Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300 PARTIES: Fenner, Yvonne (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2021/200 PROCEEDING: Public Service Appeal – fair treatment decision DELIVERED ON: 31 August 2021 MEMBER: HEARD AT: Hartigan IC On the papers ORDERS 1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside. 2. I direct that: (a) The matter be returned to the decision-maker with a copy of the decision on appeal and that a fresh review be conducted pursuant to the relevant provisions of the Public Service Act 2008 (Qld) and the Police Service Administration Act 1990 (Qld). (b) The review is to be completed within 21 days of the date of the decision. -- 1 of 7 -- 2 CATCHWORDS: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – fair treatment decision – where Respondent erroneously used the term "redeployment" instead of "transfer" in a directive to the Appellant – where Appellant did not consent to the redeployment – where Appellant was denied procedural fairness –where the decision is unfair and unreasonable LEGISLATION: CASES: Industrial Relations Act 2016 (Qld), s 562B(2), s 562B(3), s 562C(1)(c) Public Service Act 2008 (Qld), s 133, s 194, s 197 Police Service Administration Act 1990 (Qld), s 4.8, s 4.9, s 4.10 Individual Employee Grievance Directive 11/20, cl 9.3 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision Introduction [1] Ms Yvonne Fenner ("Ms Fenner") is employed by the Queensland Police Service ("QPS") as a Building Services Coordinator (OO4) with Protective Services ("the Services"). Ms Fenner appeals a decision which she considers to be an unfair and unreasonable decision pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) ("PS Act") ("a fair treatment decision appeal"). [2] Ms Fenner is employed in a classification level of OO4. Ms Fenner commenced employment with the QPS on 2 April 2007 and on 18 June 2018 was appointed to work at the Services' location at the Ipswich Courthouse ("the Court"). That appointment became permanent on 20 May 2019. [3] On 12 March 2021, Ms Fenner was advised by her supervisor that the Registrar of the Court had made a complaint about her. Ms Fenner responded to the complaint in a conversation with her supervisor, which she later followed up with in a written email. -- 2 of 7 -- 3 [4] On 23 March 2021, Ms Fenner's supervisor attended on her at the Court and served her with a direction to re-deploy her from her permanent appointed location at Ipswich to an undisclosed position in Brisbane. The direction served on Ms Fenner was purportedly made pursuant to s 4.9 of the Police Service Administration Act 1990 (Qld) ("the PSAA") and was signed by acting Inspector, Mitch Castles. [5] On 25 March 2021, Ms Fenner lodged an individual employee grievance in accordance with cl 9.1 of the Individual Employee Grievance Directive 11/20 ("the Grievance Directive"). [6] Ms Fenner received no response to the grievance she lodged, and in accordance with the Grievance Directive, progressed to a stage 2 grievance by way of email to Assistant Commissioner Platz ("Assistant Commissioner") on 27 April 2021. Ms Fenner did not receive any advice from the Assistant Commissioner with respect to her grievance and in accordance with cl 9.2(g) of the Grievance Directive it is deemed that the QPS confirmed the decision to redeploy Ms Fenner. [7] Ms Fenner contends that the direction to redeploy her is unfair, unjust and unlawful. [8] The appeal is made pursuant to s 197 of the PS Act which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission ("the Commission"). [9] Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.1 Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. [10] I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.2 An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing, but, rather, involves a review of the decision arrived at and the decision-making process associated with it.3 [11] For the reasons contained herein, I have found that the decision was not fair and reasonable. 1 See the Public Service and Other Legislation Amendment Act 2020 (Qld). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). 3 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). -- 3 of 7 -- 4 The decision [12] On 23 March 2021, acting Inspector, Mitch Castles, issued Ms Fenner with a direction purportedly pursuant to and authorised under ss 4.9 and 4.10 of the PSAA. This direction relevantly stated: … I hereby issue you with the following directions: • You are to finish duty for your shift today (Tuesday 23 March 2021) and leave the premises/precinct known at [sic] the Ipswich Courthouse located at level 43 Ellenborough Street Ipswich. There is no loss of entitlement/pay relating to your early end of your shift. There is no requirement for [sic] apply for [sic] any type of leave for the early end of your shift today. • From Wednesday 24 March 2021 onwards, you are to commence duty from level 6/30 Makerston Street Brisbane City (Makerston House). The nature of your duties to be undertaken as at Wednesday 24 March 2021 will be further discussed with you by PSG Security Operations Officers. There will not be any loss of entitlement/pay relating to your redeployment to other duties. … [13] Ms Fenner was advised that should a person refuse or fail to comply with a lawful direction, they may commit a breach of s 187 of the PS Act. Relevant legislation and Directive [14] Section 194 of the PS Act identifies the type of decision against which an appeal can be made: 194 Decision against which appeals may be made (1) An appeal may be made against the following decisions— … (eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision); (f) a decision about anything else against which another Act allows a person to appeal. [15] Section 133 of the PS Act sets out the chief executive's power to transfer or redeploy a public service officer as follows: 133 Chief executive's powers to transfer or redeploy (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. -- 4 of 7 -- 5 (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. [16] Section 134 of the PS Act provides for a process allowing an employee to refuse a transfer as follows: 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. [17] The PSAA sets out the responsibility of the Police Commissioner and the directions the Police Commissioner may give as follows: 4.8 Commissioner's responsibility … (4) In discharging the prescribed responsibility, the commission – … (b) subject to this Act, is to ensure compliance with the reequipments of all Acts and laws binding on members of the police service, and directions of the commissioner; and … 4.9 Commissioner's directions (1) In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service. (2) A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act. (3) Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction. (4) A direction issued under subsection (1) to officers about functions, powers or responsibilities that are also functions, powers or responsibilities of watch-house officers is taken to be also issued to watch-house officers (5) In all proceedings – (a) document purporting to be certified by the commissioner to be a true copy of a direction under subsection (1) is admissible as evidence of the direction and -- 5 of 7 -- 6 (b) a direction under subsection (1) is to be taken as effectual until the contrary is proved. (6) In this section – watch-house officer means a staff member who is appointed by the commission to be a watch house officer. [18] Section 4.10 of the PSAA sets out who the commissioner may delegate their powers to under the PSAA or any other Act and relevantly includes a police officer and staff member. [19] The parties have each referred to the Grievance Directive which came into effect on 25 September 2020. The purpose of the Grievance Directive is to provide principles and guidance for managing and resolving individual employee grievances. There is no dispute between the parties that the appropriate internal review processes were undertaken prior to Ms Fenner progressing the matter to external review in accordance with cl 9.3(a)(i) of the Grievance Directive. This clause provides: 9.3 Stage 3 -external review (a) If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include [footnote omitted]. (i) a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act; and … Is the decision fair and reasonable? [20] The relevant principles in considering whether a decision is ‘unreasonable’ were outlined by Ryan J in Gilmour v Waddell & Ors:4 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.5 [21] At the outset, it is noted that the QPS properly concedes that the directive was incorrect insofar as it "erroneously" used the term "redeployment" in the directive. However, somewhat surprisingly, the QPS then contends that the error was of little consequence as 4 [2019] QSC 170, [207] – [209]. 5 Ibid [207]-[209]. -- 6 of 7 -- 7 it could be inferred that the use of the word "redeployment" was actually a "transfer" as there would be no loss of entitlements. [22] I do not accept the QPS's contention that the erroneous use of the word "redeployment", when what was intended to be a transfer, was of no consequence. Clearly, Ms Fenner was not properly put on notice as to the nature of the directive that was being issued. [23] Further, I do not consider that the characterisation of "redeployment" and "transfer" as being one in the same. [24] Pursuant to s 133(3) of the PS Act, a redeployment may only be made with an officer's consent. Ms Fenner's submissions (received before the QPS's concession that the directive should have properly stated transfer rather than redeployment) states that she did not consent to the redeployment. It is clear that Ms Fenner was operating on the basis that the directive was, as it stated, a directive for her to be redeployed. [25] If the decision had, as it is now suggested it should have, referenced a transfer rather than redeployment, Ms Fenner, pursuant to s 134 of the PS Act had a process available to her to refuse the transfer. Ms Fenner was denied an opportunity to do so. Consequently, Ms Fenner has been denied procedural fairness insofar as she was not properly put on notice with respect to the nature of the directive (being a transfer rather than redeployment) and consequently was denied an opportunity to properly respond and seek to establish, pursuant to s 134 of the PS Act, reasonable grounds to refuse the transfer. [26] It follows that the error contained in the direction is one of substance, which resulted in Ms Fenner being denied procedural fairness. Consequently, the decision was not fair or reasonable. Orders [27] For the foregoing reasons, I make the following orders: 1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside. 2. I direct that: (a) The matter be returned to the decision-maker with a copy of the decision on appeal and that a fresh review be conducted pursuant to the relevant provisions of the Public Service Act 2008 (Qld) and the Police Service Administration Act 1990 (Qld). (b) The review is to be completed within 21 days of the date of the decision. -- 7 of 7 --