Dobbie v State of Queensland (Queensland Treasury) [2021] QIRC 376

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dobbie v State of Queensland (Queensland Treasury) [2021] QIRC 376 PARTIES: Dobbie, Leith Robyn (Appellant) v State of Queensland (Queensland Treasury) (Respondent) CASE NO: PSA/2021/281 PROCEEDING: Public Service Appeal – Appeal of fair treatment decision DELIVERED EX TEMPORE ON: 2 November 2021 MEMBER: Dwyer IC HEARD AT: Brisbane HEARING DATE: 2 November 2021 ORDER: The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE - APPEAL - appeal against fair treatment decision - where grievance submitted - allegation of unfair treatment in expression of interest process - allegation of favouritism - allegation of requirement to undertake higher duties without appropriate remuneration - grievances unsubstantiated - decision fair and reasonable LEGISLATION: Industrial Relations Act 2016 (Qld) ss 562B, 562C -- 1 of 7 -- 2 Reasons for Decision Delivered ex tempore on 2 November 2021 Background [1] Ms Leith Dobbie has been a permanent employee with the Queensland Treasury ('the Department') since October 2017. She served approximately 12 months as a temporary employee prior to that. She is currently permanently employed in an AO4 role that she secured in a separate process on or about 29 March 2021 though, at all relevant times to this appeal, she was in a different position as an AO3. [2] At some time prior to 22 February 2021, the Department issued an invitation to employees to submit an expression of interest for a temporary appointment at an AO5 level in Ms Dobbie's work area. Ms Dobbie and a number of her AO3 colleagues submitted expressions of interest. [3] On 22 February 2021, Ms Dobbie was informed via email that she was not successful in obtaining an interview for the temporary AO5 role. On the same day she learned that a number of her colleagues had won interviews for the role. This news prompted a number of events. [4] Firstly, the day after on 23 February 2021, Ms Dobbie met with her team leader and handed back her enforcement card (which is a form of authorisation required for her to perform fieldwork). Secondly, following this, there was a series of meetings that took place between Ms Dobbie and various members of management. [5] The meetings seem to have been a source of confusion. It seems that Ms Dobbie had thought that these meetings were for the purposes of feedback about why she was not successful in getting an interview for the temporary AO5 role, whereas management CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 1 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) APPEARANCES: Ms L Dobbie the appellant Ms K McCollow and Ms L Kowell for the respondent -- 2 of 7 -- 3 seemed to wish to discuss with Ms Dobbie why she had handed back her enforcement card. [6] It seems that there was a breakdown in communications on both sides which no doubt compounded the distress that Ms Dobbie was feeling after having not secured an interview for the AO5 position. [7] Shortly after these meetings, on 8 March 2021, Ms Dobbie lodged a formal grievance. In her grievance, Ms Dobbie complains predominantly of four matters, namely: i. That she did not receive an interview for the AO5 role when, according to her, she had been doing the job or a similar job for over 12 months. ii. That Mr Kim Easton was displaying favouritism to particular employees. iii. That she had been performing higher duties unofficially at the AO4 and AO5 level for 24 to 36 months. iv. That Mr Kim Easton had (negatively) alluded to certain 'behaviours' on the part of Ms Dobbie in a meeting but without providing any supporting evidence as to what these 'behaviours' were. [8] The grievance filed by Ms Dobbie then triggered an investigation which included extensive interviewing of key named persons, including Ms Dobbie and Mr Easton. Also interviewed for the purposes of investigating the grievance was the independent member of the panel responsible for selecting employees to be interviewed for the temporary AO5 role. [9] On 28 July 2021 following the completion of the investigation the decision-maker, Mr Daniel Fielding, wrote to Ms Dobbie to inform her that the allegations she had made as part of her grievance were unsubstantiated. This is the decision that Ms Dobbie appeals. Nature of appeal and statutory framework [10] The Industrial Relations Act 2016 (Qld) ('the IR Act') grants jurisdiction to the Queensland Industrial Relations Commission to review decisions under appeal. Importantly, s 562B(2) provides that this is a review of the decision.1 It is not a fresh hearing of the matters that are the subject of the complaint.2 1 Industrial Relations Act 2016 (Qld) s 562B; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 2 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. -- 3 of 7 -- 4 [11] The singular matter for my determination in these proceedings is whether the decision under review was fair and reasonable.3 [12] Section 562C(1) of the IR Act limits the powers granted to the Commission with respect to such appeals. The Act allows me to make an order in the following terms, I can: (a) confirm the decision appealed against; or (b) for 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 considered appropriate; 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. Parties' submissions [13] The parties filed extensive submissions in accordance with directions issued from my chambers on 17 August 2021. I do not propose to reproduce the submissions in full in these reasons for decision. Suffice as to say that the submissions of the respondents attached extensive documentation relevant to the expression of interest process and the grievance investigation, including summaries of witness interviews with Ms Dobbie and other persons interviewed. [14] The submissions of Ms Dobbie were extensive and largely conflated the issues that she independently identified at the commencement of her grievance. That is to say, it seems that the unfairness that Ms Dobbie complains of is inextricably linked to her perception of other staff getting favourable treatment and also a reaction to not getting an interview for the job she believed she was already doing. [15] A markedly distinct feature of Ms Dobbie's submissions is that the vast majority of her allegations are made in the absence of any independent or objective evidence. For the most part, Ms Dobbie's submissions are supported by her vehemently held views that are based on her perceptions and the meanings that she ascribes to her interactions with certain managers and staff. Consideration [16] Overall, I am unable to identify any material failure by the Department in its investigation of Ms Dobbie's grievance. On the whole, the steps taken to interview relevant personnel appear entirely adequate to have offered Ms Dobbie the procedural fairness to which she was entitled. 3 Industrial Relations Act 2016 (Qld) s 562B(3). -- 4 of 7 -- 5 [17] More specifically, I am unable to be satisfied that the conclusions reached either individually or collectively have produced an outcome that was either unfair or unreasonable. Expression of interest process [18] With respect to the expression of interest process, I have no doubt it was a source of significant embarrassment for Ms Dobbie to be declined an interview in circumstances where all or most of her colleagues did. But Ms Dobbie's perception of the injustice arising from this does not, of itself, lead to a conclusion of unfairness. [19] While I accept that Ms Dobbie had concerns about potential bias or adverse opinions held by two of the three panel members, the independent panel member when interviewed gave a clear statement to explain the decision not to offer an interview to Ms Dobbie. While the independent panel member was clearly mistaken as to the lack of examples of work performed by Ms Dobbie that were provided in the expression of interest, his overall impression was that her application was not of the standard of the others, and that he felt nothing untoward had occurred in the process to determine not to give Ms Dobbie an interview. [20] The views of the independent panel member in this regard are unsurprising, given that Ms Dobbie herself concedes that she prepared her application for the expression of interest process at the last minute, and during a period of not insignificant emotional stress. While I cannot dismiss Ms Dobbie's concerns about the potential bias from the other panel members, there is no proof before me (or the decision-maker for that matter) that would support a finding of such a serious allegation. [21] In the circumstances, the decision that was made was entirely open to the decision-maker. Favouritism [22] In respect of the issue of favouritism, I am similarly unable to identify any evidence to support this assertion. I note that Ms Dobbie had multiple opportunities to more fully particularise this complaint but has ultimately failed to do so. [23] The matters described by Ms Dobbie might hint at favouritism, but they might also be explained by simple interpersonal dynamics, where the company of one colleague is preferred to the exclusion of others. Ultimately, Ms Dobbie was unable to produce any evidence of particulars that would compel further investigation or give rise to a real concern of favourable treatment leading to unfair outcomes for other employees such as Ms Dobbie. [24] Ms Dobbie nominated witnesses amongst her co-workers, though I note that the investigator did not speak to them in the absence of more clear particulars. I accept this -- 5 of 7 -- 6 approach as being proper in the circumstances. In this context, an investigator should not descend into a fishing expedition where staff are invited to air their grievances at large. Investigations of this nature ought to be directed by the particulars of the allegations being investigated. [25] If there were specific incidents particularised by Ms Dobbie, and if co-workers were able to corroborate or verify the allegation of these incidents, then it was up to Ms Dobbie to properly particularise her complaint and not to rely on the investigator to go blindly searching for more evidence. [26] As an aside, I note there was nothing to prevent Ms Dobbie taking her own statements from colleagues who she says were supportive of her concerns and presenting these to management, but this was not done either. "Behaviours" of Ms Dobbie [27] For completeness, I would address at this point the issue of Mr Easton alluding to certain behaviours, which is referenced in the grievance. [28] It appears that this issue has been of no consequence to either the expression of interest process or at all. When confronted about it, Mr Easton was not able to provide any particulars, and I note there is no suggestion or evidence that there were any formal or recorded concerns about Ms Dobbie's work performance. Indeed, her recent promotion to a permanent AO4 position would indicate to the contrary. [29] Whatever the case may be with respect to the language used by Mr Easton, it does not appear to have produced any unfair outcome for Ms Dobbie. Performing higher duties [30] In respect of the assertion or complain that Ms Dobbie has been performing AO4 and AO5 duties. Ms Dobbie contends she has been unofficially acting up in higher classifications for years. I note (as an aside) that her concern about this was not agitated until she failed to get the interview for the temporary AO5 role. [31] Neither party presented any clear evidence of the comparative duties of an AO3 employee with those of an AO4 or AO5 employee. The job descriptions that are attached to the Department's submissions are documents that are not in any way binding or informative of the duties performed by employees at the AO3 to AO5 classification level under the relevant award.4 4 Queensland Public Service Officers and Other Employees Award – State 2015. -- 6 of 7 -- 7 [32] Further, nothing beyond a broad assertion from Ms Dobbie was put before me to illustrate the precise nature of the duties that she says performed and how those duties were consistent exclusively with the duties of an AO4 or AO5 classification employee. [33] The Department submitted that their investigation did include a review of the classifications of the Award and that it revealed that there were a broad range of similar duties between all of these classifications. They submitted that there was nothing about the duties performed by Ms Dobbie that were inconsistent with those to be performed by an AO3 classification employee. [34] In light of this response, it was open to Ms Dobbie to have regard to the Award classifications and to make a submission setting out (in detail) a comparison with respect to the duties she performed and the duties that she says were exclusively the domain of an AO4 or an AO5 employee. No such evidence or argument was presented to me. [35] In the absence of any properly made out case to support her complaint on this issues, or any attempt to contradict the submissions from the Department, I cannot see how the conclusion of the decision-maker was not open to him or was unfair or unreasonable. Conclusion [36] In all of the circumstances, I consider that the conclusions of the decision-maker were open to him on the evidence before him. It follows that I consider that the decision was fair and reasonable. [37] I would add as a final comment that in the course of proceedings Ms Dobbie raised an issue with respect to the potential misconduct of a colleague. That issue has no direct bearing on this appeal, though it was raised by Ms Dobbie for the purpose of drawing comparisons between that individual’s suitability for the appointment they obtained to the temporary AO5 role. I am compelled to add in these circumstances that where an employee is aware of serious misconduct of another employee, it behoves that employee to make a proper and formal report of that behaviour, lest they be regarded as complicit in the misconduct. Order [38] In all of the circumstances, I make the following order: The decision appealed against is confirmed. -- 7 of 7 --