Fildes v State of Queensland (Department of Education) [2021] QIRC 391

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Fildes v State of Queensland (Department of Education) [2021] QIRC 391 PARTIES: Fildes, Anthony (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2021/112 PROCEEDING: Public Service Appeal – Transfer Decision DELIVERED ON: 12 November 2021 MEMBER: Dwyer IC HEARD AT: On the papers ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE - APPEAL - appeal against transfer decision - decision to transfer public service officer - required transfer - request to stay at base school - whether decision fair and reasonable LEGISLATION: Department of Education Teacher Transfer Guidelines Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 133, 134, 194(1)(d) -- 1 of 11 -- 2 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Reasons for Decision Background [1] Mr Anthony Fildes commenced employment as a teacher at Indooroopilly State High School ('Indooroopilly SHS') with the Department of Education ('the Department') on 22 January 2004. [2] Mr Fildes incurred a workplace injury at Indooroopilly SHS and subsequently completed a rehabilitation and return to work program ('RRWP') following a period of sick leave between 2009 to 2011. The program had an agreed plan to return Mr Fildes to his substantive hours and duties at any primary or high school other than Indooroopilly SHS on the recommendation of his treating doctor. [3] Commencing on 24 January 2013, Mr Fildes was placed at The Gap State High School ('The Gap SHS') and relieved there from 2013 – 2019 in a Senior Teacher – Special/ Needs Support role. [4] Due to an organisational review at The Gap SHS, the role would no longer exist, and consultation was undertaken to determine which subject/s Mr Fildes could teach. [5] Following several meetings, it was decided that Mr Fildes would be permanently transferred to The Gap SHS in the role of Senior Teacher – General, effective on 24 January 2020, in accordance with the Department of Education Teacher Transfer Guidelines ('the Guidelines'). [6] A system generated email with this confirmation was sent on 3 April 2020. A letter dated 6 October 2020 was sent confirming the transfer. [7] On 19 October 2020, Mr Fildes requested a review of the required transfer decision to permanently transfer him to The Gap SHS. -- 2 of 11 -- 3 [8] On 13 November 2020, response to this review request was provided, which also reviewed the required transfer decision. [9] By letter dated 24 February 2021, Mr Fildes received correspondence from Mr Chris Hodgson, Director, Human Resources Business Partnering, Metropolitan Region of the Department. The correspondence advised Mr Fildes that a review of the decision had been conducted by the Teacher Transfer Review Panel and his objection to the required transfer had been dismissed ('the decision'). [10] In response to the decision, Mr Fildes filed an Appeal Notice on 25 March 2021 pursuant to s 194(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act'). In his appeal, he contends that the decision to undertake a required transfer to The Gap SHS is unfair and unreasonable. In summary: • He is appealing the required transfer from Indooroopilly SHS to The Gap SHS while on a RRWP; • He was not informed about the transfer until months after it came into effect, denying him the opportunity to provide input or appeal; • He cannot be transferred per clause 9.1 of the Guidelines as he is currently participating in RRWP, contrary to the decision which states he was not participating in a rehabilitation program at the time of the required transfer; • It is his understanding that the requirements to conclude the rehabilitation plan were never completed, thus he is still officially participating in a workplace rehabilitation program and graduated return to work program. Per the Workplace Rehabilitation Program, a change in school location placement of a teacher does not cause a rehabilitation program to conclude and will remain in place until concluded according to the procedures. The Department did not advise him that the program had been concluded; • The transfer requires a change in his role of senior teacher in special needs support which he has done for approximately 15 years. The decision to return him to general classroom teaching is unreasonable and inconsistent with cl 10. This clause has been breached and the decision is unreasonable as he is required to teach geography, yet the Queensland College of Teachers has confirmed he does not have the qualifications to teach this subject; and • The RRWP has been constructed to reskill and reintegrate Mr Fildes back into the teaching workforce as a special needs support teacher, and there is no evidence that this was taken into account in the decision. -- 3 of 11 -- 4 Nature of appeal [11] Under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the role of the Commission is to review the decision appealed against.1 The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.2 [12] An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,3 but rather, it is a review of the decision and the decision-making process.4 The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.5 [13] The issue for my determination in the matter before me is whether the decision to dismiss Mr Fildes' objection to the required transfer was fair and reasonable.6 [14] For the reasons set out below, I have determined that the decision was fair and reasonable. What decisions can the Industrial Commissioner make? [15] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; or (b) for an appeal against a promotion decision – set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or (c) for another appeal – set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Relevant sections of the Guidelines and the PS Act [16] The relevant clauses of the Guidelines for consideration in this appeal are set out below. [17] Clause 9.1 of the Guidelines relevantly provides: 1 Industrial Relations Act 2016 (Qld) s 562B. 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 4 Ibid. 5 Industrial Relations Act 2016 (Qld) s 562B(3). 6 Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61. -- 4 of 11 -- 5 9.1 Eligibility criteria … A teacher will not be transferred outside of their current school if: … • The staff member is participating in a workplace rehabilitation program, sick leave or graduated return to work program (where medical clearance is yet to be provided) … The relevant regional HR teams will consider reasonable requests to lodge an application after the due date where the outcomes of the performance management process or investigation have been confirmed, or rehabilitation program completed, but the staff member was not eligible to apply within the specified time frame due to the performance management, rehabilitation or investigation process. With the exception of mid-year transfers from AMP locations, transfers take effect from the commencement of the following school year. [18] Clause 10 of the Guidelines relevantly provides: 10 Required transfers Teachers employed by the department may be required to teach at any location in the state. The department may require a teacher to transfer in the following circumstances: • to meet the staffing needs of schools throughout the state • to create a vacancy in a geographic area for a teacher with a high number of transfer points who is requesting a transfer to that location • to provide a teacher with a range of teaching experiences and professional development opportunities • when it is considered unreasonable for a particular teacher to serve longer in a particular location. When considering the possibility of a required transfer, senior human resource consultants will: • ensure that the proposed transfer is reasonable • consider the teacher’s full employment history with the department, including but not limited to service in rural and remote locations. There is no mandatory maximum period of service at one particular location. Teachers are expected to comply with a departmentally required transfer unless they can establish that reasonable grounds exist for the transfer not to occur. Objections may be made in accordance with section 134 of the Public Service Act 2008. … [19] Section 133 of the PS Act relevantly provides: 133 Chief executive’s power to transfer or redeploy -- 5 of 11 -- 6 (1) The chief executive of a department may transfer or redeploy a public service officer of the department within the department. (2) The chief executive of a department may, with the approval of the chief executive of another department, transfer or redeploy a public service officer of the other department to the first department. (3) Despite subsections (1) and (2), a redeployment may be made only with the officer’s consent. (4) The transfer or redeployment of a public service officer under this section— (a) may involve a change in the location where the officer performs duties; and (b) if the officer is employed on contract—has effect despite anything in the contract. [20] Section 134 of the PS Act relevantly provides: 134 Consequence if transfer refused (1) If a public service officer is transferred under section 133, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive. (2) If the officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive’s satisfaction, the chief executive may terminate the officer’s employment by signed notice given to the officer. (3) If the officer establishes reasonable grounds to the chief executive’s satisfaction— (a) the transfer is cancelled; and (b) the refusal must not be used to prejudice the officer’s prospects for future promotion or advancement. Submissions [21] The parties filed written submissions in accordance with a Directions Order dated 26 March 2021. [22] Mr Fildes filed written submissions on 22 April 2021. In summary, he submits that: • In a period after 2011 while he was undertaking the RRWP, he requested a transfer to primary school teaching. He was placed at a primary school to assess his suitability for a permanent placement in a primary school. Despite having training and experience as a special needs support teacher, he was placed into a support teacher role, teaching students without disabilities. He submits that the principle of that school had predetermined that she would recommend he is unsuitable for primary teaching; • He raised an issue about the former principle of the Gap SHS who had received a promotion to Director of Metropolitan Region. He was apprehensive of the position of power the Director had over decision-making processes which could directly unfairly prejudice him; -- 6 of 11 -- 7 • There was 'antagonism' from the former principle at The Gap SHS towards the Head of Special Education Services. This directly affected him, the ability of the Special Education Services to communicate with one another, caused unnecessary room changes and 'effectively closed down the Special Education Program that had been established'; • Mr Fildes submits that the policy change at The Gap SHS was intentionally made to only affect him and his role and that a letter provided to him dated 9 September 2021 regarding the policy was only sent to him. He contends that the Department purports that this letter is the official declaration of his required transfer and notification that his RRWP was ceasing, however the RRWP was not mentioned in the letter; and • The Department have 'demanded' that he teach geography which the Queensland College of Teachers have confirmed he is unqualified to teach, rather than special education. [23] The Department contends, for the reasons set out in their reply submissions filed on 20 May 2021, that the decision is fair and reasonable. In summary, it submits that: • Mr Fildes' over-establishment position in excess of budget was identified by the Department and a meeting was conducted to discuss the position at The Gap SHS and that a permanent transfer to this school from ISHS should have occurred some time ago as he had been in the position for eight years. The letter reflected this conversation and the need to formalise his position in mainstream classroom teaching at The Gap SHS; • Mr Fildes did not have an open WorkCover claim nor was he on the RRWP or a Managing Unsatisfactory Performance process at the time of the transfer decision on 6 April 2020, or the decision review date of 24 February 2021. His WorkCover claim was closed on 17 April 2021 and his RRWP concluded on 5 September 2011; • His bachelor's degree undertaken qualifies him to teach geography and the content of the subject is within his skill set. The underlying issue which brought about the appeal is not about the transfer decision, rather, the decision of the school to allocate Mr Fildes to teach the subject of geography; • If the Commission accepts that the appeal is on the basis of subject allocation, the Department argues it is outside of the application of s 133 of the PS Act which concerns transfers and redeployment; -- 7 of 11 -- 8 • Alternatively, the Department argues that the definition of 'transfer' in the PS Act allows for a change of duties and location if the same classification level of 'Senior Teacher' is maintained; • The policy change at The Gap SHS to cease the special needs program was due to an operational decision to allocate students to the general classroom environment. Mr Fildes was not a party to the interactions between staff, it is not relevant to the appeal and there was no prejudice shown towards him; and • The transfer decision was fair and reasonable as it minimised the impacts on Mr Fildes and was logical given the complexities. [24] The Mr Fildes filed reply submissions on 7 June 2021 in summary, that: • Pursuant to s 134(1) and (3) of the PS Act, he can establish that there are reasonable grounds for refusing the transfer, and thus the transfer is cancelled; • Mr Fildes details various negative interactions between staff members and various union action regarding the principle of The Gap SHS, which are highly relevant to the appeal process demonstrates 'antipathy' towards him; • The Department are trying to pretend that he was not and is no longer on a RRWP as the transfer violates the transfer guidelines. Further, he has not yet fully recovered from the workplace injury and has an ongoing RRWP due to his ongoing mental health issues that he is unlikely to recover from; • He maintains he is not qualified to teach geography and received no assistance with planning the curriculum and should have continued to teach as a special needs teacher given his background; and • The Department wrongfully asserts that it has received a medical clearance certificate from Mr Fildes' doctor. Consideration [25] A key feature of Mr Fildes' submissions is the assertion that the Department has not (or has incorrectly) applied the Guidelines. [26] In short, Mr Fildes asserts that his transfer contravenes cl 9.1 of the Guidelines because his workplace rehabilitation program remains on going. Secondly, Mr Fildes contends that there has been a failure to consider his full employment history as required by cl 10 of the Guidelines. He further contends the transfer is unreasonable and seeks to rely on s 134 of the PS Act. -- 8 of 11 -- 9 [27] The first of these contentions can be dealt with quite simply. Clause 9 of the Guidelines applies to teachers who have requested a transfer. As the decision-maker correctly pointed out in the reasons attached to the decision, this has no application to Mr Fildes. The transfer in question is a required transfer. Consequently, whether Mr Fildes had an active workplace rehabilitation program is irrelevant. [28] With respect to the alleged failure to comply with cl 10 of the Guidelines, Mr Fildes appears to base this assertion on a variety of factors including, the requirement he teach Year 9 geography (a subject he contends he is not qualified to teach) and the fact that regard was apparently not had to his experience at other schools where he worked during his return to work rehabilitation. [29] Ultimately, Mr Fildes' submissions do not reveal any clear evidence of a failure by the decision-maker to have regard to his full employment history with the Department. There is no evidence of any clear error or oversight. What Mr Fildes describes as a failure to have regard to his employment record is instead, a difference of opinion as to whether Mr Fildes has the requisite qualifications to teach Year 9 geography. [30] Despite Mr Fildes' obvious reluctance to revert to classroom teaching in a subject that he is unfamiliar with, he is unable to refute the submissions of the Department that: • geography is contained within the Humanities group of subjects; • that he has qualifications to teach in Humanities; and • that as a Senior Teacher he is expected to be able to teach across a broad range of subject areas. [31] There is no evidence that could objectively support a conclusion that Mr Fildes cannot be directed to teach Year 9 geography for reason of lack of qualification. Mr Fildes insists in his Notice of Appeal that the Queensland College of Teachers has confirmed 'in writing' that he is not qualified to teach geography. No such document was attached to his appeal. [32] Mr Fildes filed written submissions on 22 April 2021 that attached an email between two persons entirely unconnected to this matter. The email appears to be in respect of a person who has made an enquiry of the Queensland College of Teachers as to their eligibility to teach geography. There is no information about the person, or the persons existing qualifications or registration status that could even begin to hint at their standing or qualification being comparable to Mr Fildes. [33] It is most disingenuous of Mr Fildes to assert in these proceedings that he has written confirmation of his ineligibility to teach geography. He has no such evidence and his submission is entirely without foundation. -- 9 of 11 -- 10 [34] It would appear the barrier to teaching geography is entirely of Mr Fildes' making. This is no doubt based on the more usual experience where teachers generally have some influence over the subjects that they teach. Despite this being the more typical experience, it does not mean that a teacher with the requisite registration and experience cannot be directed to teach in a subject and year level that is inconsistent with their personal preferences. [35] There is clearly significant discord in the relationship between Mr Fildes and the decision-makers at The Gap SHS. As a consequence of the ongoing dysfunction of his relationship with his employers, Mr Fildes is now in the rather absurd situation of seeking to dispute the mere formality of a transfer to a school at which he has been working for the last 8 years. [36] While the transfer was formally effected in April of 2020, the real change that appears to have evoked Mr Fildes concern is the changes to his teaching duties. It would appear that it is not the transfer that is truly in dispute but rather, Mr Fildes' displeasure at being directed to teach in an area not of his preference. It would seem his displeasure in this regard is compounded by his unsupported and unproven theory that the local decision- makers are seeking to force him out of the school. [37] Mr Fildes cites these issues as a basis for reasonable grounds to refuse the transfer. They are not. As a consequence of a review and other operational changes at The Gap SHS, Mr Fildes' role in teaching support was abolished. Following meetings with Mr Fildes, at which there was consolation about other teaching roles (including at other schools), the parties settled on Mr Fildes teaching Year 9 geography. [38] I am satisfied that there was adequate consultation prior to the changes to Mr Fildes' duties. While Mr Fildes disputes the extent to which he overtly agreed to teach geography, it is a fact that he undertook the duties as directed for a short period. Further, there appears to be no challenge from Mr Fildes to the fact that there were extensive discussions about his teaching preferences. [39] While it is less than ideal for the correspondence confirming the transfer to have been delayed in delivery by some 6 months, there is a reference in the decision to Mr Fildes being sent an email confirming the transfer on 3 April 2020. Neither party has addressed this in their submissions, and I am unable to evaluate the extent to which the news of a formal transfer came as a surprise to Mr Fildes in the later correspondence. In any event, I am not reviewing that and further, I cannot identify any unfairness arising from that delay given the extensive opportunity Mr Fildes has had to be heard on the decision. [40] In all of the above circumstances I am satisfied that the decision was fair and reasonable. -- 10 of 11 -- 11 Order [41] In the circumstances I make the following order: 1. The decision appealed against is confirmed. -- 11 of 11 --