Durrand v State of Queensland (Department of Education) [2020] QIRC 214

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Durrand v State of Queensland (Department of Education) [2020] QIRC 214 Durrand, Jaelene (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2020/262 PROCEEDING: Public Service Appeal – Promotion Decision DELIVERED ON: 8 December 2020 MEMBER: HEARD AT: Knight IC On the Papers ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: LEGISLATION: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against a promotion decision – whether recruitment or selection process was deficient – whether decision fair and reasonable. Industrial Relations Act 2016 Public Service Act 2008 Reasons for Decision [1] Ms Jaelene Durrand unsuccessfully sought to attain a Head of Department ('HOD') position advertised by the Department of Education ('the Department'). The position is based at Atherton State High School. Ms Durrand seeks, by way of this appeal, to challenge the outcome of the recruitment and selection process. [2] In circumstances where the promotion being appealed against was advertised in the Gazette on 25 September 2020 and where Ms Durrand filed her appeal notice on 15 October 2020, I am satisfied the appeal has been lodged in time. -- 1 of 13 -- 2 Grounds of Appeal [3] In support of her appeal, Ms Durrand maintains: • unreasonable preference was afforded to the successful applicant. That is, the position was not successfully filled on merit; • the successful applicant was hand-picked based on his own attributes rather than being assessed against established criteria; • the successful applicant had an advantage in the process, having previous ly applied for the role and therefore become aware of the specific format followed during the selection process; and • the timeframe for shortlisting and interviewing was unnecessarily tight, resulting in a perception by others that the recruitment process was not conducted in a meaningful or serious manner. [4] Ms Durrand is also critical of the successful applicant's performance while acting in the role, prior to his appointment. She considers he fostered a hostile environment within the work unit and demonstrated on numerous occasions he was ill-equipped to undertake the position. [5] The basis for Ms Durrand's appeal was broadened and developed in subsequent written submissions. Relevant legislative provisions [6] Chapter 7 of the Public Service Act 2008 ('the PS Act') refers to categories of decisions against which an appeal may be made. Section 194(1)(c) of the PS Act provides that an appeal may be made against a decision to promote a public service officer. [7] Section 197 of the PS Act 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 ('the IR Act') by the Queensland Industrial Relations Commission. [8] Section 562B(2) of the IR Act provides the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) of the IR Act, provides that the purpose of the appeal is to decide whether the decision appealed against is fair and reasonable. For an appeal against a promotion decision, the commission: (a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but (b) may allow other evidence to be taken into account if the commiss io n considers it appropriate. [9] In deciding an appeal against a promotion decision, I may set the decision aside only if I determine that the recruitment or selection process was deficient, having regard to whether the process complied with the PS Act, a regulation or a directive of the commission chief executive under that Act.1 1 Industrial Relations Act 2016 s 562C(2). -- 2 of 13 -- 3 The Merit Principle [10] Sections 27 and 28 of the PS Act provide that the appointment(s) must be made on merit and, in applying the merit principle, the following must be taken into account: (a) the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question; (b) if relevant— (i) the way in which the person carried out any previous employment or occupational duties; and (ii) the extent to which the person has potential for development. The Recruitment and Selective Directive [11] The Commission, when determining whether a recruitment or selection process is deficient, is required, among other factors, to have regard to a relevant directive of the commission chief executive.2 [12] Although Directive 12/20: Recruitment and Selection was issued by the Public Service Commission on 25 September 2020, the recruitment and selection process which forms the basis of this appeal occurred prior to that time. Therefore, Directive 15/13: Recruitment and Selection ('the Directive') is relevant to the determination of this appeal. [13] The Directive sets out provisions dealing with: • the minimum requirements for vacancy advertising (clause 9); • the assessment processes to be observed (clause 10.2); • requirements relating to selection decisions including notification of outcomes on a timely basis (clause 10.3); • standards relating to pre-employment checking including referee checks (clause 11); • the requirement to present "adverse information" to an applicant (clause 12); and • a requirement that applicants who request feedback must be given timely and constructive feedback (clause 13). [14] Clause 10.2 of the Directive provides that assessment processes must: • incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role; • take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. intervie w performance); • incorporate pre-employment checks (including referee checking) as per cl 11; • measure the relative merit of each applicant; and 2 Ibid. -- 3 of 13 -- 4 • be consistent with the principles of employment equity and anti- discrimination. [15] Clause 11.3 of the Directive requires that at a minimum, referee checking must be conducted in relation to the applicant(s) recommended for appointment and (where applicable) on an order of merit. [16] Clause 11.4 provides that unless there are extenuating circumstances, at least one referee must have a thorough knowledge of the applicants conduct and performance within the previous two years. Clause 11.5 requires referees to provide an honest account of an applicant's performance and workplace conduct relevant to the role. Submissions Failure to select based on merit [17] In response to Ms Durrand's claims that additional criteria were developed after applications were received, with panel members applying the criteria in such a way that the successful candidate was essentially handpicked, the Department contends: • the HOD vacancy was advertised on 20 August 2020. Specifically, the advertisement advised applicants of the criteria against which they would be assessed, namely: demonstrated teaching competence and capacity to provide curriculum leadership leading to the achievement of quality learning outcomes for all students; demonstrated strong interpersonal skills and the capacity to develop and sustain productive relationships within the school community; capacity to use analytical skills and the capacity to develop and sustain productive relationships within and beyond the school community; capacity to use analytical skills to contribute to educationa l outcomes at the school level; capacity to manage effectively human, financial and physical resources to deliver high quality organisational outcomes; and demonstrated support for and the capacity to develop and maintain an organisational culture based on ethical professiona l and personal behaviour and corporate values. [18] Applicants were requested to submit their resume and prepare a written response outlining their suitability for the role, with reference to the capabilities set out above. Six applications for the role were received. [19] It is submitted the selection panel, which consisted of senior representatives from Atherton State High School, Innisfail State College and Redlynch State College, developed a series of 'KSAs' (knowledge, skills and attributes) drawn from the key capabilities, which were then utilised to shortlist the applicants. -- 4 of 13 -- 5 [20] Each panel members then measured the relative merit of individual applicants to determine whether they adequately demonstrated the key KSAs for each capability in order to progress to the interview stage. The assessment scale for each KSA drawn from the selection criteria capabilities was able to be assessed as: Y = Adequately demonstrates the key capability and should be considered further; N = Inadequately demonstrates the key capability …skills and experience are not at the level required for this role; and ? = Has not clearly demonstrated the key capability. More information is required. [21] At most, when assessed against the criteria, Ms Durrand and one other applicant were allocated one out of a possible five Ys (albeit against different criteria), with the successful applicant receiving a minimum of four Ys. [22] At the conclusion of the shortlisting process, it was the latter applicant who was assessed by the panel as possessing the requisite capability for further consideration and progression by way of an interview. Ms Durrand was not shortlisted and did not progress to the interview stage. [23] The merit assessment for the successful applicant was set out in the following terms: [Name redacted] has worked in the role of acting Head of Department for the past 4 years. The panel members agree that throughout his response to selection criteria, application and interview, [name redacted] demonstrated clear examples of how he leads his team to improve outcomes for students. He has led a number of tasks that demonstrates his capability of the role including developing, maintaining and reviewing a positive culture within the Arts team that he has led. He was able to articulate how he leads staff to implement Australian curriculum in junior and new QCE curriculum in senior so that students experience learning activities that both reflect, and are aligned to, national and state standards. He has detailed how he models behaviours that develop relationships within and beyond the Arts team… [24] In reply, Ms Durrand argues the very fact the appointee was the only person shortlisted provides evidence the panel did not adhere to the merit process. [25] She also maintains there is a 'common understanding in the school community that the appointee only got the role because he was already acting in the role and that no serious application process was entered into'. She considers the panel chair gave the role to his friend. Unfair advantage to applicants who previously applied [26] In response to Ms Durrand's claims there was a specific format required to be followed by the applicants, which was only known to those who previously applied for the role (including the appointee), the Department submits: • all applicants were provided with instructions as to how to apply for the role and were advised their applications would be assessed according to key capabilities; • the KSAs were drawn from the relevant key capabilities in order to shortlis t all applicants; • it is not known whether the successful appointee was aware of how the key capabilities were translated into KSAs for the purpose of the short-listing -- 5 of 13 -- 6 process; or if the KSAs were in fact the same as the previous selection process; • even if that were the case, the Department has highlighted a prior 'Notable Case' where a panel utilised the same or similar questions in a recruitme nt process in support of its position that it would be unrealistic for an agency to attempt to find alternative questions where the position remained the same; • applicants should not have their responses discounted (to their detriment) because they have applied for a position on an earlier occasion; • the same principles would equally apply to the development of the KSAs and the selection of applicants in the pre-interview stage of a selection process. That is, it would be unrealistic to attempt to find alternative KSAs where the position remained identical; and • an applicant should not find themselves in a position where their written responses are discounted to their detriment because they have previous ly applied for the position on a different occasion. [27] In reply to the Department's submissions dealing with the development of the KSAs, Ms Durrand maintains many of the Department's claims are 'not referenced to fact or context'. She contends the Department's submissions are blanket statements where it is argued the rule was followed but, in fact, the claims lack substance. [28] By way of example, Ms Durrand highlights the Department's response to her concerns about additional criteria being developed after the applications were received, noting: …There is a page of mansplaining about what this means, but it does not argue against the claim that the KSAs [were] developed after the applications closed and had been viewed and these KSAs directly promoted the appointee and the wishes of the selection panel chair in giving the job to an already decided outcome. [29] In Ms Durrand's view, the KSAs resulted in the panel searching for information known to be in the appointee's application. By way of example, she points to Selection Criteria 1 within the shortlisting matrix report. Ms Durrand argues that all applicants, aside from the appointee, would have been unable to satisfy the criteria unless they had undertaken the role previously and been instructed to speak to the particular requirement in their application. [30] In response, Ms Durrand takes issue with what she considers to be a misunderstand ing by the Department of her appeal grounds. She argues the appointee had an unfair advantage over other applicants, in that he had previously applied for the position and, in her view, no doubt received feedback about how he fared in respect of the KSAs on that occasion. [31] According to Ms Durrand, the successful applicant, through an earlier recruitme nt process, would have also developed a greater awareness of the capabilities being sought and the questions being asked. She questions why it is unrealistic for an agency to identify alternative questions. [32] Ms Durrand also maintains the successful applicant received personal coaching from the panel chair about style. Although it is not clear from her submissions about where, when -- 6 of 13 -- 7 or the context in which the coaching by the panel chair allegedly took place, Ms Durrand refers to font, layout and preference as examples of the coaching. [33] Ms Durrand objects to the Department's reliance on the phrase 'it is not evidence that the Appointee was aware how …', submitting the '[the Department] ought to have presented facts and context that present professional content rather than falsely adjudicating a point it has misunderstood'. Limited time allocated for interviews, despite large number of applications [34] In response to Ms Durrand's contention that the timeframe for shortlisting and interviewing was unnecessarily tight, with interviews for four senior roles conducted at the school in one day resulting in an outcome where very few people were interviewed, the Department maintains: • the scope of the appeal is limited to a consideration of the HOD promotion decision; • the HOD decision was advertised on 20 August 2020, with the advertiseme nt closing on 2 September 2020. Having received six applications, the shortlisting process took place on 4 September 2020; and • an interview was conducted on 8 September. A verbal referee was subsequently obtained, and a recommendation was made to the delegate. [35] The Department relies on the Directive, in particular, cl 10.7 in supports of its approach, which is reproduced below: 10. Merit assessment and decisions … 10.7 Selection decisions and notifications of outcomes must take place in a timely manner. To facilitate this, panels should be formed and selection strategies determined prior or concurrent to advertising… [36] The Department argues the selection decision for the HOD position was made in accordance with the Directive. It is submitted the timeframe for the selection process and the subsequent decision, did not preference the Appointee or negatively impact compliance with the PS Act or the Directive. [37] In reply, Ms Durrand maintains the Department has missed the point yet again, submitting that it appears the process was a farce in that there was never consideratio n given to any other candidates apart from the appointee, noting: Again the [Department] has mansplained the rules, but then just said they were followed, but has not identified fact or context that justified how, where and when they were followed… Appointee's prior performance while acting in the role [38] In further submissions, Ms Durrand provided her views about the successful applicant's prior poor performance while acting in the role. Her observations extended to his failure to participate in relevant departmental events and initiatives typically associated with the -- 7 of 13 -- 8 arts department and his reliance on other faculty heads for making simple decisions about a range of matters, central to the HOD position. [39] In response to her views about the appointee's performance and conduct while acting in the role, the Department relied on its referee check, which did not raise any questions or issues along the lines suggested by Ms Durrand. In support of its position, a referee report was provided to the Commission. [40] In any event, the Department argues Ms Durrand's opinion about the appointee's performance is of no utility in determining the relevant substance of the appeal and whether there has been compliance with the PS Act and the Directive. [41] Ms Durrand's reply submissions take issue with a failure of the appointee's referee to present a written account of his work. She is also critical of the style of the referee report which she has characterised as 'only agreeing with the selection panel chair's point of view, who is also her immediate supervisor'. Other Matters [42] In her reply submissions, having had an opportunity to consider the shortlisting selection matrices relied on by the panel and provided as part of the Department's submissio ns, Ms Durrand revisited her concerns about only one applicant being selected for interview. She considered the selection matrices did not justify one person being shortlisted, noting: • the outcomes did not present as a reasonable and careful assessment of the applicants as required in the Directive; • two of the panel utilised the same descriptor when commenting on the successful appointee; • the inclusion of the word 'Experience' directly followed by four question marks after the word was unprofessional and 'not Twitter'; • the redaction of comments about de-identified candidates, other than Ms Durrand and the appointee was grossly inappropriate; and • the absence of question marks within the Selection Criteria presents as 'not- realistic or doctored'. Consideration [43] It is worth returning to the principles which govern an appeal against a promotion decision. Pursuant to s 562C of the IR Act, I may only set the decision aside if the recruitment and selection process was deficient. In deciding whether the process was deficient, I must consider whether the Act and Directive were complied with. [44] Clause 10.1 of the Directive provides that, subject to cl 10.2, chief executives are responsible for determining the activities required to assess merit. [45] Clause 10.2 sets out the compulsory content of the assessment processes for advertised vacancies. Relevantly, insofar as it relates to Ms Durrand's appeal, cl 10.2 provides that assessment process for advertised vacancies must: -- 8 of 13 -- 9 (a) incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role; (b) take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance); ... (d) measure the relative merit of each applicant; and (e) be consistent with the principles of employment equity and anti-discrimination. Failure to shortlist based on merit [46] Having regard to the materials and submissions provided to the Commission by both parties, I am not persuaded there were deficiencies in the shortlisting process to the extent that it involved an insufficient consideration of Ms Durrand's or other applicants' relevant experience, qualifications, knowledge and skills having regard to the duties and functio ns of the advertised role. [47] In my view, the shortlisting process, which involved a review of written applicatio ns, provided the panel with an opportunity to evaluate each applicant against the criteria set out in the advertisement. [48] Ms Durrand has submitted that additional criteria were developed by the panel after written applications were submitted and were then utilised to assess each applicant. Having reviewed the selection report and the selection matrices, I do not consider this to be an accurate description of what transpired. [49] A review of the KSAs which were relied on during the shortlisting process reveals the criteria (or KSAs) utilised by the panel to shortlist the applicants were drawn from the capabilities reflected in the position advertisement. I am therefore not persuaded differe nt criteria were developed and relied on after applications had been submitted. [50] By way of example, one of the advertised capabilities for the role was '[d]emonstrated teaching competence and capacity to provide curriculum leadership leading to the achievement of quality learning outcomes for all students'. [51] The corresponding KSA relied on to assess applications during the shortlisting process, was reflected in the matrix in the following way: Capability demonstrated in leading teams to complete tasked work to improve outcomes for students. Link to any work completed aligned to school strategic agenda and EIA. [52] Although the wording is somewhat different, I consider the KSA set out above is largely similar to the corresponding capability listed in the advertisement. In my view, there is nothing unusual or deficient about such an approach. It is open to a Department to explore whether applicants possess the requisite capability being sought, by measuring written applications against a set of criteria which clearly reflect the capabilities listed in the original advertisement. -- 9 of 13 -- 10 [53] Ms Durrand also argues Selection Criteria 1 – Capability demonstrated in leading teams to complete tasked work to improve outcomes for students. Link to any work completed aligned to school strategic agenda and EIA – is essentially invalid because 'unless an applicant has been in this role and has been instructed to speak to this in their applicatio n, they won't present very well'. [54] Again, I am unable to identify any deficiencies in the identified criteria or the approach taken by the panel in so far as it relates to this particular KSA. In recruiting for a HOD, I consider there is nothing unusual or inappropriate about a panel attempting to identify applicants with prior experience or capabilities associated with leading teams and achieving teaching outcomes. The criteria were broad enough that applicants would have been able to draw on their individual experience and skills (where relevant) obtained in other leadership roles beyond the advertised position. [55] Ms Durrand also relies on the failure of the panel to progress more than one candidate to the interview stage as evidence the selection process failed to comply with the merit principle. Again, respectfully, I disagree. [56] In conducting the recruitment process, the panel were required to consider the extent to which the applicants possessed abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question. [57] Although no doubt disappointing for Ms Durrand and the other applicants, it would not be the first time that only one candidate has been considered suitable for progression to the interview stage, particularly in a regional area. [58] The shortlisting matrices demonstrates the panel separately undertook an assessment of the applications, utilising the KSAs as a measure. Having regard to the matrices provided to the Commission, I consider it was open to the panel to reach a conclusion that Ms Durrand and the other unsuccessful applicants did not possess the requisite capability in the majority of areas identified as being necessary to perform the role. In those circumstances it would not have been appropriate, nor in accordance with the Directive or the merit principle, to progress Ms Durrand through to the interview stage. [59] In her reply submissions, Ms Durrand has taken issue with the way particular comments have been recorded by panel members within the selection matrices. She has also complained that other applicants' names, other her own and that of the successful appointee, have been redacted within the matrices attached to the Department's submissions. [60] Although the comments in the matrices are relatively brief, I have been unable to identify anything, insofar as it relates to the content or in the way they have been recorded, that would render the recruitment process deficient. Nor do any of the written comments of the panel suggest the shortlisting process has been undertaken in an inappropriate or unfair manner. [61] For privacy reasons, it is not unusual for the names of other applicants recorded within selection matrices or reports to be redacted during an appeal process. -- 10 of 13 -- 11 [62] On balance, I am satisfied the panel has utilised selection and assessment techniques during the shortlisting and interviewing process that enabled a sufficie ntly comprehensive and fair assessment of the applicants' merit within the context of the advertised role and duties. [63] For the reasons set out above, I do not accept this ground of appeal. Unfair advantage to applicants who previously applied [64] Ms Durrand complains the successful applicant enjoyed an unfair advantage having previously applied for the role and as a result, obtained an enhanced awareness of the selection format and process. She also raises concerns that the successful appointee would have been aware of the interview questions, therefore providing him with a further advantage. [65] While there is no evidence before the Commission that would support of a finding that the successful applicant had prior specific knowledge of the shortlisting process or format, I note the advertisement for the role specifically requested candidates to submit their resume and prepare a written response outlining their suitability having regard to the capabilities contained in the advertisement. [66] Ordinarily, presuming a potential applicant had read the advertisement, the next step would be to prepare an application linking their experience and skills to the capabilities set out in the advertisement, as requested. [67] Even if it were the case the successful applicant had participated in an interview on an earlier occasion, the materials before the Commission demonstrate all applicants were aware of the capabilities being sought and had equal access to instructions from the Department about how to prepare their application. [68] Likewise, although I appreciate the successful appointee had the opportunity to undertake tasks directly relevant to the substantive role he was attempting to secure while acting in it, which he no doubt relied upon during the recruitment and selection process, I am satisfied the KSAs were broad enough that applicants who had not acted in the specific HOD role had ample opportunity to highlight skills, experience and capabilities obtained through other roles. [69] I am not persuaded the advantages that may have accrued to the appointee due to his past efforts in acting in the role or previously applying for the role render the recruitme nt process deficient. [70] In respect of the interview itself, there are insufficient materials before me which would support a finding that the successful applicant was aware of the specific interview questions that were going to be asked; or that the KSAs that were adopted in the recruitment process by the panel were identical or partially identical to those that have been relied on in past interviews. [71] In any event, I do not think that a reproduction of similar questions or key capabilities for an identical or similar role in a recruitment process held several years after it was originally advertised is overly controversial or uncommon. -- 11 of 13 -- 12 [72] The successful appointee had been acting in the role for four years. It is only natural that in this time he would have broadened and developed his experience and skills in key areas relevant to the position. Although I accept that in applying for the role, the appointee no doubt enjoyed the advantages that come with such an opportunity, there is no evidence before me that suggests he was treated any differently to other applicants during the recruitment process. [73] In those circumstances, I am not satisfied that these grounds of appeal could be relied on to render the outcome of the recruitment process invalid. Limited time allocated for interviews, despite large numbers of applications. [74] Ms Durrand relies on the limited time allocated for interviews as further evidence in support of her concerns the recruitment process was a charade. [75] There is insufficient evidence before the Commission to support a finding the interview times and dates were locked in ahead of the shortlisting process. [76] Having only selected one candidate to interview in respect of the HOD position, I consider it was entirely sensible (from a time management perspective) to put in place an arrangement where senior staff on the selection panel, required to travel from other locations, had the ability to conduct interviews for separate positions, on the same day. [77] On the materials provided to the Commission, I am not satisfied this ground of appeal can succeed. Reference Check [78] Having reviewed the reference details provided to the selection panel, Ms Durrand contends the appointee's referee failed to provide a written account of his work and merely agreed with the selection panel chair's point of view. [79] Clause 11.3 of the Directive requires that at a minimum, referee checking must be conducted in relation to the applicant(s) recommended for appointment and (where applicable) on an order of merit. [80] Clause 11.4 provides that unless there are extenuating circumstances, at least one referee must have a thorough knowledge of the applicants conduct and performance within the previous two years. Clause 11.5 requires referees to provide an honest account of an applicant's performance and workplace conduct, relevant to the role. [81] There is no requirement in the Directive for a referee to provide a written account of a candidate's work, nor are there any limitations around obtaining a verbal, rather than a written reference. I am unable to identify any materials before the Commission which indicate the panel deviated from the requirements set out in the Directive insofar as it relates to the processes associated with obtaining a reference. [82] The Department provided the Commission with email confirmation of a verbal reference obtained by the panel chair in respect of the successful appointee. The email indicates -- 12 of 13 -- 13 the panel chair and the referee held a verbal discussion whereby she made a series of comments about the preferred appointee and his suitability for the role. [83] I am not persuaded, on the materials before me, that the appointee's referee has failed in their obligation to provide an honest account of his performance and workplace conduct. [84] It is not uncommon for unsuccessful applicants in promotion appeals such as this, to express their own personal views about the suitability of an appointee for the role, however in circumstances where I am satisfied the Department had complied with the requirements in the Directive both in terms of the process and the referee checks, I am not satisfied the views of Ms Durrand warrant overturning the decision of the panel. Conclusions [85] On the materials before the Commission, I am unable to arrive at any conclusion other than that the successful appointee was, in the end, determined to be the most meritor io us candidate. I have also been unable to identify an act of non-compliance with the PS Act or the Directive. [86] Accordingly, pursuant to s 562C(1)(a) of the IR Act, the decision appealed against is confirmed. -- 13 of 13 --