Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361 PARTIES: Bayntun, Sharon (Appellant) v State of Queensland (Department of Tourism, Innovation and Sport) (Respondent) CASE NO.: PSA/2022/475 PROCEEDING: Public Service Appeal – Promotion decision DELIVERED ON: 16 September 2022 MEMBER: Power IC HEARD AT: On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – public service appeal – appeal against a promotion decision – where the appellant unsuccessfully applied for a position – decision was fair and reasonable – appeal dismissed LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 27, 28 and 194 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) -- 1 of 11 -- 2 Reasons for Decision Introduction [1] Mrs Sharon Bayntun ('the Appellant') is employed by the State of Queensland (Department of Tourism, Innovation and Sport) ('the Respondent') as an AO6, Senior Engagement Officer, Sport and Recreation in Bundaberg. [2] The Appellant applied for the position of AO7, Principal Engagement Officer, Sport and Recreation in Wide Bay Burnett ('the position'), however, was unsuccessful in obtaining the position. On the selection panel's ('the Panel') order of merit, the Appellant was deemed third most meritorious. [3] By appeal notice filed on 19 April 2022, the Appellant appeals the promotion decision of the Respondent, pursuant to s 194(1)(c) of the Public Service Act 2008 (Qld) ('the PS Act'). Appeal principles [4] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [5] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the promotion decision of the Respondent was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [6] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and return the issue 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 PS Act that the Commission considers appropriate. 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 2 of 11 -- 3 Relevant legislative provisions and Directives [7] Section 562C(2) of the IR Act provides: In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act. [8] Section 194(1)(c) of the PS Act relevantly provides that a promotion decision may be appealed against: 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (c) a decision to promote a public service officer (a promotion decision); … [9] Section 27 of the PS Act provides that the merit principle must be applied for an appointment or secondment as a public service employee: 27 The merit principle (1) The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle). … [10] Section 28 of the PS Act sets out the merit criteria to be considered when applying the merit principle: 28 Merit criteria In applying the merit principle to a person, 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. [11] Directive 07/20 Appeals ('Appeals Directive') and Directive 12/20 Recruitment and Selection ('Recruitment and Selection Directive') are relevant to the determination of the appeal. [12] Clause 5.2(e) of the Appeals Directive provides that an appeal against a promotion decision may only be lodged if particular conditions are satisfied: 5.2 An appeal may only be lodged by the following persons: … (e) for a decision under section 194(1)(c) of the PS Act (promotion decision)—a tenured general employee or public service officer aggrieved by the decision (an aggrieved officer), provided the following conditions are met: -- 3 of 11 -- 4 (i) the decision relates to the gazetted promotion of a public service officer or tenured general employee (ii) the aggrieved officer's application to the role being appealed was received on or before the deadline for the receipt of applications or in the case of continuous applicant pools, the application was received prior to the date of distribution to the selection panel for the relevant promotion (iii) the aggrieved officer has sought post-selection feedback in accordance with the provisions of the directive relating to recruitment and selection, and (iv) for an appeal against a promotion from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved officer was covered by the invitation to apply. [13] I am satisfied that the requirements of cl 5.2(e) of the Appeals Directive are met and that this matter may proceed to appeal. [14] The Recruitment and Selection Directive prescribes processes and sets conditions that must be satisfied during the recruitment and selection process, including: (a) the minimum requirements for vacancy advertising;5 (b) the merit assessment processes to be observed;6 (c) requirements relating to selection decisions including a requirement that they be clearly documented and able to be independently reviewed;7 (d) standards relating to pre-employment checking including referee checks;8 (e) the requirement to present adverse information to an applicant;9 and (f) a requirement that applicants who request feedback must be given timely and constructive feedback.10 [15] Clause 7.2 of the Recruitment and Selection Directive provides: 7.2 Assessment processes for advertised vacancies must: (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) (c) incorporate pre-employment checks including referee checking as per clause 8 (d) measure the relative merit of each applicant, and (e) be consistent with the principles of employment equity and anti-discrimination. [16] Clause 7.3 of the Recruitment and Selection Directive provides: 7.3 Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has 5 Recruitment and Selection Directive cl 6. 6 Ibid cl 7.2. 7 Ibid cl 7.3. 8 Ibid cl 8. 9 Ibid cl 9. 10 Ibid cl 10. -- 4 of 11 -- 5 concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants). [17] Clause 7.5 of the Recruitment and Selection Directive provides: 7.5 If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended applicant is considered to be more meritorious than the next in the order of merit, must be provided. [18] Clause 7.6 of the Recruitment and Selection Directive provides: 7.6 In approving an appointment, the decision maker must be satisfied the proposed appointee is the most meritorious and, where applicable the selection process complies with the PS Act and this directive. Grounds of Appeal [19] In the appeal notice, the Appellant contends that: (a) appropriate processes were not followed and the outcome was influenced by inequitable consideration of past performance and management level experience; (b) the panel chair misrepresented the current role of the successful applicant ('the appointee') when announcing the process outcome by asserting that the appointee held a substantive position at a level higher; (c) the post selection feedback was verbal, general and did not provide constructive advice identifying how the Appellant could improve on her performance in future interviews. The Appellant highlights that when seeking further additional feedback by email, the Appellant was advised by a panel member that it was inappropriate and could bring the process into question, contending that such a suggestion disadvantages the Appellant's opportunity for professional development and diminishes transparency regarding the Panel's deliberation. Appellant's Submission [20] The Appellant, in her submissions, reiterates the contentions raised in the appeal notice and further submits, in summary, that: (a) the Appellant was informed that she was meritorious for the position; (b) the Appellant's referees were not contacted as a mechanism for the Panel to separate the list of merit between the appointee and the Appellant; (c) prior to applying for the position, the Appellant had contacted the panel chair to gain an understanding of the priorities of the position and was advised that the Panel would be looking for leadership skills and experience, industry knowledge and a strong understanding of issues, gaps and opportunities along with networks and relationships across Wide Bay Burnett; -- 5 of 11 -- 6 (d) the requirements of the role description do not support the need for people management skills to be considered more important than leadership skills or industry knowledge; (e) the post selection feedback informed the Appellant that her written response was very strong, while her verbal responses to the first two interview questions were not strong and that it was only the response to the third question which enabled the Appellant to be considered meritorious, although the panel chair could not recall the details of this response; (f) the Appellant raised concerns with the panel chair highlighting the appointee's substantive position and the response provided was that the appointee was the acting manager, which that Appellant has since learnt that is not true. The appointee was not acting manager at the time of appointment, or at the time of application; (g) where the appointee's management experience was considered, so should the Appellant's similar experience and performance undertaking a number of the tasks and functions prior the position being formally established; (h) the Appellant received verbal feedback from both the panel chair and the Director of Service Delivery that the Appellant performs her functions at a standard well above that of the AO6 role and have been told that she consistently performs at a very strong AO7 standard; (i) the Appellant's resume and written responses to the position's selection criteria contain significant reference to numerous leadership achievements and management experiences; (j) the role requirement to 'Lead and manage a team to achieve successful outcomes in the coordination and implementation of Sport and Recreation products and services' is multifaceted and equal consideration and assessment of leadership to successfully achieve outcomes related to the coordination and implementation of Sport and Recreation products and services is required; (k) a balanced assessment of all required components may determine the appointee meritorious with management experience, however, the criteria layers the requirement with leadership to successfully coordinate and implement sport and recreation initiatives and successfully deliver outcomes; and (l) under an impartial assessment, the Appellant is equally likely to be considered the most meritorious under a number of alternative requirements of the position. The focus should be on leading to achieve outcomes and not just people management. The weighing of one requirement over all others is unfair, unreasonable and inconsistent with the published suitability criteria. -- 6 of 11 -- 7 Respondent's submissions [21] In response to the Appellant's appeal notice and submissions, the Respondent submits, in summary, that: (a) the Appellant was deemed third most meritorious in the order of merit and the Panel recommended the most meritorious applicant, who was appointed to the position; (b) the selection report demonstrates that all merit criteria were given careful consideration by the Panel. This is demonstrated in the comparative statements in the selection report and has been verbally confirmed by the panel chair; (c) the 'what we are looking for' section of the position profile provides that both leadership and people management skills are requirements of the position. These attributes were given equal importance and weighting by the Panel. The comparative statements in the selection report demonstrate that these attributes were considered by the Panel for each applicant, and the Panel assessed each applicant as either having a higher degree or a lesser degree of the attributes; (d) the Appellant was able to demonstrate adequate skills and experience as they relate to the requirements of the position. However, comparatively, the appointee was able to demonstrate a higher degree of merit and clearly articulated her strong and high-level skills and experience including outcomes, deliverables and achievements as they relate to all the requirements of the position; (e) whilst it is acknowledged that the Appellant has relevant experience given that she was listed as meritorious for the position, the task of the Panel is to decide which applicant has a higher degree of the experience/skill required for the position; (f) the Appellant's submissions regarding the panel chair misrepresenting the appointee's role when announcing the outcome via email on 17 March 2022 is not relevant to the promotion decision the subject of this appeal and is outside the scope of this appeal because the decision was made before the email was sent and had no bearing on the decision; (g) nevertheless, there was no intent by the panel chair to conceal the appointee's employment history or to deceive anyone who received the email. The panel chair stated that it was an administrative error when writing the email and when brought to their attention, they corrected the details and ensured the Appellant was aware of her appeal rights. In any event, the selection report correctly reflects the appointee's experience and does not make any reference to any acting manager role; (h) the Appellant's submissions regarding the post selection feedback being minimal, verbal and general is also not relevant to the matters the Commission is required to decide; (i) the selection guide does not require a panel member to provide additional feedback to unsuccessful applicants and it is not a matter for the applicant to decide which panel member provides the feedback. The Panel's response to the Appellant was -- 7 of 11 -- 8 reasonable in the circumstances, and in no way disadvantaged the Appellant's opportunity for professional development and growth or reflects diminished transparency in the Panel's deliberations; (j) the Panel considered all available material in determining the order of merit. This included the written applications and the interview, which included a scenario based presentation and two additional questions; and (k) it is the Respondent's custom and practice to conduct referee checks at the time an applicant is recommended for appointment. Where it is intended that an order of merit will be drawn upon in the future, referee checks are conducted for a recommended appointee at the time the applicant is to be appointed. [22] The Respondent further submits that the requirements of the Selection and Recruitment Directive have been met, highlighting that: (a) the vacancy was advertised appropriately; (b) the merit principle and criteria were applied in order to determine the most meritorious applicant in accordance with cl 7.2 of the Selection and Recruitment Directive; (c) the selection reasoning and decision were clearly documented and able to be independently reviewed; (d) a referee check was conducted for the recommended appointee; and (e) post selection feedback was provided to the Appellant in a timely and constructive manner in accordance with cl 10 of the Selection and Recruitment Directive. Appellant's submissions in reply [23] The Appellant, in her submissions in reply, submits, in summary, that: (a) it is reasonable to consider that the misrepresentation of the appointee's role when announcing the outcome may have influenced the decision in circumstances where the Panel believed that the appointee held the position of acting manager; (b) the incumbent role of Principal Engagement Officer has no human resources delegation; (c) it is generally considered good practice to utilise direct prior knowledge and would be considered unfair if that knowledge was disregarded in consideration of the applicant in accordance with the Respondent's selection guideline; (d) the panel chair is aware that the Appellant has people management skills and experience; -- 8 of 11 -- 9 (e) the selection report includes a conflict of interest statement relating to prior knowledge of applicants in general, however, does not include a statement of personal knowledge as one of the selection tools. It is, therefore, reasonable to consider that personal knowledge of applicants has not been considered as part of the recruitment process; (f) the selection report is biased in the information in favour of the appointee; and (g) misleading and false information has been provided through the panel chair's advice and the Respondent's submissions. Consideration [24] The determination of this appeal requires an assessment of whether the recruitment and selection process was deficient and hence not fair and reasonable. It is important to note that a process does not have to be perfect in order for it to be considered reasonable. [25] The first ground outlined in the appeal notice by the Appellant was that an 'appropriate process was not followed and inequitable consideration of past performance and management level experience occurred', influencing the outcome. The Panel determined that the Appellant demonstrated adequate skills and experience related to the requirements of the position and was consequently listed as meritorious for the position. The Panel ultimately determined that, comparatively, the appointee demonstrated a higher degree of merit and articulated her high-level skills and experience including outcomes, deliverables and achievements as they relate to all the requirements of the position. The Appellant submits the selection report disregarded her 'large volume of highly quality outcomes' within her resume. I am not persuaded that the Appellant's resume was disregarded simply because all aspects were not referred to in the selection report. The fact that particular skills or experiences are not mentioned in the selection report does not indicate that they were not considered. The Panel's comments on the selection report regarding the written application and the interview demonstrate that each applicant was assessed fairly with particular strengths or weaknesses noted. [26] The second ground of appeal was that the panel chair misrepresented the appointee's current role when announcing the process outcome. The Appellant submits that the panel chair introduced the appointee to the work unit by asserting that the appointee held a substantive position at a level higher and this action was intentionally misleading. The Appellant's submissions indicate that the appointee may have been in the acting manager role for a period, however not during the recruitment period. The Respondent submits that the email sent by the panel chair contained an administrative error which was corrected upon being brought to their attention. The Appellant was understandably concerned that the Panel was under the impression during the selection process that the appointee had held the role as indicated in the email. This does not appear to be the case, with the selection report making no reference to any acting manager role and correctly outlines the appointee's experience. The email was sent by the panel chair after the decision had been made and so did not form part of the selection process. I am satisfied that the email represented an administrative mistake by the panel chair rather than a misapprehension of merit by the Panel. -- 9 of 11 -- 10 [27] The third ground of appeal was that the post selection feedback was verbal, general and did not provide constructive advice identifying how the Appellant could improve on her performance in future interviews. The Appellant submits that when seeking further additional feedback by email, the Appellant was advised by a panel member that it was inappropriate and could bring the process into question. The Appellant contends that such suggestion disadvantages the Appellant's opportunity for professional development and growth and diminishes transparency regarding the Panel's deliberation. The Respondent denies that the comments attributed to the panel member were made. Regardless, the adequacy of feedback is not a consideration for the purposes of determining if a selection process was fair and reasonable. Other matters [28] The Appellant submits that the selection report is biased in favour of the appointee. One would expect that the information recorded on a selection report would reflect the reasons that an applicant was deemed more meritorious than the other applicants. This information is evidence of the superior merit of the appointee rather than evidence of bias. [29] The Appellant takes issue with her nominated referees not being contacted to allow the Panel to 'separate the list of merit between the appointee and the Appellant'. There is no requirement that referees be contacted prior to a decision to appoint the appointee. Clause 8.3 of the Recruitment and Selection Directive provides that referee checking must be conducted in relation to the applicant recommended for appointment however referee checking for other applicants is at the discretion of the Panel. [30] The Appellant's submission that she received verbal feedback that she 'performs her functions at a standard well above that of the AO6 role' reflects well upon her work performance. This feedback, however, does not indicate that the selection process was deficient nor that the appointee was not meritorious. [31] The Appellant submits that the panel chair was her direct supervisor and was aware that she had people management skills. The Appellant submits that the prior knowledge of applicants was not outlined as a selection tool in the selection report and hence this prior knowledge was not considered. Although prior knowledge may be considered as outlined in cl 1.3 of the Respondent's selection guideline as appropriate, it is up to the panel member to determine what weight to place on this knowledge. If the information is not negative, it is not necessary for prior knowledge to be put to the applicant or included as a selection tool. To include 'prior knowledge' as a separate selection tool would prejudice those applicants with whom the panel do not have prior knowledge. [32] The Appellant submits that management experience was given greater weight than leadership experience, submitting that she is 'equally likely to be considered the most meritorious under a number of alternative requirements of the role'. The comparative statements in the selection report demonstrate that both management and leadership criteria were given consideration by the Panel, along with other criteria. The section of the position profile titled 'what we are looking for' states that both leadership and people management skills are requirements of the position. It was not unreasonable for the Panel to give weight to these skills when assessing each applicant. The selection report outlined -- 10 of 11 -- 11 each panel member's assessment of the Appellant's merit for both the application and interview and outlined the following overall comparative: In the overall assessment the panel agreed that Sharon provided an adequate structure and framework to her responses. They agreed that while she missed some aspects of the questions including drawing on previous examples for the first 100 days, there was solid performance demonstrated. The panel felt that there was a substantial gap between the background and expertise [A and B] showed with their high level of skills, feeling that they both deftly demonstrated how they would achieve results in this role. The panel agreed that [A and B] were considerably more suitable than Sharon as they showed greater capacity across the role requirements comparably. The panel deemed Sharon suitable for the role however meritorious in their place on the Order of Merit. [33] The selection report outlines the basis upon which the selection was made which, in my view, was open to the panel members. I am satisfied that the promotion decision was made on the basis of merit and there is no evidence that the selection process was deficient. Consequently, the decision was fair and reasonable. Conclusion [34] After consideration of the material before me, I find that the process of recruitment and selection was conducted in accordance with the Recruitment and Selection Directive and the PS Act. [35] As no deficiency in the process was identified, I am satisfied that the process was fair and reasonable. Order [36] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 11 of 11 --