Brady v State of Queensland (Queensland Health) [2015] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brady v State of Queensland (Queensland Health) [2015] QIRC 023 PARTIES: United Voice Industrial Union of Employees (Brady, Carole) (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO: HP/2013/46 PROCEEDING: Action on industrial dispute DELIVERED ON: 10 February 2015 HEARING DATE: 14 March 2014 MEMBER: Industrial Commissioner Black ORDERS: Proposal for reclassification 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 Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 APPEARANCES: Mr D Peverill, United Voice Industrial Union of Employees, (for Carole Brady) the Applicant. Mr K Ryalls for the State of Queensland (Queensland Health), the Respondent. Decision [1] United Voice Industrial Union of Employees (UV) filed a Notice of Industrial Dispute on behalf of their member Carole Brady on 8 August 2013. Ms Brady was employed by Queensland Health as a Specialist Radiation Therapist at the relevant time (30 May 2008). The Notice of Industrial Dispute concerned the classification of Ms Brady's position at the HP5 level rather than at the HP6 level. Attempts to -- 1 of 11 -- 2 settle the dispute by conciliation were unsuccessful and the dispute was referred to arbitration. [2] The Health Practitioners (Queensland Health) Certified Agreement (No 1) 2007 (HPEB1) established a new classification structure for employees of QH engaged as Health Practitioners. The process for implementing the new classification structure was set out in Clause 18 of HPEB1. Phase 1 allowed direct translation of employees who met certain criteria. Ms Brady translated from Professional Officer Level 4 to Health Practitioner Level 4 (HP4). Subsequently specialist radiation therapist educator roles were classified at HP5 as part of the work unit proposal process. [3] Phase 2 of the process allowed employees covered by HPEB1 to have their job descriptions, roles and responsibilities evaluated against new work level statements. According to the evidence of Mr Hamilton, the Phase 2 process involved five procedural steps intended to assess the relative work value of each application from an individual, intra-disciplinary, and an inter-disciplinary perspective. The five steps alluded to are summarised in the following terms: Step 1 - Standardised data set - receipt of Work Unit Proposals (WUP) including Employee Initiated Applications (EIA). Step 2 - Work Level Evaluation (WLE) of individual position conducted by a HP discipline specific WLE 'Panel' (WLEP). Includes consideration of any EIA. Step 3 - Intra-disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (WLET). Step 4 - Inter-Disciplinary Relativity/Consistency Review conducted by a multi-disciplinary WLE 'Team' members (IDR), this group consisted of members from WLEP & WLET. Step 5 - HPIBB Oversight, including the subsequently developed Oversight Sub Group (OSG). [4] Ms Brady disagreed with the work unit proposal and lodged an Employee Initiated Application (EIA) on 28 August 2008. In her application Ms Brady said that her clinical and educational skills and the role she fulfilled extended beyond the HP5 level and should be classified at the HP6 level. However, the Radiation Therapist WLEP evaluated Ms Brady's work unit role description and her EIA and recommended that Ms Brady's position be assigned a level of HP5. [5] Ms Brady's EIA documentation is in the evidence as Attachment DGH9 to Exhibit 5. Included in the Attachment is the WLEP Evaluation Record of Ms Brady's EIA. The record included the following statement of reasons:  Responsible for education, development and research components of a large clinical service;  Co-ordinates quality review process of all department protocols with a large clinical service;  Involvement in performance appraisals/management is for selected cases with skill deficiencies which falls into the role as educator; -- 2 of 11 -- 3  Additional evidence obtained through lines of enquiry has not supported advancement to HP6. The evidence of the state-wide leadership to introduce education software is acknowledged, however, does not alter the assessment of this position to be a HP5. [6] Ms Brady's position, and other radiation therapist positions, were also subject to both an intra-disciplinary and an inter-disciplinary relativity and consistency review. According to Mr Hamilton's evidence the WLET reviewed the radiation therapist discipline over a series of meetings. The notes of the WLET meeting on 14 August 2009 disclosed WLET's intention to compare radiation therapist educator positions with clinical educator positions from other disciplines. Subsequently at a meeting on 20 August 2009, WLET decided to refer radiation therapist educator positions to the OSG. The minutes of the WLET meeting on 10 September 2009 disclosed that following the referral of Ms Brady's position to the OSG, her position was confirmed at the level of HP5. Ms Brady then elected to appeal this decision pursuant to clause 19 of HPEB1. [7] The Appeal Panel established under clause 19 had the power to consider whether the Work Level Evaluation of all of Ms Brady's duties, roles and responsibilities should result in her position being reclassified. The Appeal Panel concluded that (Attachment CB7 to Exhibit 4 refers): "Overall, after assessing the evidence provided the panel agreed: The appellant meets criteria for educator HP5 and not educator HP 6 as per the panel assessment of the application. The panel notes that education focused positions at HP6 would have responsibility for leading state wide development of a broad range of interdisciplinary education and training initiatives within a discipline, including those aimed at practitioners at HP5 level and below. There was insufficient evidence provided to support claim at HP6 classification level." The Applicant's Case [8] UV submitted that the appeal should succeed for the following reasons:  The Appeal Review Statement did not make a finding in respect to all of the work level descriptors addressed by Ms Brady in her appeal;  In particular the Appeal Review Statement did not address evidence provided by Ms Brady which was relevant to descriptors HP6-2, HP6-3, HP6-4, HP6-8, HP6-9, HP6-10, HP6-19, HP6-20, and HP6-21;  The evidence provided by Ms Brady to the Appeal Panel was sufficient to justify a holistic evaluation of HP6;  A reading of the Appeal Review Statement discloses an erroneous focus on the absence of State-wide responsibilities;  Ms Brady's state-wide responsibilities are demonstrated in the evidence of Ms Brady and Mr McQuitty;  Mr McQuitty accepted that, taking a retrospective view, Ms Brady's role should have been evaluated at HP6 by the work unit;  On Ms Dry's evidence the Appeal Panel decision was neither equitable nor consistent. Her evidence established that both she and Ms Brady -- 3 of 11 -- 4 shared the same job description, undertook the same roles and performed the same duties and responsibilities. Notwithstanding this Ms Dry was classified by the Appeal Panel at HP6. It was Ms Brady's evidence that she and Ms Dry shared several state-wide roles;  It was Ms Dry's evidence, in effect, that neither she nor Ms Brady could have been classified as HP6 in 2008 because HP6 educator positions did not exist at that time and that there were no relevant job descriptors for such positions. The Respondent's Case [9] Queensland Health submitted that the submissions of UV and the evidence adduced by UV has not established that Ms Brady should be reclassified from HP5 to HP6. It further submitted that UV had not demonstrated the presence of errors in the reclassification process. In more particular terms QH submitted:  That the Commission is not "at large" to resolve any wider questions as to the correct classification of an applicant. The applicant does not gain access to a de novo merit based assessment;  The phase 2 process was thorough and rigorous and there was nothing to suggest that it did not deliver a valid and correct evaluation;  The Appeal Panel's reasons differentiated between education focussed positions at HP6 and those at HP5 and found, in effect, that Ms Brady did not have "responsibility for leading statewide development of a broad range of interdisciplinary education and training initiatives ...";  It was Mr Hamilton's evidence that there was a big difference between educators with state wide responsibilities versus an educator or educators at larger facilities or educators at smaller facilities (T1-57);  Illustrations provided by Ms Brady of her state wide responsibilities were not sufficient;  The appeal process before the Appeal Panel did not involve comparative exercises in which one employee elected to compare themselves with another employee;  The determination to be made by the Appeal Panel was whether the work level evaluation of all of Ms Brady's duties, roles and responsibilities should result in the proposed reclassification;  Clause 19 of HPEB1 does not require that the Appeal Panel's decision must include an evaluation of all the work level descriptors, nor provide reasons for its decision;  The evidence of Ms Dry that no HP6 educator job descriptors existed at the time of the work unit level evaluation was not correct. Such descriptors were contained in Schedule 4 of HPEB1. Identification of Error [10] The applicant essentially relied on the following propositions to sustain the argument that an error had occurred in the reclassification process or that, in particular, an error had occurred arising from the disclosed reasoning of the Appeal Panel: (i) Equity and consistency required that Ms Brady be reclassified to HP6 because of the classification awarded to Ms Dry; -- 4 of 11 -- 5 (ii) The evidence of Mr McQuitty supported a conclusion that errors have occurred in the reclassification process and at the Appeal Panel level; (iii) The Appeal Panel's reasoning disclosed an erroneous focus on state-wide responsibilities; (iv) A reading of the Appeal Review Statement disclosed errors made by the Appeal Panel in that it did not consider all the evidence provided by Ms Brady and did not rate all the relevant work level descriptors. Comparison with Ms Dry [11] I am not persuaded by the evidence around comparability between Ms Dry's job and Ms Brady's job. Ms Dry's evidence did not go much beyond the expression of an opinion to the effect that the relevant job descriptions and duties, roles and responsibilities were the same in May 2008. She did not provide any documentation supporting her view, nor was a copy of Ms Dry's appeal documentation, nor a copy of the Appeal Review Statement submitted. In her evidence, Ms Brady did provide some particulars to support a comparison between herself and Ms Dry, but in the end result Ms Brady can only go so far in introducing evidence about the work performed by Ms Dry. [12] Mr McQuitty also gave evidence about the "similarity of the role across all departments". It was his view that although some "small operational variations in responsibilities may exist between departments, the underlying and core duties are common". [13] In the end result what was lacking from the evidence of Ms Brady, Ms Dry and Mr McQuitty on the subject of comparability, was any definitive statement about who had state-wide accountability for the delivery of educator services. [14] The Appeal Panel's power as defined by Clause 19.7 of HPEB1 is to consider whether an employee's duties, roles and responsibilities were correctly evaluated. This exercise involves a consideration of whether an employee's duties, roles and responsibilities meet the relevant work level statements at a particular level. This task does not permit appellants to make comparisons with other employees or to rely for the success of their appeal on evaluation outcomes achieved by other employees. [15] The effect of Mr Hamilton's evidence (T1-54) was that Queensland Health employed four radiation therapist educators and of these positions, one had achieved HP6 status at the end of the reclassification process, while the others were classified at HP5. Any proposition to the effect that all of the educators should be on the same level would not have been achieved by the grant of Ms Brady's appeal. Mr McQuitty's Evidence [16] Mr McQuitty has been the Director of Radiation Therapy Services at the Mater Hospital since 2004 and was Ms Brady's supervisor during the relevant period. Mr McQuitty supported Ms Brady's application. He said that Ms Brady was a significant leader in radiation therapy within the state and nationally. He said that her experience and knowledge is regularly sought by other hospitals. He said that Ms Brady had lectured at the Queensland University of Technology for approximately 10 years. -- 5 of 11 -- 6 [17] Mr McQuitty was involved in the preparation of the Specialist Radiation Therapist Educator Role Description and the determination of its HP5 classification. Mr McQuitty acknowledged that Ms Brady had challenged the HP5 rating when she became aware of the work unit proposal and that she had discussed the matter with him and unsuccessfully tried to persuade him to change his mind. Notwithstanding this Mr McQuitty said that on reflection, or in hindsight, he could have come to a different conclusion. In his affidavit (Exhibit 1), at paragraph 6, he expressed his position in these terms: "The intention of the design of the job description was to reflect a HP5 level educator. The wording was based on the activities and responsibilities being performed by the incumbent educators. On review of the work level statements provided at a later date, I acknowledge that certain duties included in the role description better reflect the expectations of a HP6 level educator/radiation therapist". [18] In giving this evidence Mr McQuitty did not make the case that Ms Brady should be assessed at the HP6 level. What he said was that the role description reflected what was being done by educators; that the design of the job description was to reflect a HP5 role; and that, on later reflection, certain duties included in the role better reflect the HP6 level. This latter reflection falls short of saying that Ms Brady should have been classified at the HP6 level by the Appeal Panel. [19] While Mr McQuitty's view is relevant, it could never be determinative because his involvement in the reclassification process was limited to the development of the work unit proposal. He had no involvement in the process after this point and even if he had agreed to classify Ms Brady at HP6 in his work unit proposal, it was always possible that this grading may have been moderated at the WLET or OSG stage. State-Wide Focus [20] The WLEP Evaluation Record in the evidence as Attachment DGH9 to Exhibit 5 included a summary of points of differences relevant to a comparison between the HP5 and HP6 Educators. The summary included the following points:  Education roles in HP6 require recognition Statewide in this role  HP6-8 requires state-wide resource for advice and consultation. Role works collaboratively with educators across the state to maintain equity in clinical practice standards and therefore can be considered a resource or advice sought from them  Committee membership not of HP6 level unless providing high level expert contribution and advocacy  Strategic direction at HP6 is required to be over a large facility or multiple sites [21] The Evaluation Record of Ms Brady's EIA disclosed that the WLEP asked a number of follow-up questions of both Ms Brady's manager (Mr McQuitty) and Ms Brady herself. The question for Ms Brady was "please provide evidence of high level contribution to project/consultative groups and its benefits on a state-wide level?" In -- 6 of 11 -- 7 response Ms Brady provided a list of a project and consultative groups that she had participated in between 2002 and 2008. At this point Ms Brady had been put on notice by the process that it was relevant to her appeal that she satisfy the criteria contained in the work level statements relevant to state-wide status. [22] At page 10 of the Work Level Statements & Guidelines for Health Practitioner Roles it is stated that clinical professional roles at the HP5 level include "Clinical Educators (District or multi facility focus)" while HP6 clinical professional roles include "Clinical Educators with statewide responsibilities". At page 33 the Attachment identifies the following differentiators for the purpose of determining whether a level of HP5 or HP6 should be applied: "Formal/Established recognition as a state-wide reference point in a discipline, rather than district level; Role is focussed in a consulting capacity to provide clinical expertise to other health practitioners with the discipline across the state, including HP5-level specialist practitioners; Contributes significantly to the development of professional advancement on a statewide basis through presentations at conferences, publications of peer reviewed articles, etc." [23] Definitions of Clinical Professional Educator (HP5) and Clinical Professional Educator (HP6) are set out at pages 26 and 34 respectively of the work level statements and guidelines document. The following table compares the content of the two definitions: Clinical Professional Educator HP5 Clinical Professional Educator HP6 Requires clinical skills at HP4 level Requires clinical skills at HP4 level as a minimum Assumes role of staff or student educator Assume State-wide responsibilities for staff or student education Collaborates with universities and educators Maintain formal links to tertiary intuitions; Leads and manages formal relationships with universities and training providers Participates in the development of education and training initiatives within a discipline or service area Lead the development of education and training initiatives within a discipline or service area Supporting resource or co-ordinator of other educator staff across facilities, Districts or Service areas Responsibility for leading state wide development of a broad range of interdisciplinary education and training initiatives within a discipline, included those aimed at practitioners at HP5 level and below Mentors and supports HP3 and HP4 staff across District or service area Mentors and supports HP4 and HP5 educator staff across the state Lead and implement change in their area Leads and implement change state wide Develops policy and standards; Develops state wide policy and -- 7 of 11 -- 8 Supports state wide programs and policy standards [24] It is very clear that the key differentiator between HP5 and HP6 relevant to the decision that had to be made by the Appeal Panel comprised the considerations incorporated in the work level statements about state wide status and responsibility. Certain Work Level Statements not Considered [25] The omission from the Appeal Review Statement of specific reference to all the descriptors mentioned in Ms Brady's appeal material was relied on by the Applicant to demonstrate an error in the Panel's determination of the appeal. [26] In its Appeal Review Statement, the Panel commented on three work level statement descriptors viz HP6-1, HP5-36, and HP6-23. The Panel concluded that Ms Brady met the HP6-1 descriptor and the HP5-36 descriptor but found that she did not meet the HP6-23 descriptor. [27] It was the UV submission that in limiting its comments to these three descriptors, it is open for the conclusion to be drawn that the Appeal Panel has overlooked, or not taken into account relevant material in arriving at its decision. For this submission to be sustained it needs to be established that the Appeal Panel was obliged to provide reasons disclosing its evaluation of all descriptors relied on in an appellant's material, and that the Appeal Panel must have erred in apparently resolving Ms Brady's appeal by reference to only three descriptors. [28] The Work Level Statements & Guidelines for Health Practitioner Roles are in the evidence as Attachment DGH1 to Exhibit 5. The Attachment discloses at pages 36 and 37 that the HP6 statements builds on the HP5 statements and indicates in effect that the focus is to be on specified "additional extensions" to the HP5 statements. All up, extensions are made to 16 statements. However only a few of the statements are directly relevant to an evaluation of educator roles, and it appears that the Appeal Panel has elected to comment only on these particular statements in its Appeal Review Statement. This was the effect of Mr Hamilton's evidence at T1-59: "How would you explain that? ---It'd - from my interpretation of this document, and I'm looking at these work level statements: 6-1, 5-36 and 6-23, are the primary educator focus statements that one would assign. These statements are only reflecting upon the educator work level statements." [29] Further at T1-65 Mr Hamilton said in his evidence: "Educator work level statements?---And that’s what they refer to. The design of the work level statements, there was normally no more than two to three work level statements focused on educators across scope, knowledge and accountability for each HP level of about HP4 and above. So the range of educator work level statements is very small." [30] My reading of the 16 statement extensions in conjunction with the "Guidelines for Application" set out on pages 38 and 39 of the Attachment, suggest that the statements most relevant to the educator role are HP6-1; HP6-9; HP6-11 and HP6- -- 8 of 11 -- 9 23. Of the other twelve statements, three are restricted to research roles, and the remaining nine relate to clinical professionals with a clinical focus or clinical professionals whose roles include an element of education or research. In his evidence Mr Hamilton conceded that it may have been appropriate for the Panel to have reviewed some other statements including certain HP5 statements and also HP6-21. [31] I accept that there were work level statements that the Appeal Panel could have commented on in the drawing up of the Appeal Review Statement. However their decision not to comment on these statements does not mean that they did not review them in the context of the material provided and did not form a view about their significance and the weight that should be afforded them in their deliberations. In comment on statements that may otherwise have been commented on by the Appeal Panel, I note that Ms Brady did not rely on HP6-11 (paragraph 16 of her affidavit refers). In terms of HP6-9 and HP6-21, while I think it may have been appropriate for the Appeal Panel to comment on these statements, its failure to do so does not, in all the circumstances of this case, support a finding that the Appeal Panel has erred in not reclassifying Ms Brady. [32] On page 5 of her appeal application (Attachment CB5 of Exhibit 4) Ms Brady says that her substantive role was Specialist Radiation Therapist Educator but that her role combined four elements viz clinical, education, research and management. On my review of the documentation, both her EIA and appeal have been assessed on the basis of her substantive role. The effect of her evidence in the proceedings was that the Appeal Panel evaluated her role too narrowly and that her role, duties and responsibilities should have been evaluated against descriptors other than those directly relevant to her educator status. Put differently, she was of the view that her role should have been evaluated against all, or most, of the clinical and management work level statements. [33] While the Appeal Review Statement commented on only a few statements, this does not lead to a conclusion that other statements were not considered by the Appeal Panel and weighed against the material provided by Ms Brady. Further, while it is not in doubt that Ms Brady's role included clinical and management elements in particular, this does not alter the fact that her substantive role was as an educator and that the educator role was defined in the Work Level statements, providing clear guidance on the parameters for decision making. Therefore the important reference points for the Appeal Panel were always going to be the educator specific work level statements and the educator HP5 and HP6 definitions. [34] In accordance with the HP6-Educator definition, the pre-requisite level of clinical skill required for her substantive role to be graded HP6, was HP4. It was clear that Ms Brady satisfied this condition. As such the level of her clinical skills was never going to be a barrier to her achievement of a HP6 grade for her substantive position. In terms of management activities Ms Brady referred in her appeal material to her role in the recruitment and retention of staff and in the performance management and supervision of staff. It is arguable whether these duties and responsibilities would justify a HP6 grade in the management stream and it is unlikely on the available evidence that Ms Brady would meet the HP6-31 descriptor which requires the practitioner to be individually accountable for "financial management, including program planning, budgetary control and satisfaction of audit and good governance -- 9 of 11 -- 10 requirements" as well as accountable for "controlling the use of a valuable asset/s including maintenance, upgrade and replacement". Conclusion [35] Ms Brady cannot complain about the process overall. When her work unit determined a classification of HP5 she had the opportunity of discussing the matter with her supervisor and presenting her reasons why the classification should have been HP6. When she did not succeed in this instance she lodged an EIA which on the evidence was given detailed consideration by the WLEP. Included in the WLEP process was a request that Ms Brady provide more information in the key area of state-wide accountability. It was not the end of the review process however when the WLEP declined to accept Ms Brady's position. The matter was then considered by the intra-discipline and inter-discipline review committee (WLET) which adopted a cautious approach to the matter and referred it to the OSG for a conclusion. When the WLET/OSG stage endorsed a classification of HP5 Ms Brady's exercised her right to lodge an appeal. No procedural error is evident in the process thus far and in terms of fairness Ms Brady had more than adequate opportunity to ensure that her views were heard and considered. [36] The other ground pressed by Ms Brady went to perceived inadequacies in the Appeal Review Statement. The inadequacies arise from Ms Brady's consistent position that the evaluation of her role should have included an evaluation of all elements of her role including the clinical, management and research elements. This meant that there was a prima facie case that the Appeal Panel erred in appearing to limit their consideration to the substantive educator role. [37] While I accept that the Appeal Panel was required pursuant to clause 19 of HPEB1 to consider all of Ms Brady's duties, roles and responsibilities, I do not conclude that it has erred in limiting its comments in the Appeal Review Statement to the descriptors most relevant to her substantive educator role. It follows that I do not consider that it was an error for the Appeal Panel not to address the clinical and management elements of Ms Brady's role in the formulation of the Appeal Review Statement. In the end result Ms Brady's clinical skills were not in issue. The definition of a HP6 Educator in the work level statements establishes that an educator can be graded HP6 with a minimum clinical skills level of HP4. As a specialist radiation therapist Ms Brady's clinical skills were nominally at the HP5 level, hence these elements of her role were never going to be determinative of whether she achieved a HP6 classification. Indeed it may be the case that Ms Brady could establish that in some clinical areas she should be regarded as a high level specialist and could claim a HP6 rating. But the critical point is that this outcome does not change the assessment of her substantive role. [38] Nor do I consider that the Appeal Panel has erred by excluding comment in its Appeal Review Statement of the management elements of Ms Brady's role. While the HP6 educator definition did not include any minimum achievement in the management area, it is clear to me that any evaluation of Ms Brady's management responsibilities against the work level statements was not going to be determinative. That is, notwithstanding that an evaluation of these elements supported a HP6 grading, this would not have secured her a classification of HP6 if her substantive -- 10 of 11 -- 11 role were not evaluated at HP6. Further, while the evidence was limited, I doubt that Ms Brady would have been able to satisfy the HP6-31 work level statement and would have been unlikely to be graded HP6 on her management responsibilities. [39] While UV contested the focus on state-wide accountability, it is clear to me that Ms Brady's substantive role cannot be evaluated as HP6 unless she meets this condition. In this regard it was clear that this aspect was substantially canvassed by the WLEP in its consideration of Ms Brady's EIA and the Appeal Review Statement reflects that this was the determinative consideration for the Appeal Panel. There was no basis upon which I could conclude that the Appeal Panel did not turn its mind to this issue, nor is there a basis for me to conclude on the material and evidence adduced in the proceedings, that the finding of the Appeal Panel in respect to the issue of state-wide accountability was not reasonably open to it. [40] I decline to resolve the dispute in the manner proposed by the applicant. Consequently Ms Brady's classification level is confirmed at HP5. [41] Order accordingly. -- 11 of 11 --