Carey v State of Queensland (Department of Transport and Main Roads) [2025] QIRC 26

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carey v State of Queensland (Department of Transport and Main Roads) [2025] QIRC 026 PARTIES: Carey, Clint (Appellant) v State of Queensland (Department of Transport and Main Roads) (Respondent) CASE NO.: PSA/2023/247 PROCEEDING: Public Sector Appeal – Fair Treatment Decision DELIVERED ON: 30 January 2025 MEMBER: Power IC HEARD AT: On the papers ORDERS: 1. The decision is confirmed. 2. The appeal is dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – Appellant employed in a permanent position as an AO4 – Appellant successfully applied for an AO6 position – Appellant sought approval for secondment to the AO6 position – Respondent denied request for secondment – Appellant resigned from permanent AO4 position to commence AO6 position – internal review confirmed decision to deny secondment was fair and reasonable – Appellant seeks appeal of internal review decision – utility of determining the appeal given that Appellant is no longer a permanent employee – whether internal review decision was fair and reasonable. -- 1 of 18 -- 2 LEGISLATION: Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Sector Act 2022 (Qld), s 131 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland [2018] QSC 319 Reasons for Decision Introduction [1] Mr Clint Carey ('the Appellant') was employed by the State of Queensland (Department of Transport and Main Roads) ('the Respondent') as a public service officer in the role of AO4 Transport Inspector in the Compliance Unit within the Customer Service Branch ('CSB'), Customer Services, Safety and Regulation Division ('CSSR') of Transport and Main Roads ('the Department'). [2] On 30 August 2023, the Appellant requested a secondment to the role of Senior Advisor (Fleet Management) in the Translink division for a period of four years ('the AO6 position'). On 5 September 2023, Mr Fitzgerald made the preliminary determination to not support the Appellant's secondment request. [3] The Appellant subsequently filed an Individual Employee Grievance, where Mr Crago determined to uphold the decision not to approve the Appellant's secondment request. [4] On 28 November 2023, Mr Geoff Magoffin, Deputy Director General, Customer Services, Safety and Regulation, ('the decision maker') advised the Appellant that the decision of Mr Crago was fair and reasonable ('the decision'). [5] A Notice of Appeal was filed by the Appellant pursuant to s 131(1)(d) of the Public Sector Act 2022 ('PS Act') on 19 December 2023. Appeal principles [6] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. -- 2 of 18 -- 3 ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [7] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination in this matter is whether it was fair and reasonable for the Department to reject the Appellant's request for secondment to the AO6 position. What decisions can the Industrial Commissioner make? [8] 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 substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of appeal [9] In the Appeal Notice, the Appellant attached submissions which are summarised as follows: a) The Appellant was compelled to resign, as advised by Human Resources ('HR'), from his permanent role on 22 September 2023 in order to commence with the AO6 position on 25 September 2023. b) The Appellant believes that the decision that has been made by the Executive Leadership Team is unfair, does not adhere to the Queensland Public Services values, and is somewhat biased. c) The Appellant believes that the decision maker has failed to review this matter from an independent perspective, has backed and supported his staff who report to him, and has not applied sound judgement to this matter. The decision maker states in the review letter that the Appellant resigned of his own volition. The Appellant contests this assertion and argues it is an assumption by the decision maker. d) The Appellant was concerned about the National Service Transition approaching and how it was going to affect his permanent role within the 3 Goodall v State of Queensland [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 18 -- 4 Department. As such, the Appellant commenced looking for other roles within the Department. e) The Appellant found a suitable role on Smart Jobs, the AO6 position, and the substantive Manager, Mr Fitzgerald, advised that he had no problem with the proposal and that he would support the Applicant if he were successful in the recruitment process. f) The Appellant was granted the role but was subsequently informed by Mr Fitzgerald that the Regional Director, Mr Land, did not support the high duties request due to the National Services Transition ('the NST') approaching and that the request was to go through the Resource Committee for review. The Resource Committee subsequently determined that they did not support the Appellant's release to Translink. g) The Appellant submits that once he had confirmation that the Resource Committee did not officially approve his higher duties to Translink, he was advised by his HR manager that he must resign from his permanent position as a Transport Inspector in order for him to take up the opportunity on the coming Monday, that was provided to him from Translink. h) The Appellant did not resign of his own volition but resigned from his permanent position as advised from his HR Manager to enable him to accept the AO6 position. i) The Appellant noted multiple other employees who had been granted secondment opportunities in his internal review response letter, but Mr Crago responded that each secondment request is determined upon its merits at the time. The Appellant submits that this response demonstrates that a senior leader has provided a response that highlights inequitable processes within the same business unit. j) The Appellant submits that the Queensland Government Employment Security Policy has been developed for the purpose of situations just like his to support permanent employees through government migration/transitions. Throughout the internal review process of this matter, the NST has undergone further changes since the Appellant was advised to resign and go through the review process. The Appellant argues that this demonstrates further uncertainty and scepticism about the transition process as directions have changed at the last minute. k) The Appellant was informed that he was guaranteed a permanent position when the transition occurred, but only at his substantive role of AO4, despite the Appellant acting in senior roles from AO5 to AO6 for approximately two -- 4 of 18 -- 5 years in the CSB. The Appellant was successful in applying for the AO6 position which would allow him to build his skills at an AO6 level and could potentially lead to him acquiring a permanent position. l) The Appellant has not received any engagement from the Department with him at a personal level to look at options and opportunities that they could provide. The Appellant was simply told there was no permanent A06 available, and they could not help him any further. m) The NST team have released correspondence to all Transport Inspectors advising that TMR will provide ongoing commitment and support to Transport Inspectors for professional development in finding permanent roles within TMR. The NST has also promoted a career coaching program to assist Transport Inspectors in moving into other opportunities and navigate new career pathways to help Transport Inspectors explore new opportunities within TMR. The Appellant submits that the Department has promoted a career coaching program to assist Transport Inspectors in moving into other opportunities and navigating new career pathways, but the Department has not supported his request for higher duties. This contravenes the abovementioned messaging. n) The Appellant made submissions on the various anomalies and inconsistencies that he has noticed while trying to facilitate his secondment opportunity and argues that the process has resulted in a great deal of emotional and mental stress. The Appellant argues that the Department's conduct neither complies with the intent of Queensland Government Employment Security Policy, nor with Managing the risk of psychosocial hazards at Work Code of Practice. Submissions [10] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Respondent's submissions [11] The Respondent's submissions are summarised as follows: (a) The Respondent submits that the Appellant is requesting an outcome that his permanent employment with the CSB within the Department be reinstated while he performs higher duties in the Translink division for the period to 30 June 2027. (b) The Respondent respectfully submits that the Appellant's desired outcome is -- 5 of 18 -- 6 not achievable in the context of the current operational circumstances that exist within the CSB which the Appellant has been advised on several occasions to date. (c) The Respondent submits that the Appellant has not identified specific breaches of the Queensland Public Service values. Notwithstanding the absence of reasons why the Appellant makes such an assertion, the Respondent submits that the decision to not support the Appellant's secondment request was well considered and adhered to the Department's Management of Secondment procedure. (d) The Respondent submits that all the relevant materials relating to the Appellant's grievance were provided to the decision maker for his consideration. The decision maker was the authorised delegate to consider the Appellant's internal review request, is not involved in the day-to-day operations of the CSB and, more specifically, he did not have any conflict of interest in the matter. (e) The Respondent submits that the Appellant's decision to resign from his employment with the Department in order to take up the AO6 position in the Translink division was of his own volition. No action was taken by the Department to cease the Appellant's employment at the Department's initiative. While the Respondent notes that the Appellant had concerns regarding his ongoing employment due to the NST placement process, it would not be appropriate for the CSB to make a decision that would have a long-term impact on other parts of the entity, or other entities such as the National Heavy Vehicle Regulator ('the NHVR'). (f) While the Department values the benefits of secondments and further considers the value of staff mobility and professional development, each secondment request needs to be considered on a case-by-case basis. This is critical so that the chief executive of the Department or their delegate can appropriately have regard to the contextual circumstances at the time of the request. The Respondent submits that in this instance, accommodating the Appellant's secondment request would have exposed the remaining Transport Inspectors to increased workloads and health and safety risks, and would have resulted in Compliance services not being delivered to the public, or being significantly delayed. (g) The Respondent submits that while the proposed secondment was to a higher classification level which provides further career development, this does not translate to an absolute right for an employee to be afforded a higher duties opportunity. -- 6 of 18 -- 7 (h) Accordingly, the adverse effects of supporting a secondment such as the impact on the Compliance Unit's business needs, the service delivery requirements of the Compliance function, and the health and wellbeing of the remaining employees carried greater significance for the primary and secondary decision makers than the benefits associated with approving the Appellant's secondment request. Appellant's submissions [12] The Appellant's submissions are summarised as follows: (a) The Appellant does not dispute that the decision maker has delegation to review these matters but believes that in this particular circumstance it would have been more appropriate for a delegate who is removed from the CSB banner to provide a decision with no conflict of relationships within the CSB Leadership Team. (b) The Appellant reiterates that he was compelled to resign due to being advised by HR that he should resign from his permanent role in order to commence with the AO6 position. (c) The Appellant submits that once he had confirmation that the Resource Committee did not officially approve his higher duties to Translink, TMR, he was advised by his HR Manager that he needed to resign from his permanent position as a Transport Inspector in order for him to take up the opportunity to commence with Translink, TMR on the coming Monday. This was to avoid any disciplinary action for failing to attend work and take up duty in his Transport Inspector role with CSB on the following Monday, whether that was in his higher duties role as a Manager, Customer Service Centre ('CSC') (Caboolture), or in his substantive role as Transport Inspector. The process to this point had taken just shy of four weeks which left the Appellant with little room to negotiate before proceeding to the grievance process. (d) The Appellant submits that he was in continuous direct contact with his local HR Manager, discussing what steps he needed to take to dispute the decision. (e) The Appellant reluctantly submitted his resignation as per the advice that was received from HR and proceeded with the grievance process as he believed that the decisions that were made was unfair. The Appellant did this as he believed that all of his options had been exhausted. (f) The Appellant contests the Respondent's submission that he did not identify specific breaches of the Queensland Public Service values. The Appellant -- 7 of 18 -- 8 submits that his reference to the Queensland Public Service values was simply to suggest that certain elements and the overall intent of Queensland Public Service values were not complied with. The Appellant believes that the Respondent did not adhere to the principles of making decisions with empathy, challenging the norm, and suggesting solutions, leading, and setting clear expectations, owning one's actions, acting with transparency, and leading, empowering and trusting those around you. (g) The Appellant argues that multiple staff have been approved for secondment and that the Respondent has set a precedent, and the Appellant should be granted the secondment opportunity. (h) The Appellant refers to s 3.5 the TMR – Management of Secondments Procedure ('the Secondments Procedure'), which addresses the refusal of a secondment. Section 3.5 states that delegates should not unreasonably refuse to release an employee for secondment, having regard to the value of professional development, employee mobility, and employee retention and engagement benefits. (i) The Appellant argues that it is not reasonable and fair for other people to be approved for secondments and higher up duties up to the transition date. The Appellant submits that when he has previously raised this with the Respondent, he has been told that "each secondment request is considered on a case by case basis". The Appellant believes that this is a standard response to try and justify complex and difficult matters and is not a reasonable and fair response in this case. (j) The Appellant argues that CSB staff are approved for release within CSB, but when staff ask to be released outside of CSB or a different entity, it becomes difficult to get approved. (k) The Appellant argues that an increased workload for other staff cannot be a significant issue as other secondments and higher duties have been approved. The Appellant argues that given that CSB had already released the Appellant to continue in the CSC Manager role until December 2023, it is inconsistent to raise these issues for a secondment to Translink from 25 September 2023 but not raise them when the Appellant is working in the CSB Manager role until December 2023. (l) The Appellant notes that the Respondent has submitted that "it is not an absolute right for employees to be afforded higher duties opportunities". The Appellant emphasises that it is not his contention to be entitled to be awarded the secondment. The Appellant has been open to negotiations with the Department to shorten the secondment date to be a more suitable period for -- 8 of 18 -- 9 the business needs. The Appellant argues that the Department has not been forthcoming in any negotiations to date. (m) The Appellant referred to multiple emails which he submits suggest that CSB will assist and support staff in obtaining a new position within the Department and is willing to invest time and resources to ensure this organisational change does not have a negative impact on staff in the Compliance team. (n) The Appellant made submissions on the steps he has taken to coordinate with the Department and confirm whether he would be supported to go on secondment. The Appellant argues that due to the communication from the CSB Leadership Team and the NST Team, he has found himself in a situation that he should not be in. The Appellant is willing to oppose this matter as this was his permanent position that provided job security, and he believes that he was unfairly treated and unjustifiably misled. The Appellant feels that he is being portrayed as an entitled staff member despite having only followed Departmental procedures advice from HR and acknowledging and proceeding forward with the information conveyed by the NST. The Appellant argues that he has been reverted from a permanent Queensland Government employee of over 15 years to a temporary employee because his career progression has been mishandled, mislead, and mismanaged from CSB Leadership Team. (o) The Appellant feels that the communication material he referred to has simply ticked a box in a Department's process but they have not followed through with their stated commitments. The Appellant highlights the Queensland Government Employment Security Policy, which he believes the Department was attempting to adhere to when disseminating this material. (p) The Appellant argues that the role of a Transport Inspector is going to significantly change when the transition occurs. The role of the Transport Inspector which the Appellant applied for will have completely different functions. The Appellant feels that the role will no longer be for him, and he has no desire to move across to the NHVR because he does not want to leave the Queensland Government. The main function that the Appellant was conducting when working as a Transport Inspector was safety duty investigations. (q) The Appellant argues that this is not a standard blueprint secondment request. The secondment request has been initiated due to change and migration in the Queensland Government. The Appellant has been involuntarily placed in this position. His role as a Transport Inspector was subject to Queensland Government migration and the role was to change significantly to what he -- 9 of 18 -- 10 had applied for, which did not adhere to his career aspirations moving forward. As the Department has put the Appellant in this predicament, the Appellant argues that it is only fair that the Department supports his career aspirations outside of the Compliance Unit. Respondent's submissions in reply [13] In reply, the Respondent made the following submissions, in summary – (a) The decision maker was the authorised delegate to consider the Appellant's internal review request, in accordance with the Department's Human Resource Delegations Manual, and he is not involved in the day-to-day operations of CSB and, more specifically, he did not have any conflict of interest in the matter. (b) The Respondent asserts that the Appellant was not forced, coerced, or required to resign from his substantive role. The Appellant made a choice to resign from his substantive role to take up the AO6 position when he was advised that his secondment request had been denied. (c) The Respondent submits that the Appellant could not perform his substantive role and the AO6 position concurrently and therefore it was for the Appellant to determine which position he sought to perform based on the options that were available to him. The options available included continuing to perform the Manager (Customer Service Centre) position until at least December 2023, before returning to his substantive role, or resign from his substantive role to take up the AO6 position. (d) The Respondent submits that any decisions regarding other employees are not relevant to the Appellant's secondment request and were made based on the contextual circumstances relevant to each case at the time of the request. In this instance, accommodating the Appellant's third secondment request would have exposed the remaining Transport Inspectors to increased workloads and health and safety risks and would have resulted in Compliance services not being delivered to the public, or those services being significantly delayed, which is a pertinent consideration for the delegate. (e) The Respondent notes that the Appellant does not agree with the above assertions due to his existing higher duties arrangement being in place until at least December 2023, however, the Respondent submits that the decision to approve his existing higher duties arrangement was made under different contextual circumstances and at a different point in time. (f) In relation to the Appellant's submission that the CSB Leadership Team -- 10 of 18 -- 11 mishandled, misled, and mismanaged his career progression, the Respondent submits that the Department values the benefits of secondments and further considers the value of staff mobility and professional development, which is reflected in the Department having accommodated two secondments relating to the Appellant and supporting the Appellant continuing in those arrangements until the agreed end date. The CSB Leadership team is not responsible for ensuring the Appellant's career progression particularly where career progression requests are not operationally viable, such as the secondment request of the Appellant. (g) While the Appellant submits that the Department was not forthcoming in exploring alternative options to support the secondment, the Respondent submits that all available options, based on the contextual circumstances at the time of the request, were considered prior to the decision being made not to support the Appellant's secondment. Notwithstanding this, the Appellant did not offer any alternative options, other than to take up the higher duties arrangements until his grievance had been decided, which was not an operationally efficient and effective option having regard to the business needs of the CSB or Translink. Both areas of the Department required certainty of which the Appellant was able to provide through his decision to either remain with the CSB or take up the position with Translink. (h) The Respondent notes that the Appellant refers to excerpts of correspondence relating to the NST directed at the Transport Inspector cohort, dated June and July 2023. This correspondence is not specific to the Appellant's secondment request, nor does it override the Secondments Procedure. This was general information about the NST and career development support for all Transport Inspectors affected by the NST. Relevantly, the 'NST Frequently Asked Questions' refers to secondments not being able to be extended beyond the transfer date to the NHVR and further states that the Department will support employees to secure permanent position within the Department if they do not wish to transfer. (i) The Respondent acknowledges the decision to deny the Appellant's secondment request would be disappointing, but this does not translate to the decision being unfair and unreasonable. Consideration [14] The decision that is the subject of this appeal is that of Mr Geoff Magoffin dated 28 November 2023 in which he confirmed the decision to deny the Appellant's request for secondment to the AO6 position. Whilst the submissions made in this matter are extensive, the scope of the appeal is narrow in that it is an external review of the decision by the decision maker to determine if the original secondment decision was fair and -- 11 of 18 -- 12 reasonable. [15] The difficulty with this appeal is that any decision will be of no practical utility to either party on the basis that the Appellant resigned from his permanent position prior to filing the appeal. If a finding were to be made that the decision was not fair and reasonable, and an order was made to set aside the decision to refuse the secondment, such an order can have no affect as the Appellant no longer occupies a permanent role within the Queensland Public Sector. The Commission has no power to order that the Appellant be reinstated to his former role in order to be seconded to his temporary current role. [16] Notwithstanding my comments above, for completeness I will consider the decision to determine if it was fair and reasonable. [17] The Appellant was employed on a permanent basis in an AO4 position as a Transport Inspector in the CSB. As I understand it, a government decision had been made to transfer the Transport Inspector positions to NHVR. Whilst seconded to an AO5 position temporarily, the Appellant successfully applied for an AO6 position in Translink. The Appellant then requested a four-year secondment to Translink. [18] The secondment request was initially denied in a decision by Ms Cave which was subsequently confirmed in a decision by Mr Crago. After an employee grievance was lodged by the Appellant, the decision maker conducted an internal review before confirming the decision to deny the secondment request. Decision to refuse secondment [19] The Appellant's basis for contending that the decision to refuse his secondment request was unfair and unreasonable can be summarised broadly as follows – • The internal review and decision were not conducted independently; • The decision did not accord with the Queensland Public Sector values; and • Other employees have had secondment requests approved. [20] The Appellant submits that the internal review decision should have been conducted by someone independent of CSB rather than the decision maker. The Appellant does not dispute that the decision maker had the authorised delegation to consider the internal review request. [21] The Appellant contends that it would have been more appropriate for a delegate independent of CSB to provide a decision on the internal review on the basis that this would have avoided a conflict of interest. [22] The Respondent submits that all relevant materials relating to the Appellant's grievance were provided to the decision maker for his consideration and that he did not have any -- 12 of 18 -- 13 conflict of interest in the matter. There is no suggestion that the decision maker did not have access to the relevant materials when forming his decision. [23] The fact that the decision maker held a position within CSB does not give rise to a conflict of interest, particularly in circumstances where he is not involved in the daily operations of CSB. It cannot be the case that a conflict of interest arises simply because a delegate holding a senior position within an entity, and thereby having a broad understanding of the workplace, is appointed to conduct an internal review of a decision. [24] The reason for the Appellant's contention that it would have been 'more appropriate' for a delegate independent of CSB to provide the internal review decision is not explained. In circumstances where the Appellant has not identified a specific conflict of interest and the decision maker held the authorised delegation to conduct the internal review, it was open to the Respondent to appoint Mr Magoffin as the decision maker. [25] The Appellant submits that the Respondent did not comply with the following elements of the Queensland Public Sector values – "make decisions with empathy, challenge the norm and suggest solutions, lead and set clear expectations, own your actions, success and mistakes, act with transparency, lead, employer and trust and develop yourself and those around you." [26] Adherence to the Queensland Public Sector values does not require that the Respondent agree to secondment requests where organisational factors indicate that such a request should not be supported. It was open to the decision maker to place greater weight on the detrimental organisational impacts of releasing the Appellant on secondment than the benefit of the secondment. Such a conclusion was fair and reasonable and not inconsistent with the Queensland Public Sector values. [27] The Secondments Procedure provides the following – 3.2 Approval considerations Secondments are not an automatic entitlement. Delegates are encouraged to consider: • retention and engagement benefits for the employee and business • additional skills and knowledge gained by the employee and the business • development objectives outlined in the employee's performance development agreements • skills and resources required to achieve TMR objectives across the department • coverage of the employee's duties for the period of the secondment • whether the employee has gone through a meritorious recruitment and selection process to secure the secondment • impact on workforce planning, workloads and staffing arrangements for the period of the secondment • number of successive secondments in which the employee has previously been provided -- 13 of 18 -- 14 • that all mandatory requirements for the role have been met (that the employee has the relevant qualifications and prerequisites required for the role). 3.5 Refusal of a secondment Delegates should not unreasonably refuse to release an employee for secondment having regard to the value of professional development, employee mobility and employee retention and engagement benefits. A decision to refuse a secondment is to be documented in a written statement. Discussions which lead to refusal of a secondment should also be documented. These discussions are to occur in a timely manner with the employee and receiving unit's delegate. It is recommended that a succession strategy for the role be implemented so that in future employees are more likely to be able to undertake a secondment from that business unit. [28] There is no evidence before the Commission that the Respondent did not comply with the TMR Procedure or consider relevant factors before coming to a decision. Relevantly, the Secondment Procedure confirms that secondments are not an automatic entitlement. [29] The Appellant refers to the Secondment Procedure requirement that delegates should not unreasonably refuse to release an employee for secondment having regard to the value of professional development, employee mobility, and employee retention and engagement benefits. The Appellant contends that the refusal was unreasonable on the basis that 'countless staff' were approved in secondment opportunities. [30] The Respondent submits that each secondment request is considered on a case-by-case basis to allow the organisation to have regard to the contextual circumstances at the time of the request. The Appellant submits that this is a 'standard response' to justify complex and difficult matters. [31] The secondment arrangements for other employees are unknown to the Commission and consequently it cannot be concluded that employees in the same circumstances as the Appellant were granted secondments. The Appellant is correct in his submission that these are complex matters, and considerations of the operational requirements of a workplace and the length of secondments at any given point in time will influence whether secondments are granted. [32] The Appellant benefitted from the Respondent's commitment to staff mobility and professional development when it granted the previous secondment arrangements sought by the Appellant. There does not appear to be any history of denying secondment requests by the Appellant prior to this occasion. [33] The Respondent's approval of the Appellant's two previous secondment requests to other higher duties positions indicates that the requests are indeed considered on a case-by- case basis. In this matter, unlike with the two previous requests, the decision maker determined that operational requirements of the unit at the time were such that the -- 14 of 18 -- 15 secondment should not be granted. This indicates that the decision was not a standard response or part of a blanket refusal. [34] The Respondent submits that accommodating the secondment request would have exposed the remaining Transport Inspectors to increased workloads and health and safety risks and would have resulted in Compliance services not being delivered to the public, or those services being significantly delayed. [35] The Appellant disputes the submission regarding the operational needs of the unit on the basis that he had an existing higher duties arrangement in place until December 2023. The Respondent contends that this higher duties arrangement had been approved under different contextual circumstances and at a different point in time. Simply because a previous secondment had been approved does not mean that a future request will be approved if the operational requirements have subsequently changed. [36] In circumstances where Transport Inspectors were being transferred to the NHVR in accordance with a government decision, the decision maker's concerns about ensuring the availability of trained Transport Inspectors to deliver the services was entirely reasonable. [37] As submitted by the Respondent, the decision maker decided that the adverse effects of the secondment on the organisation's business needs, the impact on service delivery requirements, and the health and wellbeing of the remaining employees carried greater significance than the benefits associated with the Appellant's secondment. [38] The decision outlined this consideration, stating the following – … • TMR has obligations to deliver Compliance functions up to the transition to the NHVR in April 2024 to ensure public safety, and based on current resourcing levels, the available resources will not enable TMR to adequately maintain Compliance functions. This is because recruitment and training of Transport Inspectors can take up to six months. The Transport Inspectors Recruit Course (TIRC) only occurs twice a year and is not scheduled again before the transition occurs in April 2024. I do not consider it to be an efficient use of public resources to recruit and train a new cohort of Transport Inspectors whose roles will be substantially different if they remain with TMR following the NST. • If you were to be released on secondment, there would be an increased workload for the remaining Transport Inspectors to continue delivering Compliance functions up until the NST in April 2024. • Further if your secondment request was approved, in order to facilitate your secondment request, CSB would need to backfill your substantive position which would require additional work to recruit and train a new Transport Inspector. Then, if your substantive position was to transition to NHVR, a mobility arrangement between TMR and NHVR -- 15 of 18 -- 16 would need to be approved in order to facilitate your ongoing secondment with Translink, and there is no guarantee that NHVR would agree to such an arrangement given it would require resources to continue delivering Compliance functions. … [39] The decision demonstrated that the particular circumstances of the request at the time were considered – … • The unique circumstances of the NST have provided an additional layer in considering and decisioning your secondment request, because of the added complexities to the operational requirements for CSB, which are out [of] its control. However, the delegate must consider all relevant factors, including the availability of coverage and the impact of workforce planning, workloads and staffing arrangements, in making a decision to support or not support a secondment request. … [40] The Appellant refers to messages from NST that he submits suggest that "CSB will assist and support staff, in obtaining a new position within TMR and are willing to invest time and resources to ensure this organisational change does not have a negative impact on staff in the Compliance team." The messages outline the support that will be made available to TMR employees including training in resume writing and job interviewing, and coaching sessions with a career coach. These messages do not indicate that secondments will automatically be supported. I note the Respondent's submission that the NST message entitled 'Frequently Asked Questions' indicates that secondments would not be extended beyond the transfer date to the NHVR and that the Department would support employees to secure permanent positions within the Department if they did not wish to transfer. This information would indicate that the Appellant was not compelled to transfer to NHVR in circumstances where he returned to his substantive role and confirms that secondments beyond the transfer date would not be extended. [41] The Appellant outlined the steps he took before securing the AO6 position in attempting to confirm the secondment. He states that after asking his substantive Manager, Mr Andrew Fitzerald, if he would be supported if he obtained the four-year contract for the AO6 position, Mr Fitzgerald stated that he could not see any issues as the Department was committed to supporting employees in trying to secure another permanent position within the Department throughout the transition process. Following the denial of his secondment request, the Appellant contends that he was unfairly treated and misled. [42] I am not persuaded that the Appellant was unfairly treated or misled on the basis of the submissions made. The Appellant was an experienced employee with over 15 years' experience as a public servant. It was not reasonable to base his subsequent actions on a broad response given to a hypothetical proposition put to a manager who was not the -- 16 of 18 -- 17 decision maker and did not confirm the secondment would be approved. Importantly, when the decision was made to not approve the secondment, it was entirely within the Appellant's power to determine what steps he then took regarding his employment. Other matters [43] The Appellant made varied submissions that the Respondent approved other secondment requests for permanent employees within the Compliance Unit. As outlined above, I accept the Respondent's submission that each secondment decision was made based on the contextual circumstances relevant to each case at the time of the request. In the absence of specific information indicating that employees in the same circumstances as the Appellant were approved similar secondments at that time, I am unable to accept the Appellant's submission that this decision was unfair or unreasonable on this basis. [44] The Appellant submits that he felt compelled to resign from his permanent position in CSB to accept the AO6 position with Translink following the denial of his secondment request. The decision maker acknowledged the difficult decision for the Appellant to choose between his permanent role and the opportunity to undertake a more senior role, however, determined that this was a decision for the Appellant. [45] There is no evidence that the Appellant was compelled to resign from his permanent role. Taking the Appellant's submission at its highest, a HR employee advised the Appellant that if he were to commence the senior position, he would necessarily be absent from his permanent role (or AO5 position). As he could not be employed in both positions concurrently, if the Appellant were to accept the AO6 position he would have to resign from his permanent role. This was simply a statement of fact and cannot reasonably be considered as compelling the Appellant to resign. [46] Whilst taking the initiative to obtain a more senior position was commendable, it was entirely a matter for the Appellant to determine whether to resign from his substantive position in order to accept the senior role. It was fair and reasonable for the decision maker to determine that the Appellant resigned from his permanent position of his own accord and was not forced or coerced into making this decision. [47] The decision by the decision maker considered the Appellant's human rights and determined that any limitation of the human rights to privacy, reputation, and the right to take part in public life are justified on the basis that the purpose of the limitation is to enable the department respond to the grievance; that there is no less restrictive way to achieve the purpose of the limitation and that on balance, the limitation is justified. This determination was fair and reasonable in the circumstances. [48] The Appellant submits that the Respondent "mishandled, misled and mismanaged his career progression". There is no evidence to substantiate such a submission. Whilst the Appellant was understandably focused on his own career advancement, the Respondent -- 17 of 18 -- 18 had an obligation to balance supporting this advancement with the operational requirements of the organisation. [49] The decision confirms that that there is not an absolute right for an employee to be afforded a secondment opportunity, with factors such as career development to be balanced with the operational requirements of the unit (such as impacts on workforce planning, workloads staffing arrangements) and the number of previous secondments which have previously been provided to the Appellant. Whilst the Appellant did not agree with the decision to refuse his secondment request, that does not make the decision unfair or unreasonable. [50] For the foregoing reasons, the decision was fair and reasonable. Order [51] I make the following orders: 1. The decision is confirmed. 2. The appeal is dismissed. -- 18 of 18 --