Dr Adam Scott v State of Queensland (Queensland Health) [2013] ICQ 14

CITATION: Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Dr Adam Scott AND State of Queensland (Queensland Health) (C/2012/19) PRESIDENT HALL 12 August 2013 DECISION [1] This is an Appeal against a decision of the Queensland Industrial Relations Commission (the Commission) dated 7 June 20121. It is convenient to adopt the Commission's outline of the matter dealt with by the decision: "[1] Dr Adam Scott filed a Notice of Industrial Dispute about the translation of his position of Director of Cardiac Sciences at the Royal Brisbane and Women's Hospital to the new Health Practitioners (HP) Classification Structure. Dr Scott contends that his position should be classified as HP7 rather than the HP6 level to which the position was translated. Conciliation conferences were held before another Member of this Commission (the Queensland Industrial Relations Commission) but the dispute was unable to be resolved. The dispute was referred to the Commission as constituted for hearing and determination. [2] At a Directions Hearing, Queensland Health raised as a preliminary point that in the evidence Dr Scott presents in the arbitration of this dispute he should be limited to the role description he prepared when he submitted his work unit proposal in May or June 2008. This decision responds to that preliminary point and, although it does not outline or address each of the issues raised by the parties in their written and oral submissions, each of those matters has been duly considered.". In the result, at paragraph [7] of the Commission's reasons for decision, the Commission concluded that: "… Given the submissions, the Commission is of the view that Dr Scott's role, duties and responsibilities are encapsulated in the documents referred to by Mr Moy. In the arbitration hearing the evidence about Dr Scott's role, duties and responsibilities will be confined to the matters outlined in the documents referred to by Mr Moy.". [2] The Appellant's first submission is that there was not a preliminary point, but an objection to evidence which should have been taken when the Appellant sought to lead/tender the evidence. With respect, it seems to me that s. 274(1) and (2) of the Industrial Relations Act 1999 (the Act) arm the Commission with ample power to conduct pre-trial proceedings to determine conflicts between the parties about the evidence to be led/tendered with a view to limiting the length of proceedings and controlling the expenditures to be incurred by the parties in preparing for trial. Had the Commission's decision been confined to the preliminary point about whether Dr Scott should be restricted to the role description of May/June 2008, I should have dismissed the Appeal. The dispute before the Commission was a reclassification dispute referred to the Commission pursuant to clause 19.15 of the Health Practitioners (Queensland Health) Certified Agreement (No. 1) 2007 (the Certified Agreement). It arose out of "Phase 2; Work Level Evaluation Project", see clause 18 of the Certified Agreement. The first step at Phase 2 is the preparation of an up to-date position description for the employee's current position, see Schedule 5, Phase 2. That task falls to the Work Unit Manager, see Schedule 5, clause 7.2. An employee dissatisfied with the position description has the remedies described at Schedule 5, clause 8. Here, perhaps because the Appellant was the Work Unit Manager and developed his own position description, the remedies at Schedule 5 clause 8, were not called upon. [It follows that it is not necessary to determine whether a worker who remains aggrieved at the conclusion of that process may invoke clause 15 of the Certified Agreement.] [3] The second step at Phase 2 is the evaluation of a Health Practitioner's "job descriptions and roles and responsibilities" against the Certified Agreement's new Work Level Statements, see clause 18(1)(b) of the Certified Agreement. An employee dissatisfied with the outcome has access to the Work Level Evaluation Appeals Process at clause 19.1 to 19.14 of the Certified Agreement. On the exhaustion of that process, an employee who remains aggrieved has access to the Commission. The proposition that, after the matter has moved to the Commission an aggrieved worker may nominate a new role description and seek resolution of a dispute at large, sits ill with reference to the Commission in cases in which the internal appeal process has been 1 Adam Scott AND Sate of Queensland (Queensland Health) (D/2011/114) - Decision <http://www.qirc.qld.gov.au> -- 1 of 3 -- 2 exhausted. In my view, the Commission was correct to limit the Appellant to the role description which emanated from the Work Unit in May/June 2008. [4] Regrettably, the Commission did not restrict itself to the preliminary point about departure from the role description developed by the Work Unit in May/June 2008. The Commission at paragraph [7] of the Commission's reasons for decision, summarised the arguments of the parties: "[7] Having reviewed and considered the submissions of the parties it does not seem that they are fundamentally at odds over the material that should be considered by the Commission in the arbitration. The submission was made by Mr Moy that before the Commission in the arbitration is the 2006 role description, the role description prepared for the Work Level Evaluation Panel as part of the HP classification process and the 36 page submission made by Dr Scott in his appeal. Mr Healy expressed puzzlement over the purpose of the preliminary point if there was no objection to that material being before the Commission in arbitration. Given the submissions, the Commission is of the view that Dr Scott's role, duties and responsibilities are encapsulated in the documents referred to by Mr Moy. In the arbitration hearing the evidence about Dr Scott's role, duties and responsibilities will be confined to the matters outlined in the documents referred to by Mr Moy.". [5] With respect to the Commission, the Commission misunderstood the Appellant's submission. In consequence, the Commission misapprehended the subject matter of the differences between the parties. At no point did Counsel for the Appellant accept that if "the 2006 role description, the role description prepared for the Work Level Evaluation Panel as part of the HP classification process and the 36 page submission made by Dr Scott in his appeal" were before the Commission, there was no "preliminary point". The transcript shows Counsel's puzzlement to be expressed in the following way: "The sixth thing, Commissioner, I have found this comment curious and I will make a submission about it now. It was said to you by my learned friend that Queensland Health assumes that the appeal document will be part of the whole arbitration process. Well, if that's so, then I am similarly puzzled about what we're doing here. If everything is in, then I fail to understand what we are arguing about. Dr Scott doesn't deny that he composed the role description in May/June 2008, but he says that there is an entire process, evidence of which is in the material which has been filed on his behalf which ought be properly considered by the Commission for the reasons I have outlined.". Counsel was not speaking of three documents. Counsel was speaking of all documents generated by the end of the month of July 2011. [6] It is contended by Counsel for the Respondent that in a reclassification dispute which reaches the Commission pursuant to clause 19.15 of the Certified Agreement, the evidence is the material drawn upon in the Work Level Evaluation Project and on any subsequent appeal pursuant to clause 19 of the Certified Agreement. With respect, the worker's grievance may well be that material relied upon in the Evaluation and/or the Appeal should not have been relied upon at all. In other cases, the worker may have come across compelling fresh evidence not earlier discoverable by proper diligence. Those examples, I should add, are drawn from the experience of Appellate Courts. Clause 19.15 of the Certified Agreement is about the resolution of disputes. It is expressly treated as analogous to dispute resolution pursuant to clause 15 of the Certified Agreement. A broader view about the reception of additional evidence may prove to be appropriate. Much of the above is, of course, hypothetical here. [7] The Appellant's case has yet to be fully opened. To determine what evidence should be before the Commission in the resolution of the dispute, the Court would be required to step outside the record and prejudge questions which are quintessentially questions for the tribunal of first instance. [8] There may have been utility in reducing the preliminary point to writing. Certainly, reduction of the preliminary point to writing would greatly have assisted Counsel for the Appellant, who was briefed late to appear at first instance. However, the preliminary point was lucidly exposed at the last Directions Hearing prior to the argument on the preliminary point. The omission to reduce to writing, other than within the transcript of the Directions Hearing, falls well short of an error of law. [9] Agreement is restricted to the materials drawn upon in the Work Level Evaluation Project and any subsequent appeal pursuant to clause 19 of the Certified Agreement. To begin with, since there is no "record" from which one may ascertain what occurred in the course of the Evaluation Project and any subsequent appeal, those matters may well be the subject of evidence. Further, clause 19.15 of the Certified Agreement does not provide for Judicial Review of the Evaluation Project and for any subsequent appeal. Rather, the Commission is entrusted with the resolution of a "reclassification dispute". The reception of evidence, often in an informal way, is a normal activity for the Commission in the resolution of a dispute. In a particular case, the Commission may well decide that if one body of evidence was taken into account on the Evaluation Project, so also should a body -- 2 of 3 -- 3 of evidence which was put aside or which is by way of "fresh evidence". Conversely, there will be particular cases in which the core of the employee's grievance will be that some evidence drawn upon in the Evaluation Project should not have been before the decision makers. It is, with respect, an over-simplification to assert that the Commission is confined to the materials drawn upon in the Evaluation Project and the internal appeal. Further, in this case, there is the prosaic point that the Appellant contends that the documents to which he has been restricted by the Commission's decision of 7 June 2012, were not the only documents drawn upon in the Evaluation Project and the internal appeal. The Appellant is entitled to a ruling upon each of the nominated additional documents. [10] The Appeal is allowed. The order of the Commission is set aside. In lieu thereof, I Order that the job description to which the Appellant is confined is that contained in the Appellant's letter of 30 May 2008. The Commission is to determine which documents and other evidence may be relied upon after hearing the parties. Dated 12 August 2013. D.R. HALL, President. Released: 12 August 2013 Appearances: Mr M. Healy, instructed by Ellem Warren Lawyers for the Appellant. Mr A.K. Herbert, instructed by McCullough Robertson Lawyers for the Respondent. -- 3 of 3 --