent notes two (2) other applicants were successful in obtaining positions during the recruitment process, with a further two (2) applicants meeting the order of merit but not being offered positions due to the limited FTE available.30 24 Cleary v State of Queensland (Department of Resources) [2022] QIRC 416. 25 Ibid, at [67]. 26 Respondent's submissions, [22]a. 27 Ibid, [22]b. – Attachment C – Feedback. 28 Respondent submissions, [22]c. 29 Ibid, [22]d. 30 Ibid, [22]e. -- 13 of 26 -- 14 Fair and Reasonable [49] The Respondent contends that the decision of the selection panel was fair and reasonable in compliance with the PS Act, the Directive, and relevant recruitment and selection policies.31 Requested Outcome [50] The Respondent submits that the Commission should dismiss the appeal and confirm the decision of the selection panel to hire those candidates whose applications were assessed as most meritorious to perform the role. Appellant's Submissions [51] The Appellant filed submissions on 9 April 2025. Compliance with the Recruitment and Selection Directive [52] The Appellant contends that the panel failed to comply with clauses 9.17 and 9.18 of the Recruitment and Selection Directive, which relevantly provide: 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. [53] The Appellant contends that the Panel Selection Report and the Feedback document revealed several deficiencies in the selection process as follows: • The selection report indicates that Ms S was ranked as the top candidate due to her "very strong interview" and "expert clinical knowledge". The Appellant states that the selection report noted an absence of recent CPD activities in other candidates which counted against them. The first candidate that did not make the order of merit was told by the panel that "demonstrated evidence of department CPD is a requirement for the role". The Appellant concedes that whilst she does not have direct knowledge of Ms S's interview responses, she and her colleagues have not observed Ms S participating in CPD activities in her tenure at GCHHS. The Appellant contends that this indicates that the assessment criteria was not 31 Ibid, [24]-[25], citing Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487, at [47] per Deputy President Hartigan. -- 14 of 26 -- 15 applied equally to all candidates. • The Appellant noted that her own interview was described as "disappointing" in the selection report, specifically in response to Question 4 on quality improvement activities. Her answer was deemed to be "lacking substance". • In response to Question 4, the Appellant provided an example of her work in a separate tertiary department allowed her to leverage her skills to help integrate morphology scans back into Medical Imaging and assist in upskilling sonographers in obstetric ultrasounds. The Appellant goes into detail (which I have noted) regarding her successful advocacy for supervised obstetric scanning for Medical Imaging sonographers. The Appellant further notes she informed the panel of an obstetric case study she had submitted for publication in Sonography.32 • The Appellant further notes that the selection report recorded that some of her responses regarding conflict resolution and discussions with other teams outside Medical Imaging suggested "potential difficulty in handling difficult conversations.'' The Appellant notes that this was in response to Question 3/c regarding prioritisation of an urgent request. In her response the Appellant candidly observed that a significant portion of ultrasound requests in their department are non-urgent due to junior doctors requesting diagnostic scans without conducting a proper clinical evaluation. The Appellant emphasised she advocated for pushing back on unnecessary scans. • The Appellant contends that her response may not have been well received by the newly added, HP6 Assistant Director, whom she alleges lacks any sonography experience, and primarily works from his office, without first hand experience of hospital ultrasound operations. Feedback [54] The Appellant submits that the feedback provided to her both verbally, and in the Respondent's submission, only provided a summary paragraph and did not provide any detailed breakdown as to how each criteria (noted in paragraph [35] above) was met and applied to the overall ranking. The Appellant notes that she can only presume that the decision-maker had access to this same level of detail that she had access to. [55] The Appellant notes that in Attachment C, the panel indicated that she did not perform well on a clinical question about a patient with retained products of conception following a medical termination. 32 Appellant's written submissions – Attachment 2. -- 15 of 26 -- 16 [56] The Appellant suggests that the panel's feedback suggested they expected a response that explicitly mentioned arteriovenous malformation ('AVM') and pulse wave doppler, whereas her response focussed on "enhanced myometrial vascularity". The Appellant suggests that her response may not have been well understood by the two sonographers on the panel. [57] This leads the Appellant to contend that the panel lacked the clinical expertise to fully assess her response, and further, that the panel did not have any genuine intent of seeking a candidate with 'specialist-level' knowledge. The Appellant records that the only clinician on the panel was a general sonographer without relevant tertiary experience. [58] The Appellant goes on to note that in her previous interviews as a sonographer at GCHHS, both a radiology consultant and a sonographer were present. The Appellant notes that she does not understand why a non-clinical HP6 was on the panel making judgments on clinical expertise for a clinical position. [59] The Appellant reports that she was deeply disappointed and demoralized by the feedback she received. She felt that the purportedly "constructive" feedback felt disingenuous, because she had provided strong and relevant examples of her leadership efforts. The Appellant felt the offer to act up in a "captain role" was insincere in light of her consistently contributing well beyond her HP4 role description and having previously acted in captain roles. [60] The Appellant further noted that neither of the successful internal applicants had previously acted in the captain role. Other Matters [61] The Appellant cites a case example published on the Public Sector Commission website Reviewability of selection decisions and process deficiency in recruitment and selection (10 July 2011). That case related to deficiencies in the panel's selection report to demonstrate why the appointee was recommended by the panel to the delegate for appointment. The Appellant contends that in her case, the panel selection report fails to demonstrate a rigorous or transparent process grounded in merit. [62] The Appellant repeats that in an earlier recruitment round she was placed on the order of merit and offered a permanent HP5 position, which was later rescinded. Whilst acknowledging that this was a separate process, the Appellant contends that the contrast in assessment approach and feedback between the two rounds was stark. The Appellant submits that in this round, the applicants' responses did not appear to be standardized, and assessment criteria inconsistently applied. -- 16 of 26 -- 17 Requested Outcome [63] The Appellant requests that the appeal be upheld, and the selection process reviewed to ensure it aligns with the requirements of the Recruitment and Selection Directive and the principles of merit-based selection. Consideration [64] To determine this appeal, I am required to assess whether the decision appealed against was fair and reasonable. [65] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)33 ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.34 [66] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.35 His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.36 Advertisement, Role Description [67] The Appellant has not raised any concerns either in the Appeal Notice or in her submissions regarding the position being adequately advertised, or with the contents of the position description for position GC606084. I note that the Appellant has attached the relevant role description for position GC606084 to the Appeal Notice. [68] I am satisfied that the Respondent has complied with the advertising requirements set out in the Recruitment and Selection Directive in clauses 8.5 to 8.15. These issues will not be further considered in these reasons. Panel composition [69] The Appellant has raised concerns with the composition of the selection panel, and in particular, whether the panel had the requisite clinical experience to fully assess her response. 33 [2022] QIRC 16. 34 Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 35 Colebourne at [21]-[22] and [25]. 36 Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008. -- 17 of 26 -- 18 [70] The Recruitment and Selection Directive contains the following relevant provisions regarding selection panels: 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. … [71] In addition to the clauses from the Recruitment and Selection Directive excerpted in the preceding paragraph, the Queensland Health Recruitment and Selection Human Resources Policy (QH-POL-212) ('the Recruitment Policy')37 relevantly states: 11.1 Selection panel In determining the composition of a selection panel (which must include a minimum of two people), a delegate 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 Public Sector Act 2022. Consideration should be given to the appropriate gender balance, cultural competency, and addressing the panel’s unconscious bias and affinity bias. Panels must be comprised of at least two members with a minimum of one external panel member. An external panel member must be from outside the employing branch or work area and may be from another specialty area, division, hospital and health service or public sector entity. All members must understand the requirements of the role, and at least one member must have detailed knowledge. In the case of health practitioner and dental officer roles, at least one member of the panel must be from a discipline of the advertised vacancy. (emphasis added) … 11.2.1 Prior knowledge of applicant Prior or current professional knowledge does not prevent a supervisor from participating on a panel and assessing a position within their control, or employees who work for them, currently or in the past, when their knowledge of the applicant has been gained through normal on-the-job activities. [72] In the present case the selection panel included an external panel member, Ms Nardia Elliott who had no declared conflicts of interest. The Panel Chair was Mr Harley Watson, 37 p 4. -- 18 of 26 -- 19 who is the HP6 Assistant Director for Medical Imaging Technology at GCHHS. Mr Watson also had no declared conflicts of interest. [73] The final panel member was Ms Karen Roberts, a sonographer, and the Appellant’s line manager. Ms Roberts appropriately declared a conflict of interest noting that she was the line manage for ten of the applicants. Ms Roberts went on to record the selection report: I am confident I can be unbiased in my decision making and will not use prior knowledge of the applicants for this recruitment. [74] I am satisfied that Ms Roberts provided a sufficient declaration of her conflict of interest and further that she did not use her prior knowledge of any of the Applicants in the recruitment process. I am also satisfied that Ms Roberts had detailed knowledge and understanding of the role, given her experience and her role as the line manager for ten of the applicants. I am also satisfied that Ms Roberts has a background as a sonographer and therefore is from the discipline of the advertised vacancy. [75] The other issue raised by the Appellant is that panels in the past included both a sonographer and a radiologist. It appears that the Appellant has made assumptions firstly Mr Watson because of the nature of his role as a HP6 Assistant Director role does not have a clinical background. [76] This has led the Appellant to make the submission that the panel lacked the clinical expertise to assess her response to certain of the standardised questions. [77] The Appellant has not provided any evidence to support those contentions. [78] There is no indication in the either the Recruitment and Selection Directive or in the Recruitment Policy of it being a mandatory requirement for this type of role that the panel is to include a radiologist. [79] In light of the above, the Appellant has not convinced me, with reference to the considerations that should be taken into account, that the composition of the panel for this vacancy was deficient, or that the Respondent has failed to comply with Recruitment and Selection Directive or the Recruitment Policy. [80] I am satisfied that the manner in which the Respondent has chosen the participants to sit on the selection panel complies in all respects with the requirements of the Recruitment and Selection Directive and the Recruitment Policy. As a consequence, I dismiss this ground of challenge to the decision. Racial Bias [81] In the Appeal Notice, the Appellant has made a veiled allegation that the selection panel were biased against the Appellant and certain other candidates on racial grounds as follows: -- 19 of 26 -- 20 I know of only other colleague who contributed as much if not more to the department, Trang Nguyen. She too did not make the order of merit (despite making it last round). Another colleague who brings external specialist-level experience also did not make the order of merit. All 3 of us happen to have ethnic names. [82] In Cleary v State of Queensland (Department of Resources),38 Industrial Commissioner McLennan confirmed that allegations of bias should not be made lightly, as they are not taken lightly. [83] To similar effect were the observations of Deputy President Hartigan in Henning v State of Queensland (Queensland Treasury).39 In that appeal Mr Henning made allegations of nepotism regarding the fact that members of the selection panel formerly worked at the Department of State Development, Infrastructure, Local Government and Planning. The successful candidate had also formerly worked for that Department, and this led to Mr Henning alleging bias and a conflict of interest. [84] In response to that allegation her Honour stated: [25] Such an allegation is serious and should not be made without cogent evidence to support such a claim. Mr Henning's submissions in support of the allegation are vague and laden with imprecise inferences in support of his claim of a conflict of interest. Relevantly, other than the panel members and the successful candidate formerly working in the same department, there is no further particularisation of the conflict of interest claim. [26] The fact that the panel members may have previously worked in the same department as a successful candidate, does not, without anything further, establish a conflict of interest. Relevantly, the panel members disclosed and acknowledged a prior working relationship with both the successful candidate and Mr Henning (as at the time of the selection process some of the panel members worked with Mr Henning in the department) and determined that no conflict of interest arose.40 [85] I believe it is an even more serious allegation to contend that a recruitment process has been tainted by bias which is racially-based. In order for such an allegation to be made, it must as a matter of course be supported by highly cogent and persuasive evidence. In the absence of such evidence, this type of allegation should not be made by an unsuccessful candidate. [86] The Respondent in its submissions records its vigorous dispute to any contentions of discrimination (presumably racially based) during the recruitment process.41 [87] At its highest, the Appellant's allegation of racial bias appears to be solely premised upon the fact that the Appellant and two other highly qualified candidates failed to make the 38 [2022] QIRC 416, at [59] per Industrial Commissioner McLennan. 39 [2022] QIRC 487. 40 [2022] QIRC 487, [25]-[26]. 41 Respondent's written submissions, [22]d. -- 20 of 26 -- 21 order of merit. The Appellant asserts that this is because the relevant candidates (including herself) all have ethnic names. [88] This is a wholly insufficient basis to make an allegation of racial bias. The Appellant has failed to provide cogent and persuasive evidence in support of her allegation of racially based bias. [89] As noted above, I am satisfied that Ms Roberts provided an appropriate conflict of interest declaration and further undertook to be unbiased in her decision making given her knowledge of ten of the applicants. [90] Each of the Applicants were asked the same standardised questions during the panel interview process with comparative assessment being used by the selection panel. The fact that on this occasion the Appellant has failed to make the order of merit because the panel were critical of aspects of her performance during the interview, does not support a conclusion that there was racial bias by the panel. [91] On the evidence available to me, there is no indication that the selection panel or its decision making was infected by racial bias. I dismiss this ground of challenge to the decision. Documentation and decision-making requirements [92] In her written submissions, the Appellant contends that the panel selection report fails to comply with clauses 9.17 and 9.18 of the Recruitment and Selection Directive because the selection panel have failed to clearly document the process undertaken and the reasons why the successful applicant was determined to be the best suited for the position. [93] The Appellant alleges that the successful candidate (and the appointee to the full-time position) Ms S had not been observed by her or her colleagues to be actively participating in CPD activities during her tenure at GCHHS. The Appellant notes that in the selection report, the panel noted that demonstrated evidence of departmental CPD was a requirement for the role. [94] I note that the selection panel's commentary in the selection report did not make any mention of Ms S's CPD activities. [95] The Appellant then alleges that she does not believe that the criteria were adequately addressed in the selection process. [96] In her written submissions, the Appellant notes that Reviewability of selection decisions and process deficiency in recruitment and selection (10 July 2011) the following observations by the Appeals Officer in that matter are recorded on the Public Sector Commission's website: -- 21 of 26 -- 22 …Appeals Officer concluded that the recruitment and selection documentation, which formed the basis of the decision to promote the appointee to the role, did not contain a cogent narrative, however short, to demonstrate why the appointee was recommended by the panel to the delegate for appointment... Indirectly, the selection panel also breached sections 7. 9(ii) and (iii) of the Directive. The Appeals Officer noted that the panel may have considered the previous work experience of applicants and conducted a robust assessment of applicant's merit, not only performance in each component of the assessment process, but this was not able to be ascertained from the panel's selection report. [97] The Appellant contends that the same outcome should occur in relation to her appeal. [98] Dealing firstly with the Appellant's contention that the selection criteria were not adequately addressed, the Respondent notes that each applicant was assessed on their resume, cover letter, referee checks and interview responses to demonstrate their respective abilities for the role. [99] The six standardised questions that were put to each applicant during the course of the interview are reproduced in paragraph 10 of the Respondent's submissions. The Respondent notes that the use of standardised questions was intended to elicit information relevant to the role and role description. Upon my perusal of the six questions, they appear to accord with the key duties and accountabilities that are set out in the role description document for position GC606084, Sonographer - Advanced. [100] The sixth question was a scenario based question which was intended to establish professional capabilities regarding clinical knowledge and education. [101] In referring to the panel selection report, I note that for each of the eleven (11) applicants there is a comparative statement which reflects the panel's consideration of the performance of the applicant and the panel's rating. [102] The assessment for each applicant appears to focus in on the areas where each applicant performed strongly, or alternatively, were weak giving rise to the panel's assessment that the applicant was successful or unsuccessful. Given that these issues would vary from applicant to applicant, I am satisfied that this explains the variance between the panel's assessment of each applicant. [103] As noted by the Respondent in its written submissions, in Clare v State of Queensland (Department of Education),42 Industrial Commissioner Pidgeon observed: [67] While a selection report should be a decent record of the deliberations of the panel and the reasons for their assessment, it is not intended to be a transcript of their deliberations, or the responses provided by applicants.43 42 Clare v State of Queensland (Department of Education) [2022] QIRC 492. 43 Ibid, at [67]. -- 22 of 26 -- 23 [104] In the case of the successful applicant, the panel provided the following comparative statement: Very strong interview (redacted) displayed expert clinical knowledge with evidence of being able to work through a problem and reach an accurate and logical outcome as demonstrated with the case study. She demonstrated exemplary leadership skills and a high level of emotional intelligence. During conflict situations she can calmly address the issue and determine the best course of action through negotiation and considering all possible avenues. She has a good balance of support for the patients and the needs of the organisation while ensuring the care and well being of the team. Her ability to perform the role is evident and is the preferred candidate for this position. Best Applicant. [105] In the case of the Appellant, the panel provided the following comparative statement: Disappointing interview. Zi is a highly regarded Senior Sonographer in the department and was able to demonstrate extensive CPD participation recently. Offered a strong answer for change implementation discussing with Team Leader to gain understanding and potential negotiation prior to advocating to the team and supporting the organisation. Some of her answers regarding conflict and discussion with other teams outside Medical Imaging indicated a potential difficulty holding these difficult conversations and may struggle to advocate for the team and achieve an acceptable outcome. Did not indicated she would check in on Sonographer well being and needed prompting with these responses. Does not meet OOM. [106] As I have noted above, the comparative statement in relation to the successful candidate did not address her CPD activities. I note that in relation to the applicant that was ranked fifth in the order of merit, there was also no mention of that applicant's CPD activities. The selection panel also did not mention CPD activities in relation to at least one of the other unsuccessful applicants. [107] The panel selection report also records that the applicant ranked second in the order of merit was also noted to have minimal recent examples of CPD as currently locuming remotely. The report goes on to note that this applicant had strong evidence of previous activities, and a strong desire to improve the skills and education of the whole team. The applicant that was ranked third in the order of merit was also noted to have little evidence of recent CPD activity. [108] This indicates to me that the issue of CPD activity was one of a number of factors that the panel addressed and balanced in determining which applicants made the order of merit and which applicants were unsuccessful following the panel's comparative analysis. It appears for those applicants that made the order of merit, relative weakness on the issue of CPD activity was more than counter-balanced by the strengths shown by the applicants in other areas. [109] It further appears that the Appellant failed to sufficiently address some of the standardised questions to the satisfactions of the panel and this counted against her when determining the order of merit. I note the observations of Industrial Commissioner -- 23 of 26 -- 24 Pidgeon in Clare v State of Queensland (Department of Education)44 regarding the failure of Ms Clare to sufficiently address some of the selection criterion: [75] A panel is entitled to expect that an applicant has taken care in their preparation of a written application and their readiness to put their best foot forward in an interview. While panels can create as relaxed an atmosphere as possible and formulate questions which give the best opportunity to find out whether the applicant is meritorious for the position, it is not their responsibility to ensure the applicant effectively answers each question.45 [110] After reviewing the panel's comparative analysis of each of the applicants that is set out in the selection report, I am satisfied that the panel have appropriately utilised a comparative analysis and further, the selection report demonstrates that each applicant was assessed fairly with their particular strengths or weaknesses noted. [111] I am not satisfied that the Appellant has established to the requisite standard that there was a failure by the selection panel to adequately address the selection criteria or key capabilities in the Role description, by either the standardised questions that were selected or in the interview process. [112] Clause 9.17 of the Recruitment and Selection Directive requires the selection panel to document the process undertaken and the reasons why the proposed applicant was determined to be best suited to the position. I am satisfied that the selection panel have complied with clause 9.17. The process adopted by the panel has been clearly set out in the selection report. The comparative analysis for each applicant although concise, in my view adequately set outs the reasons why the selection panel considered Ms S to be the best applicant and why the other applicants were either unsuccessful, or ranked beneath Ms Sin the order of merit. [113] I am satisfied that the promotion decision was made on the basis of merit and for the reasons set out above, there is no evidence that the selection process was deficient. As a consequence, the decision was fair and reasonable. Panel Feedback [114] The Appellant in her submissions also takes issues with the quality of the feedback that she was provided with by the panel. [115] Clause 12 of the Recruitment and Selection Directive addresses feedback. Clause 12.2 of the Recruitment and Selection Directive confirms that 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. 44 [2022] QIRC 492. 45 Ibid, [75] per Industrial Commissioner Pidgeon. -- 24 of 26 -- 25 [116] The Appellant raises an issue in the Appeal Notice that she requested feedback in writing but was only provided with oral feedback by the panel. As noted in the preceding paragraph, clause 12 of the Recruitment and Selection Directive provides the panel with a discretion as to how feedback is to be provided. I am satisfied that it was appropriate to provide the Appellant with oral feedback only. [117] In her submissions, the Appellant submits that the feedback provided to her both verbally, and in the Respondent's submission, provided only a summary paragraph and did not provide any detailed breakdown as to how each of the criteria (resume, cover letter, referee checks and interview responses) were met and applied to the overall ranking. [118] I note that the Appellant does not agree with the feedback that was provided to her, however, disagreement with the panel feedback does not equate to a deficiency in the process of recruitment and selection.46 [119] The Respondent in its submissions confirms that the Appellant was provided feedback verbally on 24 February 2025. The Respondent submits that the Appellant was specifically advised on how she had performed for each of the six questions. Further, the Appellant was given general feedback about how to improve in future interviews. [120] The Respondent provided a written version of the feedback provided to the Appellant as Attachment C to its submissions. That document provides a summary of the feedback provided to the Appellant on 24 February 2025 as follows: Summary of feedback in person 24/02/25 – Feedback for each question was given as above however Zi was very unhappy with the feedback given. Gave advice on how to improve in the future interviews like providing relevant examples to back up your answers etc. Became defensive and stated how much work Trang and her do in the department. Threated (sic) she would resign from her role because she was not successful. I explained that we value and do not take for granted all the work she and Trang do in educating the staff academically. I went on to say there is more to a senior leadership position then just education, such as managing staff (leadership skills), day to day operational workflow, managing change and dealing with internal and external stakeholders. I then offered her opportunity to step up and gain more experience leading the team in the captain role to which she was hesitant. Feedback was constructive but not well received. [121] Clause 12.1 and 12.2 of the Recruitment and Selection Directive do not oblige the Respondent to provide detailed feedback to an unsuccessful applicant which line by line addresses each of the selection criteria or the key capabilities set out in the role description. Clause 12.2 of the Recruitment and Selection Directive does require a selection panel representative to provide "constructive feedback". 46 See the observations of Industrial Commissioner Pidgeon in Kumar v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 084, [68]. -- 25 of 26 -- 26 [122] On the basis of the Respondent's written submissions regarding the feedback provided to the Appellant, and my perusal of Attachment 'C' to the Respondent's written submissions, I am satisfied that the feedback provided to the Appellant complied with the requirements of the Recruitment Directive and the Recruitment Policy.47 This ground of challenge to the selection decision is also dismissed. Conclusion [123] Pursuant to s 562C(2) of the IR Act, the Commission may only set aside a promotion decision if the Commission finds that the recruitment or selection process was deficient having regard to whether the process complied with the PS Act, a regulation or a directive made by the Public Sector Commissioner. [124] After considering all the material before the Commission, I find that the Appellant has failed to establish a deficiency in this recruitment process that would justify setting aside the appointments made by the selection panel. [125] I am satisfied that the recruitment and selection process complied with the PS Act, the Recruitment and Selection Directive, and the Recruitment Policy. Consequently, I find that the decision was fair and reasonable. [126] On that basis the decision appealed against is confirmed. [127] I order accordingly. Order Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 47 The Recruitment Policy includes the same provisions regarding feedback in clause 17.1 that are included in clause 12.1 and 12.2 of the Recruitment and Selection Directive. -- 26 of 26 --