Crowhurst v State of Queensland (Queensland Health) [2015] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: James Crowhurst v State of Queensland (Queensland Health) [2015] QIRC 111 PARTIES: Crowhurst, James (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO: B/2015/6 PROCEEDING: Application for re-opening DELIVERED ON: 9 June 2015 HEARING DATE: 1 May 2015 MEMBER: Industrial Commissioner Black ORDERS: Application refused CATCHWORDS: INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Classification of position - New classification structure - Employees engaged as health practitioners - Job descriptions, roles and responsibilities evaluated against new work level statements - Appeal process unsuccessful - Evidence CASES: Industrial Relations Act 1999, s 230, s 280 Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 APPEARANCES: Mr G. Butler for James Crowhurst, the Applicant. Mr K. Ryalls for the State of Queensland (Queensland Health), the Respondent. Decision [1] The applicant, James Crowhurst, filed a Notice of Industrial Dispute on 30 April 2012 (HP/2013/29) concerning the classification of his position as Radiographer Assistant Director Cardiology MI, HP5, Metro North Health District, The Prince Charles Hospital, Queensland Health (QH). Mr Crowhurst contended that his position should have been classified at the HP6 level rather than HP5. As the dispute failed to settle at the conciliation stage, it was referred to arbitration and was subject to a hearing before the Commission on 9 December 2013. -- 1 of 5 -- 2 [2] The Commission issued an interim decision1 in response to the notice of industrial dispute on 10 September 2014. The effect of the interim decision was to conclude that while Mr Crowhurst's application could not be sustained on most of the grounds relied on, it might succeed if he could "successfully prosecute an argument that a classification level of HP6 was justified by the fact that all other consultants in the medical imaging area of Prince Charles Hospital were graded HP6." (Paragraph 48 of decision). [3] Consequently further information was sought from the parties before a final decision in the matter was issued. The request for information was expressed in paragraph 54 of the decision in the following terms: "Consequently, prior to issuing a final decision, I have determined that QH should review the relevant organisational chart or charts and any related information in question and inform me in writing prior to 30 September 2014 whether it accepts that the information provided by, or on behalf of, the applicant is correct. This request relates to paragraphs 45, 48, 49, 50, and 51 of this decision." [4] Subsequently a supplementary decision2 was issued on 7 November 2014 in which I concluded that: "In the circumstances, the further information does not sustain Mr Crowhurst's claim of a serious inequity in terms of his position relative to other consultant senior positions in the medical imaging department." [5] It is in the context of these two decisions that the applicant seeks to re-open proceedings associated with the notification of his industrial dispute dated 30 April 2012. In asking that the proceedings be re-opened the applicant relied on a number of grounds including the following:  That the decision of the Commission was inconsistent with decisions of other members of the Commission in determining similar matters;  That the decision failed to find errors in the Appeal Panel's processes, including the omission in the appeal review statement of any consideration of particular work level statements and the failure of the review statement to provide any explanation for why Mr Crowhurst's appeal was unsuccessful;  That insufficient weight was given in the decision to the support for Mr Crowhurst's position provided by the Prince Charles Hospital;  It is in the public interest that the proceedings be reopened in order to ensure that the employer's job evaluation measures and processes are fair and equitable. 1 James Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145 2 James Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 183 -- 2 of 5 -- 3 [6] Section 280 of the Industrial Relations Act 1999 provides that the Commission can exercise a discretion to reopen a proceeding on application by a party to those proceedings. A leading authority on the principles to be considered by the Commission when exercising a discretion under s 280 is the Full Bench decision in the Teachers case3 where it was stated: "This Commission holds the strong view that a matter which has been fully argued by all of the parties, and in respect of which a decision has been given on the merits, should only be reopened if it can be shown that some vital and relevant material which was not available at the hearing is now available or that the Commission has made an obvious error or created clear anomalies or has been somehow misled in arriving at its original decision." [7] There is no suggestion that vital and relevant new material is now available that would warrant the Commission revisiting its earlier decisions. Other than expressing its dissatisfaction with the outcome, the applicant does not submit that the proceedings should be reopened to allow for consideration of new material. Nor is it submitted that in arriving at its original decision the Commission had been misled either arising out of a reliance on incorrect information or in its consideration of submissions made. [8] In general terms the applicant relies on propositions that an error has been made or that anomalous or undesirable outcomes have resulted from the original decision. Public interest considerations are also said to arise from a perceived inconsistency in decisions of the Commission and in the need to ensure that Queensland Health acts consistently, equitably and fairly in determining classification levels. [9] In terms of other Commission decisions, the applicant referred to a range of decisions where the Commission concluded that the appeal panel had erred and where part of the reasoning relied on the failure of the appeal review statement to adequately address matters raised or provide reasons for outcomes. In all instances, the decision of the Commission was to ask Queensland Health to re-evaluate the earlier decision of the Director-General to decline to reclassify the employee. The results of the re- evaluation process is not known to the Commission as currently constituted. [10] It was the applicant's submission that "various members of the Commission have confirmed that absent any adequate explanation of the decision failure to consider the WLS referenced constitutes error by the Appeal Panel". The proposition inherent in this submission is that the determination of HP dispute notifications might be limited to a reading of the appeal review statement and a matching exercise to ensure there had been an appropriate association between the items included in the appeal review statement and the material submitted in support of an appeal. It followed that there may not be any need for the Commission to consider all the facts and circumstances of the case. [11] In dealing with the other decisions of the Commission, it needs to be said firstly that each decision turns on its own particular facts and circumstances. The finding in each of the cited decisions that the appeal panel had erred was made having regard to the evidence and submissions in each particular matter. The decisions were made after a consideration of all the facts and circumstances led the Commission to question 3 Teachers Award - State (1974) 86 QGIG 611 -- 3 of 5 -- 4 whether the appeal panel had arrived at the correct decision. Having reached this point the Commission then looked to the review statement to try to discern if its concerns could be assuaged. When reasonable doubt could not be removed, the Commission elected to direct the employer to reconsider its reclassification decision. [12] Ultimately when it comes to a review of the appeal panel's recommendation, a perceived inadequacy of reasons is not the determinative factor. The critical consideration is whether it can be established that the outcome was not consistent with clause 19.7 of HPEB 1. The question to be answered in this regard is whether the original work level evaluation of all the employee's duties, roles and responsibilities should have resulted in the employee's position being reclassified. [13] In the reopening proceedings the applicant made clear that the remedy sought was a decision by the Commission referring the reclassification task back to Queensland Health and directing it to conduct a re-evaluation of Mr Crowhurst's duties, roles and responsibilities. A difficulty for the applicant in articulating this proposition is that I have already created an opportunity for Queensland Health to review its decision not to reclassify Mr Crowhurst. In so doing the prospect of an anomalous or inequitable outcome for Mr Crowhurst was canvassed. [14] The specific reason for a request for further information in my original decision4, which necessitated the issue of a supplementary decision5, related to considerations of equity. The further information was sought from the parties in the following context: "[55] If the applicant's information is correct or partially correct, QH is asked to advise whether, having regard to all the information, it considers that Mr Crowhurst's classification at HP5 constitutes an anomaly or inequity which should be corrected, or whether it believes that the HP5 classification level decided by the Appeals Panel represents a correct and intended consequence of the reclassification process. If QH considers the applicant's information to be incorrect it is asked to provide the Commission with information validating that position." [15] In the submissions filed by the applicant in support of a re-opening Mr Crowhurst complained that: " … at no stage through the internal Appeal Process or the external Commission process has he ever been provided with any adequate explanation of the merits of why rather than being classified at the originally proposed HP6 level he is still classified at the HP5 level despite the clear and repeated support from the TPCH and District management that he ought be classified at HP6." [16] While the Commission may understand Mr Crowhurst's frustration, it is not the Commission's role to perform human resource management functions on behalf of the employer. The Commission's role in determining dispute notifications lodged pursuant to clause HPEB 1 is relatively narrow. It is not a role that involves a full merit review of Mr Crowhurst's circumstances. Both good human resource management practice and common sense dictate that it is desirable that Mr Crowhurst 4 James Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 145 5 James Crowhurst v State of Queensland (Queensland Health) [2014] QIRC 183 -- 4 of 5 -- 5 comprehend the grounds for his failure to be reclassified. Similarly the Commission decisions in resolving HP dispute notifications should not be understood as the final arbiter in terms of concepts of fairness and equity. When the Commission determines a HP dispute notification it cannot be said that the Commission is replacing management's role to ensure equity and consistency in outcomes. This responsibility is ultimately the responsibility of the employer to be exercised within the constraints of the public sector or Queensland Health human resource framework. [17] I am unable to conclude that sufficient grounds exist to warrant a reopening of the proceedings. The application for re-opening is refused. [18] Order accordingly. -- 5 of 5 --