Burton v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 417

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Burton v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 417 PARTIES: Burton, Daniel William (Appellant) v State of Queensland (Department of Agriculture and Fisheries) (Respondent) CASE NO: PSA/2022/589 PROCEEDING: Public Service Appeal – appeal against promotion decision DELIVERED ON: 31 October 2022 MEMBER: Dwyer IC HEARD AT: On the papers ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against promotion decision – where appellant employed as senior biosecurity officer – where appellant applied for principal biosecurity officer position – where appellant not appointed to the position – where appellant ranked third on the merit list – appellant appeals the decision not to appoint him to the position - where appellant submits that the decision is unfair and unreasonable – where decision is fair and reasonable – decision appealed against confirmed -- 1 of 12 -- 2 Reasons for Decision Background [1] Mr Daniel William Burton is substantively employed as a Senior Biosecurity Officer (TO4) at the Department of Agriculture and Fisheries ('the department'). [2] This appeal ostensibly relates to the recruitment and selection process for Principal Biosecurity Officer, Operations, Animal Biosecurity and Welfare, Biosecurity Queensland, Emerald (TO5), job reference number QLD/388601/21 ('the position'), although Mr Burton makes complaint and seeks redress for a wider range of issues which fall outside of the scope of this appeal. Those additional matters are identified and dismissed in my reasons below. [3] On 23 September 2021, the department advertised the position. The relevant particulars of the position advertised are: • Principal Biosecurity Officer • Classification – TO5 • Located in Emerald (preferred) or Longreach (negotiable) LEGISLATION: Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 27, 28 Directive 12/20 Recruitment and selection CASES: Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Cunningham v State of Queensland (Queensland Health) [2022] QIRC 161 -- 2 of 12 -- 3 [4] Relevantly, under the heading 'What you will do' the advertisement contained this phrase: Provide high level operational coordination of Animal Biosecurity and Welfare operations across the Central zone of the state with special emphasis on operations planning. (Emphasis added) [5] For the purpose of the discharge of its functions the department has divided the State of Queensland into zones, and within each zone there are smaller areas within identified 'districts' and 'regions'. The advertisement makes no reference to which districts or regions the successful candidate will be responsible for. It states only that the role will be in the Central zone.1 [6] The vacancy was closed on 8 October 2021 and the interview process began. Mr Burton was one of at least three people interviewed. Following selection of a candidate the appointment was gazetted on 20 May 2022 ('the promotion decision'). Mr Burton was unsuccessful in the process though was ranked third on the order of merit. The successful candidate was ranked second.2 [7] In his Appeal Notice Mr Burton summarises his grounds for appealing the promotion decision as follows: • being was ranked third despite being able to offer 25 years' experience within the job, including in supervisory roles; • the appointee was offered preferential treatment in being offered the position on a temporary basis in mid-2021; • being offered a position that he did not apply for; • the appointee was given preferential treatment to ensure they were employed in their preferred location; and • The chair of the panel was reluctant to communicate in a timely manner and provide detailed feedback on Mr Burton's application and interview. 1 The district or regional responsibilities of an appointee are an operational matter determined at the discretion of the department, though often in conjunction with an appointee. 2 Note – the candidate who ranked first in the order of merit is currently appealing the same promotion decision but for different reasons. The appeal in that matter remains undetermined at the time of writing these reasons. -- 3 of 12 -- 4 Statutory framework for public service appeals [8] Chapter 11 of the Industrial Relations Act 2016 (Qld) ('IR Act') provides the Queensland Industrial Relations Commission with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld) ('the PS Act'). [9] The IR Act provides that appeals are dealt with by way of review. That is to say, it is not a rehearing of the merits of the decision in the form of a hearing de novo.3 The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.4 The task of the Commission is to review the decision to determine if it was fair and reasonable.5 [10] It follows that if the Commission considers a decision was reasonably open to the decision maker, then the decision ought not to be disturbed regardless of whether the Commissioner hearing the appeal would have decided the matter differently. [11] Chapter 11 of the IR Act also limits the orders that the Commission can make in such appeals. The IR Act relevantly provides that the Commission, having heard an appeal, may make one of the following orders:6 (a) confirm the decision appealed against; or (b) for an appeal against a promotion decision set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or (c) for another appeal - set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate (Emphasis added) Submissions of the parties [12] The parties filed written submissions in accordance with directions issued from my chambers on 24 May 2022. 3 Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 4 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). 5 Industrial Relations Act 2016 (Qld) s 562B(3). 6 Ibid s 562C. -- 4 of 12 -- 5 The Department [13] The department contends the decision to appoint the appointee to the position was fair, reasonable and compliant with the PS Act, the relevant directives, and the relevant departmental policies. [14] The department notes that Directive 12/20 Recruitment and Selection ('the directive') and the department's Human Resources Selection Guidelines were applicable to the selection process. [15] The department submits their decision to rank Mr Burton third on the order of merit, behind the appointee was made on the basis that the delegate concurred with the recommendations of the selection panel that the first applicant in the order of merit and the appointee were more meritorious for the vacancy. [16] The department submits that pursuant to clause 7.6 of the directive, it was within the delegate's authority to determine the most meritorious candidate and relevant order of merit having regard to the information available (including applications, interview performance, referee reports and the selection report of the panel). [17] The department notes the panel's selection report assessed each shortlisted candidate against each key capability of the role description. Additionally, the candidates were detailed in a comparative assessment, providing specific reasons why each recommended applicant was more meritorious than the other, in order of merit. The department notes at no stage did the department find Mr Burton unsuitable for the appointment. [18] The department submits the top two ranked applicants outperformed Mr Burton in that their written applications and interviews demonstrated that they had superior management skills and corporate governance experience. [19] The panel provided the following specific comments in relation to Mr Burton's skills, namely he should: • consider personal development in adaptive techniques in dealing with change; • consider his approach when training individuals; and • undertake supervisory/people management training. [20] The department submits the panel noted the appointee had demonstrated experience supervising teams internally and externally to the department, and a strong understanding of corporate governance. -- 5 of 12 -- 6 [21] The second half of the department's submissions respond to the submissions of Mr Burton which were attached to the appeal notice. [22] In relation to being offered another position, the department submits there was a vacancy in another location which was advertised, and it was recommended that it could be filled by utilising the order of merit created from the selection process from the position. This offer was made to Mr Burton in accordance with clause 14 of the directive, however Mr Burton declined, stating it was not the position he applied for. [23] In his appeal notice, Mr Burton contends that preferential treatment occurred. He refers to the outcome of a temporary recruitment process and contends that the appointee was provided preferential treatment in that process as she was able to take up duties from another location (different to where Mr Burton says it was intended to be located), and this restricted Mr Burton's exposure to supervisory roles. The department submits this is not relevant to the appeal, however, also notes the Chair of the panel ('the chair') provided Mr Burton and the appointee consistent and correct information at the time, and it was ultimately Mr Burton's choice to not apply for the position. [24] The department addresses Mr Burtons contentions about his 25 years of work experience by referencing the merit principle in s 28(b)(i)-(ii) of the PS Act. The department notes this section states that the way in which the person carried out their previous employment or occupational duties and the extent to which the person has potential for development must be taken into account. The department submits Mr Burton's work history was considered in full and the merit principles were applied accordingly. [25] In addressing Mr Burton's submission that the chair was reluctant to communicate with him, the department submits the chair verbally provided Mr Burton with feedback in relation to his application on 2 February 2022. The department submits there is no evidence to support Mr Burtons assertion in this regard. Mr Burton [26] Mr Burton submits he has not viewed the candidate evaluations until such time that the department provided their submissions in this appeal. He submits that there was little feedback recorded during the interview process and contends that failing to provide him with this feedback sooner raises questions about how or when the evaluation documents were completed. [27] Mr Burton submits that when comparing the evaluation documents, 'it becomes obvious that two very different people have completed the documents, which include the layout and wording used throughout the responses and comments'.7 Mr Burton also contends that limited amounts of his written application were included in the selection report. 7 Submissions of the Appellant, page 1. -- 6 of 12 -- 7 [28] Mr Burton's submissions then provide examples of how he believes he addresses the key capabilities outlined in the job application. They also note where he believes the panel have not provided examples in the selection report to address how the appointee met these criteria. [29] Mr Burton also submits he has filled temporary supervisory roles, and when filling these roles, he contends he has led the team in a productive manner. He also submits he led a small team for 12 months in Queensland. [30] Mr Burton contends the other position which he was offered could not legally have been offered to him because the advertisement did not include a note that applications for the original position may be used to appoint to similar vacancies for a specified period of up to 12 months after the closing date of the initial vacancy. [31] Mr Burton submits if he knew he could have filled the earlier temporary Principal Biosecurity Officer role in Blackall he would have applied for the position. [32] Mr Burton 'challenges the location' of the temporary role which outlines the primary location of Emerald (preferred) or Longreach (negotiable). He submits the team leader role has been situated in Blackall for over 16 years, and that Longreach is a further distance from Emerald and thus queries why Blackall is not listed as a negotiable town on the advertisement for the temporary position. [33] Mr Burton submits he does not believe a scoring system was used and therefore, the panel could not clearly identify the most suitable applicant. He closes his submissions by contending he has been prevented from progressing his supervisory roles and that preferential treatment was provided to the appointee since she filled the temporary position. Reply submissions of the Department [34] The department submits Mr Burton was provided with detailed, specific, and constructive feedback by the chair in accordance with the directive. The department contends it is not necessary for Mr Burton to have been provided a copy of the candidate evaluations, in circumstances where he was provided with this feedback, and if Mr Burton was dissatisfied with the chair's response, he was at liberty to apply for the information through the Right to Information Services Unit. [35] The department addresses Mr Burton's submission in relation to 'very little' being recorded during the interview process as being incorrect. The panel chair had recently returned from long term unplanned leave and had to attend to accumulated urgent requirements upon his return. Mr Burton had already been provided with feedback, and -- 7 of 12 -- 8 the chair's email sent on the following day indicates he would provide more detailed feedback in the future. [36] The department notes it is not uncommon when providing feedback to refer to the interview notes in addition to what was recorded in a selection report. The department submits detailed interview notes were recorded by all the panel members, and the notes, selection report and other information in relation to the recruitment process was provided to the delegate for consideration. [37] The department submits all three panel members and the delegate considered Mr Burton's work history and applied the merit principles accordingly and determined that the appointee was more meritorious. They identified that Mr Burton lacked management and corporate governance experience. Specifically, the department submits: It was further observed by the panel and the document in key capability 4 of the report that whilst he is passionate about developing and fostering stakeholders' capability with skills in diffusing angry stakeholders in his region, the Appellant lacks evidence of this outside this area of disease investigations, cattle tick and NAMP. Ms O'Brien excelled in this key capability. The panel also noted Dan admitted that he can take a little more time to adapt to change and sometimes needs it presented in a way that allows him to take this in to process before being able to move forward. The panel further noted that the Appellant may need to consider his approach in training individuals. [38] The department notes that Mr Burton's submissions provide examples of how he believes his performance better meets the requirements of the role than the appointee, however, provides examples of occurrences that postdate the recruitment process. As this evidence was not before the decision maker, the department submits it should not be given any weight. [39] In response to Mr Burton's assertion that the selection panel did not always provide specific examples of how the candidate met each key capability, the department notes whilst examples were not always provided the selection report provided a summary of how the successful candidate met the key capabilities of the role and clearly demonstrated the areas the panel determined Mr Burton did not rate as highly as the appointee. [40] The department further notes that Mr Burton was never deemed to be unsuitable for the role and was offered an available identical role. [41] Whilst the department has already provided submissions as to the lack of relevance of the earlier recruitment process to this appeal, the department also notes the chair provided the appellant and appointee correct and consistent information about the role at the relevant time and it was ultimately Mr Burton's decision to not apply for the position. [42] The department maintains that no preferential treatment was provided to any applicant. The department concludes its submissions by contending the decision to appoint the appointee was reasonable and compliant with the PS Act, directives and policies. -- 8 of 12 -- 9 Consideration [43] The determination of this appeal requires an assessment of the promotion decision which necessarily incorporates some consideration of the recruitment and selection process to determine whether it was fair and reasonable. The process does not have to be perfect to be considered reasonable.8 [44] Mr Burton's submissions are something of a meandering 'potpourri' of speculative assertions about preferential treatment, disregard for (unidentified) rules about the way in which selection reports are completed, and indifference by management after the recruitment process with respect to feedback. While his sense of grievance is clear, it is often difficult to identify what exactly Mr Burton complains of and how (or if) his complaint truly relates to the promotion decision under review. [45] Further, when filtering out the distraction of Mr Burton's many ancillary grievances, the central submission by Mr Burton ultimately amounts to a somewhat vain attempt to re- run the recruitment process by extolling (at length) what he contends are his many qualities for the role while at the same time casually deriding the successful candidate. [46] Before dealing with the limited parts of Mr Burton's appeal that I do have jurisdiction to consider, I will first dispense with these many incompetent aspects. Preferential treatment [47] Mr Burton's complaints about the appointment of the successful candidate to the position in a temporary capacity in or about August 2021 (until December 2021) appear to be included for two purposes. Firstly, it appears that Mr Burton is aggrieved by the manner in which the temporary appointment was made. That complaint is an entirely separate matter and does not form any part of the promotion decision. It is therefore not a matter within my jurisdiction to consider. [48] Secondly, Mr Burton somehow seems to consider that this temporary appointment can be characterised as preferential treatment. It is not in any way clear from Mr Burton's submission whether the alleged preferential treatment affects the temporary appointment or the ultimate appointment relevant to the promotion decision. [49] In either case, there is no evidence presented by Mr Burton (beyond his own speculation) that the temporary appointment was made in any way that was unfair or improper or that it is linked to the decision under review. Mr Burton appears to complain that he was not told the role could be performed out of a particular town and if he had known that, he would have accepted the role. 8 Cunningham v State of Queensland (Queensland Health) [2022] QIRC 161 at 31. -- 9 of 12 -- 10 [50] Consistent with the departments practices generally, the precise location of an officer and the regions of responsibility are matters that are the subject of discussion between the department and the candidate. If Mr Burton did not know he could perform the role from a particular town it is as much his fault for not raising it as it is the departments. It may well be that each party made erroneous assumptions. In any event, it is a long stretch of the bow indeed to then ask the Commission to conclude it was preferential treatment to offer it to another employee in a different location. [51] Mr Burton's unsupported assertions of this nature are entirely conjecture and speculation on his part and, even if they were matters within my jurisdiction to consider, the dearth of supporting evidence make this aspect of his complaint incapable of substantiation. The offer of another position [52] It is bordering on absurd that Mr Burton cites an offer of an alternative role at equal level as a ground of his appeal. The offer of a promotion (albeit with different regional responsibilities) is surely the antithesis of unfair or unreasonable. But more importantly, it is impossible to establish from Mr Burton's submissions how he materially connects the offer of another position to the alleged unfairness or unreasonableness of the decision under review. [53] It would seem the department was dealing with something of an operationally 'fluid' situation following the recruitment process. Two TO5 roles had been advertised and one remained vacant. The department elected to use the merit pool from the role that was filled to recruit for the second role. There is nothing improper about this. The two advertised roles were TO5s in the Central zones. The regional responsibilities to be attached to those roles were (and are) matters of operational discretion subject to delivery needs. [54] What appears to be misunderstood by Mr Burton is the fact that TO5 role he applied for was designated to the Central zone. The particulars of the responsibilities were no more precises than that. In the circumstances, where Mr Burton was the third order of merit candidate, and where he was offered the second TO5 role after the second order of merit candidate, the department was doing no more than what they were entitled to do to fill the second role. [55] The offer of another role to Mr Burton and the fact that this apparently grieves him is not a matter that can be taken into consideration in his appeal against the promotion decision. But even if it is, I am utterly at a loss to appreciate how the offer of the other TO5 role in any way leads to a conclusion of unfairness or unreasonableness. -- 10 of 12 -- 11 Reluctance of the Chair of the panel to communicate in a timely manner to provide feedback [56] The actions of the chair following an appointment of a successful candidate are matters post-dating the promotion decision. While such matters might be relevant if they e.g., revealed that some aspect of the decision was affected by bias or reveal some procedural flaw, in this instance Mr Burton complains that the chair did not provide him with feedback within a time frame Mr Burton considered appropriate. [57] Mr Burton has himself attached emails to his filed material evidencing the feedback he received from the chair on 2 March and 23 March 2022. The feedback is more than adequate in my view. Further, Mr Burton received this feedback within reasonable time frames. Additionally, I note there has been a submission that the chair had been on a period of extended unplanned carers leave. While I do not consider the response time on feedback unreasonable, to whatever extent it might be, I consider the usual effects of returning to work after such an absence more than offset any delay. [58] It seems Mr Burton's real complaint about the feedback he received is not about its adequacy or timing, but simply that he does not agree with it or accept that he ranked behind the successful candidate. [59] Having regard to the feedback received and the timeframes in which it was delivered, I am (again) at a loss to appreciate how Mr Burton can seek to characterise this conduct as rendering the promotion decision unfair or unreasonable. Merit [60] The vast majority of Mr Burton's written submissions are an overt argument about the merits of the decision. This is precisely not within the jurisdiction of the Commission in its powers to deal with public service appeals.9 The jurisdiction of the Commission is limited to a review of the decision with a view to deciding whether it was fair and reasonable. [61] The material filed by the parties includes full details of the recruitment process undertaken and the conclusions of the panel members that are contained in the selection report. Mr Burton's submission that 'it becomes obvious' the selection report was authored by two people is as absurd as it is irrelevant. [62] It is absurd because the entries that Mr Burton refers to are in type print and matching font. There is nothing that distinguishes them to the objective observer either in style or 9 Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. -- 11 of 12 -- 12 the nature of their content. Whatever distinctions Mr Burton sees are no doubt a product of his own distorted and subjective opinion about the process. More importantly, even if the selection report did have multiple authors, there is nothing contained in it that would reveal how that makes it unfair or unreasonable. On the contrary, much of the content pertaining to Mr Burton is quite positive. [63] The panel members had the benefit of interviewing Mr Burton and the successful candidate for the role. Each member of the selection panel has signed off on their conclusions. Despite unsupported speculative assertions by Mr Burton, there is no evidence to suggest that any member of the panel acted in any way that contravened the directive or other relevant protocols. [64] It would appear Mr Burton has an exceptionally high degree of confidence in his suitability for the role. As it happens, the selection panel agree, but with the exception of two other candidates that they rated higher. [65] Mr Burton's subjective views of his paramount suitability for the role in no way undermines or diminishes the validity of the unanimous conclusion of the panel. In the absence of any glaring oversight or objective evidence of bias on their part, the panel were entitled to prefer others ahead of Mr Burton based on their applications and interviews. A mere tally of years of service is never, of itself, a basis for determining a merit ranking. [66] Having regard to his submissions, Mr Burton's appeal of the promotion decision appears to be little more than an attempt by him to have the recruitment process re-opened because, in his subjective view, the outcome was unfair. The jurisdiction of the Commission does not allow for a rehearing of the merits of the decision. Further, there is nothing about the promotion decision that would lead me to conclude that the panel members made their decision or otherwise conducted themselves unfairly or unreasonably. [67] It follows that I conclude the promotion decision appealed against was fair and reasonable. Order [68] In all of the circumstances, I make the following order: 1. The decision appealed against is confirmed. -- 12 of 12 --